Overview
The Bill as introduced sets up a scheme to make financial payments ("redress payments") to survivors of historical child abuse in care in Scotland. In some circumstances where the survivor has died, these can be paid to their partner or children. The Bill sets up a new independent public body, Redress Scotland, to make decisions about payments. The scheme replaces an interim scheme called the advance payment scheme.
The Bill allows organisations involved with residential care of children in the past to pay financial contributions to the scheme. In return, survivors who accept a redress payment will have to agree not to take legal action against these organisations or the Scottish Government.
The Bill also provides survivors of abuse with other practical and emotional support.
You can find out more in the Explanatory Notes that explains the Bill.
Why the Bill was created
Many children in care in Scotland in the past were not treated with love or with respect. They were abused by those responsible for their care.
Survivors of historical abuse in care have campaigned for redress. They want, and deserve, to be listened to, heard and believed. Making redress payments is an important part of dealing with the wrongs of the past.
The Bill aims to provide practical recognition of the harm caused by historical child abuse in care in Scotland. The Bill aims to treat survivors with dignity and respect. It is part of facing up to the wrongs of the past with compassion.
As well as the Bill, other actions are being taken to support survivors of historical child abuse. These include apologies and other forms of support.
Organisations which were responsible for the care of children at the time of the abuse are being asked to contribute to the scheme. This is what survivors have said that they want. It also allows those organisations to help deal with the wrongs of the past.
You can find out more in the Policy Memorandum document that explains the Bill.
The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently at Stage 2
Introduced
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Committees involved in this Bill
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
The Convener
Our second agenda item is two evidence sessions on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome from the Scottish Government’s redress, relations and response division Donald Henderson, who is the deputy director, Paul Beaton, who is the unit head, and Lisa McCloy, who is the bill team leader; and from the Government’s legal directorate Barry McCaffrey, who is a lawyer.
There will be no opening statement, so we will move directly to questions.
Daniel Johnson (Edinburgh Southern) (Lab)
I am sure that the bill team will agree that, for the legislation to be ultimately successful, we need to ensure that the right decisions are made for the right reasons in the right way. As it stands, it is difficult to have confidence that that will be the case, because the bill does not set out the criteria or the process—it leaves that to guidance. What are your reflections on that? What should we expect to come forward on those matters?
Donald Henderson (Scottish Government)
As you know, the bill sets out at a high level the factors that need to be taken into account by redress Scotland in making awards. More detail needs to be fleshed out. We would expect to provide materials to you before the end of the stage 1 proceedings, to allow the Parliament to step beyond the high-level principles.
It is vital that this work is done correctly. In addition to making redress payments, we are trying to address not only the failures that were made over many decades in allowing the abuse to happen and persist, but the treatment of too many survivors afterwards, who have felt ignored and belittled by society. If we do not have a scheme that addresses their needs, including an assessment framework, we will not have achieved our aim. More detail is undoubtedly needed, and we aim to have it with the committee before the end of stage 1.
Daniel Johnson
The only criterion that I understand is currently in the bill is that the decisions
“must have regard to the nature, severity, frequency and duration of the abuse”.
There is no mention of the consequences, the costs or the wider social impact, nor is there any requirement to have regard to whether those incidents could or should have been avoided. Those are clearly things that, at the very least, require clarification. Why are those high-level principles not in the bill?
Donald Henderson
The bill is intended to pick up activity—crimes—that should not have been going on in the first place. We are not trying to deal with activity that was perfectly legal and acceptable at the time, and we are not designing a scheme that is intended to replace the civil courts, which have a place in assessing the on-going impact on loss of earnings, for instance. That is not part of the redress scheme.
We will look at the nature and frequency of the abuse that took place, as you mentioned. The guidance that we produce, which we will discuss with survivors, and the work that we are doing with psychologists who are advising us will flesh out those high-level principles as we build the approach that redress Scotland will take in looking at individual applications and the circumstances behind those in order to settle on an award level.
Daniel Johnson
Given the broad scope that redress Scotland will have to develop assessment processes and criteria, even given the guidance that you have set out, would it not be a good idea to have an independent chair who is separate from the chief executive? I understand that the bill combines those two roles. Is good governance not absolutely critical, given the scope that redress Scotland will have?
Donald Henderson
I certainly agree that good governance will be critical. Alongside that, independence from the Government is also critical, which is why we have protected redress Scotland from ministers having any involvement in decisions on individual applications.
In order to set up the scheme quickly, we propose that the administration be done by the Scottish Government and that that arm of the Scottish Government be instructed by redress Scotland. That means that redress Scotland will be very small and the bulk of the work will continue to be done by staff in the Scottish Government.
We can continue to talk about that. Our conclusion was that, because redress Scotland will be so small, having a separate chief executive and chair was not the right approach. However, there will be other views on that and we will listen to them and learn.
Daniel Johnson
I am not sure that I understand why scale alters the requirement for good governance, but I will leave it there.
Beatrice Wishart (Shetland Islands) (LD)
Good morning, panel. My connection dropped out briefly, so I hope that I will not be repeating the questions that Daniel Johnson asked—I do not think that I will.
My questions are about applicants who have convictions for serious criminal offences. There are differing views about the proposal that compensation should not be awarded to a survivor who has a criminal record for a significant offence. We now know that unresolved childhood trauma can lead to offending behaviour, so what account was taken of that understanding in the decision not to offer redress payment where it would be
“contrary to the public interest”
due to the applicant having been convicted of a serious criminal offence and
“sentenced to imprisonment for a term of 5 years or more”?
Lisa McCloy (Scottish Government)
That is a good question. We recognise that that is a difficult and sensitive aspect of the bill, and we know that there are varied but strongly held and opposing views on it. We have listened to those views throughout the consultation, and we will continue to listen to the evidence that the committee hears on that aspect of the bill.
In the bill, we have set out what we think is a proportionate response to an incredibly complex issue. It is important to note that there is no blanket presumption or exclusion in the bill to prevent redress payments being made to people with criminal convictions, including serious criminal convictions. However, there is an acknowledgment of some people’s concern about redress payments, which are obviously to be made in relation to abuse, going to those who have gone on to commit very serious crimes—particularly crimes of abuse.
The bill takes the position that the independent decision makers of redress Scotland will have an opportunity to look at cases on an individual basis to see whether there is a public interest argument not to make a redress payment in such cases. The bar is deliberately set high, and that power will be triggered only when applicants have convictions for murder, rape or serious sexual or violent offences for which they received a sentence of imprisonment of five years or more. I emphasise that there is no presumption to use that power and no blanket exclusion of those applicants. They would also have a right to review decisions that were made by the independent decision-making body, redress Scotland.
The other point to note is that applicants with very serious previous convictions would still be eligible for the elements of non-financial redress that will be offered by the scheme.
Beatrice Wishart
Thank you for that. Let us turn to support for legal advice. How will support for legal fees and costs that applicants might incur in trying to find evidence work in practice?
Lisa McCloy
We recognise that support is an important aspect of any redress scheme and that some applicants will want it. The support that will be available will vary according to what the applicant needs or wants assistance with. We recognise that there is an obligation to ensure that the scheme is as accessible as possible, and we are working with partners to make sure that information on the scheme is in accessible formats and so on.
We also recognise that applicants might require practical support to apply for redress, such as support to access records. Another important aspect of the scheme is that we recognise that survivors might require emotional support to apply, because, for some, applying for redress could re-trigger difficult aspects of a survivor’s past. There will be emotional support to assist survivors who are confronting that.
In terms of support for legal aspects, we understand that some applicants will want legal advice from the outset, but it is important to note that we are trying to design a scheme in which that will not be necessary. There will be a point in the survivor’s application at which we will strongly advise that advice is given before acceptance of a payment—that relates to the signing of a waiver, which we may come on to discuss separately.
10:30To focus on the provision and funding of legal advice for the moment, we have looked at what happened in other redress schemes, and we are aware that legal fees can escalate in some of them. That is not something that we want for this scheme—we want the majority of the money to go to survivors, although we do respect that there is a need for independent legal advice. We are therefore proposing that ceiling limits or caps are placed on the legal advice, to try to control the legal expenses of the scheme. However, we recognise that there will be cases that are more complex than the fee will allow for, so there is a mechanism in the bill for solicitors to apply to exceed the ceiling and a mechanism to review decisions on whether to allow someone to exceed the fees.
Iain Gray (East Lothian) (Lab)
I will ask about the waiver. The bill means that those survivors who avail themselves of the redress scheme will have to sign a waiver giving up their rights to pursue compensation in the civil courts. When the cabinet secretary introduced the bill in Parliament, he made it clear that the reason was to use that incentive to encourage the institutions that were responsible for historical abuse to contribute to the fund from which redress payments would be made. Can the bill team see that, from the point of view of survivors, it would appear that the interests of the institutions that were responsible for their abuse have been put ahead of their interests?
Paul Beaton (Scottish Government)
It might be helpful if I set out a little about what the waiver is designed to offer for survivors, as well as for providers. The scheme that is proposed in the bill looks to create a national collective endeavour, which, as you say, encourages those who may be responsible for abuse in the past to step forward and to acknowledge and respond to survivors in a way that does not require them to go to court. It is designed to give survivors a choice as to whether they would prefer to pursue litigation or proceed through redress. It is not a choice that is available to all, but it would be for the majority.
Through previous consultation and work with survivors, it has been made very clear that contributions from organisations are an important part of the scheme’s acting in that collective way. The waiver is the most effective way of achieving that. It has been used in the majority of redress schemes worldwide, particularly where contributions are in play. There should be no suggestion that the operation of the waiver can silence survivors—those who prefer their day in court can absolutely proceed on that basis. There is no sense that participation in the redress scheme involves anything like a non-disclosure agreement, and participation does not prevent survivors from discussing their experience privately or publicly.
We have just touched on the issue of independent legal advice regarding the decision on whether to accept a redress payment. The waiver will be signed only at the end of the process, once the survivor is clear about what redress Scotland’s proposal is and the organisations to which the waiver will apply.
As part of that national collective endeavour, it is fair to acknowledge those organisations that find a way to play their part in this. In encouraging them to do so, it is appropriate that they have the opportunity to fund payments to survivors, to offer that sense of acceptance and participation and, as I say, to face up to their historical legacy as part of that national endeavour rather than requiring survivors to receive it through another mechanism. Absolutely, we know that there are different views on that, and the matter has been given careful consideration as we have developed the bill. We will continue to listen closely to the evidence as it comes forward in the coming weeks.
I am happy to take any follow-up questions on that, as it is a crucial matter.
Iain Gray
We all understand that survivors wish to see these institutions playing their part in contributing to the redress fund, but they would want them to do that because of their historic guilt rather than as a good financial option on their part, which is really the argument that is being made here.
You said that survivors will be able to pursue the redress scheme and will only have to decide once they know what the outcome of that process is whether they accept that and, at that point, whether they sign their waiver. That will put survivors in an almost impossible position, will it not? In a hypothetical case in which a survivor has been told that the redress scheme will award them the maximum of £80,000, they will then have to decide whether to accept that as redress and give up their right to civil justice or reject it and go to the civil courts where, of course, they will not know what the outcome would be. They might feel that they have strong evidence and will receive a greater level of redress from the civil court, but they will not know that until they have gone through the process. Can you see that we are potentially putting survivors in a difficult, perhaps impossible, situation by asking them to make that decision at that point?
Paul Beaton
You are absolutely right to highlight the uncertainty of the civil court process. The redress scheme is designed very much for the majority of survivors, but we completely accept that there will be survivors whose experience, evidence or preference might be to pursue their position in court, but that might not be the case for all. The redress scheme is designed to offer something different and to allow people to exercise that choice.
However, you are right that there will be a choice to make at the end of the redress process and there is no certainty about what might emerge from the court at that stage.
Iain Gray
Surely, the way out of that dilemma is to allow survivors to pursue both routes. That is in the interests of the survivors, is it not?
Paul Beaton
It would be possible to have a redress scheme that proceeds on that basis. We have provision for legal advice, as we have discussed. There is also the point about contributions. If we are looking for organisations to step forward and seek to play an active part in this, the existence and operation of the waiver within the scheme as designed is a critical factor.
It is not for me to speak on behalf of any organisations, but it is clear that their considerations about whether to participate and, if so, to what extent, are on-going and are based on the scheme as it is designed. It will be a really interesting area of evidence as we go through the following weeks. There is, however, no question but that the waiver is right at the top of the list of issues that organisations are looking at when they consider whether to be part of this.
I absolutely share the wish that organisations would want to play their part and make contributions on the basis of the historical legacy alone. That may prove to be the case with some, but I would not be as optimistic across the range of organisations that we are looking at, representing 70 years of operation of the care system in Scotland.
Iain Gray
Have those institutions—
The Convener
Sorry, Mr Gray—Mr Henderson wants to come in, and we then need to move on to questions from Jamie Greene, followed by Alex Neil.
Donald Henderson
I emphasise that, in the Government’s estimation, it is not possible to produce a redress scheme that will cater equally for the very small number of potential £1 million civil law cases and for the enormous bulk of survivors who, if they were able to take a case at all, would end up with far lower settlement levels.
There will be people who, on the basis of legal advice and their own judgment, decide that they will get more in the civil courts. We want to leave that choice for survivors as late in the process as we possibly can, and we want to allow them to lead and conclude civil cases before they find out whether they are successful under the scheme. We are giving as much choice as we can to survivors who already have choice, by introducing a mechanism for survivors who cannot bring civil litigation at all because they are—[Inaudible.]—and for those who know that they have no evidence, as it is sometimes difficult to gather evidence from past decades, or who have evidence but are certain that the last thing that they want to do is go through the type of disclosure processes that are necessary in a civil case.
Some will be involved but in quite small numbers, and we are leaving the choice for them as late in the process as we possibly can.
Jamie Greene (West Scotland) (Con)
Good morning, panel. I will focus on the financial aspects. For the benefit of those people watching the session, who will not have reviewed all the documents to which we, as MSPs, have access, can somebody outline the estimated cost of setting up and operating the scheme?
What will be the on-going cost per annum of running it, aside from the compensation money? Can the panel indicate how they arrived at the projected forecast for the levels of compensation that will be paid out? What assumptions and estimates were made, and how will those translate into reality when people start to apply for the scheme?
I appreciate that we do not know how many people will apply, but surely some thought has gone into the potential cost of pay-outs once the scheme opens.
Donald Henderson
My colleague Paul Beaton can go into some of the detail on that. Our overall estimate is £400 million for the scheme as a whole, but—as you recognise in your question—this is intensely difficult territory in which to estimate the final number of applicants and the average award that would be made.
In the considerable research that we have conducted into other schemes running internationally, we have not found a single case in which the initial estimates were correct. We have spoken to people in Ireland who are capable, accomplished civil servants, but their original estimates were out by multiples. We benefit from their experience and from the experience of colleagues in other countries. Our central estimate is £400 million, but there is inevitably wide uncertainty in that.
Paul Beaton
The uncertainties that Donald Henderson mentioned are live. We have tried to look as carefully as we can to see how many survivors might come forward to the scheme. You will see from the documentation that our central estimate is for 11,000 potential applicants. However, we accept that that will be inaccurate to one degree or another and that we will have to keep a close watch on it. We have made our estimate by considering the totality of those who have been in care over the period covered by the scheme, which, as things stand in the bill, goes up to 2004. Within living memory, that is perhaps 70 years of a care landscape, which changed fundamentally several different times over those years.
10:45We have worked with Scottish Government analytical colleagues and with the Government Actuary’s Department in London to try to understand what those numbers could mean historically in respect of the different sectors and institutions that were providing care over that time. There is some really good research on the numbers of children in care. Interestingly, the number of children in care is fairly consistent, but they were in very different places by the end of the period covered by the scheme. It is incredibly complicated.
The work that we were able to do with the Government Actuary’s Department, looking at schemes elsewhere and the experience of our own advance payment scheme—500 applications or so—has given us some really good information, particularly around the earlier part of the scheme. We have also looked at the experience of schemes elsewhere in relation to their distribution of payment levels. We have done that without any sense of an objective or target. We are fortunate that we have a clear commitment that redress Scotland will take independent decisions and that survivors will receive payments decided upon through that process, rather than be subject to a more normal sense of financial drive. That is a very positive position to be in. However, it exacerbates the uncertainty.
Jamie Greene
I am sorry to interject, but that is rather a lengthy answer and I have some supplementary questions.
The Convener
Only one supplementary question, please, Jamie—perhaps you can wrap them together.
Jamie Greene
I will try, convener. However, they are important issues and unfortunately my initial question was not really answered. I want to press the point, although I am happy to receive an answer in writing if that would be easier, because I appreciate that there is a lot of detail. My first question was this: what will be the set-up and running costs? Those are fixed costs, which you must be able to estimate now, notwithstanding the levels of compensation.
I am concerned by the suggestion that you do not really know the compensation costs, given that other schemes have been massively out of kilter in their estimates. Could the £400 million easily become £800 million if 20,000 applications are made? What percentage of the compensation paid out will be paid out by the Government as opposed to the institutions that will contribute to the scheme? Has there been any indication of the levels or any caps on moneys available from the institutions that will participate in the scheme? How much will those institutions make available to pay compensation?
Paul Beaton
I can answer that element briefly, and then Donald Henderson and Lisa McCloy can answer on other matters.
The set-up and on-going programme costs are set out in the financial memorandum. As discussed in the earlier answer, the intention has been to provide a good balance of independence and efficiency in the set-up, to ensure that redress Scotland has the right structure and decision-making powers without taking anything away from the primacy of payments to survivors.
Discussions on contributions are on-going. The point about having a waiver bears repetition, because it is about organisations finding ways to participate in the scheme. Mr Greene is right. The issue of affordability is being raised, particularly in respect of the protection of current services. As you will know from the bill, we are working on a set of principles around fair and meaningful contributions to the scheme that will take into account those aspects, and we are looking at issues of transparency as well. We want to get that right because we do not want to do anything that unreasonably jeopardises an organisation’s existence and we certainly would not wish the scheme to have an adverse effect on any vulnerable person today. However, we clearly need to encourage significant contributions from organisations in the most effective way that we can. Again, that is where the waiver and the package as a whole comes in.
I am conscious of the time, so I will give way to colleagues to respond to other matters in your question.
Lisa McCloy
I will briefly answer the questions about the set-up and the on-going costs of implementation and delivery. As Paul Beaton said, we set those out as best we could in the financial memorandum and we have kept a keen eye on them in designing the delivery vehicle of redress Scotland, which is why we have gone for a small, independent decision-making body supported by the Government administrating the scheme. In that way, we can keep costs down and there is access to shared resources and services.
The financial memorandum indicates some of the different issues that we have thought about in terms of the programme costs, including recruitment and staffing, the digital and information and communications technology estate, other services and communications and engagement, because it will be important that we reach the survivors that we need to in order to be inclusive about those who can apply to the scheme. We estimate in the financial memorandum that the costs could be up to £34 million across the four years for implementation and delivery, which would not include money for legal fees or non-financial redress.
I do not know whether that is helpful, but we can follow up later on anything else.
Donald Henderson
I am grateful to Lisa McCloy for those details. That £34 million figure is the answer to Mr Greene’s question—[Inaudible.] A lot is dependent on volume, however, because the actual set-up costs are pretty marginal. The real costs are in relation to the numbers of people who will need to be appointed through the public appointment process to make the decisions, and to the scale of the back-office activity in the Scottish Government. If we are wildly overestimating and there are only 2,000 applicants, we will clearly need to employ a lot fewer people; if there are 20,000 applicants, we will need to employ more people. However, there would be proportionate increases or reductions accordingly.
Alex Neil (Airdrie and Shotts) (SNP)
As I understand it, the total costs have four elements: a £400 million estimate for compensation; £34 million in basic administration of the scheme; legal fees, which are indeterminate at present; and non-financial support. Adding all that up, what percentage of those costs do you anticipate being funded by the offending institution and what level of commitment can be got on that at the moment?
Donald Henderson
Others can come in with more detail if time allows, but I can say that it is too early in the process for us to have those numbers. Understandably, the conversations that we are having with organisations are dependent in turn on the shape of the bill that Parliament passes next March. Will it be passed as introduced or will there have been amendments to it? The reality is that we will not have signatures on bits of paper before organisations know the bill’s final shape. A number of promising conversations are going on with providers, many of whom we know are keen to find a way to contribute, but the outcome depends on the work that we and they have embarked on for the parliamentary process.
Alex Neil
So, basically, we are being asked to pass a bill with a waiver provision that is supposed to incentivise the offending organisations, many of which are very rich and which I assume—given what Donald Henderson has said—have still not made any commitment in principle to significantly or even partially fund the costs. Even though those organisations have not made even a ballpark commitment, we are saying to survivors, “Take the money, but on condition that you don’t pursue these organisations for civil action.” Why should we pass a bill that is based on a wing-and-a-prayer hope that those institutions will live up to their responsibilities when, to date, many of them have quite blatantly not done so?
Donald Henderson
I am not sure whether it constitutes agreement in principle, but, as I mentioned, there are organisations that are very keen to find a way to join the scheme.
When it comes to a survivor’s application, it would be at the very end of that process that the applicant would be invited to sign a waiver. At that point, they would know exactly who had contributed to—
Alex Neil
I am sorry, Donald, but once the bill has been passed, what leverage will you have over those organisations? We are being asked to decide whether to recommend to the Parliament that it should support all the principles in the bill. One of the key principles is the concept of giving people a choice, whereby if they take the money, they will waive their right to civil action. Why should we vote for that at stage 1 when there is no guarantee even in principle that the organisations in question would live up to their responsibility? We are not talking about giving those organisations an incentive; we are talking about letting them away with what they have done for all those years. Surely, we are entitled to have some kind of commitment before we can be expected to agree to the general principles of the bill.
Donald Henderson
If an organisation fails to make a fair and meaningful contribution in the first place, or if it fails to make a fair and meaningful contribution that it has agreed, it will not be subject to the waiver and the question will not come up. It will have made the decision that it would prefer to have cases go through the civil courts.
Alex Neil
But the fundamental point is that, as a legislator, I do not want to know only that the organisations will make some kind of contribution; I want to know that they will make proportionate contributions, because they are the source of the problem. Their failure to protect the children concerned is the source of the problem—that is why we are here today. Quite frankly, a wing and a prayer does not do it.
Donald Henderson
I think that, sadly, we are here today because of wider societal and regulatory failures. There was not an understanding among regulators, which is why the Scottish Government has its responsibilities. There was not adequate scrutiny or adequate inspection and follow-up. By and large, it was other people, such as people in Government or our predecessors in Government, who were—
Alex Neil
That is like saying that we should help—
The Convener
I am sorry, Mr Neil. I understand that you want to pursue your questioning, but Paul Beaton and Lisa McCloy have both indicated that they want to answer. I will let them to do so, after which I will move on to Ms Mackay and Mr Gibson. I will come back to you at the end if there is time.
Paul Beaton
I hope that it is helpful if I emphasise that the protection of waiver will be in place only if the organisation concerned is making fair and meaningful contributions to the scheme. As I said, we are working on the principles of that at the moment. I hope that it will be reassuring for the committee to hear that one of the core elements that we are proceeding with is that we are looking to organisations to pay the equivalent of the individually assessed payments for survivors who come forward to the scheme, over and above a starting contribution from the Government to reflect the wide systemic concern that Donald Henderson referred to.
Therefore, the contribution that is made will be proportionate. It will relate directly to survivors and to the decisions that are taken by redress Scotland as to what is appropriate for survivors. If that is not forthcoming, and if the delivery does not begin in advance of redress decisions being determined, the protection—the waiver—does not apply, and survivors can continue to raise legal action in addition to receiving the redress payment. No survivor will be disadvantaged by not receiving a redress payment at any stage.
11:00Lisa McCloy
As Paul Beaton said, the waiver extends only to those who have agreed to make fair and meaningful contributions; it is not a blanket prohibition on all who accept redress payments against any action in relation to the abuse that they suffered. Where there is a party to that abuse who has not made a contribution, a survivor will still be able to raise a civil action against them, regardless of their having received a redress payment.
That is not how all redress schemes operate—some schemes have a blanket prohibition on civil action should someone choose to receive a redress payment rather than going to court. However, we have gone for a model that means that survivors would be unable to raise actions only against those who make fair and meaningful contributions to the scheme. We understand the need for transparency around what makes up a fair and meaningful contribution. Donald Henderson may have something to add on that.
The Convener
We will move to a question from Rona Mackay, but if Donald Henderson wants to comment on that point in his answer, that would be fine.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
To follow on from Alex Neil’s line of questioning regarding contributions, this is a historical redress scheme, and it strikes me that a lot of the care organisations and charities that would have been involved or culpable at that time will no longer exist. Has an assessment been done of how many of those organisations are no longer in operation and what financial impact that will have on the compensation scheme?
Paul Beaton
That process is on-going and is not yet final. As I said earlier, we are looking at a relentlessly complex picture of multiple responsibilities held by different actors and agents in different sectors over different periods of time. Some of the organisations from which contributions are being sought continue to provide vital services for vulnerable people today, some are reconstituted in a different form, some are no longer operating in Scotland and, as you said, some no longer exist. We will have to make sure that survivors continue to receive the redress payments to which they are entitled, irrespective of the status of an organisation.
We have had discussions with a broad range of organisations thus far, including a number of trusts and other similar bodies that hold legacy responsibility for organisations that no longer exist. However, the conclusion to those discussions, and the ultimate financial impact, will depend on the survivors who come forward to the scheme and the organisations that are named in the applications.
As we move forward, we are looking to have discussions with and seek contributions from any organisation that is facing up to a historical legacy in this space, but the process is very much on-going.
Rona Mackay
Do you have a sense of how many of those organisations no longer exist?
Paul Beaton
To be honest, I do not. We have a number of different databases, as you would expect, and there are literally hundreds of names of organisations that may have had a role in the care system over the post-war period, by and large. We have made contact with all organisations that are subject to the Scottish child abuse inquiry, and we are now reaching out to others that may, although we cannot definitively say, have an interest in the process. Regrettably, therefore, I do not know how many organisations no longer exist, but we will continue to look into that.
Kenneth Gibson (Cunninghame North) (SNP)
Good morning, panel. I notice that up to 11,000 people could apply for the payments. However, in the Republic of Ireland, which has a smaller population than Scotland, there were more than 15,000 applicants. What is the difference between Scotland and Ireland in terms of the pool of people who could apply? In other words, how many people were in care for the time period that we are looking at and what proportion of them does the panel believe were abused?
Donald Henderson
I do not know whether one of my colleagues has detailed figures on the number of people in care in Scotland to hand. If we do not have that, we will write to the committee. As Mr Beaton said, the number is relatively stable across the years—surprisingly so—but the distribution between foster care, residential care and other settings varies significantly.
Each country that has established a redress scheme has been dealing with its own circumstances. You are right that Ireland’s population is about 4 million as against our 5 or 5.5 million, but the circumstances there were quite different from ours. Although the regulatory procedures in Scotland did not work as well in past decades as we would now wish that they had, by and large we did have them. In Ireland, there was a different set-up for the provision and inspection of education. For instance, Ireland lost a case in the European Court of Human Rights in 2014 that related to historical abuse—the O’Keeffe case—largely on the basis that the state just did not have the instruments that it should have had, rather than that they did not work. That is but an illustration of the fact that each country needs to look at its own circumstances, because those inevitably vary from one to another. We have learned a huge amount from colleagues in Ireland, but the historical situation in Scotland was not the same and therefore our answers differ.
Kenneth Gibson
The answer seems to be that we do not know what proportion of the people who were in care in Scotland were subject to abuse, as I am not getting a specific answer. I would like that information, if you can provide it.
Other members have asked about organisations whose lack of care contributed to the problem that we are trying to address, but what is happening about foster parents who may have abused people who were in their care? Will they be expected to make any payments through this legislation?
Donald Henderson
No. Children who were in foster care are eligible to make applications, but we are not even attempting to have conversations with individual foster carers. If survivors want to take civil action, that route is open to them, but we are not including foster carers in any potential contribution to the scheme. We are, of course, talking to the Convention of Scottish Local Authorities and through it to local authorities in relation to the wide variety of responsibilities that they had over the seven or eight decades that we are looking at. One of those responsibilities was for the foster care network.
Kenneth Gibson
Is that not a flaw in the bill? You are talking about institutions being responsible but, surely, if someone is personally and directly responsible for abusing an individual, they should not be allowed to get off scot free. That seems to me to be a weakness in the bill.
Donald Henderson
Any allegations of criminal offences or criminal cases can, of course, continue to be brought.
Kenneth Gibson
I appreciate that.
Donald Henderson
Cases can continue, if the survivor wants them to, and those can include individual foster carers. We have made a judgment on the basis of diminishing returns that, given the historical period that we are looking at, we would spend more on finding people in order to have a financial conversation with them than we would get from them, so there would be no value to doing that.
Kenneth Gibson
On the evidential threshold, there is a real difference between those who are looking for the higher payments, who have to present documentary evidence, and those who accept the minimum £10,000 payment and who make, in effect, an oral declaration for that. If someone has suffered the more serious type of abuse, they have to come up with much more detailed evidence.
Is there not a huge gulf between the £10,000 award and the awards of £20,000, £40,000 and £80,000 when it comes to the proof that individuals are expected to provide—for what are often fairly modest amounts, given that they have suffered a lifetime of trauma as a result of what happened to them in care?
Donald Henderson
The structure of fixed-rate payments and individually assessed payments comes through work that we have done with survivors through the interaction action plan review group. Again, that was as part of trying to give survivors choice.
For an individually assessed payment application, redress Scotland will look at everything that the survivor is able to bring. That will certainly have to include a personal statement, but it can also include health records, complaints to police and wider environmental information about the children’s home that they were in and any convictions relating to it—the wide totality of evidence that redress Scotland can find or which the survivor can bring to bear. All of that will be looked at and assessed.
When we have walked survivors through the advance payment scheme, which is very much simpler and has the equivalent of the fixed-rate payment, we have worked with them on proving that they were in care. Survivors have come to us thinking that they did not have evidence and we have helped them to find it. We have not rejected a single case because somebody could not establish that they were in care—sometimes very many decades ago. We have always found a way. That would be our intent for redress Scotland as well.
The Convener
I think that Ms McCloy wants to come in on that point as well.
Will you clarify that what was said in answer to Kenneth Gibson’s question about foster care would apply to an informal foster carer arrangement, but if somebody was placed in foster care by a local authority, or a social work department, that would be covered by the bill?
Lisa McCloy
Yes, that is right; I give that clarification. Private fostering arrangements are not covered by the bill, but local authority arrangements, as you have described, would be covered by the eligibility criteria.
I add to what Donald Henderson has said about evidence requirements. Evidence will be required for both fixed-rate and individually assessed payments. It is absolutely right to say that more evidence will be required for the individually assessed payments, given the type of assessment that will be carried out for those cases.
As Donald Henderson has mentioned, we want redress Scotland to be well informed in making its decisions, so it will be able to consider the information that is provided by the survivor. However, if the survivor wishes assistance to obtain information, there are powers in the bill to offer that assistance. That may include getting information from third parties. There is also a power to commission reports to assist the survivor in the process, whether that is through a psychological assessment or a medical report.
We have an understanding of the historical nature of the abuse that we are talking about, and of the difficulties over the adequacy of record keeping and in evidencing abuse of that sort. We will therefore be taking a flexible approach, so as to make sure that the scheme is robust and credible but does not set unduly onerous burdens on survivors in their access to redress.
11:15Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)
We have heard the phrase “fair and meaningful” a few times in the conversation about the contribution that might be made by organisations that had responsibility for children in the past, but I am not much clearer about what “fair and meaningful” means. Will you explain that?
You mentioned some of the reasons that organisations could give for not paying, one of which would be that the organisation was currently providing services that were useful. I do not dispute that that might be the case, but I am not sure why, morally, it gets the organisation round the issue of liability.
Will you also say more about how we get round the problem of an organisation arguing that although it has lots of resources they are all subject to restrictions that are contained in various bequests?
Paul Beaton
Discussions about what is fair and meaningful have been at the core of our work with organisations. I might ask Barry McCaffrey to talk about the law in respect of charity reform and restricted funds. We want to ensure that, if organisations are looking to play their part and make contributions, there are no barriers to their doing so—but Barry can speak a little about that, if time allows.
On the point about services, affordability and so on, I agree that the issue does not bypass responsibility or liability, as you said. There is absolutely no intention to dilute the sense of “fair” that we are looking for in this context.
The word “meaningful” is about trying to offer survivors choices, as we said. It has something to do with that collective national endeavour, whereby everyone has a role to play in the effort to face up to the past. In doing that, we are looking for people to contribute without there being formal findings of liability or a scheme that proceeds on that basis and without requiring people to go through litigation in a way that builds as much of that collective effort as it can do.
The word “fair” is really tightly tied to survivors who come forward to the scheme. The Government accepts that there is a need to demonstrate commitment to and acceptance of the broader responsibility—others have mentioned the local government complexity in that regard over the period that the scheme will cover. We are proceeding on the basis that, above and beyond the initial commitment and contribution, “fair” is about the organisation delivering the remainder of the individually assessed payments for survivors—that is a contribution for the benefit of survivors across the scheme, which is why the waiver is designed in the way that it is designed rather than more narrowly.
The point that you raise is also ripe for discussion as we go through the bill process. Although the phrase “fair and meaningful” is in the bill, transparency is key in that space, too. We need to reassure survivors about the basis on which contributions are made and about the certainty that they will be delivered.
Also, in respect of organisational matters, we want to encourage organisations to play their part and to be willing to participate and deliver contributions, rather than shying away from doing so, for other reasons. I hope that that will prove to be the case.
Barry McCaffrey (Scottish Government)
Dr Allan asked about bequests. We have engaged with the charity sector and the regulator; I suppose that the issues that we have been trying to address operate at two levels. In the context of general charity law, there are potential barriers to contributions that might be contrary to an organisation’s constitution or that do not meet the charity test; we have tried to address that in section 14, by removing any doubt about contributions from charitable bodies contravening charity law in any way.
The issue of bequests is slightly trickier. In section 15, we have taken an enabling power to explore that further. A lot of contributions to charities may be tied up in what are called restricted funds, which are for a specific purpose. We continue to engage with the charity sector and the charity regulator on that, but our idea is to bring forward regulations that, in a similar way to section 14, try to remove barriers that would otherwise be in the way of contributions to the fund from charitable bequests that are tied up in restricted funds.
Dr Allan
I have a related question about the other side of the equation. Keep me right, but my understanding is that the £10,000 payment option involves a simpler process and there is less need to explain things than with higher sums. How do we avoid a situation in which the people who find it most difficult to talk about what has happened to them feel that their only option, or the simplest option, is to go for the £10,000, regardless of the severity of the offences against them? How do we balance that? I appreciate that it is a difficult balancing act, but how do we avoid situations where the people who find it most difficult to talk about this stuff go for the simplest option?
Donald Henderson
That is a very important point. We have some advisers to the Government on advance payment for whom the first person that they have told about the abuse is one of my colleagues who supports that work. There is no easy answer to that question, but the provision of support is part of the answer to it. We have been careful to design the scheme so that an application, and a settled application, for a fixed-rate payment will not preclude the survivor coming back later in the lifetime of the scheme to open an individually assessed application if that is what they decide to do.
Because of the delicacy and sensitivity and the difficulties that survivors have faced, I am afraid that that still does not wholly answer the question, but we are always trying to find ways to give choice and maintain that choice for as long as we can in the process.
Lisa McCloy
I was going to make the same points as Donald Henderson. We are ensuring that we have provision to support applicants through the process, and we will learn from our experience with advance payments. Donald Henderson makes the important point that those who receive a fixed payment will later be able to apply for an individually assessed payment. We know that survivors sometimes have staged disclosure and that they sometimes want to test services to see how those services will meet their needs and how sensitive services can be to them. We hope that that approach will provide more choice.
Ross Greer (West Scotland) (Green)
Construction work has just begun immediately outside my office, so I apologise if my microphone picks up the jackhammer that has just started up.
I have questions on the next of kin payments. If a cohabitant is to be eligible ahead of a spouse through marriage or civil partnership, they need to have lived with the deceased survivor for at least six months. That seems like a proportionate way of indicating that the person was the deceased survivor’s partner at the point that the survivor passed. However, I seek clarification on whether there is a similar provision for the length of time that the cohabitant needs to have lived with the survivor for them to be eligible ahead of the survivor’s children.
Barry McCaffrey
We have taken a proportionate approach on cohabitants, and we have looked at other legislative frameworks. There is similar provision in the Burial and Cremation (Scotland) Act 2016 as to who can make arrangements on the death of a person.
On the more general point, in every case, the next of kin has to be the spouse, civil partner or cohabitant. They rank ahead of surviving children because it was felt that the partner of the deceased survivor should have first call on whether to make a next of kin application. The surviving children would come into play only if there was no one in that category.
Ross Greer
To clarify that, Mr McCaffrey, does the cohabitant need to have lived with the survivor for a minimum period for them to be ahead of the children? The scenario that I am thinking of is that they need to have lived with the survivor for at least six months to be ahead of that survivor’s spouse. If someone has lived with a survivor for a matter of weeks before they passed away, are they eligible ahead of that survivor’s children? Do they become a cohabitant and rank above the child, without a requirement for a minimum period of residency, as is required to come ahead of a spouse?
Barry McCaffrey
I will double-check, but I think that the answer is that they do not.
The Convener
Will you come back to us on that? Thank you.
Ross Greer
I have a brief technical question. The next of kin payment is a fixed payment of £10,000. Will the next of kin simply need to present evidence in exactly the same way as the survivor would have done, showing that their deceased partner was at whatever the setting was and when they were there and simply state that they were abused? They will not be required to provide any more information than a survivor would have had to, were they still alive.
Lisa McCloy
We recognise that the evidence that next of kin have access to can be a challenging area. However, your general understanding of the bill is correct. They would not have to produce anything over and above what a survivor would have to produce. We will have to look carefully at the requirements for evidence for next of kin. We expect that we will need more than simply hearsay evidence from next of kin applicants that the survivor experienced abuse. They may need to access a previous statement or account by the deceased survivor. It is important to note that the next of kin provision entitlement relates to the deceased survivor’s inability to access the redress scheme.
The Convener
Thank you, Ms McCloy. We have almost run out of time. I have a couple of final points, before we finish the evidence session. First, in relation to the definition of abuse, the bill refers to the time at which corporal punishment was administered. However, we would consider that to be abuse by today’s standards. How can survivors have confidence that abuse will be recognised and dealt with? Secondly, I would like to understand a bit more about what non-financial redress will look like. Mr Henderson wants to come in.
Donald Henderson
I will come in on those questions. On corporal punishment and the definition of abuse, our aim is not to criminalise behaviour that was perfectly legal and accepted at the time, bearing in mind that we are going back to activities that took place after the second world war and even before the second world war in some cases. Our aim is not to penalise what was perfectly normal in Scottish schooling, including in my own school, where one could get the belt, for instance. If it was the normal experience of schoolchildren in Scotland, corporal punishment does not, of itself, constitute abuse.
However, it is possible that corporal punishment could constitute abuse if there are extreme patterns. We are looking hard at the various regulations that were in place as regards what was acceptable in residential care, because the rules and regulations were often different there as compared with normal day schooling.
The principal point is that we are aiming to address behaviour that was illegal and unacceptable at the time, but was ignored, and was ignored for too long. The ignoring for too long becomes a part of the injury. That is what we are trying to address.
The Convener
Who would like to comment on non-financial redress?
Donald Henderson
I will start, and then others may be able to comment.
That links to the support element, because we know from survivors that for somebody to just sign a cheque, regardless of how efficiently that is done, is not the answer that they are looking for. They are looking for acknowledgement and an apology. I refer again to our experience from the advance payment scheme. I or one of my senior colleagues have written out a personal letter of apology to each survivor, because we know that that makes a difference. We have had stories come back about survivors reading that letter each night before they go to bed. It helps them to sleep because it is the first time that somebody in authority has listened to them and acknowledged that what went on should not have gone on and that public services need to respond to that. Acknowledgement and an apology are vital aspects alongside the financial redress, and link closely to the support element.
A great deal of this will be for redress Scotland, but our aim is to understand what each survivor wants, and the process should do as much as it can to deliver that, because the package that will help each survivor may be different. We need to listen to their voices.
The Convener
I am afraid that we have run out of time, as we have another panel coming in this morning. I thank everyone for their attendance.
I know that Mr McCaffrey wants to come back to us with an answer. I apologise to Mr Gray, Mr Greene and Mr Neil, all of whom wanted to continue a line of questioning. I am sure that the committee will follow that up by letter, and we look forward to receiving your responses.
I will suspend the meeting for five minutes to allow the panels to change over.
11:32 Meeting suspended.11:40 On resuming—
The Convener
We move to our second evidence session on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome Dr Maeve O’Rourke, who is a lecturer in human rights law and director of the bachelor of civil law, law and human rights programme at the National University of Ireland Galway.
We move straight to questions. What were the major lessons that were learned from the redress system in Ireland? What might you have done differently?
Dr Maeve O’Rourke (National University of Ireland Galway)
Thank you so much for having me. It is a real privilege and no small responsibility to be here—I take it extremely seriously.
It is worth stating that I consider the survivors of abuse to be the absolute experts. I will offer what I can from my limited experience of working for more than a decade in the area. Alongside being a barrister in child law, doing a PhD on the rights of older people to freedom from torture and ill treatment and on redress for such harms, and now being a lecturer, I have worked voluntarily between 10 and 20 hours a week for the past 10 years on issues relating to so-called historical abuse in Ireland.
In relation to what we can learn, I will speak to the two themes that were mentioned in the briefing papers. I have great knowledge of one theme and less, but still a considerable amount, on the other.
The first theme relates to the Irish Residential Institutions Redress Board, which was established in 2002, two years after the Commission to Inquire into Child Abuse began its proceedings. The two measures—the inquiry and the redress board—were prompted by an apology, in 1999, by former Taoiseach Bertie Ahern to survivors of child abuse in industrial and reformatory schools. In the previous evidence session, the Scottish Government officials talked a little bit about Ireland’s set up. In essence, those were state-funded and statutorily based institutions, but they were left to their own devices in terms of how they were run. Ultimately, the Commission to Inquire into Child Abuse’s report in 2009 found that abuse had been “endemic”. The board was set up following the Residential Institutions Redress Act 2002.
I have less knowledge in that area, but a lot of the Magdalen laundry survivors are also survivors of industrial schools, because teenage girls were transferred from them to Magdalen laundries, which is where most of my knowledge comes from.
A very positive aspect of the RIRB was that, at the outset, there was the promise to provide compensation that was commensurate with legal proceedings. As the committee will know, the compensation was going to be up to—and, in some cases, beyond—€300,000. As the briefing notes say, as it transpired, the average award was in the region of €62,000, so although it had been promised at the outset that there would be commensurate compensation, that did not end up being the case.
Some survivors have stated that the redress board’s procedures were deeply traumatising. It is very difficult to understand how exactly the redress board affected survivors, because there is what is known colloquially as the gagging clause—section 28(6)—of the 2002 act, which underpins the redress board. That section prohibits everybody, including survivors, from discussing an application to, or an award from, the redress board in any way that could possibly lead to the identification of an individual or institution involved in a complaint. It has operated as a massive chilling factor. The only voices that we hear are well supported by, for example, our national broadcaster, Raidió Teilifís Éireann, when it reports. However, such reporting is minimal.
11:45It is worth noting that the section 28(6) gagging order has never been legally acted on by the state. As I said, it has a massive chilling effect and it seems to be understood by the state to be not effective and, possibly, not constitutional. Unfortunately, that hampers our understanding of the impact of the procedures.
I made notes on the positive and negative aspects. When it comes to the redress board, I have to move on pretty quickly to the negatives, unfortunately. I will talk about the procedures, and then we can compare them to what I see in the Scottish bill.
The redress scheme was an ex gratia scheme and the underpinning legislation stated explicitly that an award could not be construed as a fault having been found against an institution or individual. Nonetheless, under the legislation and the guidelines, every person or institution that a survivor named in their application was entitled to a full right of reply. They were entitled to receive copies of all the survivor’s documentation and were entitled to respond to the board in writing with any evidence concerning the application that the relevant person considered appropriate. They were entitled to request the opportunity to cross-examine the survivor themselves, or through a legal representative, for one of three purposes, which were
“(i) correcting any mistake of fact or misstatement relating to or affecting the relevant person made in the application,
(ii) defending the relevant person in relation to any allegation or defamatory or untrue statement, made in the application, or
(iii) protecting and vindicating the personal and other rights of the relevant person”—
the “relevant person” being a person or a representative of an individual named. The only reference to rights in the entire act is in relation to the rights of the alleged wrongdoers.
As I said, it was more or less an ex gratia scheme and the legislation said that none of the documents that were provided to the redress board could ever be used in future criminal or civil proceedings. We have extremely strong defamation law in Ireland so, in my academic view, the procedures were wholly unnecessary and, as we can tell from the survivors who have spoken out and taken the risk of breaking the gagging order, they have had a massively traumatising impact. It is welcome to see that there does not seem to be anything comparable in the Scottish bill.
Another downside of the fact that, under the 2002 redress act, awards were accompanied by the gagging order was that—even though, strictly, it should not have had this effect—many survivors felt that they could not even go to the police. There have been no prosecutions to speak of in relation to the industrial and reformatory schools, and access to the records relating to those schools is problematic.
Last year, the Department of Education and Skills introduced the Retention of Records Bill 2019, which sought to seal entirely for at least the next 75 years—even from survivors—every single document that was gathered and held by the Commission to Inquire into Child Abuse and by the Residential Institutions Redress Board. I accept that arguments for publication of some records are stronger in relation to the commission’s state and other administrative documents, but when it comes to the redress board’s records, survivors have an entitlement, under the general data protection regulation, to their personal data, which does not seem to be recognised in the Retention of Records Bill.
I would like to discuss interpretation of the GDPR. I do not know to what extent, if any, this is a problem in Scotland, but there is certainly no understanding in Ireland of the concept of mixed personal data and a survivor having an equal right of access to data that belongs to somebody else if it is also the survivor’s data—that is, information about what somebody did to them. For example, you and I have a right to know who our doctors are and what they have done to us—our medical records are as much our data as they are theirs. Another example is the European Court of Justice case of Nowak v Data Protection Commissioner. Unfortunately, the concept has not been properly understood in Ireland.
Following the establishment of the redress board, there was also provision of non-financial support in relation to industrial and reformatory schools. That came partly from the controversy over the very small compensation contribution that the religious orders had given to the redress board. They were called on to give more; that went into a separate statutory fund that then began to administer other payments to survivors—and, to some extent, to second-generation survivors—for education. That turned into a fund called Caranua, which is Irish for “new friend”. Unfortunately, that fund is now being wound up. Survivors have the sense that the fact that their needs continue for as long as they live is not understood.
The Caranua fund provides things such as help with house renovations and educational support. If we have time, I would like to talk about the very real need for survivors of childhood institutional abuse not to be re-institutionalised. Home care and home renovations are massive issues. The fund provided some help for those, but it is being wound up now.
The last thing that I would like to mention about the industrial and reformatory schools is that there was, in July 2019, a pre-consultation report, done through consultation of 100 industrial school and reformatory school survivors. That was to find out what the method for fuller consultation of industrial and reformatory survivors should be. It was funded by our Department of Education and the report was written by Barbara Walshe and Catherine O’Connell. I would be happy to send the committee any documents relating to that. The 100 survivors spoke about their on-going needs. I would be happy to come back to that.
The Convener
Thank you. We have 10 committee members who all want to come in. If we can be succinct in both questions and answers, that would be helpful.
Daniel Johnson
I was interested by what you said about the controversial nature of the procedures for making determinations. You might have heard during the previous panel’s evidence that I have some concerns about how that will be defined in the guidance that accompanies the bill.
What are your reflections on the safeguards? Given your experience as a barrister, what would you think about putting those safeguards and high-level principles in the bill itself? What we would have here would be a panel making determinations in private and then reporting them, whereas in Ireland you had public hearings. Can you compare and contrast the approaches?
Dr O’Rourke
The redress board was private, even though there was cross-examination as if it was a court.
That is an important question. Fair procedures must still apply, even if the panel does not in any way operate like a court. To give credit to the ministers who established the second scheme that we had more recently in Ireland, I point out that they wanted to avoid the traumatising effect of the previous industrial schools redress scheme.
The Magdalen scheme was established in 2013. The first problem was that there were no lawyers to help the women through the scheme. Secondly, the officials who administered it did not publish any guidance on what the criteria were or what the decision-making process was. They also did not seem to understand that it was an administrative scheme affecting rights, and that therefore the ordinary fair procedures should still have applied. I was ultimately involved in High Court judicial reviews of what was found and in a larger investigation by the Office of the Ombudsman into maladministration and denial of fair procedures. The women were dealing with something that was totally opaque and they were doing so alone.
It was said that all that they needed to show about their time in the Magdalen laundries was the duration of their detention. However, as is the case in the Scottish bill, there was an absolute requirement for records. As a result of the inquiries into the Magdalen laundries, it was known that the nuns did not have records for all the women. In fact it seemed that there were insufficient records, even back in 2013, for more than half of the women.
However, because the women had no lawyers, they were not able to swear a witness statement to an affidavit and there was no one to receive their evidence. Therefore, they were caught in constant phone calls, on their own, without even independent advocates to help them. I should say that there should be independent advocates as well as lawyers, because some things that need done for which lawyers might be too expensive, or might not be well equipped to do.
The women were caught in a horrible situation in which they were told that they had to get records, and they had no way of proving their duration of stay. The ombudsman ultimately found that their own testimony and that of relatives and friends was not given any evidentiary value by the officials in the scheme. I would say that, even when you are engaged in something that is non-adversarial, there is a real need to be extremely strict with yourselves about ensuring that fair procedures are followed, because it benefits everyone, at the end of the day.
I noted that the briefings on the bill suggest that the Residential Institutions Redress Board’s matrix might have been a problem; I am not sure that it was a massive one. I think that the procedures, which involved a full right of reply and the ability of the church to cross-examine the women, were a massive problem. However, having boxes that set out what kind of points are used to decide whether someone meets the criteria is not problematic, because there is a need for transparency.
The Convener
I do not know whether Dr O’Rourke is aware of it, but there is a lot of sound interference going on, so I think we should switch off as many microphones as possible.
Daniel Johnson has a brief question.
Daniel Johnson
Section 34(3) states:
“When determining an application, the panel must not consider or make a determination on any issue of fault or negligence arising from any matter to which the application relates.”
Is it important that the process deals with fault, or should it be more about acknowledging the issue and putting the matter on the record for the survivors?
Dr O’Rourke
My feeling is that there should not be a waiver, so my view is connected to that. The measure that we are discussing should be an interim one to provide people with the beginnings of rehabilitation. Accountability is a different issue—perhaps we can speak about it afterwards.
If you accept that you are still willing to allow people to seek legal accountability, there is no problem with having something that is ex gratia in the meantime. Bringing in fault brings in causation, which was a massive issue in the work of the redress board for industrial schools and reformatory schools, because people had to be examined by psychiatrists, which led to the survivors feeling that it was they who were on trial rather than the wrongdoers.
I see that there is a massive relaxation in the bill of the notions that applied in our board, which required people to prove that the injury related directly to the abuse. That meant that, in cross-examination, people were asked questions such as, “Is it not because you were abused before you went into care that you are now the way you are?” That is not an acceptable position to put people in. In my view, the waiver is an issue, and I would say that there are other ways to do it.
12:00Beatrice Wishart
Good morning, Dr O’Rourke. Your evidence thus far has been informative and helpful. On the basis of your experience of the Irish redress scheme, do you see anything specific that is missing in the bill and that should be included?
Dr O’Rourke
The first point that I noted was that, even though a non-adversarial procedure is proposed, there is a real need to ensure that there are still fair procedures, that people know what documentation they are supposed to be providing and that, if someone else is providing it, survivors get to see it.
I understand that, in the previous question session, one of the officials mentioned that a next of kin’s sworn statement of what they know their spouse to have experienced, based on however many decades they lived together, would be classed as hearsay. There is a need to think through what a survivor-focused process entails and what we know about the abuse that has happened.
The bill contains some really good things that we have not seen in Ireland. For example, there is no ceiling on the information and no gagging of survivors. It is also positive that an initial decision cannot be reduced on appeal. That was a real issue with the redress board in Ireland. Survivors said that lawyers would go into a room without them, have a discussion with the board and come out with an offer, and the survivors would be told, “If you don’t take this, you may well not get as much as you might get if you went through the whole process of being challenged and so on.” It is also good that legal assistance will be provided during the course of making an application rather than just at the end, in relation to a waiver, which was the case with regard to the more recent Magdalen scheme in Ireland—no lawyers were involved, because the Government said that it wanted a non-adversarial approach. However, of course, lawyers were still involved at the end to help you sign away all your rights against the state.
I see some issues with the bill, though. I think that the time limit of five years is a problem. The redress board had a time limit of less than five years, I think, and I have come across many women, in particular, who did not realise that that procedure applied to the kind of abuse that they had suffered. Further, there were people, particularly in the diaspora, who did not find out about the procedure, and there are people who cannot come forward. One of the positive things about the Magdalen redress scheme was that there was no time limit. That was an explicit recommendation of Mr Justice John Quirke.
Another thing that concerns me, as a human rights lawyer, is the exclusion of corporal punishment that might have been allowed under domestic law. Of course, the fact that it was allowed under domestic law does not necessarily mean that it was compliant with the European convention on human rights or other international human rights instruments. To the extent that corporal punishment was allowed under legislation, I wonder how that relates to the particular circumstances that someone who was a child in care is in, and I wonder whether there should be an approach to understanding corporal punishment within the context of the broader abuse that that person suffered.
Lastly, I come to the issue of the waiver. I have six points to make about it—I really appreciate your patience. I recommend serious consideration of this issue. It would be possible to legislate so that, in any future court action, any damages could be reduced by what someone had already received in the scheme. Of course, the scheme is doing that in relation to previous awards that survivors might have received from other places.
I see two main arguments in the briefing for the waiver. One, which makes sense, is that it is seen as a way of coaxing the private institutions to contribute. However, the other is that it would provide a swifter, non-adversarial and more trauma-informed response to historical child abuse. I think that that confuses the waiver with the scheme. I do not see any benefit of the waiver, other than to the taxpayer. Of course, that benefit to the taxpayer needs to be considered, but it must be weighed up against the harm that a waiver can cause not only to the survivors individually but to society, because accountability is about ensuring a restructuring in the interests of future child protection as much as it is about ensuring that there is an accounting to the individual.
The first thing that I would say about the waiver is that the abuses that are involved here are torture and other forms of cruel, inhuman and degrading treatment, which has already been recognised by the Scottish Human Rights Commission. As is well known, the right to be free from torture and ill treatment is absolute, and that includes the right to access justice as a survivor of torture and ill treatment.
On my second point, I note that I am a lawyer in the case of Elizabeth Coppin v Ireland, which has recently received an admissibility decision from the United Nations committee against torture—the judgment was published on 20 January and, although it is not yet on the committee’s website, it is available online and I am happy to forward it to you. Elizabeth Coppin signed up to the Residential Institutions Redress Board and the Magdalen scheme, and she signed waivers signing away her rights against the state and, in the case of the redress board, religious institutions. For reasons that relate to Ireland and our particular procedures around secrecy of evidence, the state still says that there is no evidence that systematic abuse of a criminal nature or under the convention against torture occurred in the Magdalen laundries.
Elizabeth Coppin is claiming that the state has failed to investigate and has failed to provide her with full redress, which includes satisfaction guarantees of non-recurrence. The UN committee against torture had to issue an admissibility decision on the situation, because the Irish Government said that she signed waivers that mean that she cannot take legal action against it. In January, the UN committee, referring to its own general comment on article 14 of the UN convention against torture found in Elizabeth Coppin’s favour, saying that the waivers do not prevent her coming to the UN committee against torture, because the right to accountability that she has under the convention remains. You cannot sign away your right to not be subjected to torture and ill treatment, and nor can you sign away your right to accountability. General comment number 3 mentions that judicial remedies must always remain in place.
What the waiver says is just as important as what it does. We have already heard evidence that there are many barriers to litigation, and many people will not take that arduous route. However, ultimately, survivors are being placed in a position in which they have to choose between accountability and money. From our experience in Ireland, I can say that what that says to the public is that survivors chose money, and that that was what they were concerned about. However, most survivors cannot afford not to take the money that is available from the scheme, at least as an initial way of achieving some kind of rehabilitation. That issue must be considered.
We must also consider that court cases are not just about money—indeed, for many survivors of abuse, they are primarily not about money. They are actually about having legal findings about what abuse means and who is responsible, and, in that way, they have an impact on the whole of society.
I think that I have said enough on that, although I am happy to go into more detail if you would like. I feel strongly that Scotland could take a different approach to the waiver issue and could be world leading in that regard. That would be worth doing, because we are dealing with torture and other forms of ill treatment.
Jamie Greene
Good afternoon. I appreciate those fulsome answers, as these are complex matters. However, in the interests of time—we have only 10 minutes left and a number of members still have questions—I would be happy if you could respond to my question in writing.
If the bill, as it is currently drafted, were presented to TDs in the Dáil and you were reading and reviewing it and advising those members on anything that jumped out at you as being of concern, what would be the main thing that you would raise? What should we be looking at, as the people who will inevitably be amending and scrutinising the bill?
You said that around six points of interests jumped out at you in the Scottish bill. Can you put those in writing to the committee so that we can review your independent expertise? I have found what you have said so far extremely helpful and useful.
Dr O’Rourke
I would be delighted to do so. I will put that in writing.
Rona Mackay
I agree with Jamie Greene that what you have said has been very useful.
I want to ask about charities. The policy memorandum says that some charities might have a constitution that does not allow them to make redress contributions, so they do not have the power to do that. Also, a lot of charities’ funds are tied up in restricted ways, such as in donations that have been given for a particular purpose. There is a fear that knowing that their funds will be used for redress contributions will stop people donating to charities.
The policy memorandum says that utilising restricted funds would be “a proportionate intervention”. However, that power is not included in the bill. Do you foresee any problems with that, and should it be tightened up?
Dr O’Rourke
I do not have expertise in charity law. I can see that it would make it easier for private institutions to make contributions, and I cannot see a massive problem with that. The Parliament’s powers in areas of very sensitive social policy such as this, and also in extremely strong public interest factors, are very broad. However, I could not say, because I do not know about charity law and I certainly do not know about Scottish charity law.
Kenneth Gibson
I was fascinated by the conversation about the Magdalen laundries. We had them in Scotland, and the last one closed in 1958. Therefore, I hope that, if there are any—albeit elderly—survivors from that time, they will be included in our legislation—indeed, along with those from the the Glasgow Lock hospital, which was an institution for women with venereal diseases that closed in 1950.
When speaking about Ireland, you talked about the “diaspora”. Has there been any attempt to reach out to the diaspora, and do you feel that it is important that we do that in Scotland?
Dr O’Rourke
Yes, it is extremely important. My colleagues in the justice for Magdalenes research group and I have constantly brought the attention of ministers to the Magdalen scheme. They sent circulars, and I think that they have re-sent additional ones over time, to every consulate and embassy. We also recommended advertising in magazines such as Ireland’s Own or online and in places where we know the Irish diaspora are easily reached.
I have to say that I do not know whether the Government reached out to emigrant support groups beyond the UK. They reached out to UK-based organisations, but we found that survivors live all around the world, so my colleagues and I made great efforts to send out notices beyond the UK.
It is absolutely vital, and it goes back to the time limit. I do not think that a time limit is justifiable when you weigh up the importance of this to survivors.
Kenneth Gibson
The issue of the time limit is really important. What kind of response did you get to your work to bring in people from the diaspora who had suffered in Ireland when they were younger?
Dr O’Rourke
In summer 2018, along with colleagues, I organised a gathering of more than 200 Magdalen laundry survivors. One of the aspects of the Magdalen scheme that had not been implemented was that the women had told Mr Justice John Quirke that they wanted to meet each other.
They also wanted to be consulted on and oversee memorialisation. I do not know to what extent this applies in Scotland, but in Magdalen laundries in Ireland, women’s names were changed when they were in there. If they escaped, it was without warning and they never met anybody again. Therefore, bringing them together was hugely important for them. For the women from Australia, Canada and many countries in Europe, it was absolutely crucial to meet and connect with other survivors with whom they would otherwise have had no contact in their individual circumstances halfway across the world.
12:15Kenneth Gibson
A lot of them would probably have felt a sense of betrayal by the country that they grew up in, and that might have been a way of Ireland providing restoration for that and saying that the country has not forgotten about them but that it feels their pain, albeit belatedly.
Dr O’Rourke
Yes, it is extremely meaningful. In Ireland, we often have those big initiatives for our diaspora. There was a year of welcoming people back to Ireland, and we would have heard from a lot of survivors around that time. The fact that the women were excluded from that did not sit well.
There is a mixed bag of effects from having left Ireland. We have found that it enabled some women to live in a different way from how they would have lived if they had still been in the same place. Because of the effects of post-traumatic stress disorder, people often feel that they could be picked up off the street at any time or they feel a sense of still being in the centre of the abuse that they suffered.
Kenneth Gibson
I have one more question on a different topic. We are talking about organisations that presided over that wrongdoing and the fact that they need to make a contribution to the fund. In Ireland’s experience, given that nearly €1 billion was paid out, some of which would have come from those organisations, was a limitation imposed, so that, if an organisation was going to go bankrupt because of the amount of money that it was supposed to pay, the Irish Government would step in? We have a lot of organisations and charities that might cease to exist if they had to pay significant contributions. Their wrongdoing might have been long ago and they might have got their act together since then. Was any action taken in Ireland to ensure that the organisations paid without killing the goose that laid the golden egg?
Dr O’Rourke
It is worth speaking to your parliamentary colleagues in Ireland about that, because there is a huge controversy around that issue. Before the scheme was established, the minister for education gave an indemnity to a group of religious orders that had come together and promised to contribute. However, it was a fight to get them actually to contribute, and my understanding is that they never contributed everything that they promised. I do not have the figures, but the indemnity was for €120 million; the scheme progressed and ultimately cost almost €1.5 billion. There was no way of going back, because the religious orders had already been indemnified. It is worth looking into what happened in Ireland, because the general public feel that the institutions got away almost scot free. That is also why access to the courts, legal accountability—and what that brings in terms of establishing legal standards—and lines of responsibility for things that happened are important. Those institutions often still operate, exercise control and provide services in that space.
Kenneth Gibson
Thank you, Dr O’Rourke. That is much appreciated.
Dr Allan
In our earlier evidence session, we talked a lot about financial redress, but I am keen to get your views on non-financial redress, such as apologies. What can Scotland learn from the Irish experience? How should apologies be made? How should we ensure that they are not half-hearted and that they meet survivors’ needs? Was it the experience in Ireland that any institution or individual refused to apologise?
Dr O’Rourke
There have not been proper apologies from the four religious orders that ran Magdalen laundries, and they never contributed to the Magdalen scheme. The waiver that applies therefore applies only to the state. Part of the reason that they did not contribute is because it is not at all easy to sue them, and so they did not necessarily feel any particular need to safeguard themselves from being sued. We have a very strict statute of limitations. Unlike your changes, the costs regime allows the religious orders to pursue their costs if someone sues and loses, and they always do pursue their costs, saying from day one that they will do so.
The way that the inquiry has gone in Scotland is—to an extent—different, in that it is not wholly in private. In Ireland, all the evidence that was gathered by the state on the Magdalen laundries is, unfortunately, being held secret. It is being held in the Department of the Taoiseach for safekeeping and not for the purposes of the Freedom of Information Act 2014. There is therefore no way of people getting into court, so the religious orders did not join the scheme.
Interestingly, in relation to whether people feel that an apology means something or not, because the state has safeguarded itself from being sued and I have not found a single Magdalen laundries survivor who was able to not go into that scheme because of her current living situation, despite the political apology in 2013 and because there has been no court action, the officials still maintain that there is no evidence of legal wrongdoing.
Over the past seven years, the schemes on the Magdalen laundries have progressed and there have been judicial review challenges in relation to lack of fair procedures. The ombudsman got involved to try to ensure that the scheme was administered in, as he put it, “the spirit” of the apology that was given. He also mentioned “forced labour” at one point in his report. The Department of Justice and Equality responded to the ombudsman’s report to say that, with some very limited exceptions, there has never been any statutory basis for committing a person to a Magdalen institution or any lawful basis for keeping a person there against their will. It is therefore relying on something that would be, in itself, evidence of arbitrary detention, but no court has ever been able to find that. It also said that there had been no court ruling that the state has any liability for women who entered such institutions, that it had never seen any legal advice or factual evidence that would give rise to the belief that the state has any legal liability and that it was also not aware of any successful legal action taken against the religious order concerned.
In response to that, the ombudsman said that, in his 10 years of being an ombudsman in Ireland and elsewhere, he had never come across such a refusal to co-operate with his recommendations. We can therefore see that the political apology is at major risk of becoming hollow if there is not proper accountability to go along with the financial payments. People have used the words “crocodile tears”, which does no justice to the intention of the apology from back in 2013.
One of the big things that never transpired in the Magdalen scheme was proper healthcare, which elicits words such as “crocodile tears” from some of the women. For example, when they start to need homecare, they are told that the card that they were given is nothing better than an ordinary medical card, when it was supposed to be something different. However, when they signed away all their rights against the state and got their money, the healthcare was something that they thought would come down the road, but it never materialised. That demonstrates that, even though there can be great intention in an apology, it absolutely needs to be followed through.
To be helpful, I could briefly mention the on-going needs that—in a consultation—100 survivors of industrial and reformatory schools said were required separately to financial payments.
The Convener
I have one final question before you go, Dr O’Rourke. On the issue of the issuing of an apology, the scheme that is suggested in Scotland is for those who experienced abuse up to the date of the apology. Did a similar restriction exist in either of the Irish schemes? What are your general comments on that issue?
Dr O’Rourke
That is a good question. Our schemes were for institutions that had closed by the time that the apologies happened, so that did not apply.
I would like to check whether, if there is time, you would like me to mention the key non-financial forms of redress? It is up to you whether there is time; otherwise, I can forward them.
The Convener
If you have time, I am sure that we can give you a few more minutes. If you can cover them in that time, that would be great.
Dr O’Rourke
This concerns industrial and reformatory school survivors now, in 2020—some 20 years on from the state apology. The redress scheme has come and gone, and Caranua has come and gone. The survivors are saying that they need enhanced medical and health care, in particular home care. I cannot stress that enough. We are starting to see survivors with dementia, who may well just be put into nursing homes. Reinstitutionalisation is a huge issue for survivors of institutional abuse.
Other measures include prioritisation for housing, a contributory pension, a designated drop-in centre and a confidential space where survivors can meet. The covering of funeral expenses comes up a lot, and the survivors mentioned it in the consultation. Free unlimited counselling is also mentioned.
It is important to mention second-generation survivors—the children of survivors. I would advise you to consider that, as the scheme’s payment terms will not always apply to a child, even if their parent is deceased. There is a real need to consider the needs of the second generation. In the consultation, survivors said that there was a need for counselling and psychiatric services for children and grandchildren. Information is very important for both survivors and their family members. Education is highlighted, too.
It is important to remember survivors by way of memorials. In the context of national education, more than 200 women came together as Magdalen survivors in the summer of 2018 and spoke to us about memorialisation. It has to be not just about plaques or statues; it should be about ensuring that such abuse does not happen again. Many of those women have gone on to work in the care system or the care sector. We are so lucky that they wish to speak to us about what they see today that needs to be different and that is reminiscent of their experiences. They want children and young people to learn in schools about what happened and for us to know about it. I am involved with colleagues in Ireland, seeking a national archival and educational centre by way of memorialisation, where archives can be made available, where the gagging clauses are got rid of and where survivors can volunteer if they wish. Oral history projects are important, as is information tracing for family members.
A further issue came up in relation to the Scottish bill, which seems to need to be caught before it happens. In Ireland, the non-financial measures were attached to the person already having gone to the redress board. There was a short deadline for going to the redress board, so many people did not manage to get in. If they did not get an award from the redress board, they were also barred from everything that might come along in the future. There will also be people who simply do not want money, for their principled reasons. For whatever reasons they have, they do not want to go to the redress board, but they should still be entitled to the non-financial measures.
The Convener
Thank you so much for your time this morning, Dr O’Rourke—that evidence was exceptionally helpful to the committee. I think you have agreed to have an exchange with us regarding some questions, and we look forward to that.
12:29 Meeting continued in private until 13:01.30 September 2020
30 September 2020
7 October 2020
28 October 2020
4 November 2020
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate on the Bill transcript
The Deputy Presiding Officer (Christine Grahame)
The next item of business is a debate on motion S5M-23707, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
14:51The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)
I am pleased to open this debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. The bill is a significant milestone in delivering a redress scheme for survivors, which many have fought relentlessly to achieve. I acknowledge their bravery and resilience, which have brought us to this point.
I also acknowledge those who are no longer with us. It is right and necessary that we remember their contribution to today’s debate and their persistence in ensuring that we reached this point. I hope that we can now join collectively, as a Parliament and as a nation, to deliver a redress scheme that acknowledges the injustice and the suffering with honesty, humanity and dignity.
The work, the bill and the scheme are for survivors. I extend my sincere thanks to all the survivors who have engaged with us throughout the consultation and the bill process. Their input has been crucial in shaping the bill, and they will continue to play a central part in the development of the scheme.
I thank the Education and Skills Committee for its comprehensive stage 1 report and the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill. We responded to the Education and Skills Committee’s very detailed report in a very short space of time. I hope that members of that committee and the Parliament find the Government’s response of assistance in considering how we will take forward the issues that the committee raised. I am grateful for that committee’s support for the general principles of the bill and its acknowledgement of the work that has been done to date with survivor communities and organisations, and I look forward to the debate, which will—I have no doubt—be open, positive, compassionate and constructive. I assure members of the Government’s willingness to engage constructively on the issues that the Education and Skills Committee raised in its consideration of the bill in order that we can maximise agreement on the bill’s provisions.
The bill deals with extremely complex and sensitive matters, and the development of the redress scheme has involved many difficult and balanced judgments. We have learned from schemes around the world, and we will continue to do so as we design and deliver the best redress scheme for the circumstances in Scotland.
We have excellent practice at home from which to learn. Our advance payment scheme has continued to make payments throughout the pandemic. Since April 2019, we have been able to make payments to more than 520 survivors. Financial redress and also the acknowledgement and the apology that are so important to our most elderly and ill survivors have been provided. The scheme has proven that we can deliver a scheme that works for survivors.
Scotland failed to protect its most vulnerable children. The bill is one part of our unshakeable commitment to face up to that shame and make sure that that never happens again. That must be a collective endeavour, and we believe that all those with a responsibility for the failings of the past have a responsibility to do the right thing today. I want to work with the Parliament to deliver the best possible scheme for survivors and to ensure that those who have a moral responsibility to participate do so. The scheme encourages, facilitates and recognises those that are willing to make fair financial contributions to redress payments of survivors. That is what survivors have repeatedly told us that they want to see.
I have noted the committee’s emphasis on the affordability of the scheme for providers. A central element of our approach has been to link contributions to a proportion of the actual redress payments that would be made in the lifetime of the scheme. Taking an alternative approach, such as seeking a capped or fixed contribution, fails to deliver assurance that the organisation will play its part for every survivor who receives a redress payment. It also carries a risk, as seen in other redress schemes around the world, that the cap could be set too low, given the uncertainty over how many survivors will apply to the scheme. [Interruption.]
I will give way to Jamie Greene, first, and I will then come to Mr Johnson.
Jamie Greene (West Scotland) (Con)
I hope that I do not pre-empt Mr Johnson’s question, but does the cabinet secretary accept that, without a cap, the stark reality is that many contributing organisations would simply not participate and that they could not possibly recommend participation in the scheme without some form of cap? That open-ended liability would hit them financially.
John Swinney
Mr Greene makes a fair point, but we have to make judgments about the way in which we are able to address survivors’ legitimate aspiration for there to be a contribution that relates to the circumstances of their abuse. That is the mechanism that we have chosen in trying to address that issue. Obviously, if we put a cap on that, we may not be able to fulfil the commitment that survivors wish us to fulfil. We need to arrive at a balance of judgment. Fundamentally, it comes down to the workability of the scheme and how we can elicit those contributions.
I will give way to Mr Johnson.
Daniel Johnson (Edinburgh Southern) (Lab)
I am grateful to the cabinet secretary for giving way. Will he comment on the concept of sustainability being included in the bill, as is highlighted in the committee’s report?
John Swinney
That is a reasonable point for us to consider, because there is a fine balance to be struck. Although there is a need for organisations to be held accountable for abuse that has taken place in the past, I do not think that anybody wants that to happen at the expense of the survivability of an organisation that is delivering vital services today to protect the wellbeing of children and young people in our society. A careful balance has to be struck. As we work our way through the detailed text of the bill, I am sure that, as a Parliament, we can come to a conclusion about that issue.
The quality of redress for many survivors comes, at least in part, in seeing their provider make a fair and meaningful contribution. That is the point that I was making to Mr Greene. I commit to continuing to work with organisations to ensure that a fair contribution is deliverable in a way that is not detrimental to vulnerable service users today.
I have listened to the concerns regarding what is in the bill about the use of charities’ restricted funds—some of that relates to Mr Johnson’s point. Although the provision was intended to empower organisations and to remove barriers, I accept that that has not been welcomed by organisations and I agree to remove section 15.
There is no doubt that the proposed waiver in the bill has been contentious, and I welcome the committee’s consideration of that important issue. I have wrestled with how to fairly encourage contributions and to recognise the organisations that have made them while maintaining the integrity of the scheme for survivors. A scheme without contributions from other organisations would mean that survivors who sought acknowledgement and financial redress from those other than the Government would need to take civil action, and we know that there are many reasons why some survivors are unable or would choose not to pursue that route.
The committee highlighted the evidence that it heard about offsetting being a preferable way to encourage contributions. My concern is that offsetting may provide only nominal contributions to the scheme. Organisations would still require to plan for the high costs of future litigation. If offsetting led to only nominal contributions, the onus would remain on individual survivors to pursue court actions in order to compel those responsible for their care to make adequate reparation. That would exclude pre-1964 survivors, survivors who do not feel that they have the evidence to go to court, survivors who do not want to go to court and survivors who are elderly or unwell and might not live long enough for a court action to conclude.
We have looked at other redress schemes, but we do not know of any that secure contributions by using an offsetting model, nor of any scheme in which providers make contributions but receive no waiver. I have, however, listened to the concerns that have been raised about the waiver, and I will continue to listen today and beyond in order to reflect on whether that remains the right path for the proposed legislation.
To put those two points simply and in summary, I am keen to develop a scheme that secures contributions from providers and meets the needs of survivors. After careful and exhaustive consideration, I came to the conclusion that the waiver was the reliable way to do that. I recognise that that view is not shared across the board in Parliament, or even among survivors, but I am keen to air the issues in order to take an approach that means that we can secure the outcome that I have highlighted. I will engage constructively with members of Parliament in order to do that.
I appreciate the significance of the choice that the waiver asks survivors to make. I have heard the evidence on the importance of survivors making that choice only once they know the full redress payment that they would receive from the scheme, are able to access appropriate advice and know who is making a fair contribution to their payment. I will lodge an amendment to ensure that the decision has to be made only at that point.
I recognise that, for many survivors, the decision will not be easy. I have considered the evidence that the committee has heard and I commit to lodging amendments at stage 2 to increase the 12-week acceptance period to six months and the four-week review request period to eight weeks.
I also listened to the evidence that the committee heard on payment levels. I want to provide fair payments according to a fair structure, and I will revisit the level of the increase between the different payment levels. The redress scheme is an alternative remedy for survivors. It does not follow the same rules and procedures as a court and it is not designed to achieve the same outcome. Redress payments may be lower for some than would have been awarded by the courts; for others, the opposite may be true. However, I listened to the evidence and will reflect on the maximum payment level that is available.
I understand the need for clarity and transparency in the assessment and decision-making processes, and I will reflect on calls from survivors, organisations and insurers for greater clarity as to the standard of proof that will apply in determining redress applications. It is vital that everyone has confidence in the decisions that are taken by redress Scotland and that survivors and organisations know that applications are considered carefully and supported with the right information. I am aware that, should the integrity of the scheme be called into question, the impact that that would have on survivors cannot be overstated.
Survivors have given powerful evidence on the purpose of the scheme. The scheme looks to address the widespread and systemic failures in our historical care system that led to children being abused. Those who were abused in care prior to 2004 were abused at a time when their welfare was not prioritised as it should have been and when any complaints that were made were less likely to be believed or to result in any action. Survivors from that time period have also faced a series of obstacles to accessing justice through the civil or criminal courts.
The scheme is about a particular part of our history and the particular circumstances of children in care at that time, when we collectively failed them. Now, we must collectively respond. An important part of that response is in recognising the survivors who did not live long enough to access redress. The committee heard moving evidence about the importance of recognising those deceased survivors. Today, I commit to amending the bill to change the eligibility criteria for next-of-kin payments, to extend those to the next of kin of survivors who died on or after 1 December 2004.
I welcome the committee’s recognition of the importance of support, both practical and emotional, for those who apply to the scheme. I am committed to designing and delivering a trauma-informed service, working with survivors to ensure that their needs are met. A survivor forum will be in place so that continuous monitoring and feedback can lead to on-going improvements in the scheme.
We know that, on its own, a monetary payment will not deliver the redress that survivors need. For too long, survivors were not believed. As part of our collective endeavour, we must now right that additional wrong and apologise both for the abuse and for the length of time that it has taken for it to be fully recognised and acknowledged. The redress scheme will offer individual applicants the opportunity for support and apology as well as a financial payment. On behalf of the Scottish Government, I reiterate the apology that I made in the chamber in 2018 and I say to survivors, “We believe you and we are sorry.”
I hope that what I have just said demonstrates the care and compassion that have been invested in the development of the bill. Our approach represents a thoughtful and authentic desire to do the right thing, to provide survivors with the collective response that they deserve and to provide those who are facing up to the harms of the past with a fair way to do so.
The scheme is not for lawyers, insurers, providers or the Government; it is for survivors, whose interests must dictate its design and determine its delivery. We must balance the various interests to the best of our ability, and we must do so with integrity and compassion, for that collective expression of our humanity will be the measure of our nation in its response to one of the darkest chapters in our history. We owe it to the children whom we failed—and to the adults that they have become—to deliver the best possible scheme. I look forward to working with members across the chamber to make that a reality.
I move,
That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
The Deputy Presiding Officer
I call Clare Adamson to open the debate on behalf of the Education and Skills Committee.
15:06Clare Adamson (Motherwell and Wishaw) (SNP)
As convener of the Education and Skills Committee, I welcome the opportunity to highlight its views on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. Before I do so, I thank everyone who took time to share with us their views on the bill, whether in evidence or privately. I also thank our adviser, Professor Andrew Kendrick of the University of Strathclyde, who so generously shared his expertise with the committee throughout the stage 1 process; the committee’s clerks and the Scottish Parliament information centre staff for their endeavours; and, indeed, the committee’s members, who throughout the process have approached it with sympathy, sensitivity and compassion.
I feel that I can speak for the whole committee when I say that we recognised that victims/survivors campaigned for such a bill for many years, including some who are no longer here to see it become a reality. We know that that has involved working constructively with both the Scottish Government and care providers who were responsible for historical child abuse. In particular, we thank victims/survivors for doing so, as that has allowed us to reach the point where we believe that we have a straightforward, easy-to-access scheme that will play a vital role in helping victims/survivors to obtain the redress remedy to which they are entitled.
The bill creates a new way for victims/survivors of historical abuse to seek redress. It recognises that civil litigation is not for everyone. For many victims/survivors, making their way through an adversarial system and reliving their childhood experiences is not something that they will feel able to do. Consequently, the committee supports the bill’s intention to create an accessible alternative. As the cabinet secretary highlighted, for victims/survivors of abuse that took place before 1964, the scheme creates a route to redress that would not otherwise have existed, which is particularly welcome.
I turn to some of the issues addressed in the bill. The need for dignity, respect and compassion was a theme that the committee picked up, and it was also a key theme in the evidence that we heard. We need to ensure that victims/survivors who access the redress scheme are treated with dignity, respect and compassion throughout that process. Victims/survivors themselves spoke very clearly about the dehumanising effect that abuse had on them, and of how it had impacted on their families.
In our stage 1 report, the committee asked the Scottish Government to include in the bill a statement that would recognise the need for the principles of dignity, respect and compassion to be applied across each element of the redress scheme—from the application process, through to the support provided to access care records and the issuing of apologies from care providers. We welcome the fact that the Government has gone some way towards recognising that need, and indeed has agreed to some of our recommendations being put in place.
I cannot cover the whole bill, because I will soon run out of time, but I will turn to the waiver and the fair and meaningful payments. The bill encourages care providers whose organisations were responsible for historical child abuse to make a fair and meaningful contribution to the redress scheme. A victim/survivor accepting a redress scheme payment will be required to waive their right to take future civil action against any contributing organisation. Victims/survivors viewed the waiver as restricting their rights and suggested that an off-setting payment might be a better model.
Care providers raised concerns that there is currently no way of them knowing how much their overall contribution to the scheme would be. They also pointed out that their trustees could not agree to participate where that would breach their duties to safeguard the organisation’s longer-term financial viability. It was also unclear whether insurance providers would commit to making a payment on their behalf, undermining the case that the waiver would encourage organisations to contribute. In its report, the committee suggested that further work on those provisions was required ahead of stage 2. We note the Government’s very detailed response to our report—in a short turnaround—and I welcome the news that a waiver will not be given unless the body is a contributor to the scheme. We look forward to discussing those issues at stage 2 and seeing how we can develop them with the cabinet secretary, as he has indicated that he is willing to do.
The committee heard from many victim/survivors that a meaningful apology was a vital element of the redress scheme.
Eligibility for the scheme is another important area. Although the committee welcomes the aims of the bill, we heard concerns from victims/survivors and other stakeholders about aspects of eligibility criteria including qualifying dates and the definitions of relevant care settings and abuse. To qualify for a payment under the proposed redress scheme, a victim/survivor must have experienced abuse in a relevant care setting before 1 December 2004. In contrast, the Scottish child abuse inquiry can consider abuse that occurred up to 14 December 2014. We could see no justification for the disparity between those two dates and suggested that they should be aligned. We take on board the cabinet secretary’s comments in response to that and in the chamber today.
Some settings and circumstances are currently excluded from the definition of “relevant care setting” and we heard evidence on how that would affect eligibility for the scheme. While recognising that there was a need to clearly define the limits of the redress scheme, the committee believed that there should be scope for redress Scotland to be able to consider some cases on an exceptional basis and recommended that the Government should revisit the eligibility criteria and relevant care settings in the bill in advance of stage 2. We welcome the acknowledgement that Scotland placed some young people in care settings across the border and that that issue will be considered.
The bill clearly defines the kinds of abuse that can be considered under the scheme and stakeholders expressed concern at the apparent exclusion of corporal punishment from the definition of abuse, where it was considered lawful at the time. The concern was that that would deter some victims/survivors from applying to the scheme. The committee was grateful for the cabinet secretary’s clarification that there would be no blanket ban on including corporal punishment as a form of abuse and that, when assessing claims, corporal punishment would be considered in the full context in which it was used. I look forward to working with the cabinet secretary to understand how victims/survivors can be informed of that to the fullest possible extent, so that no one is excluded from applying to the scheme because they think that the abuse that they experienced would not be considered.
I also welcome the cabinet secretary’s comments on the levels in the scheme. Currently, the bill sets out two different kinds of payment that can be made to victims/survivors: a fixed-rate payment of £10,000 and individualised payments set at £20,000, £40,000 and £80,000. There were concerns that there were large gaps between the levels. It was unclear how that would be decided by the administrating panel and how fair that was. I welcome the Government’s willingness to consider those levels again before stage 2.
Redress Scotland will be a new non-departmental public body—an NDPB—which will administer the scheme, and decision making will be guided by an assessment framework. As I am running out of time, I hope that some of the other areas will be picked up by my committee colleagues—
The Deputy Presiding Officer
If you have more to say, just say it. We have time.
Clare Adamson
Okay, thank you. That is slightly unusual for you, Presiding Officer.
The Deputy Presiding Officer
Excuse me! I might get piqued by that and change my mind. No, I am too big a person to do that.
Clare Adamson
I am grateful, Presiding Officer, especially as it is a very important bill and we want to give due consideration to the other areas. However, I will conclude by saying that we welcome the efforts that have been made by the Scottish Government to work with victim/survivor communities to shape many aspects of the bill. We hope that that will continue as the bill progresses through stage 2.
We would also like to thank the bill team for its constructive engagement with the committee throughout stage 1. Although there are fundamental issues with the bill’s waiver provisions that we are unclear about, we absolutely support the bill’s principles. Therefore, on behalf of the Education and Skills Committee, I am pleased to commend the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill to the Parliament and recommend that they be agreed. Thank you.
The Deputy Presiding Officer
Thank you, convener. I call Jamie Greene to open for the Conservatives.
15:16Jamie Greene (West Scotland) (Con)
Thank you, Presiding Officer. I look forward to your generosity in equal measure to members on these benches.
The Deputy Presiding Officer
We do not want to set a trend.
Jamie Greene
The stark and sad reality is that there is little that we can do to fully compensate victims of abuse in care. Words, pounds, letters and payments are the physical manifestations of compensation schemes such as this. They are tokens of apology. They are an acceptance of our modern-day endeavours to right the wrongs of the past. However, no apology will ever right the wrongdoings of others, no legislation will bury memories of horrific abuse and no compensation scheme will replace traumatic memories of unhappy childhoods with happy ones.
Yet we have to start somewhere. That somewhere started in December 2004, when the then First Minister, Jack McConnell, told the Parliament:
“Now that we know what has happened, it falls to us, as representatives of the Scottish people, to acknowledge it.”—[Official Report, 1 December 2004; c 12389.]
Today, we do our bit here, by acknowledging that a redress scheme such as this has been a long time coming. It is an acceptance by the Government of the day that Governments of old failed thousands of young children in state care. The weight of that responsibility lies heavily on our shoulders—on the shoulders of the committee and of the cabinet secretary, who will guide the bill to completion before the Parliament dissolves.
At the end of that journey, it must be a bill that we are proud of. The journey will not be easy, because, as those who sit on the committee have learned, the subject is one of great sensitivity and debate, with uncomfortable substance. Despite our nuanced and differing approaches to the bill, I am pleased that we came to consensus. I record my thanks to my colleagues on the committee, the convener, her adviser and the clerks for putting together for the report.
Today we debate the key recommendations, which are based on the evidence that we took. Our biggest thanks must go to those who took the time to enable us to come to those conclusions: the survivors who spoke frankly and honestly with us. I cannot even begin to imagine what some of them have lived through. It still lives with them. As one survivor put it,
“Abuse never leaves a person. It is like a human shadow”.—[Official Report, Education and Skills Committee, 28 October 2020; c 29.]
The debate is for them. The bill is technical, with technical problems that will require technical solutions, but at its heart lie brave people.
I turn to those technical issues now, because although the committee endorses the general principles of the bill, it also raised a number of difficult issues that the Government must contend with. I welcome that the cabinet secretary has already indicated that he will give way on some of those issues. I hope that that is a sign of things to come. We acknowledge in the report, right from the outset, that the scheme will not cater for or work for everyone. It is intended to offer an alternative to civil court proceedings and an easier route to redress. However, that alternative must be fair and affordable. The scheme has limitations, and we must be honest with people about what they are.
There are also flaws and assumptions that we think require revisiting. The first of those is the waiver, which is the biggest of those hurdles and the most contentious area of the bill. There remain large differences between its intended purpose and the reality of what its presence in the scheme would mean. Absolutely nobody had anything positive to say about the waiver, which should serve as a warning to us as we go through the bill process. In the committee, I said from the beginning that I would like to give the Government the benefit of the doubt on the issue, but I will be honest and say that I do not think that evidence in favour of a waiver has been strongly given—a conclusion that I came to reluctantly.
We also talked about what is fair and meaningful, and the words themselves provide a clue here; the bill must be fair and meaningful. The concerns about the waiver, for example, would potentially discourage some survivors from applying because it could prevent them from opting in to civil litigation in future. Many have expressed discomfort and have said they might feel compelled to sign the waiver because of their current financial hardship.
Such victims need to be fully aware of the implications of their decision, and that leads on to what is fair and meaningful. The point of the waiver is apparently to encourage participation, but we heard openly and directly from organisations that are potential contributors that they would not recommend to the trustees of their respective charities participation in the scheme as proposed. That is not because they do not want to participate but because they feel that the open-ended nature of participation and the large sums of money being asked of them would entirely jeopardise their abilities as current, on-going concerns. Nobody wants that—not least the survivors.
That, plus the absence of ensured participation, means that it is likely that organisations will need to meet the commitments in the scheme through their own funds—their working capital. That will provide a disincentive to participate. I think that the organisations want to do the right thing; the ones that I have spoken to absolutely do. They feel the moral obligation that we know exists. However, those contributions must be fair, and not least, fair to the users of existing services, which is why the concept of sustainability that the committee talked about is so important and must be taken into account.
I must also touch on the difficult issue of money, which is not an easy subject when we talk about abuse, but we must give clarity on it. The Government has already said that it will cover compensation up to £10,000 per application, which covers the lowest level with the lowest evidential threshold, but that could result in public funds having an open-ended liability and covering massive proportions of the payments, even with contributions.
John Swinney
I am grateful to Mr Greene for giving way. He has just made the point that contributions are necessary to limit the impact on the public purse. That is one of the arguments that I would marshall as to why the waiver is important: to elicit those contributions in the first place. I ask Jamie Greene to consider the relationship between the concept of contributions from providers and the necessity of providing a waiver in a fashion that gets those contributions but restricts liability on providers. That was the point of the intervention that Jamie Greene made on me earlier in the debate. There is a relationship between the two that I invite him to reflect on.
Jamie Greene
I understand and accept that relationship. We all want maximum participation in the scheme for the benefit of everyone: contributing organisations, the taxpayer and so on. We must make the pot as large as it can be, but there has been no evidence—the committee took none—of the link between the concept of the waiver and participation. The real problem for the contributing organisations was the open-ended liability that would be placed upon them. The sums of money that they would have to pay up front have not been quantified to the committee, but those huge sums of money would come out of organisations’ working cash reserves and would directly affect their abilities to be on-going concerns. It was nothing to do with the waiver. I do not make that link in the way that the cabinet secretary does.
There is a conundrum there that needs to be resolved. Linked to that are the payment levels, which create a hierarchy of abuse. That makes some people incredibly uneasy, but is it necessary to compensate at higher levels with higher evidence thresholds? Again, the Government will have to contend with that. I do not think that the pound and pence value needs to be in the bill, because value changes over time, and I hope that the cabinet secretary will reflect on that.
I have limited time, but there are two other areas that I want to briefly touch on. One is the application process and who can apply. We want a survivor-centric approach to be at the heart of the bill’s operation. This must be an easy-to-navigate, inclusive process. That leads me to an important discussion about who should be eligible to apply to the scheme. There is a serious moral question about whether making a payment from the public purse to someone who has been convicted of the most heinous acts of violence, sexual violence or harm to children is fair or in the public interest. The committee rightly recognises that some offending behaviours can be rooted in trauma caused by abuse. Any survivor of abuse should therefore be eligible to participate in the scheme, but the bill itself cannot be the moral arbiter. My view is that it is right and fair that the awarding panel should make those decisions based on clear guidance and parameters and on individual evidence. That is a fair compromise, and one on which the committee reached consensus.
The final issue is that of an apology. “Sorry” is the hardest word, but an apology will go a long way. Helen Holland told the committee that, for some victims,
“an apology is the most sacred thing that could come out of this”.—[Official Report, Education and Skills Committee, 28 October 2020; c 10.]
Some victims even said that they would forgo money in favour of an apology.
There are other ways to support victims. The committee encourages those. We also encourage the Government to look at other countries’ schemes and I hope that the cabinet secretary will reflect on those asks.
This is a short debate on a big report. I end knowing that those who engaged with the committee have done themselves proud. It is not an easy bill. There is debate about what should be included in it and there are warnings from all sides about possible barriers to participation. There is much work to do: the cabinet secretary and the Government have a difficult task ahead of them.
My offer is that Conservative members are open to discussion, debate and amendment. We will go into stages 2 and 3 constructively. We will work across parties, with the Government, stakeholders and, not least, with survivors. We all want this to work, because it must. The work of the committee will continue, but the word of apology must now be translated into action.
The Deputy Presiding Officer
There is some time in hand. Members may expand a little in this sensitive and important debate.
15:26Iain Gray (East Lothian) (Lab)
Today has been a long time coming: too long in many ways. It is the latest, and perhaps last, link in a chain of recognition, regret and now, hopefully, redress—as far as that is possible.
We are once again called on to face up to and acknowledge our collective guilt regarding one of the darkest and most shameful chapters in our recent past. The most vulnerable of children were taken into our care, looking to us for love and nurture, only to face abuse—sometimes for years on end—while we looked the other way.
The process of facing up to what was allowed to happen, and to the lifelong consequences that that has had for so many survivors, has taken us from Jack McConnell’s apology 16 years ago, as referred to by Jamie Greene, through to the agreement to a public inquiry, the removal of the time bar and the creation of the advance payment scheme, and we have now come a bill that will provide redress to survivors and their families.
None of that would have happened without the determination of survivors themselves, who had the courage to relive their abuse by speaking out and the persistence to make themselves heard at last.
Governments and ministers of all parties, including mine, were too slow to listen and respond. So, we should take the opportunity to add our apologies to that given by the Deputy First Minister. We are sorry that the abuse was ever allowed to happen, that survivors were not listened to or believed for so long and that we have been so slow to act.
However, we are here today and I give Mr Swinney credit for that. Since he took on this responsibility, he has delivered the inquiry, the advance payments scheme and now the bill. His desire to get this done at last is clear and sincere.
What must we do to get the bill right? Above all, it must create a scheme that survivors believe is fair and in which they can have confidence. They must know that they will be believed as part of a process that, unlike civil or criminal justice proceedings, is not confrontational.
Survivors want to see both the state and the organisations in whose care they were abused make a contribution to their redress.
To achieve all that, there are some difficult circles to be squared, but square them we must. Although the bill sets out to achieve all that, the committee was clear that some changes are required. I am pleased to see from the Government’s response that it accepts that in a number of areas.
First, the overall level of payment and the proposed bands need to be reconsidered. The bands are too far apart, particularly the jump from £40,000 to £80,000, which is too big a jump. However, it was also clear from the evidence that survivors feel that the maximum payment is not enough, especially when they look at other schemes, such as that in Ireland. This is not really about the money, of course, but about the seriousness with which we take the matter now. As I have said, I believe that the Deputy First Minister is serious about it, so I am sure that he will consider the payment aspect again.
Secondly, the burden of proof that will be required is critical to the success of the scheme. It must be enough to provide confidence for survivors and contributors but not be so burdensome as to be simply a civil court by a different name or to discourage applications. The committee understood how difficult that is, but we felt that more clarity was required.
However, it is on the question of the waiver that perhaps the bill will succeed or fail. The evidence of survivors was clear. They see the requirement to give up their right to civil justice to benefit from the redress scheme as an abrogation of their rights that would compromise their confidence in the scheme. Their concerns were echoed by those who support survivors and, indeed, those who represent them, including the Faculty of Advocates. All recommended some form of offsetting and all opposed the waiver.
The committee report reflects that and, appropriately, does so in a way that tries to offer the Deputy First Minister the space to respond. However, I want to be clear. Our view is that the waiver compromises the integrity of the bill. It cannot stand; it must go. That is not a party-political position; indeed, I think that it is shared across the Parliament.
The Deputy First Minister has explained that the waiver is there to incentivise contributions from care providers, and it is true that survivors want those contributions. However, the evidence heard by the committee was that the waiver will not work as an incentive. Some providers expressed initial support for the waiver, but as scrutiny proceeded, it became clear that because their insurers are unlikely to support their contributions to the scheme—although they would support them in legal action were they engaged in it—the waiver was no incentive. In fact, arguably, it is a disincentive to the organisations to take part in the scheme.
John Swinney
I understand the argument that Mr Gray is marshalling. However, the waiver point is critical, because it hinges on the question of how we enable contributions to be made to the scheme by providers. That is the question that we are all trying to answer. In the judgment that I have come to, the point that Mr Gray makes about the relationship to insurers is adequately dealt with if the waiver is there, because it provides an alternative to court action. In marshalling his argument, Mr Gray acknowledged that an insurer might stand behind a provider in a court action. What I am trying to do with the bill is to find a means whereby the insurer will stand behind the provider for the alternative route. Without that, I cannot see how we elicit the contributions that we all want to see made by providers to a scheme of this type.
Iain Gray
I take the point and I appreciate that that is the Deputy First Minister’s intention. However, all the evidence that we heard from providers and, indeed, from the Association of British Insurers was that insurers would not stand behind providers in making contributions to the redress scheme. That is partly because of the level of contestability of the evidence given in the scheme. However, we cannot compromise that because we want the scheme to be easy, or as easy as possible. We do need an incentive, though, and we need the contributions.
Providers also told us that the calculation of contribution that was being developed and the requirement for future unspecified contributions once in the scheme meant that their participation would jeopardise their continued existence and that trustees would not be able in law to agree to participate.
Providers are saying that they will be unlikely to be able to participate with the waiver in place. I think that the incentive that they need is a contribution formula that takes account of affordability, sustainability and the legal position of their trustees. I agree with Jamie Greene—they are not looking for a way out of the scheme; they are looking for a way into it, because they accept that they have a moral responsibility to take part in it.
The danger that we face is having a scheme that asks survivors to give up their rights to justice but fails to attract the contributions from providers that survivors want. That is the circle that must be squared. That is not easy, but my concern is that the Deputy First Minster’s response—in his letter to the committee and today—shows that he is still not seized of the need to find an alternative to the waiver or to change the contribution scheme.
I ask him to do that now, because time is so short, and if we are to get it right, he and his officials need to be working now with stakeholders to introduce those changes.
I will be honest: if need be, we will consider introducing amendments at stage 2 to remove the waiver and establish the principle of affordability in contributions. However, it would be much better if the Government were to start on that work immediately and do that itself.
Time is short. It has taken so long to get here, and we all want to get to the same place, so let us get it right. That is what we all want.
15:36Ross Greer (West Scotland) (Green)
The introduction and the passage of the bill were always going to be a painful experience for many survivors. I pay tribute to the survivor groups and individuals who have fought so hard and for so long to bring us to this point, and to those who have shared their experiences and relived their trauma in the process of explaining why redress is necessary. Their bravery and dignity over many years has been astonishing, and their contribution to the Education and Skills Committee’s scrutiny of the bill has had a profound impact on the conclusions that we have arrived at collectively and individually.
We all support the general principles of the bill, and we all acknowledge that survivors deserve redress for the abuse that they suffered. It is the responsibility of the state to ensure that that redress is delivered. However, the clearest message received during the committee’s scrutiny—from survivors, lawyers and the organisations that would be expected to participate in the scheme—is that the model that is proposed in the bill simply would not achieve its intended goals.
The committee’s recommendations for change are extensive, covering almost every section of the bill. I will pick up just a couple of those, the first of which is the proposed waiver, which others have already mentioned and which I expect will be discussed extensively this afternoon.
The waiver is the most contentious provision in the bill, particularly for survivors. Many survivors are understandably extremely distrustful of the state and other authorities. To be blunt, they see the waiver as a way to silence them. Organisations that are likely to be involved in the scheme certainly do not all appear to support the waiver either, although that is for different reasons.
The argument for the waiver is based in part on the premise that organisations and insurers will not pay out without it, but the committee did not consider that the evidence submitted supported that claim, as Iain Gray has highlighted.
The technical argument about whether a waiver would allow organisations to contribute fully to the scheme is a secondary one. The primary reason to oppose the inclusion of the waiver is that it violates the right of survivors to pursue justice at a later date. It is extremely common in cases of abuse for an individual to have insufficient evidence of their abuse to pursue civil action, only for that evidence to later emerge through others coming forward or records being found.
If a survivor were to take financial redress through the scheme, because sufficient evidence was not available to them at the time, but that evidence was to emerge later, they should not be restricted from then pursuing action.
The committee does not support the waiver, and I struggle to see how the bill could achieve majority support at its final stage if it were to remain. That would be a source of profound regret.
The bill also contains provisions for a survivor’s next of kin to apply for and receive the payment, provided that the survivor made a statement prior to their death that they suffered abuse. The Greens certainly welcome that, but the bill proposes an odd hierarchy for the next of kin. By default, the next of kin are the spouse or the civil partner of a survivor, and after them, it is the survivor’s children, which is relatively normal. The exception to that in the bill is for cohabiting partners. A cohabitant must have lived with a survivor for at least six months to be eligible ahead of a spouse. That would indicate de facto separation. There is no time period required for the cohabitant to come ahead of the survivor’s children. The moment that the cohabitant moves in, they come ahead of the children. That is inconsistent and it could cause unnecessary conflict. I am grateful that the committee agreed and recommended that the six-month cohabiting requirement should apply before a cohabitant is eligible ahead of a survivor’s children, equalising that with the position for a spouse or civil partner.
The final issue is one about which I harbour a personal concern, although Jamie Greene also partly raised it earlier. Although my concern was shared by other committee members, it was not quite a feature of the report. It is about the viability of delivering a just system of tiered payments. The committee made a number of recommendations on payment levels, but I would like to go a bit further and question whether the system should be tiered at all. Although we might all recognise that, however uncomfortable it sounds, some abuse is of such severity that a larger financial payment might seem appropriate, I struggle to see how that can be codified in such a manner that it would not result in a great deal of upset and even further trauma for some survivors. Any tiered system would unavoidably create a hierarchy of abuse, as Jamie Greene said.
The survivors who have spoken to me—people whose experience of abuse was very different, as they would collectively recognise—do not support such a system. They would prefer to see a system of flat payments. Not only would that avoid the morally questionable creation of such a hierarchy of abuse; it would dramatically simplify the system. I am inclined to agree with such a position.
I recognise that there will be a diversity of opinion among individual survivors and different survivors groups. I can speak only for those who came forward to engage with me during the process—people who had different experiences of abuse, but who collectively agreed that a flat payment system would be the most effective way of ensuring a just form of redress for them all.
As with the waiver, I came to agree with that position for practical and ethical reasons. We all want the scheme to work. I have no doubt that the Government and the cabinet secretary are committed to that. However, as I said, the bill will require substantial changes if the cabinet secretary is to be confident that it will command the support of Parliament and, more importantly, that it will have the confidence of survivors and provide them with the redress that they deserve.
15:42Beatrice Wishart (Shetland Islands) (LD)
I, too, am pleased to be speaking in the stage 1 debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill; the bill has been described as technical, but it is also complex.
At its heart, the bill is about vulnerable children who were abused while in residential care settings and who have had to live with the consequences of that abuse. I thank all the victims/survivors who engaged with and gave evidence to the committee, either in person or by writing to us. As other members have done, I add my thanks to the unseen but important committee support team that has enabled us to reach this stage.
I also thank colleagues on the Education and Skills Committee and convener Clare Adamson for her leadership. The committee worked in a spirit of co-operation with the aim of meeting the needs of victims/survivors, and ensuring that it did so with dignity, respect and compassion. The responsibility weighs heavily on me, as I am sure it weighs on all of us.
The bill aims for a trauma-informed, non-adversarial process that acknowledges the abuse and provides redress through a fast financial payment. It should be noted that, for some victims/survivors, meaningful and individual non-financial redress is as important—perhaps more important in some cases—as receiving any payment.
As we have heard this afternoon, there are continuing concerns about the waiver in the bill. The Scottish Government has suggested that the waiver is necessary to incentivise contributions to the redress fund from organisations that were responsible for the care of children, but the evidence from some care providers and survivors indicates that it will not function in the way that the Government intends. By signing a waiver, survivors will give up the right to pursue civil justice. As the stage 1 report indicates, the evidence heard by the committee from the victims/survivors is that the waiver would restrict their choices and should be removed.
The cabinet secretary has suggested that no other redress scheme anywhere in the world has been identified in which providers make contributions but receive no waiver. That is not a reason not to establish an alternative method that is suitable for this redress scheme. The Scottish Human Rights Commission suggested a different approach by proposing an offsetting option rather than a waiver.
It is clear that survivors do not seek double payments by accessing both the redress scheme and civil action. Obviously, that would not be equitable. In the written evidence that she provided to the committee, Dr Maeve O’Rourke from the National University of Ireland Galway stated:
“In forcing survivors to choose between a guaranteed financial payment and accountability, the waiver arguably emits a message to survivors themselves and to the general public about survivors that they are interested in money above all else. This is simply untrue and degrading to survivors.”
I remain unconvinced that the waiver scheme is appropriate. In fact, it goes against natural justice and it will not work.
Beyond the waiver, views differed about the payment levels and tension exists in relation to institutions and their financial contributions. Institutions and charities want to contribute and they are committed to the survivors and the important process of national healing and reconciliation. However, some have said that they cannot sign up to an open-ended chequebook and the estimated figures.
The modelling of the overall cost of £408 million is on the basis of 11,000 payments to victims/survivors, with a further 1,000 payments to next of kin. It is in nobody’s interests to lose institutions or charities that are carrying out good work now because contributions for past wrongs become unsustainable. Financial risk has to be managed and charity law has a role to play in that, too.
Viv Dickenson of the Church of Scotland social care council said that the level of contributions being asked for was predicated on contributions being backed up by insurance. That may be a dangerous assumption to make. Charities have said that they do not have spare cash lying around. The scheme has value only if it works. There needs to be clarity about what institutions are being asked to contribute and about the process, if it is to be affordable for them.
Another issue that must be ironed out is the qualifying age. The qualifying age for the advance payment scheme was 70 years old; it has been brought down to 68, but a written submission asked for it to be reduced to the state pension age.
Finally, the bill must be properly trauma informed. In that light, the way in which the scheme deals with applicants with criminal convictions must reflect what we know about the impact of adverse childhood experiences. Some evidence has shown that those with significant ACEs can be 20 times more likely to be incarcerated at some point in their lives. The scheme cannot be ignorant of the relationship between its subject and the impact of that trauma.
There is work to be done, but today I and the other Scottish Liberal Democrats are happy to support the principles of the bill.
The Deputy Presiding Officer (Linda Fabiani)
Before we move to the open debate, I remind members that, if they are taking part in the debate, they should be in for all the opening speeches and that, even if previous business finishes earlier than expected, business items run on one from the other.
We have a little time in hand, so I can give a bit of space for interventions. Speeches can be up to six minutes long.
15:49Kenneth Gibson (Cunninghame North) (SNP)
As we know—and to our collective shame—over several generations, many Scottish children who were placed in the care of organisations or boarded out by the state were victims of widespread, serious, systemic and societal failings. Those trusted organisations badly let down many of our most vulnerable children in their basic duty of care.
Because of the systemic nature of the abuse and the lack of accountability, survivors were betrayed by those who should have protected them. The Scottish Government has a moral obligation to those children, who are now in their adulthood. The bill aims to fulfil that responsibility by attempting to address, in modest financial terms, the damage that was caused to survivors of historical child abuse in Scottish care institutions.
The committee heard a range of views from stakeholders regarding the value at which recompense should be set. The bill currently sets out two types of payment under the scheme: a fixed payment of £10,000 and individualised payments dependent on the scale of the abuse experienced. Those are dependent on the provision of evidence and are set at £20,000, £40,000 and £80,000.
The committee heard concerns from survivors that those sums are significantly lower than could be gained through civil litigation. That is designed to reflect the fact that the scheme will have lower evidential requirements than courts have. However, the proposed payments are considerably lower than those for similar schemes in other countries. The £10,000 fixed-rate payment was particularly unpopular among survivors. My view is that the gap between where evidence is required and where it is not is too narrow, given the need to provide evidence for an increase just from £10,000 to £20,000.
It is vital that we remain open to considering the appropriateness of all levels as the bill proceeds. Some stakeholders suggested that, rather than have set amounts, the panel should have powers to make payments within bandings. The broad levels in the bill create uncomfortable lines, and survivors with very similar experiences might fall either side of those. One survivor could conceivably receive £40,000 less than another because they spent one month less, or even one week less, in care.
However, there are also difficulties with wholly individualised sums. As the bill’s policy memorandum states, there is a risk that that would
“further individualise payments and distinguish the experiences of survivors”.
Different levels allow for different payments without necessitating overly detailed and highly individualised assessments.
It is not easy to create an assessment framework that avoids a so-called hierarchy of abuse and recognises that some experiences may have been more severe than others. Nevertheless, there might be scope to retain levels as envisaged in the bill while making the differences between them less stark. The decision on that must be reached in consultation with stakeholders to ensure that an appropriate balance is struck. As much detail as possible must be provided to make the process as transparent as possible.
The on-going Scottish child abuse inquiry seeks to understand the scope of the abuse of children in care and is investigating the type of abuse, the effects on children and their families and the extent to which organisations failed in their duty of care. The inquiry is also examining whether legislative changes are necessary to protect children who are currently in care.
To encourage organisations to contribute to the scheme, the bill states that those who make a fair and meaningful contribution will benefit from a waiver. We have heard extensively about that particularly contentious issue. The committee heard that the waiver is unpopular with survivors, as many view it as restricting their right to pursue future civil litigation. For many survivors, acknowledgement of culpability is as important as financial redress. As Jamie Greene said, for some people, an apology is worth more even than the money.
The issue of a waiver is emotive, so we must take into account the views of survivors. Above all, we have to recognise the role that must be played in the scheme by the organisations that ran the institutions where abuse took place. However we proceed, maximising care providers’ participation is a pivotal part of ensuring meaningful redress.
It would not be appropriate for applicants for redress to have to contribute to associated legal fees, and nor is that expected. However, legal fees are an important consideration when assessing the cost of redress, and a cap on the legal fees paid by the Scottish Government is necessary. Other redress schemes—for example, that in Ireland—found that the overall cost escalated due to spiralling fees. By 31 December 2015, the Irish Residential Institutions Redress Board had approved fees of €192.9 million to 991 legal firms, with 17 paid between €1 million and €5 million each and seven paid between €5 million and €19 million each. That was certainly an unanticipated aspect of the scheme and an example from which we can learn. By ensuring that fees are subject to an appropriate cap, we can ensure that the money in the scheme goes where it should go: to survivors of historical abuse.
Currently, the scheme is intended to redress abuse that took place before 1 December 2004, which was when the then First Minister, Jack McConnell, issued an apology on behalf of the Scottish Government to victims and survivors of historical abuse in care. That acknowledgement is often considered to be Scotland’s first step in coming to terms with systemic abuse in its institutions. However, the evidence suggested that the date should be reconsidered. Abuse in care did not end on 1 December 2004.
The inquiry can consider abuse that took place up to 14 December 2014. The committee heard in evidence that the qualifying date for redress payments should be aligned with that date. As the bill stands, survivors of abuse in care that happened between 1 December 2004 and 14 December 2014 could contribute to the inquiry but would not be eligible for redress.
The bill also permits a survivor’s next of kin to apply on their behalf after their death, provided that the death was after 17 November 2016. I am pleased that the cabinet secretary has said that that date will be changed to 1 December 2004. While partners and spouses can claim redress, the children of survivors should also be considered, in line with existing Scots law.
Scotland’s reckoning with our legacy of historical child abuse has been a long process, and we are by no means nearing the end of that journey. That said, the bill is vital for demonstrating Scotland’s commitment to delivering justice for survivors. We have listened carefully to their experiences and heard the lessons of previous redress schemes, and we must continue to do so as the bill progresses. If we do, we can create a bill that will work for Scotland’s survivors, who were let down so badly.
I know that the cabinet secretary will give further consideration to improving the bill, and I am pleased to support it at stage 1 today.
15:55Oliver Mundell (Dumfriesshire) (Con)
I am pleased to follow a number of thoughtful speeches.
I start by making it clear that, for victims and survivors, no amount of money nor any apology can take away or make good what has happened to them. Although, as others do, I believe that the bill is right and necessary, we must never fall into the trap of believing that we are somehow righting any wrongs or doing something good to make up for the actions of others.
For a start, despite the Deputy First Minister’s significant efforts on the issue, which Iain Gray rightly referenced, we have collectively come to the matter far too late, so—as the Deputy First Minister acknowledged—some people have not lived to see the legislation coming before Parliament. I could fill many speeches with the how, when, where and why of what has gone wrong over the years, but I would rather focus in the time that is available on a few practical concerns that relate to the bill.
First, I will raise two general points, then highlight a specific constituency example that has come to my attention that shows why those points are important, and which continues to give me cause for concern when I look at the bill.
I know that the cabinet secretary takes very seriously his responsibility for making the bill as robust and effective as possible, and I know that he has responded at length to the committee’s report. I know that he cannot please or help everyone, and I know that that fact will weigh heavily on him. However, from the point of view of expectation management and in the interests of clarity, I think that it is important that we understand the limitations of the proposed scheme and how it will work in practice.
The first issue that I want to understand better is the evidential threshold that will be required and the principles that will guide that. I note that the cabinet secretary has said that the tests that will be used will be lower than those for civil proceedings, but I am not clear what that will mean in practice. I would like to be included in the bill a provision that would put in place a presumption throughout the process that the people who come forward will be telling the truth. That sounds obvious, and it is the position that everyone here starts from, but I think that including that in the bill would be symbolic and would help the scheme in the future.
I also think that it is important that the process should recognise where individuals have made all reasonable endeavours and have exhausted inquiries when trying to produce evidence. I hope that that will be a factor that can be taken into account when decisions are made about whether, and at what level, to make an award.
The second issue on which further clarity is needed is the related issue of how the quality and availability of evidence will interact with the different levels of payment. Ross Greer made a number of important points on that. Evidence could become available at a later stage, after people might have signed a waiver, and if they had had that evidence at the time, they might have been eligible for a different award.
There is a more fundamental challenge. I find it very difficult even to say that there are different levels of harm. However, as a Parliament, we must recognise that that is an existing concept in the Scottish legal system; in many difficult areas, it is already accepted that there are different levels of harm. It is right to recognise that people who have experienced very serious abuse might legitimately expect the system to take that into account—albeit that I would not like to try to work out where the different thresholds should sit.
We really need to understand what evidence will be required and how the testimony of individuals who come forward will be looked at. I, for one, do not want people to be taken through a process that asks them to set out a great deal of detail, which will often be difficult and personal to them, only for them to be knocked back from a higher payment. Again, I would be grateful if the cabinet secretary could say more about that, so that I can understand his thinking on it.
Partly to illustrate the points that I have just made, I will highlight a constituency example. Over a number of years, the local authority that my constituency is in was in the habit of paying bursaries for young people to attend St Joseph’s college. I am aware of individuals who can prove that they were there because they have photos and certificates, and former teachers remember them. Those teachers also remember or believe that those individuals were on bursaries. It is well known and accepted that the bursaries were a common practice that the council adopted at the time.
Some of these individuals were abused—or, rather, some individuals who attended the school were abused; I do not want to mix up the two. However, those individuals cannot show that they were in receipt of a bursary, because the records no longer exist. My problem is that, when I look at the criteria that are set out for the redress scheme, I cannot be sure whether those individuals will be successful in seeking redress and, if they are successful, at what level. That illustrates how complicated the scheme is, and it is why it is so important that we understand what the evidential thresholds will be, what people will need to prove and when they will simply be taken at their word.
16:01Rona Mackay (Strathkelvin and Bearsden) (SNP)
The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill has been shaped and is owned by the many people who suffered abuse by people who were supposed to be caring for them.
In 2004, former First Minister Jack McConnell apologised on behalf of the Scottish people, and in 2018 the Deputy First Minister, John Swinney, apologised on behalf of the Scottish Government. The bill is the next step on that journey for the many survivors who are haunted by those terrible experiences. Money alone could never erase the memories and hurt, but for some people, whose life chances have been severely affected by what happened to them, it is a tangible way for society to say that it is sorry.
I, too, thank the many survivors who bravely gave evidence to the Education and Skills Committee. It was not an easy thing for them to do, but their views have been invaluable in shaping the bill, which is their bill.
Of course, not all survivors will want to take the route that is set out in the bill. That is understandable and it is their right. However, for some survivors, it just might make a difference in helping them to get on with their lives. The organisations that failed them will be asked to make fair and meaningful contributions: to me, that seems to be entirely right.
The bill is complex and the committee struggled with many aspects during its scrutiny. As the convener outlined, we have sought to ensure that our recommendations reflect the desire that victims/survivors be treated with dignity, respect and compassion. That is the least that we can do.
The bill will allow applicants to choose whether to apply for a fixed-rate redress payment of £10,000 or an individually assessed redress payment of £20,000, £40,000 or £80,000. An independent non-departmental public body—redress Scotland—will make the decisions on applications for financial redress.
The most contested element of the bill is the waiver that would mean that a person who chooses the redress scheme would be unable also to choose civil litigation. The waiver would allow survivors to access justice without the implications of taking court action, and to receive compensation from the organisation that was responsible for the abuse. It would mean that the survivor would choose the path that they take. They would have a choice.
However, the overwhelming view that victims/survivors conveyed to the committee was that the waiver would restrict their choices, so it should be removed. The committee also spoke to many care providers at stage 1 and heard no evidence to suggest that the waiver would incentivise them to participate in the redress scheme. To be clear, I note that a survivor would not have to waive their right to pursue litigation where a provider did not contribute. The waiver would apply only where organisations made a fair and meaningful contribution. The committee has determined that the waiver provision as drafted would not function in the way that the Scottish Government hopes.
There are issues about the sustainability of charities and organisations and about restricted funds, and there is doubt about whether insurers would pay out in relation to the scheme. I am pleased that the Government has committed to considering that aspect before stage 2.
The time period around the waiver is also a problem, but the Government has listened to the evidence that was taken by the committee and will lodge amendments at stage 2 to increase the 12-week extension period to six months, and the four-week review request period to eight weeks.
There is also an issue with survivors who are more than 70 years of age whose records have been destroyed and who therefore cannot access redress. I hope that that can be considered before stage 2.
Another crucial issue is relevant care settings, and the disappointment that was expressed by some survivors that their abuse will not be recognised because they were placed in a care setting by a parent or guardian. Many children found themselves in care due to having a disability, through a scholarship or for religious reasons. Their abuse was no less than that which was suffered by children who were placed in care by the state. However, the Government believes that if the eligibility criteria are open ended, that could undermine the scheme, and it is content that there is
“an appropriate limit to set.”
I am pleased that there is, however, some flexibility in the regulation-making power, should the position change.
I turn to the definition of abuse. The Government decided that an exhaustive, rather than inclusive, definition was better for legal certainty, but it conceded that an amendment to align it with previous legislation would be considered. In addition, the ongoing drafting of the assessment framework will reflect the evidence that was heard at stage 1. In that regard, corporal punishment that was legal at the time when it took place, for example, would be considered to be abuse if it was excessive. That is the right course of action.
The issue of cross-border placements will also be addressed in an amendment at stage 2.
Qualifying dates for the scheme are contentious, so the Government has committed to considering its position on them in advance of stage 2.
Evidential thresholds and payment level thresholds are matters on which there are strong views. As others have said, this is a very sensitive area in which it is important to avoid a hierarchy of abuse. How could we say what level of cruelty traumatised one person more than it did another? It is certainly not for the committee to recommend payment bands, but we believe that the assessment framework is integral to the scheme. I am pleased the Government has committed to looking at the issue and to adopting flexibility where necessary.
The bill deals with issues that are understandably sensitive and complex; those that I have highlighted are just some of many that were considered during scrutiny. I am extremely pleased that all the issues that were highlighted by the committee are being carefully considered by the Government. I am also encouraged that every part of the process, should a survivor take the redress route, will be led by trauma-informed practitioners, and that wellbeing support will be available for survivors.
People who have not been abused as a child will never know the lifetime of trauma that it causes survivors. A meaningful apology might make a huge difference. The redress scheme is not a magic bullet, but it offers something tangible—it offers choice to survivors.
I will be pleased to agree to the bill’s general principles at decision time.
16:08Jackie Baillie (Dumbarton) (Lab)
I thank the Scottish Government and the Education and Skills Committee for their work on the bill, and I thank all the survivors who helped to shape it.
The bill is incredibly important and significant, because the provisions that it seeks to create for survivors of child abuse have been a long time coming. For many survivors, providing redress signifies a step forward in their on-going recovery. The redress payment signifies far more than just the giving and receiving of compensation. It represents the justice that survivors have been seeking for decades.
Since I was first elected as MSP for Dumbarton, back in 1999—I was young then, Presiding Officer—I have been working with an incredibly brave woman, who has already been mentioned in the chamber today, called Helen Holland. Helen is a constituent of mine who, throughout the 1960s and 1970s, faced unimaginable abuse and neglect at the hands of nuns and other care workers at Nazareth house in Kilmarnock. The stories that Helen has shared over the years about her time in care are harrowing, and she still suffers the lasting effects of her experiences each and every day. For many survivors, simple daily tasks are difficult, and some are still affected by the deep trauma of their past. Over the past 20 years, Helen has spent her time fighting to ensure that no child in care ever goes through what she and so many others did.
In 2000, Helen worked with others to found INCAS, which supports survivors of in-care abuse. The organisation was set up because there was nowhere that survivors could turn to for practical support and help at the time. More than 120 survivors went to INCAS’s first gathering. Since then, the organisation has grown and grown, and it continues to provide support and therapy for people who are still struggling to cope. It also campaigns for justice for survivors. It has been at the forefront of the fight for redress, and its continued efforts will result in many survivors receiving long-overdue justice and recognition.
When I spoke to Helen a couple of days ago about today’s debate, she told me that, although the bill is very welcome, amendments are needed if it is to truly support survivors. Therefore, I welcome the cabinet secretary’s indication that he is listening and willing to lodge amendments.
As Iain Gray has already explained, the waiver in the bill presents a number of problems. By signing the waiver, survivors would be agreeing not to start or continue any civil legal action on their abuse against the Scottish Government or, indeed, any other care provider. I understand that the Scottish Government is trying to incentivise care provider participation, but the waiver as it stands perhaps does the opposite of what we want it to do. It is wrong to deny survivors an informed choice. Surely that could be easily resolved if the bill was amended so that the courts were directed to deduct from any future damages awarded the amount already paid to the survivor by the Scottish Government or the relevant care provider.
Many survivors simply cannot cope with going to court and being forced to relive their unbearable levels of suffering. Because of the historical nature of the abuse, many survivors are now elderly and have long-term mental health problems; indeed, some of them have terminal illnesses. It is right that they should receive a redress payment while they are still able to do so, but it is not right that they should be forced to sign away their right to pursue the matter in the courts. Allowing survivors to seek informed advice from a legal representative on any future action that they may wish to take is probably the most straightforward and obvious way of ensuring that justice is truly served for them.
The second area of concern that Helen raised with me is the payment amounts that are set out in the bill. Helen and, indeed, all the survivors whom I have met will say that it is not about the money. No amount of money will ever be adequate compensation for what they went through, but there are significant inconsistencies between the maximum amount that Scottish survivors can receive and the amount that Irish survivors, for example, receive. They are different countries with different legislative systems, but abuse is abuse, and abuse should not be of less importance because of the country, especially if the abusers were the same people.
Helen told me about two sisters. One was sent to a home in Ireland and the other went to a home in Scotland. Both were in Nazareth house homes, and they were abused by the same individual over a number of years. However, the sister in Ireland has received 200 per cent more in compensation than the sister in Scotland is likely to receive. That is because the block payments in Ireland range from €50,000 to €350,000, whereas the range in Scotland starts at £10,000 and rises to a maximum of £80,000. Given that the only difference in many cases is the country in which the child was abused, it is vital that more consistency is created in the amounts that are paid out.
As we have heard from colleagues in the chamber, there is also an issue to do with the structure of the block payments. The payments, which are set in blocks of £10,000, £20,000, £40,000 and £80,000, are decided according to the severity of the case. However, as others have said, the level of proof that is required is not clear, and there appears to be no flexibility in the level of award. That is unfortunate, and I hope that it will be addressed at stage 2.
It is 21 years since I met Helen Holland. It has taken a very long time to get to this stage. As Iain Gray said, there was an apology to survivors from Jack McConnell in 2004. We have had the removal of the time bar and the public inquiry, but it would be another 16 years before a redress scheme was before the Parliament. Today is very welcome, and I commend John Swinney for his efforts in ensuring that that has happened. It is time for justice for survivors, and I urge support for the bill.
16:14Alex Neil (Airdrie and Shotts) (SNP)
I very much welcome the bill. As other members have said—in particular, people such as Jackie Baillie and I, who have been in the Parliament since day 1—we have lessons to learn for the future. The bill should have come to the Parliament many years ago—probably 20 years ago—rather than now.
However, we now have the bill at long last. As a Parliament, we have two duties to survivors. The first is to make sure that the bill is enacted as legislation and gets royal assent before the election next year. We cannot afford to delay any longer and we need to do all that we can to get it right. This is not a party-political issue. We all accept that it is a good bill, but we—and that includes John Swinney—also accept that there are one or two areas where we can improve it to make it an even better bill, which we should do over the next couple of months.
Like others, I will start with the waiver. The first thing to understand is that the waiver is the totemic issue for survivors. Survivors are not happy with it, because whether the law says so or not, they are of the view that it undermines their human rights. With the horrendous experiences that those people have already been through—and I commend the cabinet secretary for listening to what survivors have been saying—we have to listen to what survivors are saying about the waiver.
Survivors have two fundamental concerns. I have already referred to the first, which is that they believe that it is a waiver of their human rights and that they should have the right to go to court if they feel that they should, even if they have been paid the maximum amount, or indeed any amount, under the redress scheme.
Secondly, and this has been mentioned briefly in passing by a previous speaker in the debate, the waiver could be a disincentive to some survivors to apply for the redress scheme. That is absolutely not what any of us wants. We have to take the survivor community’s views seriously about the waiver. I welcome John Swinney’s open response to the committee’s recommendations on that issue.
On the other side, as it were, providers are not happy with the waiver either. They indicated that had they been consulted a bit more—and they believe that they were not consulted enough pre-legislatively—they would have pointed out that the waiver as it is currently constituted will not act as an incentive. The incentives will come from handling the contribution scheme in a different way. Neither the survivors nor the providers are happy with the waiver scheme.
In the committee’s evidence, we heard about an issue with the legal enforceability of the waiver in Ireland, which has not been mentioned in the debate so far. The Irish had a waiver that was subject to legal challenge under the United Nations convention against torture. The legal point that was made in that challenge was that, despite the fact that the waiver—the Ireland residential institutions redress board scheme—had been legislated for and established in Irish statute, it was still open to challenge by international law on the basis of rights that are given to and exercised by people under the convention against torture. There is still a big question mark over the enforceability and legality of the waiver from a human rights point of view, which is a point that was also expressed by the Scottish Human Rights Commission.
I do not think that it is black and white, but there are serious question marks. Looking at the Irish experience also suggests that the offset route, whereby courts are directed to take any settlement in any court action into account, might be a better way to do it. Other halfway measures may be possible and, obviously, the Government will be looking at that. I welcome the fact that the Government is looking at that issue again.
I come to the contribution scheme. Most of the providers whose organisations have been responsible for historical abuse want, in principle, to contribute to the scheme. Anybody with any feeling of moral responsibility who is running those organisations would, obviously and correctly, feel that they should contribute. However, there are a number of issues that could incentivise and facilitate contributions from the providers, if they were added to the bill.
At the moment, the bill establishes, rightly, the principle that those organisations’ contributions should be fair and meaningful, and there is a clear message from Parliament about the moral obligation on all those providers to participate in the contributory element of the legislation. However, there are three areas of concern.
The first is that levels of compensation should not be such that they undermine the financial viability of the organisations. That point was supported by the survivors in their evidence to the committee. They do not want to ruin the providers financially, because, although they are critical of the providers’ history, they are often very supportive of the work that the providers are doing now. The second issue is that survivors do not want levels of compensation to be so high that they could endanger the quality or level of services provided by organisations to the people who need those services today.
I absolutely support John Swinney’s point about not putting a cap on contributions—that would send out completely the wrong message—so the way to handle those concerns is to add to the bill the principles that, as well as being fair and meaningful, compensation levels must not in any way be threatening to the financial viability of the providers or threaten the services that are provided by them. Including those principles would help us to incentivise people to contribute. Organisations are worried about what they perceive to be the open-ended nature of the commitment that they might be signing up to, but if those principles are established in the bill, those worries should disappear.
Let us not forget that many of the organisations are charities. Under charity law, the directors of a charity cannot sign up to any scheme that has the potential to threaten the financial viability of the organisation. Establishing those two principles, in addition to having fair and meaningful payments, would strike the right balance and allow us to ensure that we get contributions from those organisations.
The Deputy Presiding Officer
Come to a close, please.
Alex Neil
We should look at what we can do in respect of organisations that should be contributing but do not do so, albeit probably not on a statutory basis. By making those changes relating to the waiver and the contribution scheme, the cabinet secretary could achieve his very worthwhile objectives.
16:23Brian Whittle (South Scotland) (Con)
I am pleased to speak in the stage 1 debate on what is a very important bill. I commend the Education and Skills Committee for its in-depth and comprehensive report and John Swinney and the Scottish Government for their swift response to that report. In the limited time that I have, I will cover some specific points where I think that the bill needs strengthening.
As I said in last week’s debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, this type of bill demonstrates that Parliament is prepared to tackle a difficult topic and to bring the issues out of the shadows and into the light. Sexual abuse—specifically, child sexual abuse—has been swept under the carpet for far too long, with victims left without the support that they so desperately need.
As many of my colleagues will be aware, I have been working on such an issue on behalf of a constituent. It is fair to say that, over the prolonged period of time during which she has been seeking justice and redress, as my understanding of the trauma that she has suffered has increased, so have my discomfort and disquiet about how the ways in which victims are retraumatised and left open to suffering secondary abuse have continued to rise. The organisations that have been brought into question in my constituent’s case include local government bodies, an education authority, the police, the church, support services and the Scottish Government. We should not shy away from scrutinising the actions of any such organisations that might be involved in such cases.
The redress scheme is designed so that it is easier to access it than it is to take a case through the civil courts. However, the Criminal Injuries Compensation Authority already has a similar scheme in which decisions are based on the balance of probabilities. That is a different standard from that which is employed by a criminal court, which decides whether a case has been proved beyond reasonable doubt. The victim does not need to wait for the outcome of any criminal trial if enough information is already available for a decision to be made on their case.
Crucially, though—and contrary to the bill’s intention that the victim should waive their right to future civil action—should any subsequent payment be made arising from a civil action on a CICA compensation payment, the CICA payment should be reimbursed, which other members have said should be an option. I contend that, in that respect, the bill is flawed. It should not impose a ban on future civil action, otherwise why would a victim not just approach the CICA instead?
Furthermore, I contend that many of the support organisations for survivors are too close to the Government and receive funding directly from central Government, which potentially impacts their ability to act autonomously.
Another issue that has been raised in the debate is record keeping, which is currently woefully inadequate. As I said in last week’s debate, that is especially the case among local authorities, where there does not seem to be any requirement that they record potential cases of abuse within facilities that are run by them. Oliver Mundell also made that point.
Most importantly, the bill is currently designed specifically to provide financial redress for survivors of historical sexual abuse in care in Scotland. Of course, that is welcome, but in my view that aim is too narrow in scope. When I questioned the cabinet secretary on the eligibility criteria and urged that victims of sexual abuse in school settings should also be included, he responded that the scheme was designed to compensate those in relation to whom the state had undertaken parental responsibilities, by which he meant those in care homes. However, the bill that led to the Education (Scotland) Act 1980 used the term “in loco parentis”, which has the effect of transferring parental responsibilities to schools temporarily. That would also be true in other instances. That being the case, the bill as it is currently drafted could leave the Government open to potential challenge in the European Court of Human Rights or by the Equality and Human Rights Commission because of the inequality in its approach to victims of crime, and especially such a heinous crime. Alex Neil was hinting at that in his contribution.
The cabinet secretary may be aware of a related case in which a judge found that the Irish Government had misrepresented a ruling by the European Court of Human Rights by excluding from its redress scheme children who had been abused in Irish schools. I accept that the issues that were dealt with in that ruling were not exactly the same as those that we are debating, but that situation suggests that the bill that is before us could be open to a similar legal challenge.
As is the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which was passed last week, the bill that is before us is very welcome and long overdue. In developing it, though, it will be incumbent on us all to ensure that it is the very best that it can be for all those who have been victims of such horrendous crimes and who have to carry that burden throughout their lives. Financial redress will never heal their wounds, but it might at least give them comfort that their voices have been heard and there is an acceptance that they have been victims.
However, so much can be and needs to be done. Understanding the journeys of victims—both those who speak out and those who initially cannot—and the repeated trauma caused by having to retell their stories to multiple agencies, and tackling the lack of accessible, adequate support must all become part of the jigsaw. I have absolutely no doubt about Mr Swinney’s commitment to those who have suffered such crimes. However, I ask him to be a bit braver—to look beyond the limitations created by the way in which the bill is currently drafted and towards those who have suffered in similar ways but who are currently excluded. If we do not do so, it will only require more legislation further down the line. I urge him to make the bill everything that it can be.
The Deputy Presiding Officer (Lewis Macdonald)
The last member to speak in the open debate will be Annabelle Ewing.
I am sorry, but we cannot hear Annabelle Ewing because there is a problem with the sound. As we have some time in hand, I will suspend for a few moments to see whether we can connect Annabelle Ewing.
16:30 Meeting suspended.16:32 On resuming—
The Deputy Presiding Officer
We can now hear you loud and clear, Ms Ewing.
Annabelle Ewing (Cowdenbeath) (SNP)
Perfect—I am very pleased to be called to speak in the debate.
Although I am not a member of the Education and Skills Committee, which is the lead committee, I have a particular interest in the subject matter because I was the Scottish Government minister tasked with steering through the Limitation (Childhood Abuse) (Scotland) Bill. In the stage 3 debate on the bill in June 2017, I considered it of the utmost importance to recognise the bravery and perseverance of survivors, who have had such a long and arduous fight to set right the terrible injustices that they have suffered.
The Limitation (Childhood Abuse) (Scotland) Act 2017 was passed unanimously by the Scottish Parliament. It was just one element of a suite of actions that the Scottish Government undertook to carry out following on from the recommendations set forth further to the Scottish Human Rights Commission’s interaction process. Further to that process, the Scottish Government has taken several actions, including setting up a national confidential forum, the establishment of the Future Pathways support fund, the support for Margaret Mitchell’s member’s bill, which became the Apologies (Scotland) Act 2016, the establishment of the Scottish child abuse inquiry and the undertaking to propose a redress scheme. We have heard about the advance payments that have already been made under that scheme. It has evidently been a long journey for the Scottish Parliament, and importantly, for the survivors.
It is important to recall the backdrop to the bill, because it puts several key issues in context. The key issue that the bill must address is the most efficacious way in which to set up the non-adversarial redress scheme. It will have to have the means to pay out the contributions from the providers of care concerns. I understand that that is a key issue for the survivors because, quite rightly, they feel that those providers of care have a moral responsibility. I agree entirely with that sentiment. Seeing society recognise the harm that was done to those individuals and doing right by them is part of the important task that we are engaged in. That has been a persistent ask of survivors over many years.
As to the mechanics proposed, I know—and we have heard this afternoon—that the most controversial issue is the waiver. I note that the Law Society of Scotland, for example, has raised particular legal issues with it. As a member of the Law Society of Scotland, I understand the rationale for those concerns but I feel that they could be overcome, certainly from a legal perspective.
In considering the issue, it is always important that we keep two particular issues in mind. The first is the role of the redress scheme. The scheme is to be a non-adversarial alternative to court, offering a faster and more straightforward process. It is intended to be less traumatic for survivors, in particular, because of the in-built support that it entails. Also, it will encompass within its scope the pre-1964 survivors, which was an issue that we simply could not square under limitation legislation, in the light of the prescription law of Scotland. The second important issue to keep in mind is that not all survivors want to go down the court route. They might find that it is not for them, or they might not be able to do so successfully given the very significant procedural and evidential hurdles that remain. In that regard, I note that the limitation legislation did not remove all barriers to a successful action. It removed one barrier—the three-year time bar, which applied de facto in all cases that were brought. Those two key issues are important as the backdrop.
The cabinet secretary has said that he will continue his reflections on this important subject, and I welcome that approach. I think that it is recognised that the cabinet secretary has a deep and personal commitment to securing access to justice for survivors. In the instant case, that means finding a redress system that is workable in practice. It is not good enough for Parliament simply to come up with something on paper that will not work in practice and that does not take account of what are perhaps unrealistic expectations of the role of the redress scheme and, in some instances, of the role of civil litigation with regard to this issue, because of the immense hurdles that survivors will face in the civil courts in terms of evidential and procedural rules.
It is fair to say that the cabinet secretary made the point in his response to the stage 1 report—I think quite fairly—that there is no evidence of any international redress scheme with no form of waiver in place. It is also fair to say that we can come up with something different. However, the international evidence suggests that the issue has been wrestled with by many people in many places and no workable alternative has been found. That is important to bear in mind in future considerations.
I understand that some care providers, in their written submissions to the committee, suggested that the waiver was important to the making of financial contributions. Those care providers included Aberlour, Quarriers and the Church of Scotland’s CrossReach organisation. That issue has to be weighed significantly in the further deliberations on the bill, and I am sure that it will be. It is fair to say that, without financial contributions, there will not be a redress scheme—that is the stark reality, and I believe that, if that happened, it would be a failure on the part of the Parliament in its duty to survivors.
Parliament has had an honourable track record in recent years. It has shown that it recognises the state’s failure in its duty of care to some of our most vulnerable children. It has also shown that it is really determined to see justice done. Therefore I feel confident that, after further scrutiny has taken place, we will see, in due course, the bill pass at stage 3.
The Deputy Presiding Officer
We move to closing speeches. We have a little time in hand, so speakers have a generous six minutes.
16:39Daniel Johnson (Edinburgh Southern) (Lab)
I begin by expressing a hope that, collectively, we live up to survivors’ expectations and that we meet their needs.
It is difficult to articulate the injustice and suffering that the bill seeks to address. Over generations, countless children were placed in the care of authorities and organisations where they were supposed to be kept safe, looked after and cared for. Instead, they were abused, exploited and preyed upon. Not only was that not prevented, but in many cases it was ignored and covered up.
As many speakers in this afternoon’s debate have commented, we have been on a very long—perhaps too long—journey. We heard apologies from the former First Minister, Jack McConnell, and they were repeated by the Deputy First Minister. We have also seen the creation of the independent child abuse inquiry. The debate is an opportunity for us to repeat those apologies and acknowledge the seriousness of what occurred in the past.
The debate also provides us with an opportunity to collectively take an important further and, I hope, final step. We must go beyond simply acknowledging the abuse and the wrongs that were done in their generality. We must seek to ensure that survivors have their personal experiences acknowledged and receive an apology and justice for the wrongs that were done to them as individuals. I will reflect and reiterate the Deputy First Minister’s comments, because I think that it is vital that we treat this as a genuine, collective endeavour and responsibility. There is a duty on all of us—not on any particular party—to live up to the expectations that so many survivors quite rightly have.
The creation of redress Scotland aims to create the means for survivors to seek justice in a way that is more straightforward and less burdensome that that of pursing a claim through the civil courts. Its creation also recognises that many might find it difficult to evidence their experience to the level that would be required in the courts. It is the right approach.
Experience in other countries tells us that we must avoid adversarial processes such as those that might occur in the courts. It also tells us that it is important to ensure that survivors are helped to make their claims, rather than having to fight for recognition, particularly given that so many have been fighting all their adult life for recognition and redress.
Labour will support the bill at stage 1. However, it is important that we highlight the areas that must be improved so that the bill achieves its aims as effectively as possible and provides justice to survivors.
As many speakers—Iain Gray, Jamie Greene, Rona Mackay, Beatrice Wishart, Alex Neil and Kenny Gibson—have noted, the waiver is the central issue that we must address. It is fair to say that we understand the intent behind the waiver, which is to incentivise organisations and maximise the number that participate by protecting them from further claims in the civil courts. However, the provision is deeply problematic for two reasons.
First, as Ross Greer, among others, set out, in the eyes of many survivors, at best, the waiver provides them with an invidious choice between compensation through the scheme or going through the courts; at worst, it is a removal of their rights.
Furthermore, and perhaps more fundamentally, I do not believe—nor do most members—that the provision does what it sets out to do. It does not provide an incentive for participation, because it is likely that participating organisations will not be assisted by their insurers in making payments, whereas they would get that assistance if they were taken to court. Bluntly, based on crude financial calculations, providers will be worse off if they participate in the scheme than they would be if they were sued. That is the blunt and simple reality that many of providers will face, and it is the basis of their concerns.
John Swinney
I am grateful to Mr Johnson for giving way. I follow the rationale behind his argument. However, does he accept that, if that were to be the case, the provisions in the bill would run the risk of not requiring providers to make contributions to the scheme if they thought that it was more in their financial interests to rely on court action being taken against them?
Daniel Johnson
I accept the point that the waiver cannot simply be additional to any potential liability that providers might find themselves facing. However, that is why it is incumbent on all of us to find alternative mechanisms to provide incentives. I think that the waiver sets out to provide an incentive, but it ultimately fails because it does not establish liability, and therefore the policies that providers have in place will not cover them. It also fails because uncapped liability might mean that trustees are simply unable to allow their organisations to participate, which is the point that Jamie Greene made. For both those reasons, the waiver is deeply flawed, although I understand the predicament and the challenge that the Deputy First Minister set forth.
There are also issues with the calculation of fair payments. It is essential that the concept of sustainability is included in the bill as a guarantee to organisations that participation will not put them, or the important services that they provide, at risk.
The issues concerning individual assessment have been made clear by Kenneth Gibson, Oliver Mundell and Ross Greer. It is the most delicate area of the work that redress Scotland will undertake. We are asking the organisation to listen to survivors, determine the veracity of their claims, assess the severity of that experience and then award a compensation payment commensurate with that.
Although I understand Ross Greer’s suggestion that a single payment should be made, I disagree with him. However, we must set out clearer principles on which the assessments can be made and on the evidence that is required to establish proof. Those principles should be in the bill with further detail in regulations. The only way to provide justice for survivors is to have a clear process so that any decisions made by redress Scotland will be beyond reproach.
The bill is complex. There are other areas that I could and should give attention to, but I do not have time.
I thank my colleagues on the committee and note the collegiate and constructive way in which everyone has approached the bill. I thank the clerks for their work. I have no doubt that we can address the issues that have been identified and that we can make sure that the bill does what survivors require of it.
16:47Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)
In closing for the Scottish Conservatives, I record my gratitude to the survivors who gave evidence to the committee and bravely came forward to tell their stories.
Members from all parties have made excellent, poignant and thoughtful contributions to the debate. As my colleague Brian Whittle pointed out, this is a difficult subject for some of us who have constituents who have been affected.
I thank the Education and Skills Committee for its work on this important step in redressing historical child abuse. Jamie Greene rightly said that no compensation can make up for the dark times experienced by survivors. However, members have acknowledged that we are taking a positive step for victims who suffered years of abuse that was largely ignored and swept under the carpet.
I am also pleased to hear the Government’s commitment to work with Parliament to get the bill right for those who were failed as children. Scottish Conservatives will work with the Government as the bill progresses.
Not only will the bill deliver fair and accessible forms of financial and non-financial redress for survivors, but it marks our recognition of the abuse and harm caused to the youngest in society, which should never have been tolerated.
The detailed text of the bill will be set out in the coming months. It is encouraging that we have much common ground to work on. First and foremost, we feel that we must do what is right and appropriate for victims and survivors. That is why Scottish Conservatives will support the bill.
The choices to be made by victims and survivors must be at that heart of the support mechanisms that the bill creates. I am glad that the committee noted that victims and survivors should
“be treated with dignity, respect and compassion”.
Those words should form the foundations of the bill.
We also welcome the Government’s commitment to establishing the survivor forum that John Swinney mentioned in his opening speech. Given the difficult circumstances that many survivors have faced for many years, it would be wrong not to make that a driving force behind the bill.
Support must be better tailored to what victims and survivors would find most helpful. We welcome the redress scheme that is set out in the bill, as it is designed to be far more accessible than the process of taking a case through the civil courts. We know that civil and criminal court cases can cause survivors harmful memories. As many speakers have said, it is vital that we ensure that the process is less arduous and damaging for survivors of abuse.
We welcome the inclusion of next of kin in the redress scheme. There seems to be unanimous agreement that, in certain cases, even if the requirement to take a case to the civil courts is removed, it is difficult for an individual to access support. The Law Society made an important recommendation in that regard, particularly for those who might find it difficult to seek redress, such as adults with incapacity.
That issue has not been mentioned in the debate as much as I thought that it would be. Adults with incapacity might have difficulties in relation to some aspects of making and processing an application for a payment, but they should not be excluded as a result. One way to address that issue would be to appoint a guardian or intervener under the Adults with Incapacity (Scotland) Act 2000, to allow an application to the redress scheme to be made on someone’s behalf.
I turn to what is included in the bill’s definition of abuse, which is another point that has not been mentioned in the debate as much as I expected it to be. Probably because I am not a member of the Education and Skills Committee, that caught my attention more than some of the other points that members have made, which I will summarise at the end of my speech.
Many stakeholders have expressed concerns about the omission of certain terms from the definition, but the one that has come to the forefront is the omission of corporal punishment, which in days past was commonplace in many settings, such as schools and children’s care homes, with teachers and care staff abusing their power. Because corporal punishment was permitted at the time, people who experienced it being used in an abusive way might feel discouraged from coming forward.
I understand that the cabinet secretary has given assurances regarding the redress Scotland panel taking a one-size-fits-all approach, and that it will consider whether corporal punishment should constitute abuse and whether redress should be considered for that. However. I agree with the committee that it is vital that the Government reflects on the wealth of compelling evidence on that point and addresses stakeholders’ views in forming a robust and encompassing definition.
Many members have spoken about the importance of the waiver and of the balance that must be achieved for the future viability of organisations. I am sure that that will continue to be a subject of debate, but we are here to encourage, not discourage, debate and participation. That is the approach of not only survivors but of members to the bill.
Jackie Baillie, Iain Gray and my colleague Jamie Greene are concerned that the waiver is a disincentive and said that they had heard evidence to that effect. The key issues of affordability and sustainability have also been raised. We must be able to attract contributions from organisations, and it has been suggested that the Government must look at that issue carefully if it is to get cross-party support on it at stage 2.
My colleague Oliver Mundell expressed his wish to see all evidence being taken at face value, which is an important point. There should be a presumption that those who come forward are telling the truth.
The committee suggested that, instead of fixed payments, payments should be made in bandings. As Jackie Baillie said, abuse is abuse, and there should be more consistency in payments, as well as in relation to the level of proof required.
Many members raised the requirement on survivors to make key decisions regarding offers of redress in a short timescale.
There is a lot to work on with the bill, but the Conservatives will vote to support its general principles at stage 1. John Swinney deserves grateful thanks for his pursuit of the bill, as everyone who has spoken in the debate has mentioned. We take our hats off to him.
We echo the calls in the committee’s recommendations and we look forward to making amendments to the bill at stage 2.
The Deputy Presiding Officer
I call John Swinney to wind up the debate. Cabinet secretary, you have until 5 past 5.
16:54John Swinney
I thank colleagues from all political parties for their thoughtful and substantial contributions to the debate, which I think will help us significantly in advancing the development of the bill and in the resolution of the issues on which there is not yet agreement.
The only place that I can start in closing the debate is with Jackie Baillie’s contribution—not because of the quiet banter that was going on during the suspension, which happened before Annabelle Ewing’s wise and thoughtful speech, but because of her comments about Helen Holland.
Helen Holland is one of the most remarkable people I have met in my life. I cannot begin to imagine the suffering that she has endured in her life; I cannot begin to fathom and understand any of it. However, she has devoted the past 20 years of her life to making sure that the world is a better place as a consequence of all the terrible suffering that she has endured. If there was ever an example to any of us as to how we should live our lives, it is how she has devoted the past 20 years of her life to the pursuit of justice, which is not really for herself at all but for everyone else. It has been the privilege of my life to get to know her and to be motivated by the spirit that motivates her.
Members have been generous in their comments about my personal commitment to the bill. My very high personal commitment to the bill, which is traced back to Helen Holland, is to make sure that I complete a task that she has been determined to complete. I pay warm public tribute to the many survivors who I have had the privilege to meet, but particularly to Helen for her determination in that endeavour.
Annabelle Ewing talked about the journey that we have been on. A few weeks ago, I gave evidence to the Scottish child abuse inquiry. I accepted—indeed, I offered this up to the inquiry—that I felt that we are getting to a place in which we are completing the addressing of the historical wrongs that have afflicted our society on these issues, with the Limitation (Childhood Abuse) (Scotland) Act 2017, for which Annabelle Ewing was responsible; the apology that the former First Minister Jack McConnell made; the Apologies (Scotland) Act 2016; the establishment of the Scottish child abuse inquiry; the establishment of the advance payment scheme; and now the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
It has taken us too long to get here—I accept that point in front of Parliament today as I accepted it in front of the Scottish child abuse inquiry when I gave evidence to Lady Smith—but we are here and I am absolutely determined to ensure that we get it right now that we have arrived at this point.
One of the strong points that Annabelle Ewing made—Jamie Greene, Daniel Johnson and Iain Gray made it, too—is that the purpose of the waiver scheme is to provide an alternative to court. It is to provide a reliable, dependable route that saves survivors going through the ordeal of providing evidence in a court case in an adversarial setting where it may be difficult to address the issues and find the evidence to successfully win a court action. As it is an alternative to court, it does not require the same burden of proof that a court requires. I will come back to that point in a moment.
Crucially, Annabelle Ewing also made the point that the scheme must work in practice. In that respect, Iain Gray’s comments are important. We all want to achieve the same objectives through the bill. The heart of the matter is that we want survivors to have an alternative to court that secures a dependable outcome for them and we want organisations—providers—to make a contribution. We are all agreed on those points. However, we are not quite agreed on the mechanism by which we can enable those two things at the same time.
In the spirit of the fair contribution that Daniel Johnson made to the debate, in which he called on us all to live up to the hopes of survivors to do it properly—I am completely committed to doing that—I invite members to go into the next stage of the process with an open mind and to try to address the question that I have posed: how do we design a mechanism that enables us to secure contributions from providers and delivers an outcome for survivors? That is the spirit in which I am going into the discussion.
I have proposed that the way to do that is through a waiver scheme, but if there is a better idea, I am prepared to contemplate it.
Iain Gray
An important element of this is the discussions that have taken place and of which the committee has some awareness—although perhaps not a great awareness of the detail—between Mr Swinney’s officials and the organisations about how the calculation would work and what the contribution would be. Will Mr Swinney go back into those discussions and revisit some of that because he clearly feels that there was a problem with where they had got to?
John Swinney
I am absolutely committed to doing that. I would also welcome some cross-party discussions before we get too far into stage 2 so that we can air openly the evidence and assumptions that underpin the Government’s position and hear what underlies other opinions. I am very open to that so that we can focus on answering the question how we design a mechanism that secures contributions and enables us to make payments to survivors. I have put a model on the table, but I would welcome a commitment to open cross-party conversations before we get to stage 2 amendments that will enable us to hear some of the detail that underlies that. I commit to that today.
Jamie Greene
I appreciate the cabinet secretary giving up his time in this short debate. I welcome his openness, and Conservative members will, as I am sure that other members will, fully participate in those discussions with transparency and an earnest intention to get to the root of it. However, the stage 1 report is based on evidence that the committee took. Paragraph 510 notes that the care providers that we spoke to said that there was no suggestion that the waiver would incentivise them to participate. The answer therefore lies in the contributing organisations. What do they say to us and what do they say to the Government? If they come forward with a suggestion that works, of course we will look at it, but ultimately it will be those organisations that pay the money. What do they say to you, cabinet secretary?
John Swinney
As I said to the committee, I have in my briefing the point that various organisations have welcomed the proposal for a waiver provision, including the Aberlour Child Care Trust, Quarriers, and Church of Scotland CrossReach. These are the issues that we have to explore. I want to answer Mr Greene’s question and I want these organisations to provide, because I want to address the issue that Helen Holland raises—she wants to make sure that these organisations are accountable to many survivors.
On the issue of the burden of proof, which Daniel Johnson raised, one of the important opportunities of the scheme that we are providing is that we do not have to have the same standard of proof as would be required in a court setting. We have set out that we are attracted by a standard of proof that is something equivalent to a civil standard, where the balance of probability is essentially assumed to be on the side of the victim and that something is more likely than not to have happened.
Crucially, in the advance payment scheme, 520 cases have been fulfilled and not one of them has, to date, been rejected on the basis of a lack of evidence. My officials are working hand in hand with survivors in some cases to find proof to substantiate the claims that are being made, but it is important to reassure Parliament that, in the approach that we have taken on the advance payments scheme, we have not rejected any cases on the basis of a lack of evidence so far.
Daniel Johnson
On the point about helping claimants to find the evidence, could that be put in the bill? That was something that I did not manage to say when I spoke earlier.
John Swinney
Without a doubt. That might also help to define in more detail, perhaps to the reassurance of Parliament, what is envisaged in terms of the standard of proof that might be required to address these questions.
Oliver Mundell
Does the cabinet secretary accept that the point that he is making becomes more complicated when it comes to determining the different levels or does he just not envisage a problem there? I worry that, to get the higher-end payments, the balance of probabilities might be interpreted differently.
John Swinney
I meant to mention Mr Mundell in relation to the burden of proof question, because his speech was dominated by that point. However, his intervention leads us to one of the other issues, which was covered in Ross Greer’s contribution. Another question that we have to resolve is whether we believe that a flat rate payment is more appropriate than a range of payments.
I suspect that going down the route of having a range of payments would require more evidence to be marshalled, whereas a flat-rate payment—which is what the advance payment scheme is based on—would perhaps make it more straightforward to enable payments to be made without it becoming a traumatic and arduous process for survivors.
There are choices to be made about the payments; in relation to that question, again, I am not wedded to a particular approach. I will listen carefully to where Parliament is on those questions and I will listen to survivors because, fundamentally, we want to secure a scheme that meets the needs of survivors and does not add to their trauma.
I hope that I have helped to reassure Parliament this evening that the Government will engage constructively on those questions. The bill has to be workable, because we have to be able to look survivors in the eye after the bill has passed and give them confidence that it delivers what they expect of us. I commit myself to that and I am greatly encouraged by the response of members this afternoon as to the commitment that is shared across the political spectrum.
The Deputy Presiding Officer
That concludes the debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
17 December 2020
Vote at Stage 1
Vote at Stage 1 transcript
The Deputy Presiding Officer (Lewis Macdonald)
The next item of business is decision time. There is one question to be put as a result of today’s business. The question is, that motion S5M-23707, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill at stage 1, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
The Deputy Presiding Officer
That concludes decision time.
Meeting closed at 17:07.17 December 2020
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.