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Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

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 1

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill as introduced 

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Stage 1 timetable

The Parliament agrees that consideration of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill at stage 1 be completed by 23 December 2020.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views here.

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

Video Thumbnail Preview PNG

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.

10:30  



To 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.

10:45  



We 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.

11:00  



Lisa 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.

11:15  



Dr 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.

11:45  



It 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.

12:00  



Beatrice 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.

12:15  



Kenneth 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.  



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Second meeting transcript

The Convener

Agenda item 2, which is our main business for the morning, is our third and fourth evidence sessions on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. [Interruption.]

I will pause again for the fire alarm. I apologise to our witnesses, who are waiting to come in.

I welcome our first panel: Kim Leslie, representative of the Association of Personal Injury Lawyers and a partner at Digby Brown; Una Doherty QC, from the Faculty of Advocates; and Iain Nicol, solicitor and convener of the Law Society of Scotland’s civil justice committee.

We are tight for time, so I ask members to be brief and witnesses to be concise in their answers. I remind members to put an R in the chat box—[Interruption.] I apologise again for the interruption from our fire alarm test.

I move to questions from members.

Iain Gray (East Lothian) (Lab)

There is a requirement in the bill for those who avail themselves of the redress scheme to sign away their right to pursue civil justice. The evidence that the witnesses and their organisations have submitted suggests that that is not necessary. Will they enlarge on that so that we have that on the record?

Kim Leslie (Association of Personal Injury Lawyers)

Our organisations are legal representatives. We see the waiver provision as the most dangerous one in the bill.

I represent a number of survivors, and I put on record that survivors are very concerned about the waiver provision, as it will benefit only the scheme contributors. The retention of the waiver provision is likely to make the survivors and their legal representatives more cautious about take-up of the redress scheme, because signing the waiver will, in effect, waive their civil rights for all time.

The bill expects survivors and their legal representatives to elect to sign the waiver at a time when not all the information is necessarily available. By that, I mean that the changes in the law have only recently come in, so there is a changing and evolving legal landscape. The Scottish child abuse inquiry is still undertaking its work and publishing its case study findings periodically. Therefore, there can be changes in the factual position as well.

My concern is that a legal adviser could be faced with a set of circumstances that are not black and white. A black and white case would be, for example, where there is no hope under any alternative route, either through the Criminal Injuries Compensation Authority, or a civil claim. In all but the extreme cases, such as those in which there is no—[Inaudible.]—case, or, by contrast, there is a convicted case with an identified and solvent defender, there will be shades of grey, as the legal landscape is changing all the time.

I think that that will prevent legal advisers from being confident at this stage to advise on the ramifications of signing a waiver. In a situation in which there is a live perpetrator, there may not be sufficient evidence to go ahead with a civil action at that stage, but would a legal adviser be confident enough to advise a survivor to sign a waiver for all time coming when there is the potential for prospects of success to improve?

Iain Nicol (Law Society of Scotland)

There are a number of issues with the waiver. The bill requires a survivor to “abandon” existing civil proceedings. It may be a relatively minor point, but abandoning an existing civil action requires the pursuer to offer their opponent legal expenses for the work that has been done in court up to that point.

One danger of the scheme is that it undercompensates, and experience shows that significantly higher awards of compensation can be achieved through civil litigation. If a carrot is dangled in front of a vulnerable survivor, they may be tempted to take it. However, if they have been pursuing an existing civil action for quite a long period, they could then be put in a situation in which they are forced to walk away from the civil action with no compensation from the defender, and potentially have to offer the opponent their court costs.

Even if agreement can be negotiated to terminate the civil action on a no-expenses basis, the survivor of the abuse will still have to account to their solicitor for the costs of the civil action up to that point. That puts the solicitor in a conflict situation, because they have to advise their client on potentially settling a case without any recompense through the civil courts and then bill the client for the work that has been done up to that point.

That is a fundamental flaw of the bill. I said in my submission on behalf of the Law Society of Scotland that the waiver provision should not be kept in the bill.

Una Doherty QC (Faculty of Advocates)

In our response to the consultation, as well as our response to the bill, we said that there should not be such a waiver scheme and that applicants should not have to choose at the outset between accepting a redress payment under the scheme and pursuing a remedy in the court. Kim Leslie and Iain Nicol have explained some of the reasons for that.

A potential award under the redress scheme may be much less than a potential award in court. The potential success of an action in court will be difficult for a solicitor to determine quickly, and it will involve quite a lot of work. To expect all that to be done without finance just cannot be right. That concern has been raised in the faculty’s response. As things stand, the costs to an applicant of getting advice on whether to proceed under the redress scheme rather than litigation would not be funded. To give up the right to pursue an action in court is a very big decision. As I have said, the potential award in court could be much higher.

Obviously, pursuing a court action is difficult, and a potential applicant would have to decide in any event whether to proceed with that, but I think that requiring an applicant to say at the outset that they would give up all right to a court process is fundamentally wrong.

Iain Gray

Thank you. Those answers were very clear.

The argument that has been put to the committee, which has been alluded to, is that the waiver is necessary in order to make it worth the while of contributors to the fund to actually contribute. The point is that they have to have that reduction in their liability in order to make it viable for them to participate.

What other legal remedy might ensure that contributors contribute to the fund? We have heard evidence that that is an important element of the scheme for survivors. They would like the organisations that are responsible for their abuse to make a contribution. If that is not incentivised through the waiver, what legal way would be possible to ensure those contributions?

Kim Leslie

We have to accept that complexity is not an argument against an offset provision. The scheme works the other way, in that previous payments can be deducted. The logic is simply not there. Offset is certainly an available option.

As the bill is currently framed, an applicant may approach redress Scotland without any legal advice. They are strongly encouraged to seek legal advice only at the point of an offer—when they have an offer or an award has been made. At that point, and at that point only, they have 12 weeks to assess whether they should accept the redress payment and sign the waiver. In those circumstances, that simply will not be sufficient time for proper informed advice to be given.

Optimally, a redress payment would be made and there would be an offset provision. However, if the waiver is retained, there ought to be safeguards so that there can be a pause at any point during the redress process to enable proper advice to be obtained.

Regarding incentivising the scheme, there will still be take-up by scheme contributors, because there will still be a number of applicants whose cases can resolve through the scheme, even if the waiver is removed. I understand that it is important to have accountability, but nothing should be taken away from the survivor unless it is replaced with something better. In my opinion, the waiver is too high a price for a survivor to pay.

09:00  



Iain Nicol

It is possible to make the waiver optional in cases where there is no intention of proceeding with civil litigation. That situation gives contributors the assurance that they will not be sued, and they may be more inclined to contribute in that situation.

It is important to bear in mind that there is no argument for doubly compensating victims. It is anticipated that the redress scheme will be quicker than civil litigation, although timescales have not been clarified. If a victim got a settlement of £40,000 or £80,000 relatively quickly from redress Scotland and then proceeded with civil litigation, it is expected that there would be an obligation on them to account to redress Scotland and to repay any compensation to avoid double compensation. If a survivor went to the court and got £100,000 when they had been paid £40,000 by redress Scotland, they would be obliged to repay that £40,000. That might give contributors some reassurance that they would not be doubly penalised.

Other than that, I echo what Kim Leslie said.

Una Doherty

The question was about how contributors can be encouraged to participate in the scheme if the suggested waiver is not part of it. The difficulty is that a potential contributor would normally be entitled to rely on any legal defence that they have. If there is litigation and they have a legal defence, they could rely on that.

It may be that contributors recognise the wrongs that have been done and that they therefore would not defend any civil litigations. They might be prepared to acknowledge their wrongs and contribute voluntarily to the scheme.

It is more difficult if a contributor does not voluntarily accept responsibility. They might not be prepared to contribute to the scheme unless there is some establishment of their liability. There is an on-going inquiry into child abuse, which will make certain findings.

All of those things could influence whether parties are willing to contribute to the scheme. I do not think that the fear that contributors will not get involved in the scheme is sufficient to justify the extreme measure of the waiver that we have discussed.

Alex Neil (Airdrie and Shotts) (SNP)

I have two follow-up questions. First, should there be an element of compulsion of contributors? It seems to me rather ironic that, if organisations are responsible for abuse, albeit historically, we should be in a position of incentivising them to do the right thing. They should be made to do the right thing. Is that not the right principle to adopt, despite the difficulty associated with that and any amendments to the bill?

My second question, which is very specific, goes back to what Iain Nicol said. He said that the scheme undercompensates people for the abuse that they have experienced. In his view, or in the view of the Law Society of Scotland, what should the levels of compensation be?

The Convener

I ask Dr Allan to ask his question, as well.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

Thank you, convener—and thank you for your kind remarks earlier.

On the back of a couple of previous questions, I want to ask about contributors. I think that the bill refers to a fair and reasonable contribution—or something like that. Do the panellists have a view on whether that is clear enough? What do they understand fair and reasonable to mean? I am referring to the financial contribution by the organisation to the scheme.

Kim Leslie

On Mr Neil’s questions, first, I could not agree more. That is how I practise my role. I rarely call on people to do the right thing. If I believe that there is a legal remedy for my client, I take steps to bring their case to a conclusion and deliver a result. However, I can confirm that there has been a variance in attitudes to how collaborative and forward thinking organisations have been in dealing with cases.

I appreciate that we are primarily pursuing financial redress, but it should also be made clear that, in any negotiated case, we are entitled to ask for ancillary things, such as apologies or a meeting with safeguarders. There is absolutely a range of attitudes to how organisations are dealing with the issue. If there was a way of making things compulsory in such a scheme, I would welcome that.

On the level of awards, I take it from the bill and the underpinning policy that the scheme is meant to be a national collective redress scheme, so it moves away from individual impact to systemic failure. In effect, it looks at the nature of the abuse and the physical acts themselves rather than the individual psychological impact. By contrast, civil litigation is about the impact on an individual, which is often a lifelong psychiatric impact that results in a reduction of work capacity and the ability to pay into a pension scheme. We have to look at the impacts on each individual in terms of their injury and their consequential losses.

Members will appreciate that, in those circumstances—we deal with reparation, which involves trying to put somebody back to the position that they would have been in but for the abuse—there can be quite high figures for damages. The levels of awards that are proposed move away from the individual impact and are simply about systemic failures and descriptions of the acts rather than the psychological consequences.

The question about being fair and reasonable is very difficult to answer. The concept of the polluter pays is well recognised. I suspect that the number of applicants and the description of the abuse would determine the tariff award and, in turn, what the fair and reasonable contribution would be that the polluter would pay the applicants who have made applications for redress.

Iain Nicol

On the point about undercompensation, my experience—and Kim Leslie’s experience, too, I think—is that the level of compensation that is achieved in civil claims is higher than what is being suggested under this scheme. For example, in the most recent sexual abuse case that I settled, earlier this year, the victim received £160,000, which was predominantly for the injuries; very little was built in for any other heads of claim. If the top end of the scheme is £80,000, which we anticipate would cover the worst-case scenarios, it seems likely that higher awards are achievable in court. However, we recognise that a quick and efficient redress scheme that pays out significant sums would be a good thing, because it would give certainty, and it may give money slightly quicker than would be expected in court.

As Kim Leslie has explained, it is important to understand that every case in a civil court is looked at on its own merits. There are seldom two cases, even with broadly similar circumstances, that will attract identical awards of compensation. It is impossible to come up with alternative figures for the redress scheme, although it can be suggested that the figures in the scheme are less than would be achieved in court.

On a fair and reasonable contribution, all that I can really say is that clients often want to see the offender pay. That is one of the disadvantages of a criminal injuries compensation scheme that is simply a tariff-based scheme that pays out without any contribution from the offender. The answer to that is that the higher the contribution towards the total settlement that comes from the contributor, the better. I do not have any answers on what percentage that should be, but survivors of abuse would certainly like it to be as high as possible.

Una Doherty

I think that three specific questions were raised, the first of which was about making organisations contribute rather than letting them volunteer to contribute. As we said in the faculty’s response to the consultation, one problem is that an organisation should be able to rely on any legal defence that it has, and there could be an engagement of article 1 protocol rights under the European convention on human rights if an entity is made to contribute when there is insufficient evidence to establish that it had done anything wrong.

That is the problem with saying, “We can just make people contribute.” Unless there is good evidence that an organisation has committed the abuses or is responsible for the abuses having been committed, there is a difficulty in making it pay. I think that that is why it is hoped that organisations would voluntarily accept responsibility. As I have said, some of them may well do that. There is evidence that that has happened elsewhere. Alternatively, if there was evidence through litigations that events had taken place for which an organisation was responsible, that is another thing that would be useful in establishing that it really should be paying.

The second point was about undercompensation. I concur with what has been said. What can be achieved in litigation is potentially far higher than the sums that are set out in the redress scheme. Litigation involves a lot of hurdles, but there could be higher awards in some cases.

On what would be a fair and reasonable contribution, the faculty’s response was that the level of contribution is a matter of policy. I agree that, from the survivors’ point of view, there would probably be satisfaction in knowing that a decent contribution has been made by the organisation, but what proportion the contribution should be is a matter of policy, so I would not want to comment on that.

09:15  



Jamie Greene (West Scotland) (Con)

It has already been a very interesting opening to the discussion. It is important for context that the committee is aware of the role that the organisations that are presenting evidence have in this matter. How does the Association of Personal Injury Lawyers, which is represented today, participate in such schemes? Is it paid on a fee basis? Does it normally receive a percentage of the award? Are the fees paid by the claimant or bundled in with the award? Those questions are important because I am keen to understand what advantage there would be in a claimant pursuing their claim through a redress scheme that is deemed to be more simple and easier than going down a legal avenue.

Is it not the case that a claimant could go down a legal avenue and participate in the redress scheme, and that they would have to make the choice on which avenue they would like to complete only when they had sight of the potential value of the award? I have been led to believe that there is not an up-front choice; rather, the choice is made at the end of the process.

The Convener

I will bring in Ms Leslie. All the witnesses do not have to answer the questions, but if they have something to say, I will bring them in.

Kim Leslie

Those are very interesting questions. In relation to the process that I see as being set out, Jamie Greene is absolutely correct to say that the only time that there is an election requirement is when the applicant has to sign a waiver. The bill sets out that an applicant can go to redress Scotland without having consulted a solicitor at that point. It is only when they receive an award—for example, of £40,000—that they are strongly encouraged to seek legal advice.

At that stage, the clock is ticking, because the offer is valid for 12 weeks. In special circumstances, and at the discretion of the panel, that period can be extended. My view is that it should be mandatory that such a request be granted, because that is too short a window for someone to make that critical decision, and it will not work in practice. At that point, legal advice is sought. People have to work out what they are giving up and, at that stage, it will be very difficult for a legal adviser, because considerations include the individual impact and the viability of a claim. A number of factors have to be weighed in the balance by a legal adviser in order to advise the client comprehensively about what they would be giving up, for all time coming, if they were to sign the waiver.

It is critical that claimants get legal advice. I suggest that, on receipt of an application and before an award is made, people are strongly encouraged to take legal advice, and we have to build the safeguard into the bill that, if a request for a pause is made, it is granted.

I draw an analogy with the Criminal Injuries Compensation Authority, which provides a scheme to compensate innocent victims of crimes of violence. Often in practice, an application is put in and then paused or stayed immediately, without any administrative burden or any payment being made, until the civil case is considered and concluded. That is done only, in effect, to preserve the option, in case the civil claim does not result in any financial redress to the claimant.

There are a variety of ways in which things are funded, and it is the same for any litigation. A no-win, no-fee approach is in operation in this field.

Iain Nicol

There are three main ways in which a civil claim would be funded. One way would be through a success fee agreement, in which the solicitor would operate a no-win, no-fee arrangement and charge a percentage of the recovered damages as the success fee. Claims can be pursued under legal aid or with the client paying privately. In my experience, they are predominantly pursued with success fee agreements. I do not do much legal aid work, but I have dealt with such cases under legal aid as well.

Success fee agreements are a relatively new concept; the legislation came in earlier this year to allow solicitors to operate on a damages basis. I think that they are working well and are improving access to justice. However, Kim Leslie made the very important point that the possibility of pausing an application to redress Scotland arises only prior to an award being offered. The Law Society’s view is that the ability to apply for a pause should subsist throughout the whole application process, even when an offer has been made, because that would give the survivor the opportunity to put things on hold and give them sufficient time to investigate the prospects of a civil claim and determine whether it is in their best interests to raise that or persist with it. It will take a lot longer than 12 weeks to properly investigate a civil claim. If the applicant is encouraged to go to a solicitor only at the time that the award is offered, there will be insufficient time to let the lawyer do their job properly.

I respectfully suggest that the guidance that is issued at the outset should encourage applicants to seek legal advice from day 1, before they even put their application in. We are dealing with vulnerable individuals who may have no idea how best to present their application, which could prejudice their ability to get the appropriate level of redress. If they are encouraged to go to a solicitor at the outset, they will be given advice about all the options and how best to present their application.

The Convener

After we have heard from Ms Doherty, we will move on to a new question from Mr Johnson.

Una Doherty

I do not have anything to add to what the others have said.

Daniel Johnson (Edinburgh Southern) (Lab)

Some of the issues that I want to ask about have been touched on in previous answers, but it is important that clarity and detail are provided, particularly when it comes to the evidential requirements and the assessment criteria that are set out in the bill.

The simplified application requires only documentary evidence that individuals were in residential care and a statement of the abuse that was suffered. Last week, we heard that the experience of the Irish scheme is that it is not always straightforward to provide such documentary evidence. With regard to the individually assessed payment, the bill does not specify particular evidence that would require to be submitted. Does the panel have any concerns about those issues?

Kim Leslie

That is another insightful question. One of the points that I have picked up from the bill and the explanatory notes is that, for the fixed payment of £10,000, all that is required is a statement from the applicant and a document confirming their residence at the place of harm. However, for the assessed payments of £20,000, £40,000 and £80,000, there is an expectation that more documentary evidence will be required, so there will still be a standard of proof. There are ways in which that can be demonstrated for the individually assessed payment; the documents involved are familiar to me, because they are the documents that we would look to ingather to support a civil claim.

Tom Shaw’s report highlighted clearly that record keeping and record retention is patchy and that having to find records causes difficulties, not only for survivors but when it comes to identifying defenders or opponents. As the law currently stands, there should be records that allow us to identify managers—local dignitaries were often involved—but there is an issue around the recovery of documents. It might be well within the means of some applicants, but by no means all of them, to obtain the records, but those documents might contain distressing facts that are unknown to the applicant or difficult for them to review, so it would be perfectly acceptable—[Inaudible.]

There are issues there that are built in, but a bigger issue is raised that I want to highlight to the committee. I direct the committee to my Digby Brown response, which makes a call for a change in the law in relation to the ability to pursue litigation where the entities are defunct. An insurance company has been identified and traced, but there are difficulties in identifying the managers or local dignitaries who ran the school. That is different from the situation in England and Wales, which means that survivors in Scotland are worse off than survivors in England and Wales, where there has been a transfer of liability by statute to another entity that is capable of being pursued. I bring that access to justice issue to the committee’s attention.

Daniel Johnson

That is helpful. Do the other panellists have views on the issue?

The Convener

Mr Nicol has indicated that he wants to come in.

Iain Nicol

I echo what Kim Leslie has just said. There are often practical difficulties in coming up with even a basic level of evidence. If the bill’s premise is to make access to redress easier for vulnerable survivors, we should be thinking about the possibility of not insisting on proof of residence other than by way of an affidavit. In the scenario in which an applicant cannot come up with documentary evidence to prove residence, the statement that they are expected to produce could simply contain confirmation of the basic requirements. I suggest that redress Scotland could accept a sworn statement to justify the basic level of payment, just to make life easier for people in the scenario in which all the documentary evidence that is expected is not available.

09:30  



Una Doherty

I agree with what has been said. In the faculty’s response, we flagged up—I do not know whether anybody else will raise this—the fact that the bill is silent on the standard of proof. As Kim Leslie mentioned, things have to be proved, and we are concerned that there is no mention of that in the bill. In civil litigation, the standard of proof is the balance of probabilities, so it is just “more likely than not”.

In this scheme, it is not envisaged that the organisations that are criticised will enter into the process, so if the evidence is produced and it is one-sided, it might not be difficult to satisfy the panel that it is more likely than not that abuse happened. However, we are concerned that there is no mention of that. Section 34 makes it clear that

“When determining an application, the panel must not ... make a determination on any issue of fault or negligence”.

That is fine, but section 34(6) goes on to say that the

“offer of a redress payment”

should not

“be taken as a finding as to whether or not a person ... in an application acted, or failed to act”

in such a way. The way in which section 34 is worded suggests that the panel does not even have to decide whether abuse happened. That cannot be right, because they must be satisfied that it happened or there should not be a payment at all.

That needs to be addressed, otherwise there will be no consistency in the approach. The panel members have to know that they must at least be satisfied that abuse happened. That is not saying that the organisation was negligent; that is a different thing, which the panel is not to look at. We have concerns about that.

Daniel Johnson

That neatly prefigures my next question, which is about the criteria for making awards—individually assessed payments, in particular. On my reading of it, the only provision on that in the bill is section 38(4), which states:

“In considering what further sum, if any, is appropriate for the purpose of subsection (1)(b), the panel—

(a) must have regard to the nature, severity, frequency and duration of the abuse to which the application relates, and

(b) may have regard to any other matter it considers relevant.”

The issue there is similar to the point about the burden of proof. Although the bill is clear about eligibility, it says nothing about how to make an assessment for a final award. The first part—section 38(4)(a)—is only about the nature of the abuse and says nothing about the consequence or whether it was avoidable and should have been prevented. Section 38(4)(b) is altogether very open.

Does the panel think that that aspect of the bill needs to be improved? Should those matters be set out in regulations, rather than being left to guidance? I am especially interested in hearing from Una Doherty on that.

Una Doherty

At the moment, section 38(4) gives discretion to the panel. Section 38(4)(a) sets out that

“the nature, severity, frequency and duration of the abuse”

has to be taken into account and that the panel

“may have regard to any other matter”,

so it provides discretion.

Elsewhere in the bill, mention is made of the Scottish Government issuing guidance. Giving the panel discretion about what level of award is to be made is fine, but there must be transparency about how awards are made. The guidance—if that is what it is to be—would have to offer more explanation about what is expected. At the moment, it is troubling that there is no indication of how those determinations are to be made. From what I have read, the plan is for detailed guidance to be made available quite soon. Until that can be seen, it is very difficult to take a view on whether the process will be robust enough.

Daniel Johnson

I find the status of guidance troubling in this context. Although reference will have to be made to the guidance when decisions are made, that does not have the same legally binding nature as would be the case if those things were in the bill or in regulations. Essentially, it means that cognisance will have to be taken of the guidance, not that it will have to be followed. Is my understanding of what the nature of the guidance would be in those circumstances correct?

Una Doherty

It depends on how the guidance is described. Until we have seen what is suggested, it is difficult to give a clear answer on that. It is not unusual for an act to refer to regulations that will be made, for example. There is scope in the bill for regulations to be made. However, the effect of the guidance or the regulations should be set out in them. Until we see what is planned, it is difficult to comment definitively on that.

Iain Nicol

I would take that a stage further and say that it is imperative that regulations are introduced to explain what is required to justify each level of award. Even regulations are not ideal. I would have preferred to see the explanation for the level of awards in the primary legislation, because secondary legislation is not necessarily subject to the same burden of scrutiny. It is important to be clear on such matters so that if discretion is exercised, advice can be given to the applicant on whether it is appropriate to seek a review. As has been pointed out, guidance is not mandatory—it is just guidance. Legislation imposes an obligation. For that fundamental reason, clarity on that should be included in the bill or in secondary legislation and not simply in guidance.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning. I want to ask about the duration of the scheme and the historical cut-off point for it. The scheme will be open for five years. Is that reasonable? The scheme covers abuse up to December 2004, while the child abuse inquiry is examining abuse up to 2014. Will you comment on the time constraints on the scheme and whether those are reasonable?

Una Doherty

The faculty’s response on the five-year duration of the scheme has been that it seems a reasonable amount of time for people to know about the scheme and apply to it, but I have read the response from the Association of Personal Injury Lawyers; its view is that five years is not a sufficient period of time. However, I will let Kim Leslie speak to that.

In relation to the historical cut-off, the faculty’s response to the consultation was that we thought that the time that had been picked seemed arbitrary. If there has to be a date, although some justification was given for the date that was picked, a later date could just as easily be picked.

Kim Leslie

In our response, we make the point that we believe that the inception of the scheme would be equally justified as a date. One thing that I will pick up—[Inaudible.]—is that the bill talks about when abuse “occurred”; in our response, we have suggested that the term “commenced” should be used, because we do not want a situation in which abuse is a course of conduct that extends beyond the date that is provided for in the bill.

I think that five years is too short a period, but there is a policy issue, which is that we are trying to avoid at all costs a sense of going, going, gone. In a situation in which someone has a live and on-going civil litigation, the sunset provision will be like a guillotine, and we do not want applicants or claimants coming under that pressure of time. Therefore, we advocated for any timeously made application to be honoured, but for the applicant to be allowed to conclude their civil litigation before a determination is made in relation to their application for redress.

Iain Nicol

[Inaudible.]—I am not entirely sure why it is felt necessary. One way around that would be for the bill to provide for a review of the redress scheme after a set period, such as three or four years, in order to determine whether it was appropriate to continue the scheme beyond five years. That option has been taken in other areas of law. That would give everyone the opportunity to see how effective the scheme is, to establish whether it is working and, if appropriate, to continue it.

I echo what Kim Leslie said about the cut-off date of 2004.

The Convener

I move to questions from Ross Greer and Kenneth Gibson on the next-of-kin procedure.

Ross Greer (West Scotland) (Green)

I have a question on one specific aspect of the next of kin procedure. I would like to get the witnesses’ views on the provisions for cohabitants. Cohabitants can make an application for the £10,000 compensation if they have lived with the abuse survivor for at least six months. In that situation, they would come before any spouse or civil partner that the survivor might have had. However, there is no length of cohabitation requirement for them to come above the children of the survivor. Officials explained that to us on the basis that it was simply in line with other areas of legislation, where there is no length of time of residency requirement for a cohabitant to have that status; they simply need to have been living with—in this case—the survivor as if they were married.

There is potentially some concern, because we are talking about a vulnerable group of individuals. For cohabitants to come before a spouse, there is a minimum period of six months, but it appears that they could have lived with the survivor for a matter of days before the survivor passed away, for them to be eligible ahead of that survivor’s children.

I would be interested to hear the witnesses’ thoughts on the matter. Would an equivalent length-of-residency requirement for cohabitation be appropriate in a case in which it was necessary to decide whether to prioritise the cohabitant or the children of a survivor? Alternatively, would the lack of such a requirement, consistent with other areas of legislation, be an appropriate path to take? Perhaps Ms Doherty can start.

09:45  



Una Doherty

We raised that issue in the Faculty of Advocates’ submission on the bill. We noted that, although a cohabitant of six months plus is able to apply rather than the spouse,

“there is no qualifying period”

in relation to a cohabitant where there are children of the deceased involved. We identified that as “an anomaly” and suggested therefore

“that a similar period of 6 months cohabitation should apply before a cohabitant can be the specified next of kin in preference to the deceased’s children.”

That is our view on the matter.

Ross Greer

My second question touches on the evidence requirements, which we have just discussed. To go back to Mr Nicol’s point about what should be in the legislation and what should be for the guidance, it is not at all clear what level of evidence next of kin would have to provide. They would clearly have to provide evidence that the survivor had lived in a particular setting. Beyond that, there seems to be a suggestion that the guidance will say that the next of kin would have to provide evidence that the survivor, before they passed away, had stated somehow that they were a survivor of abuse.

To go back to the wider discussion about what should or should not be in the legislation, I would be interested to hear views from the witnesses, starting with Mr Nicol, on what would be an appropriate level of evidence for next of kin to have to provide in order to become eligible for the payment.

Iain Nicol

[Inaudible.]

Ross Greer

Sorry, Mr Nicol—your microphone was not on, so I ask you to start again.

Iain Nicol

The bill states:

“A next of kin payment is a payment of the relevant share of the fixed rate payment.”

My reading of that provision is that the person just has to prove that they are next of kin and that the applicant would have been entitled to a fixed-rate payment. I do not think that it is any more complicated than that. I am not entirely sure that there would be any requirement to produce any additional evidence beyond those few things. To keep it simple, that would be appropriate, unless I have misunderstood the wording.

The Convener

As Kim Leslie and Una Doherty do not want to come in on that point, we move to questions from Kenneth Gibson.

Kenneth Gibson (Cunninghame North) (SNP)

[Inaudible.]

The Convener

Mr Gibson, your microphone is still off.

Kenneth Gibson

Okay, convener—that is broadcasting, not me.

Good morning, panel. A number of the questions that I wanted to ask have been touched on, which is always an issue with a committee of this size. I will follow up on the questions about the next of kin procedure. The bill states that the survivor of abuse must have

“died on or after 17 November 2016”.

Does Mr Nicol, for example, believe that that is an appropriate date? Should there even be a date?

Iain Nicol

We do not have any strong views on that particular point. Kim Leslie, on behalf of APIL, is probably in a better position to give an opinion on that issue.

Kim Leslie

With regard to the next of kin payment, I would advocate that the more inclusive it can be, the better. We have already had two clients die before the processes had concluded or even really commenced.

The tragedy of all this is that there are a number of people who have just not made it to this time, so it is a great thing and a really welcome part of the bill that the next of kin will be recognised. The more inclusive the provisions can be, the better. It is a matter of policy what the date is, if there has to be a date at all.

Kenneth Gibson

One of the issues that I have been concerned about in relation to the bill is the differential, or the leap, between the amounts of evidence that people must provide for the £10,000 fixed payment and the £20,000 payment. As we know, it is just a declaration for the £10,000 payment. When we go up to £20,000, there seems to be a significant jump in the requirements. Other colleagues have touched on that point about the standard of proof and evidence.

Do colleagues on the panel believe that there should be a substantial revision? Daniel Johnson was probing on this point, too. I would like to get more information from people on whether they would like there to be a substantial revision in that regard. How can we ensure a level playing field when we consider evidence? It seems to me that different panels could assess different levels of evidence differently unless the requirements are spelled out more clearly in the bill or perhaps in regulations and guidance, as we have touched on previously.

Kim Leslie

According to my reading of the bill and the explanatory notes, you are absolutely right: for £10,000, it is simply a matter of making a declaration. To make that leap to the individually assessed payment, documentary evidence must be produced. What is noted as being able to be used might include a statement to the Scottish child abuse inquiry although, under the general reporting restrictions order, those statements ought not pass through the hands of a third party. Previous disclosures to police might be used, as might social work records or medical records.

Part of the aim is to recognise that, given the silencing effect, there will often be no medical or other records. The social work records might not contain any description of abuse, because they were written at a time when the person was not speaking out. [Inaudible.]—with documentary production that is sufficient to prove abuse, and it is really a matter of—[Inaudible.]—that that will be satisfied. For an individually assessed payment, it should be made clear that the panel cannot be satisfied on declaration alone; there must be some other form of proof. That is a big leap.

Kenneth Gibson

It is, indeed, a big leap. Going from £10,000 to £20,000 is not a particularly huge increase in additional funding, and the evidential requirement seems to me to be out of all proportion to the additional funds that may be awarded to the individual claimant, particularly considering the stress that they would have to go through in trying to claim them. Whereas someone has 100 per cent likelihood of getting the £10,000 payment, they may or may not get a payment on an evidential basis. That could weigh on whether or not people go forward with a claim.

I am keen to hear what Ms Doherty has to say about that, too.

Una Doherty

Our view was that it was reasonable to expect more evidence for something above the basic payment. That could come from a number of different sources. In our response to the consultation, when we were asked what type of evidence might be suitable, various types were listed. We thought that they would be potentially suitable. They include an existing written statement from another source, oral testimony, a short written description or a more detailed written description, and documentary evidence of the impact of the abuse. That could come from medical records or a medical assessment, or there could be supporting evidence from a third party. There are a number of different possible sources of evidence.

Given that the individual payment can go up to £80,000, it is reasonable that more than just a declaration is required. That is certainly the view that we took about it.

Kenneth Gibson

But given that the payments are fixed at £20,000, £40,000 and £80,000, how do we ensure that award panels look at matters consistently across the board? One person might get £40,000 from one panel, but they might have got £20,000 or £80,000 from another panel for the same level of abuse. How can we narrow the margin of error on awards, so that we do not end up in a situation in which there is almost a postcode lottery, if I can put it that way, with regard to what is awarded?

Una Doherty

Absolutely. We have already touched on the need for transparency and consistency. That is why proper guidance will need to be provided, whether in regulations or—as is suggested at the moment—in guidance, about what criteria will need to be met for the different levels. At the moment, it is discretionary—section 38(4) just says what must be taken into account. More examples will need to be given so that there is consistency. Achieving consistency in the levels of awards will be the major issue.

Kenneth Gibson

This question is for Mr Nicol. Will there be a hierarchy of, for example, physical, sexual and emotional abuse? How should we go about achieving such consistency?

Iain Nicol

It is very important that what has to be produced is not prescriptive, because, as Ms Doherty has confirmed, every case will be different and will have its own evidential basis. Some evidence might exist in one case that will never exist in another.

What will have to be produced is evidence of

“the nature, severity, frequency and duration of the abuse”.

It is not difficult to imagine that a situation in which the nature of the abuse was horrific and the abuse was frequent and lasted for a long period would be at the top end of the scale. The opposite would also be true. If we were dealing with relatively minor—I am cautious about using that phrase—abuse over a short period of time, we would expect the individual payment award to be at the lower end of the scale.

I suspect that the panel that considers such applications will build up precedent over time. Whether that precedent could in some way be published to give guidance as to the reasoning behind the panel’s decisions would have to be considered. That information would certainly be available within redress Scotland, so that it could take consistent approaches, in the same way that a court would look at precedent in personal injury cases.

To go back to the point that was made earlier, it is fundamental that clear indications are given in regulations of what is expected and what the individual assessment must consist of to allow applicants and any advisers who are involved to know whether the award that is made is appropriate or whether it requires to be reviewed.

Kenneth Gibson

Does the capacity exist in our system to deal with the huge number of cases that we expect to receive over the next few years?

Iain Nicol

The beauty of this will lie in keeping the system simple so that the anticipated volume of cases can be processed quickly and efficiently. We should not expect the vulnerable survivor to have to produce massive amounts of evidence. If we keep things simple and require basic levels of evidence to be produced, that should, I would have thought, allow redress Scotland to process significant numbers of applications quickly. That would certainly be the hope and the expectation.

Kenneth Gibson

Thank you.

10:00  



Beatrice Wishart (Shetland Islands) (LD)

Good morning. I am sorry about my connection problems, but I am here now, and hopefully you can hear and see me.

I ask the panel to expand on their written evidence about applicants with convictions for serious criminal offences. Is it appropriate for a decision on that to be left to the discretion of redress Scotland panels?

Kim Leslie

For the scheme to have credibility, it has to be possible for previous convictions to be considered. However, we all know the correlation between adverse childhood experiences and consequential offending behaviour, and it is an issue in the existing Criminal Injuries Compensation Authority. When I am doing my analysis, I look at all potential lines of redress. For many criminal injuries, there is a blanket ban under the 2012 scheme. We need to have some discretion. It might mean that there is inconsistent decision making—the more discretion there is, the more room there is for inconsistency. However, discretion would reflect the reality that there are some individuals who have offended but still ought to receive a payment, provided that it goes through the criteria for a period of rehabilitation. Discretion means that the facts and circumstances of each case would have to be looked at, but discretion in this particular area is necessary because, under the CICA scheme, the offender would be out, and that is not always the right decision.

Iain Nicol

Survivors of abuse often find themselves on the wrong side of the law because of the consequences of what they have been exposed to. It is therefore extremely important that they are not barred from making an application when the conviction has resulted from the abuse that they were subjected to. Taking that to its logical conclusion, it should always be open to a survivor to produce evidence that can effectively link any conviction or wrongdoing to the abuse that they suffered. That should be taken into account by any panel in determining their application.

Una Doherty

We addressed that in our response, and the faculty position remains that a criminal conviction should not be a bar to an application. The purpose of the scheme is to

“provide acknowledgement and tangible recognition”

of harm as a result of historical child abuse. A person’s character or conduct after the abuse should have no bearing on any redress scheme, and so it should never be in the public interest to preclude an applicant from receiving a redress payment on the basis of a conviction. In our view, that would also be consistent with the approach for proposed non-financial measures, which would always be potentially available to applicants—even applicants with serious convictions. The bill allows for discretion to exclude such applicants, but, in our view, that should not be there. There is no need for such a public interest exception to be possible.

The Convener

A couple of members wish to ask supplementary questions on this area. Do you want to ask another question, Ms Wishart?

Beatrice Wishart

No, I am fine. I will let other colleagues come in.

The Convener

I will go to Mr Greene and then to Mr Johnson.

Jamie Greene

I have a question about what is perhaps one of the more controversial elements of the legislation. I wonder whether members of the panel can see the conundrum that we face. The public will be scrutinising the bill that we pass and they will be concerned that somebody who has been convicted of, for example, a serious sexual assault on a child is able to participate in and receive £80,000 in redress money from a publicly-operated scheme. They may see that as unfair or, in some senses, immoral. How should we address that?

The Convener

I will also take Mr Johnson’s question, then go back to the panel.

Daniel Johnson

In relation to Jamie Greene’s and Kenny Gibson’s line of questioning, there are questions about what the panels will take into consideration and how they will make their deliberations. I note that, in relation to both awards and reviews, the panels are required to provide only a summary to the applicant and ministers.

Do members of the panel feel that more substantial records should be kept, including a record of the evidence that was considered? In addition to that, should that requirement be in the bill?

Kim Leslie

On previous convictions, APIL agrees that, for the scheme to have credibility, certain applicants ought to be barred. However, we welcome the discretion so that each case can be considered on its own facts and circumstances. I accept that some crimes might be so serious and violent in nature that there could be an argument that, in order to retain the credibility of the scheme, such an applicant should be barred.

A safeguard is built in so that consideration can be given by the panel and everybody can make an application and put forward their own facts and circumstances. However, for consistency of decision making, those types of discretion areas may benefit from very prescriptive guidance or, indeed, from a policy decision about whether that guidance needs to be put into regulations.

Forgive me, what was the second question?

Daniel Johnson

It was about record keeping and the details of decision making.

Kim Leslie

Yes, those are important. I will draw an analogy with the Criminal Injuries Compensation Authority. At present, an applicant to it will receive an offer of an award and, at that point, unless they have a legal adviser who is aware of a certain case of Regina v Criminal Injuries Compensation Authority, ex parte Leatherland, Brammall and Kay, they might not necessarily know that they can request all the documentation that the panel or decision maker used in making that decision.

If we are to advise whether there is the potential for a review, we have to see the workings that show why the panel came to that conclusion, so that we can scrutinise it. Ultimately, that could be an issue for judicial review. We need to see the basis of a decision.

Una Doherty

On the question about previous convictions, the Faculty of Advocates takes the view that the scheme is intended to address the harm done to children and, therefore, that what an adult has done by means of a conviction should not be taken into account. As has been mentioned, the fact that something happened to a child might influence their behaviour as an adult. To keep it simple, the view of the faculty is, basically, that such applicants should be treated in the same way as all others. I appreciate that a public interest exception is now allowed, but, as I said, the faculty’s response is that that is not needed.

On the second question about evidence being kept so that the basis on which the decision has been made is clear, the panel will have to give reasons for its decision, because there is the potential for a review and a judicial review. All decisions will therefore have to give reasons so that it is clear to somebody else why that decision was made. On the documentation relied upon, that does not seem to be a complication, because the applicant will have submitted the documentation and should therefore know what documentation has been relied upon. However, the view that the panel has taken of that documentation and the reasons for its decision should be set out in a decision.

Iain Nicol

The key point about that is that the record keeping should be detailed to the extent that it records clearly what the panel took into account under section 38(4), because that is the evidence that the applicant will have been obliged to submit. It must be clear from the record keeping what weight was put on the evidence, what factors were taken into account, and what the basis of the decision was, having regard to those requirements, so that advice can be given about whether the decision is reasonable or should be challenged.

The Convener

The final question is from Dr Allan.

Dr Allan

We have talked a fair bit about financial redress but I want to talk about non-financial redress. What non-financial redress would you consider to be effective, particularly in terms of an apology, and does the bill cover that adequately?

Kim Leslie

Earlier, I said that it would be wrong to assume that financial redress is the only form of redress, because non-financial redress can be and has been agreed in the past. That is a question for a survivor to speak on, and it means different things to different people. An apology or an acknowledgement is important, but what form it takes will depend on what a survivor says would be meaningful to them. I know from experience that a letter of apology has been mentioned, and we have brokered meetings with chief executives and safeguarding officers. It is difficult to imagine something that will cover every individual’s particular needs. The bill’s inclusion of non-financial redress for everyone is to be commended. For some, that will be a progressive step.

Iain Nicol

It is absolutely right to say that what constitutes non-financial redress will vary significantly from case to case, so it will have to be looked at on that basis. Provided that the panel or redress Scotland as a whole will be able to consider the evidence that an applicant provides on what they are seeking by way of non-financial redress and can take that into account, I hope that the scheme will meet people’s needs in that regard.

Because non-financial redress is not part of the award, one element to consider is that legal costs should be adequately covered. We have not quite touched on that area this morning, but it seems to me that sections 88 to 90 create a whole unnecessary layer of bureaucracy in requiring assessment of legal costs.

10:15  



I suggest that, in order to ensure that legal costs are properly dealt with and are certain, so that everybody knows where they stand, a set scale should be introduced that would effectively set out the amounts dependent on the level of redress that is offered to an applicant. That would give everybody certainty, and it would allow the legal advisors for the applicants to know that the costs are going to be recovered and that the client will be able to retain the full level of redress that they are awarded. I highlight that as food for thought; three pages of the bill could be cut out if there was simply a set scale of legal costs prescribed for redress applications.

The Convener

I thank all our panel members for their contributions this morning and for their written submissions to the committee, which have helped our deliberations. I suspend the meeting briefly to on-board the new panel.

10:16 Meeting suspended.  



10:18 On resuming—  



The Convener

We will now proceed to our fourth evidence session on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome Joanne McMeeking, who is the head of improving care experiences at CELCIS; Judith Robertson, who is the chair of the Scottish Human Rights Commission; Gaynor Clarke, who is the chair of the historical abuse practice network at Social Work Scotland and the programme manager at Aberdeen City Council; and Janine Rennie, who is the chief executive of Wellbeing Scotland. I invite the witnesses to introduce themselves briefly, and we will then move to questions.

Joanne McMeeking (CELCIS)

I am the head of improving care experiences at the Centre for Excellence for Children’s Care and Protection, which is based at the University of Strathclyde.

Judith Robertson (Scottish Human Rights Commission)

Good morning. I am the chair of the Scottish Human Rights Commission.

Gaynor Clarke (Social Work Scotland)

I am the chair of the Social Work Scotland historical abuse practice network.

Janine Rennie (Wellbeing Scotland)

I am the chief executive of Wellbeing Scotland, and we run the In Care Survivors Service Scotland.

The Convener

Thank you. We will move to questions from the committee.

Iain Gray

One of the key issues on which the committee has already heard evidence is the requirement for survivors who access the redress scheme to waive their rights to also pursue civil justice in regard to their claim. All members of the panel make some reference to the waiver in the written evidence that they have submitted; however, I would like to give panel members the chance, as briefly as possible, to put their views on the waiver on the record this morning.

Joanne McMeeking

In 2017, in partnership with the Scottish Human Rights Commission interaction action plan review group, we carried out a consultation around the frame of the redress scheme. As part of the consultation, we did not specifically ask about the waiver. It is important that I note that point to the committee early doors. Our questions were designed in partnership with the review group, and the intention was to have high-level initial questions with a first dialogue with survivors specifically on the matter of redress. There is a descriptive summary of the consultation that we carried out. The waiver provision is a particularly complex area, which involves balancing efforts to secure contributions in a way that works for the scheme and for survivors while, at the same time, respecting rights and choice. That is incredibly challenging.

Judith Robertson

Much of the discussion around the waiver has been focused on incentivising organisations to contribute. I am sure that we will come on to it later in the evidence session, but, in the consultation that was carried out by CELCIS, survivors were clear that the responsibility of providers to contribute to the scheme was uppermost in their minds. However, the commission believes that we need to refocus on the needs of survivors in relation to the waiver and its impacts. Survivors would be asked to give up key rights to receive redress, and, from our perspective, that is not best practice. Often, more than one avenue is needed to achieve different aspects of the right to effective remedy, and asking a survivor to sign a waiver is asking them to effectively give up the right to take a civil route.

In our submission, we sought to encourage the Government to explore an alternative option. We proposed the offsetting option, which would involve offsetting payments that are received through the redress scheme against any future payment that might come from a civil case. We think that there should be a discussion about the potential of that option.

In the whole process of developing the scheme, one of the issues in relation to the waiver is the transparency around it. We are very aware of the confidential nature of discussions with commercial bodies, and other providers who seek confidentiality, but transparency will shed the most light for everybody who is involved, including Parliament and the people who may benefit from the scheme. Therefore, we call for full transparency around those discussions and the whole process of developing the waiver aspect of the scheme, should it go ahead. There should also be transparency when decisions are made during the process on various other aspects of the scheme, including the “fair and meaningful” aspects.

Gaynor Clarke

The priority for Social Work Scotland is the operation of the scheme itself, the process and the support that is available to applicants in relation to the non-financial redress. We also have an interest in the impact on social work departments, including those that are responsible for the right to access through subject access requests.

All that notwithstanding, Social Work Scotland is of the view that, for the waiver to operate effectively, it must be clearly and specifically aligned with the period, the people and organisations involved and the instances of abuse for which the survivor is accepting the redress payment. It is crucial that survivors have independent legal advice at that stage in order to make a fully informed decision on the waiver.

Janine Rennie

Survivors have expressed many concerns specifically about the waiver. When we carried out our own consultations on the bill with survivors, it was the biggest issue for them.

In the Scottish Government’s original consultation, the question on the waiver aspect was not clear to people who were answering the questions. I personally went through a lot of the responses and found that, excluding responses from people who did not understand the question, 58 per cent of people were opposed to the waiver. In our survey and consultation exercises with survivors, we found that only 4 per cent were in favour of the waiver. When survivors were asked whether organisations should still be accountable through civil justice, only 2 per cent were opposed to that.

We work with a huge number of survivors, and the overwhelming view from them is that they are opposed to the waiver. A lot of them expressed extreme anger about the waiver scheme and wanted to take significant action against it.

I totally echo what has been said already: survivors need to have the appropriate legal advice to enable them to make a decision on whether to forego their civil rights. Many survivors have been waiting for a number of years—indeed, decades—for the redress scheme, and many will accept the £10,000. A lot of survivors are living in extreme poverty and have high levels of debt, so they will think, “I need to accept this.”

Many survivors have said to us that they will accept the payment, but they will essentially then forego their rights to potentially much more in terms of redress. They think that that will have a significant impact on their mental health down the line, because they will have gone ahead and accepted something out of desperation and not given themselves the opportunity to see if they could have gone further elsewhere. There are huge concerns among the survivor community about the waiver scheme.

Iain Gray

Ms McMeeking, I would like you to clarify one point. In your answer to me, you referred to the consultation that you carried out and how survivors felt. I cannot remember the exact words that you used, but the most important point was that survivors felt that the organisations that were involved in their abuse should contribute to the redress scheme. However, Janine Rennie said that, if the consequence of that would be the waiver scheme, survivors do not want to accept the idea of that.

I wonder whether you could clarify the point that you were making, Ms McMeeking. Was it about the consultation that was undertaken and the way in which the question on the waiver was asked, or were you suggesting that survivors would accept the waiver if it meant that there would be contributions?

Joanne McMeeking

I am happy to clarify my point. It was specifically about the national consultation that was carried out in 2017. There were no specific questions on the waiver in that consultation. It is important to note that there was no evidence coming through from survivors at that point to say that they would be either in favour of, or concerned about, the waiver scheme.

10:30  



I want to add something about the complexity around the waiver. There is a real understanding that survivors need to access justice. Some of that might come through financial compensation and some of it will come at a cost, because the evidence that is given in a civil court case might re-traumatise survivors. At the same time, there is a tricky balance to be struck in relation to civil liberties and the opportunity for survivors to have the right information to make informed decisions at the right time about whether they want to sign a waiver, move into the civil court or pursue their case to a conclusion.

This is an incredibly tricky and complex area, and there is a balance to be struck in relation to what providers will contribute. Those issues need to be teased out.

Alex Neil

My first two questions, which are about human rights, are directed to Judith Robertson. In her first answer to Iain Gray, she said that the current proposal on the waiver is not best practice. Is it only not best practice, or is it a breach of the human rights conventions? How strong is the Scottish Human Rights Commission’s view on the rights of people who have been abused in relation to the waiver?

The bill provides that redress Scotland will have a discretionary power to refuse a redress payment to people who have been convicted of a serious criminal offence. What is the Scottish Human Rights Commission’s view on that provision?

Judith Robertson

We do not think that the offer of the waiver is a breach of any convention rights. If we thought that it was, we would have said so in our submission. We say that the proposal is not good practice, because one of the avenues or routes for remedy is being taken away from survivors. That is not good practice, and we do not think that it is necessary, so we are looking for an alternative.

We recognise that there is a balance to be struck in relation to the role of, and the contributions to be made by, providers and those who have undertaken the abuse. However, we do not think that that necessarily needs to be done at the cost of sacrificing the rights of survivors in the process. I listened to the earlier discussion, and I agreed with much of what the witnesses said about the process of engaging providers in a meaningful and transparent discussion on that. The terms of those discussions should be open to the light, and survivors should be able to review the terms of those discussions, so that they have some insight into them.

I am sorry, but something distracted me when Alex Neil asked his second question. Were you asking about prisoners and people with a criminal conviction receiving payments?

Alex Neil

Yes.

Judith Robertson

From a very positive human rights perspective, nobody should be disbarred from receiving remedy and access to justice for harm that has been done to them, in this context, when they were a child, as a result of historical abuse. However, we do not think that the bill’s provisions breach the convention rights, because cases are considered on a case-by-case basis, the provisions enable an application to be made and recognise the harm that has been done, and the panel has the discretion to make the assessment. That, in and of itself, enables the bill to be compliant with human rights law. That is our view.

Alex Neil

Do you think that there is a need, from a rights point of view, for criteria to be laid out in regulations or guidance on when discretion can or cannot be exercised?

Judith Robertson

Providing more clarity is always helpful. Enabling case-by-case assessment provides a balance, so some criteria could bring that into play.

Alex Neil

I would like to ask Joanne McMeeking about the waiver, specifically. I hear what she and her organisation are saying, and I assume that they do not regard the waiver as the best option but think that it would be better to have an offset system whereby any moneys received from the redress system could be offset against a successful higher claim in a civil court. Am I interpreting that point correctly? Is that the view of Joanne’s organisation and of the people she is dealing with?

Joanne McMeeking

What I am saying is that this is an incredibly complex area. When the consultation took place in 2017, we asked respondents about contributions, but we did not ask about waivers. That is important, and I have noted that before in giving evidence.

With contributions, 94 per cent of survivors who answered the relevant question believe that the Scottish Government, care providers and local authorities should contribute and should provide strong views to explain their response. There was a very strong sense from respondents that there should be contributions. We did not specifically ask about waivers. I was listening to the earlier evidence from the legal reps, and I was really interested in some of their views around civil liberties and civil rights, on the complexity of this area and on the need for very significant support for survivors in making a decision whether or not to sign a waiver.

Alex Neil

Presumably, the overriding consideration is the need to ensure that contributors do not get off the hook, if I may put it that way—that, one way or another, they are forced to make a contribution. Is that right?

Joanne McMeeking

Yes—

Alex Neil

Thank you.

Joanne McMeeking

Is it possible for me to finish, Mr Neil?

Alex Neil

Yes.

Joanne McMeeking

When it comes to providers making a contribution, we would have to be really clear that they were going to follow through on that. We know that there are a number of organisations across Scotland with different structures and levels of governance, including charitable trusts and so on. There would have to be fine detail about each organisation, taking that through to a conclusion. We would be looking to the Scottish Government to consider that in more detail.

I know that the Government is working on some of the detail on conversations with partners, particularly care providers, and it would very much be the view of CELCIS that it should be possible to robustly move in and around that, and also—[Inaudible.]—some of the changes that happen at organisations across Scotland, as with any organisation. For example, a board of trustees, the chief executive officer, staffing or the culture may change. What might be agreed at the beginning needs to be concluded and fulfilled at the end.

Alex Neil

We heard in evidence from Ireland last week about one organisation that was allegedly one of the main parties that was guilty of abuse, but it has absolutely refused to contribute a penny and has taken a very robust position in not coming forward to pay any reparations whatever. I presume that, like me, you want to ensure that such a position does not arise in Scotland.

Joanne McMeeking

I am also mindful of the trickiness for care providers. They will be asking a number of questions to understand their responsibility and the consequences for their liability and for insurance. What does it mean if they sign up to the scheme or if no survivors from their organisation come forward yet they have contributed? What if a number of survivors come forward? What would that mean for them financially?

The Convener

Does Ms Robertson want to comment on those points from Mr Neil?

Judith Robertson

I will come back on a couple of them. We note that section 12(7) of the bill provides:

“Removal of a scheme contributor from the contributor list ... does not affect any waiver signed”

in respect of

“that ... contributor.”

Ultimately, if a provider does not contribute to the scheme even though they had committed to doing so, that would not then enable the removal of the waiver. If a survivor signed the waiver in the belief that the organisation responsible for their abuse was going to

“make a fair and meaningful contribution”,

and then the organisation did not make that contribution, the waiver would still apply.

The SHRC strongly believes that, should the waiver scheme go ahead, there should be a mechanism in place whereby organisations that do not make agreed-upon contributions cannot benefit from a waiver, if that makes sense.

If you choose to proceed with the waiver scheme, there are ways of strengthening the current provisions that would make them more compliant and balance the different aspects of the bill.

The Convener

I have a couple of supplementaries from Jamie Greene and Alasdair Allan. I will take those together and then come back to the panel.

Jamie Greene

Thank you, convener—I am waiting on my video to click back on.

On the cost to contributors, I will throw something out there as devil’s advocate. I am thinking of a situation in which one of the contributors is a charitable organisation, as a number of them may be. It may be suffering financially in the current climate and may be concerned about the open-ended nature of the potential liability of organisations and how that may affect its current ability to do good charitable work, notwithstanding the wrongs of the past.

How would survivors feel about organisations being asked to contribute in a way that may damage charities’ ability to do such work? What should we do about organisations that no longer exist? Should the liability be spread around other contributors, or should contributions be topped up by the taxpayer to cover what would have been contributed by an organisation that does not currently exist?

The Convener

Dr Allan, do you want to come in on the point about the amount of money?

Dr Allan

Yes. Ms Robertson raised the question whether the bill should be altered to remove the possibility of organisations benefiting from the waiver if they do not make a fair and reasonable contribution. I will ask the same question that I asked the previous panel. Do you have a view on how the fair and reasonable test for contributions should be measured or met? What is fair or reasonable?

The Convener

I think that that question was directed to Ms Robertson, so I will bring her in first, followed by other panel members.

Judith Robertson

In response to Mr Greene’s questions, the survivors with whom we have been working in relation to the process are very much aware of the potential impact on existing and operating organisations and the provision of their services. Survivors believe that that has to be factored in—well, maybe not factored in, but it should be recognised as something that has to be balanced and brought into the discussion. That is a live and appropriate conversation.

That perhaps relates to the question from Mr Allan on what is “fair and meaningful”. That has been discussed in the review group that I chair. The discussion of the sense of what is fair and meaningful is very much live, but I do not think that we are in full receipt of all the information around it.

I come back to my point about transparency. In order for the conversation to be given a bit more substance in some respects, it is important that those discussions and the parameters around what “fair and meaningful” looks like are fully aired and explored and are part of the conversation in the Parliament as the bill goes through. We are keen to see more elaboration of that and for that to be understood and interrogated fully by survivors themselves. We will be doing the same, and we will be supporting that process.

The Convener

I will let in Ms McMeeking now. If Ms Clarke and Ms Rennie want to reply to the question, they can put an R in the chat box.

10:45  



Joanne McMeeking

I think that the concern has been to do with whether it might make things particularly fragile for particular organisations if they are having to fund elements of the redress scheme. That concern has come through to us, and it echoes what Judith Robertson has been saying, too.

Janine Rennie

[Inaudible.]

The Convener

Sorry, Ms Rennie; we missed the start of what you are saying. I ask everyone to pause before speaking, because the microphones are taking a little while to kick in.

Please start again, Ms Rennie.

Janine Rennie

I take on board what everyone is saying about the organisations that have carried on doing good work, but that has to be balanced against the views of the survivors. Many of the survivors have gone through years of trying to engage with those organisations. Some of them have gone through restorative justice processes with those organisations that they have found lacking, and others have gone through combative legal processes with the insurance companies of those organisations, in which they have been appallingly treated. Survivors are not of the view that any organisation should be able to pay less to the scheme.

In the work that we have done, we have also found that those organisations were the ones that perpetrated the most abuse—in other words, they were the ones that had the largest number of survivors. Further, a lot of them were the organisations that told survivors who were trying to access records that those records no longer existed.

Survivors believe that there should be an equitable process with regard to people paying into the scheme. They are of the view that people should pay into the scheme—not for the purpose of waiver, but from the point of view of the abuse that was perpetrated over decades. It should be a separate issue. It should not be that the fact that someone has paid into the scheme means that there is a waiver in place. All the organisations should be treated in the same way, based on the historical abuse that they perpetrated, just the same as any state organisation.

On the issue of meaningful contributions, some organisations have hundreds of survivors of abuse while others have perhaps only one. That needs to be taken on board.

It was quite rightly pointed out that some of the organisations no longer exist. We have found that in a lot of cases, and it is difficult for survivors to take a case forward against an organisation that does not exist. Many survivors have told us that, in those cases, they think that it should be the responsibility of whoever placed them in that organisation to fund any kind of compensation payment.

There are a number of issues involved. As someone who runs a charity, I understand how stressful this must be for the charities involved. However, my ultimate goal is to make this process fair and equitable for the survivors.

The Convener

As Mr Neil has finished his questions, we move to questions from Mr Johnson.

Daniel Johnson

We know that the intention is that the scheme should be straightforward and it should not be burdensome for applicants. However, we have already heard this morning that the evidential requirements might not be straightforward in terms of obtaining or demonstrating certain things. Likewise, we are well aware of the fact that, because of the waiver, accepting any compensation will have significant consequences for that person’s subsequent rights to legal redress. Do you think that sufficient support is being made available to applicants? On the legal point, although compensation for legal fees is possible, do you think that the scheme needs to more proactively provide applicants with, at the very least, advocacy, if not legal advice, in relation to the consequences of accepting any compensation payment?

Janine Rennie

I completely take on board what you are saying. One of my biggest concerns, which I discovered only yesterday, is that legal advice was not being provided on whether to accept the waiver. That, for me, is the key area on which somebody should have legal advice. It is a moot point, because I do not think that there should be a waiver in the first place, but if there is one, survivors should have access to legal advice on it and support while they go through that process. The whole situation, even the discussion about it, is potentially re-traumatising for survivors. We need to ensure that appropriate support is in place.

Another of my concerns relates to support for accessing records. Aspects of the bill mention that people would have support from members of the Scottish Government or the panel to access records. I have serious concerns about that, because one of the important things when someone is accessing their records is access to emotional support. If they access their records and read really judgmental things that were said about them as a child or they find out that they have a sibling they did not realise existed, it is absolutely key that a survivor has appropriate emotional support to go through that process. Just having support for the practical and advocacy side of it does not take into account the severe trauma that somebody might experience from accessing their records and what is within them.

My concern about a lot of the process is that it has not been trauma informed. I have heard a lot of legal arguments about the legislation, but not a lot about what it actually means for individuals. We cannot separate those two aspects. We need to look at what it would mean to a person to go through the process—how it would feel for you. One of the biggest things is having to provide evidence about the scale and duration of abuse. We have survivors who do not want to mention their sexual abuse to anybody—it may have been five years before they even told us—but we are expecting them to tell a panel about the complexity of the abuse that they experienced when they have often not even told family members. A lot more thinking needs to be done to get it fully trauma informed and survivor centred.

Gaynor Clarke

I want to reiterate what Janine Rennie is saying. From Social Work Scotland’s perspective, the bill is not merely transactional or administrative; it is about the non-financial redress that is critical. Survivors have lived through experiences that they come back to and they are accessing records which will potentially re-traumatise them. At the start of the process, people need that input of psychological, professional and therapeutic support when applying to the scheme, alongside independent legal advice that is robust and impartial so that people can make the best decisions. There is the emotional impact and there is also the independent legal advice.

As Janine Rennie said, in relation to the practical support of the application, the bill states that the team will support the person to apply to get their records, but there is a broader picture around that. We know that survivors are already asking for their records in preparation for seeking financial redress through the bill and there is the aspect to consider of how the records are written. As Janine says, people may not know information about their life. It is about making sure that survivors are fully supported throughout the process. It is critical that they get emotional and practical support as well as the legal support.

Judith Robertson

I reiterate what has been said. The whole process needs to strike the right balance between not re-traumatising survivors and being robust enough that both survivors and the public have confidence in it. That is a difficult balance to achieve, but everything that has been said by the previous two speakers underlines the degree of support that survivors require and will require in order to make successful applications to the scheme. The process must also recognise that, from a human rights perspective, effective redress goes beyond financial redress and into the areas of providing support and ensuring that people’s records are available to them. There are a whole range of areas beyond redress for which the scheme must also make some provision.

I also want to touch on the issue of legal support. The bill makes some provision for legal support being provided to survivors. Obviously, that includes payment for legal advice on whether a person should sign a waiver. We think that the importance of access to such legal advice is heightened due to the operation of the waiver and that survivors need to be in a position to make informed decisions about whether that is in their best interests. However, as Janine Rennie has said, section 89(3) of the bill excludes payment of

“any fees incurred in connection with legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment.”

We question how that provision can operate in practice, given that a solicitor will be required to fully assess the prospects of success and likely damages award in any litigation, in order to advise a person on whether to accept a redress payment at a particular level and sign a waiver. We think that that is the same work and that excluding that work from being part of the process does not seem practical.

We are also concerned that the financial memorandum—albeit that it may not be so much the concern of this committee—puts a potential cap on that of £1,000 plus VAT. We do not think that that cap is viable, in view of the costs that are potentially attached to unpacking cases that might be quite complex. It might be fine if somebody is seeking only the £10,000 payment, but if we are going further up the scale, when it comes to the level of individual assessment, our assessment is that that cap is too low.

Joanne McMeeking

I want to underline the evidence that colleagues have given. Emotional support is absolutely critical, particularly for survivors who are considering or making a claim. Each survivor is an individual. They may have existing support, they may need additional support or they may need to access advocacy and legal support—that has to be carried out in a way that is specific and bespoke, and it involves an understanding of the trauma that survivors have experienced. The construction of any scheme needs to pay attention to that, because each survivor is unique in their needs.

Specifically on access to care records, we know a lot about that in Scotland because the Shaw report told us in 2007 about the complications in accessing residential childcare case records, the quality of those records, and some of the effects on survivors of reading information about themselves that they might not have known and that may have traumatised them. Having the right support for them at the right time is absolutely critical.

We also know, as children and young people are still telling us, that accessing case records is, at times, very distressing, even though the information itself might not be distressing—it is more about understanding what happened in their lives and the fact that someone is telling a story about them. Support with that is really important for survivors if the scheme is to be successful.

Daniel Johnson

Judith Robertson, I note that, in your written submission, you have gone into some detail about what the compensation should be for: it is essentially about the consequences and costs that the original issues have had for the individuals. I am interested in that, because that is different from what is set out in the bill. As I set out to the first panel, the reasons for the award are the extent and the duration of the original incident—there is no mention of the consequences.

Can you go into that in a bit more detail? Do you think that the bill needs to be revised? Also, can you make a proper assessment of how the bill—or regulations—should establish precisely how and for what reasons different levels of compensation should be made, particularly regarding individual assessments?

11:00  



Judith Robertson

The definition of compensation that we included in our written submission is from the human rights framework, and we think that the bill broadly complies with that. It is left to the discretion of the Government and intermediary providers of this kind of scheme to determine the parameters for payments, and the bill broadly fits within that frame.

Can you remind me of your second point, Mr Johnson?

Daniel Johnson

The issue is really about compensation for the consequences of these incidents for survivors, rather than compensation simply for the issues themselves. It struck me that your written evidence considered compensation from a different perspective from the one that is set out in the bill.

Judith Robertson

That is correct. Normally, under a civil justice route, the principle of compensation as it is determined in our submission would be applied. However, we think that the broad principles that are being applied in the bill are good and compliant, and therefore they can proceed.

This is not so much an issue that relates to that definition, but the question that requires to be more robustly tested in this process is about the assessment—the criteria for making one payment versus another and how those criteria apply to the different payment scales.

At this point in the process, we do not feel that that issue has been fully explained or explored enough for us to be able to say whether the payments are set at the right level or whether the levels themselves meet the criteria for each of the different payment amounts. We do not think that enough information is in the public domain to determine that, and we have concerns about the amounts being noted in the bill when those amounts have not been fully interrogated by Parliament, survivors or anybody with an interest in the process. We said that in our written evidence, and we do not think that there is enough information currently available to determine whether the right amounts of payment have been applied.

Jamie Greene

Do the witnesses have any views on some of the timescales—for example, the period during which the abuse occurred relates to the validity of a claim? What about those who suffered before the kick-in date?

Also, there seems to be a perception that, because an apology was given and things have changed, everything is okay from 2004 onwards. The arbitrary line that is drawn in the sand—the 2004 date—essentially acts as a bar. What else could the Government do to help the people who are on either side of the window of opportunity for claiming?

Janine Rennie

That is another area that we have concerns about. When we analysed our statistics on clients, we realised than 30 per cent of them fell into the category of cases that fall outwith the period when claims are allowed. We are concerned that that will exclude a large number of people.

We are not sure why that date was decided on. We think that the point at which the inquiry was established, or something similar to that, might have been more appropriate. The decision will cause significant distress and, again, I think that it will create a two-tier system, with some survivors being able to access the scheme and some not, which is a bit like the pre-1964 situation, before we got to this point, with the overturning of the time bar.

Our experience of working with survivors shows that that sort of two-tier system causes a great deal of distress in the survivor community. If that approach is to be kept, something significant will have to put in place for the people who are excluded. I was seriously concerned when I saw that cut-off point, because I was quickly able to find out how many people would be excluded.

Judith Robertson

The SHRC shares that concern. We think that setting the date at 1 December 2004 means that almost a generation of children in care would have no right to claim redress for historical abuse, despite the potential for serious abuse of their rights to have taken place. Therefore, we believe that a more reasonable cut-off date would be three years before royal assent was given to the Limitation (Childhood Abuse) (Scotland) Act 2017, given that someone bringing a civil case within that timeframe would not have been outwith the limitation period in the Prescription and Limitation (Scotland) Act 1973, which would have a bearing on whether their case could reasonably be claimed to be historical. Basically, we share Ms Rennie’s concern and are proposing a different date.

Jamie Greene

I am sure that your point is noted and that the Government will view your proposal with great interest.

I want to move on to an issue that we have not asked about before. This is not really a technical question. I have read the submissions, and some of the feedback that was given to Wellbeing Scotland specifically was quite eye opening. I am thinking, in particular, about some of the anecdotal comments from survivors, which you present as bullet points. You are at the front end, dealing with these people on a day-to-day basis, so I think that you probably know them better than we do.

My office has already taken quite a few calls on the issue, given that I am on the committee that is working on the bill, and we have heard a few accusations of whitewash and cover-up. People have told us that the Government is trying to sweep things under the carpet and let the organisations off, and that this process is an easy way out for the organisations. All the witnesses will have heard such feedback, and I can understand where some of it is coming from. Therefore, how can we, as MSPs and as people who deal with survivors directly, take the public with us through this process? I have huge sympathy for the survivors, but we are struggling from the point of view of public relations. I want to get the bill right, but I think that we need help to do that. What would be your advice to the committee in that respect?

Janine Rennie

I think that that question was directed at us. A lot of the comments from survivors express the views that you are talking about. Throughout our history, we have seen that survivors do not trust authority—quite rightly: they went into a care setting and they were abused, and they feel that it was authority that abused them. Quite a lot of survivors have told me that they will not be going near the panel because it is a Government body and so on. We hear that a lot.

I think that, from a PR point of view, huge mistakes have been made in the bill. When I read it, on the Friday when it was published, I was shocked at some of its content, so you can imagine how survivors felt after waiting all this time for it. To get survivors to go with you, you need to listen to them. They feel that what was taken from the original consultation was what Government wanted rather than what they said.

It is really important to be transparent and fair about survivors’ views. Survivors feel that it is always the same people who are consulted, not the wider survivor community. Our network of survivors has asked me to write to every MSP in Scotland, which I have done—I have had a handful of responses—and survivors want to have a Zoom call with MSPs to tell them how they feel. We could potentially get a huge number of survivors on that call to speak about how they feel, and unless you hear from the people who will be affected by the bill in so many different ways, you cannot possibly make an adequate decision. That decision may be one that benefits the public purse or the organisations, which is why the conspiracy theories are coming out. They are asking, “Why does the bill not benefit us?” That is what you all need to consider.

I have heard all the legal arguments, but I still think, “Where are the voices of survivors?”, because it is the survivors who will be ultimately affected by the bill—it will not affect me as the person who runs the service or any of the rest of us. They are the people who will have to go through that process, and going through the process would feel intimidating to me, so how will it feel for the people it affects? If you want survivors to come with you, listen to them.

Jamie Greene

We understand that sensitivity and I know that every member of the committee will work with the clerks, the legislative team and the rest of the parliamentary team to make sure that anyone who wants to be heard is heard in a way that works for them. Not everything has to be done in the way that we are holding this meeting, which is televised and broadcast—there are many ways that we can engage, and we will pursue those. I am sure that the clerks will speak to you about that. We want to hear as many voices as we can, and that is a genuine point of feedback to you. Everything that you have said has been noted. Thank you so much for your frankness.

Beatrice Wishart

I want to take the witnesses’ views on applicants who have convictions for criminal offences, which is an issue that Judith Robertson touched on in response to Alex Neil’s questioning. Could I ask Janine Rennie first for her views on making redress payments to children who were abused but then later convicted of serious criminal offences?

Janine Rennie

Thank you very much for asking that question; it is an important one, but it is also a difficult one to answer because a lot of emotions are involved.

We delivered a service in the Scottish Prisons Service for a large number of years. More than 50 per cent of the people we worked with in prison had been through the care system and a large proportion of them had been abused in care. You can draw a correlation between the number of people who were raised in care and had missed opportunities and those who ended up falling into the prison system.

Murder has been mentioned, and some people have killed their abuser. There are huge aspects that need to be looked at, and I welcome such issues being looked at on a case-by-case basis, which is the only way that we can look at them.

I echo what somebody on the previous panel said about the impact of adverse childhood experiences on an individual’s future involvement in crime. Every opportunity was taken away from that individual. Often, they suffered abuse and torture for years and years, and we know the impact of that on people. However, I know that some survivors would take issue if somebody had gone on to abuse children. We need to look at that on a case-by-case basis.

As an aside, I add that, in the work that we did in prison, people did not go on to reoffend. Somebody who had perhaps committed quite a serious crime could go through a period of rehabilitation and not go on to commit any further crimes. However, the opportunity for rehabilitation and getting appropriate support might not have been there. We need to look at the issue in its entirety rather than make a blanket decision based on different criteria around crime.

11:15  



Beatrice Wishart

Thank you. Does Ms McMeeking or Ms Clarke have a view on that?

Joanne McMeeking

Evidence indicates that children who are in the care system pick up offences, particularly for smaller crimes. More attention is drawn to their looked-after status in relation to issues that would normally be dealt with in a family, through parental sanctions and so on. We welcome the openness of the Scottish Government to consider that, because a number of our children who are looked after and survivors tell us about their experience of difficult, complex situations that are specific to the criminal justice system. I appreciate that more serious offences have to be considered in much more detail and on a case-by-case basis, and I absolutely support that, too.

Gaynor Clarke

I reiterate what Joanne McMeeking said. Social Work Scotland’s perspective is that the issue must be addressed on a case-by-case basis and that a public interest and human rights-based approach must be adopted.

Rona Mackay

I would like to ask about the definition of abuse in the bill. The bill describes abuse as “sexual abuse”, “physical abuse”, “emotional abuse” and

“abuse which takes the form of neglect.”

Corporal punishment, where it was permitted under legislation at the time, is not included, and nor is abuse by peers. What are the witnesses’ opinions on that? Should those categories of abuse be included in the bill?

The Convener

We will go to Joanne McMeeking first.

Joanne McMeeking

That is a really complex area, and my hesitation is due to my thinking about the continuum of abuse that can happen peer to peer. It would be difficult to bring that into the scope of the bill.

I was also thinking about some of the legislation around corporal punishment, particularly in the 1980s, when a child could still be given the belt at school in Scotland. There was a clear, formal legislative process, and there were instruments that allowed that to happen, so I can understand why that issue is not included in the bill.

Judith Robertson

We are content with the absolute definition in the bill, which would comply with the international framework in relation to this area.

The issue of corporal punishment is slightly more problematic, not so much in relation to the standards of the time as possibly in relation to the context of the culture in the institution. There is the issue of the effective abuse of corporal punishment within a process and whether that would then constitute abuse in the system. I would be concerned about a blanket exclusion of corporal punishment; instead, it could be included as something that might be taken into account when looking at the scale of the abuse, if that was established in a cultural setting. There is definitely an issue of degree involved.

I take Ms McMeeking’s point about the legislative or policy basis for corporal punishment in the past. We have moved on from that, but the culture in specific settings could have undermined the intention of that policy, tipping it into something that would be considered abusive.

Janine Rennie

The best way for me to answer Rona Mackay’s question is to give a couple of examples. A lot of the care establishments kept punishment books, so there are records of punishments that were given to children who lived in those care homes. How the punishments were expressed in those books might be seen as evidence of significant abuse being perpetrated on individuals. It is a risky area, because what the organisations deemed corporal punishment is what we would deem abuse. We need to give the issue serious consideration. What legislation allowed at the time perhaps should not have been allowed. Again, that was the fault of the state with regard to what people were allowed to do to children.

A lot of the survivors feel that, as they were under the care of an establishment, they should have been protected. To give a case study example with regard to peer-to-peer abuse, I know of a case of somebody who was abused by an older child who was abusing a lot of the children in the care establishment, which did nothing to stop it happening. Where there has been a case of negligence by the organisation in allowing peer-to-peer abuse, that should be considered under the bill.

Ross Greer

I will ask the panel members one specific question and a more general question about next-of-kin payments; they might have caught the same line of questioning to the previous panel. I am interested in their thoughts on the requirement for a cohabitant to apply for the next-of-kin payment. If the survivor who has passed away has a spouse or civil partner, the cohabitant has to have been living with the survivor for six months prior to the point when they passed away in order to be prioritised ahead of the spouse or civil partner for the payment. There is no six-month or other length of cohabitation requirement for the cohabitant to be prioritised over the survivor’s children. I am interested in the witnesses’ thoughts on whether there should be some requirement, whether it is a minimum length of time for cohabitation or something else. Should there be that automatic presumption that a cohabitant is prioritised over a survivor’s children for the purposes of payment?

Joanne McMeeking

My head goes to the choice of the survivor, in terms of the decisions that they make about their next of kin and the need for that to be ironed out. At the same time, I am thinking about the rights of the partner over the children. Where my head is going is that it is a very technical question that I would seek legal advice on. I know that—[Inaudible.]—this morning were also talking about it and thinking it through. I do not have a strong view at this point. I am happy to go back and read more on that in order to provide more information and a more substantial view to the committee in writing.

It is incredibly tricky—[Interruption.] I understand that, because of the depth and importance of the survivor’s relationship with their partner, they might want their partner to stake a claim. At the same time, I understand that children who have been around for a long time feel a sense of loyalty and also deserve the money.

Judith Robertson

We do not have specific views on those aspects; it is much more about survivors’ views being reflected in how decisions are taken. I do have views on next-of-kin payments, however, and I am happy to share them afterwards.

Janine Rennie

I return to what I have said from the start. The survivors’ views should inform the approach. Survivors may have different views, but it is really important to hear from them.

As an aside, I will mention the cut-off point for when people could apply to the scheme as next of kin if somebody had passed away. We have lost a number of survivors in the service over the years, and I have seen the impact on the family of the abuse that the survivor experienced. The proposed measure will be very disappointing for quite a few families, but I really think that it should be about the survivors’ views rather than mine.

Ross Greer

I appreciate that this question is both technical and complicated. I take on board the point about the approach very much having to be led by survivors. The tricky element is that something needs to be set out in legislation for circumstances in which a survivor has not expressed a clear view before they pass away. We need to iron out exactly what the requirements should be, as set out in legislation.

I have a wider question on safeguarding the wellbeing of survivors. In any situation in which a payment or sum of money is involved and which concerns a vulnerable individual—in this case, a survivor who is coming towards the end of their life—there is the potential for that individual to be exploited. Consideration needs to be given to how to safeguard in a situation in which other individuals receiving a substantial payment of £10,000 is dependent on their relationship with the survivor and what that relationship is established as being. I am interested in hearing the panel’s views on how to safeguard the wellbeing of survivors in that situation, at the end of their life, when other individuals in their immediate vicinity would be eligible for a payment and there might potentially be contested views between those individuals—cohabitants, children and so on.

Could we start with Ms Robertson? You mentioned that you had some wider views on next-of-kin payments, and it would be great if you could share those now.

Judith Robertson

Thank you—I will do that, and I will come to your more specific point after that, if that is okay.

We wanted to make two points about next-of-kin payments. It is not clear to us why the next-of-kin applications should be for payments that are smaller than those that survivors themselves get if evidence can be provided to meet the requirements for individually assessed payments. That is one basis.

It is worth adding that we really welcome the fact of the next-of-kin payments, which we think are an important aspect of the scheme. The provision also reflects the views of survivors in the original consultation. Although there was a diversity of views, on balance, there was a strong view that next-of-kin payments would be valued and appreciated.

We also have concerns about the timescales that have been

mooted—that the survivor must have died on or after 17 November 2016 for their family to be eligible for a next-of-kin payment. We think that that is extremely tight and time limited, and that the period should be extended. The rationale for enabling next-of-kin payments is that the family should receive some acknowledgement and remedy on behalf of the person who experienced the abuse. By setting the cut-off date as late as is proposed, opportunities for redress for families are really limited. We think that the timescale is too tight.

I wish to return to the point about vulnerable people. It comes down to the question of support. While a survivor is still alive, they are the uppermost person whose views need to be taken into account, where capacity is such that that is possible.

We have some concerns that section 49 provides powers to redress Scotland to give

“directions relating to the payment and management of the redress payment for the benefit of the applicant as it considers appropriate.”

That raises questions about applicants who might be vulnerable to risk—either of harm to themselves or others or of exploitation by others—on receipt of payment.

11:30  



We are also concerned that the bill as drafted places too much discretion with redress Scotland to assess the capabilities of a person to manage the payment. In particular, references in the bill to “illness” and “disability” are concerning. A formal safeguarding framework was put in place through the Adults with Incapacity (Scotland) Act 2000, and we think that any restrictions or directions on payment should be made in accordance with that recognised legal procedure, or through things such as the power of attorney or financial guardianship. We do not think that this scheme should set up a different legal basis for establishing capacity. The schemes that we have are sufficient for doing that, and they are what should be used in this context. We have real concerns about that section of the bill.

The Convener

Ms Clarke, do you want to say anything about safeguarding issues?

Gaynor Clarke

No, thank you.

The Convener

Do other panel members?

Joanne McMeeking

I will come in on the back of that answer to support the legislation on safeguarding that we already have in Scotland. I would be curious to know why we were potentially setting up something different or new with redress Scotland. That would certainly be a flag for me, particularly with regard to the strength of power of attorney, guardianship and so on. It is a bit curious that, because it is a survivor who—[Inaudible.]—not manage it properly. I think that that is a bias that we have to step up and acknowledge, and then challenge.

The Convener

Do you have another question, Mr Greer?

Ross Greer

That is all from me, thank you, convener.

Iain Gray

I want to ask a question of Judith Robertson, although Janine Rennie might also want to comment. It is about the position of those who were sent to fee-paying schools not directly by the state but by their parents. In its written submission, the commission suggests that the state still had a duty of care to them, and therefore their right to seek redress under the bill should not be excluded.

Judith Robertson

It is a sensitive issue, and we are very aware of that. There is a broad diversity of views. The human rights framework would say that, when any child had suffered harm in that kind of setting, they would be eligible for financial redress.

The scheme excludes that, and, from our position, that is okay. We feel that the scheme can draw parameters and make those assessments from a human rights perspective, although that does not remove the obligation of the state to make provision for financial redress should it be sought in another process, or to support the setting up of other processes, such as by those private institutions, or to ensure that those processes are established. Therefore, although we do not necessarily seek a broadening of the terms of the bill, we recognise that, under human rights law, there is an obligation that, if a child is harmed in such settings, a provision for redress should be made.

Iain Gray

Thank you. That is helpful. Does Ms Rennie have anything to add?

Janine Rennie

We are very clear, as an organisation, that any situation in which a child suffered abuse should be included in the inquiry and in any other subsequent processes, simply because it was a failing of our whole society in the years and decades during which children experienced abuse. We feel that any establishment where children experienced abuse should be included under any terms, so that we, as a society, can learn the lessons about what went wrong.

Those children suffered abuse in a society that accepted that that abuse took place, and there was no protection for them. Therefore, we feel that all establishments where children were abused should be included.

The Convener

This is a final call for any members who have outstanding questions at this stage. Ms Clarke wants to come in on Mr Gray’s last point.

Gaynor Clarke

Social Work Scotland expressed unease about the exclusion of children who were in the care of medical professionals, children who were hospitalised or institutionalised specifically for a learning disability or their mental health, and children in boarding schools other than through parental choice. I would like it to be noted that Social Work Scotland has engaged with the Government on that point and recognises the complexity and financial challenges that would be involved in that regard.

Judith Robertson

I will add to that point. We would like it to be recognised that children who are disabled were often placed in care, sometimes not under the provision of the state, and, under the terms of the proposed scheme, there is a risk that their claims would not be accepted. That needs to be reflected in relation to the redress Scotland panel’s discretion to consider the basis on which people were taken into care institutions, particularly for long-term care in hospitals.

Jamie Halcro Johnston (Highlands and Islands) (Con)

Road works have just started outside where I am, so I apologise if there is any noise.

Most of the questions have been well covered by my colleagues, but I have one question that is specific to my region of the Highlands and Islands. With regard to a claimant’s ability to be supported through the process, legally or otherwise, do the panellists have any concerns about those who live in rural areas, who perhaps do not have access to the same services that are available in other places?

Judith Robertson

Accessibility of provision is a key issue, as people from across the country will have a range of needs. We are advocating that the system should be paper based and online, and that people should be able to talk on the phone and use whichever instruments they are able to use to provide evidence and talk to those who can give them support and advice. We are also advocating that the costs that are attached to support for survivors across the scheme should recognise different requirements in accessing the scheme, such as the requirements of people who have communication issues, perhaps because they are deaf or blind, or because they have another disability. The issues of accessibility are paramount. There are legal requirements to provide such support anyway, but for this scheme, in particular, resources need to be applied to the processes in a way that enables the participation of people from not only rural areas but across Scotland, as the issues also apply to them.

I take your point about the issue of access to lawyers and legal support in rural areas, but the access to provision generally needs to be thought through. It is more of a process point than a legal point, but it should be recognised.

Joanne McMeeking

The accessibility of the scheme is important not only in terms of geography but in how it is tailored, so that it is trusted, responsive, flexible and supportive. Our experience of consultations is that we have to develop and define very bespoke consultations in order that survivors are able to engage in lots of different ways that feel comfortable to them and so that they trust that their information will be listened to and responded to. That will be important in the construction of the scheme, as well as with regard to its accessibility and the geographical aspects of that.

Janine Rennie

[Inaudible.]—in terms of the wider accessility. Obviously, we are dealing with Covid just now and we do not know what we are going to be like next year. A lot of engagement might have to be virtual. A lot of people are suffering severe digital exclusion.

Another concern that we have looked at in a number of processes through the years is that a lot of people suffer significant mental or physical health issues, so it would be impossible for them to go to a location. A lot of people are suffering from severe agoraphobia and do not want to leave the house, and their access to anything is very much restricted because of that. Accessibility is key, and that will have to be considered not only in rural areas, although we accept that even access to support in rural areas is sporadic, as is access to transport networks. All of that needs to be taken into account when considering how people can engage.

Gaynor Clarke

The priority for Social Work Scotland is the operation of the scheme itself and the process. I am thinking about the person-centred support that people require when they apply to the scheme. Emotional and psychological support is critical, as is making sure that the support is a moveable feast and that people’s needs are considered. That is Social Work Scotland’s priority in working with the Government to develop the bill.

The Convener

Jamie, did you have another question?

Jamie Halcro Johnston

No. I was just going to say thank you. I am sorry that it was fairly brief, but that was helpful.

The Convener

I have a final question. We have not covered the position on the deduction of prior payments. What are the witnesses’ views on that rule? Is it correct that deducting prior payments would mean that survivors would be compensated twice for the same matter? Ms Rennie can go first on that.

Janine Rennie

Most of the survivors that we have spoken to feel that it would be fair for them not to be compensated twice. That is why a lot of them are saying that there is really no need for the waiver. They would be quite happy to accept the payment that was most suitable for them and to subtract any other payment that they had already had, if it made the process easier.

Judith Robertson

I completely agree with Ms Rennie’s point about survivors’ views on that. That seems to be fair, and survivors want the process to be seen to be fair. It would also provide a balance. There is a lack of balance in the legislation if that offsetting cannot be provided around the civil route. It would not really make sense—it would be slightly illogical—to make sure that it came off on one side but not on the other.

Joanne McMeeking

I support what Judith and Janine have said. There is a very strong desire for fairness among survivors in that they do not want to receive payments twice. They have a strong ethical sense of duty, and it is important that that is heard and listened to.

The Convener

Thank you. That is very helpful. Ms Robertson, do you want to come in again?

Judith Robertson

I just want to make a final point about disregard in relation to benefits. A payment that is received from the scheme is not income and should not be regarded as income by the Department for Work and Pensions. I know that it is not within the power of the Scottish Parliament to decide that, but we totally support the Scottish Government’s efforts to ensure that a payment is disregarded as income and is regarded as reparation for harm done.

The Convener

I think that negotiations on that point are going on at the moment between the Scottish Government and the Westminster Government.

I thank everyone for their attendance this morning. It has been really helpful. I also thank you for your submissions to the committee, which will help our deliberations.

We will now move into private session, and I ask members to come out of the current video streaming system. We will meet in BlueJeans in about five minutes.

That concludes our public business this morning. Our next meeting will be on 28 October.

11:44 Meeting continued in private until 12:30.  



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Third meeting transcript

The Convener

Item 5 is an evidence session on the bill from organisations that work directly with survivors. I welcome David Whelan and Harry Aitken from Former Boys and Girls Abused in Quarriers Homes; Flora Henderson from Future Pathways; and Helen Holland and Simon Collins from In Care Survivors Service Scotland—INCAS. I invite the witnesses to tell us a little about their organisations.

David Whelan (Former Boys and Girls Abused in Quarriers Homes)

Thank you for inviting us. We are a campaign group. We set up officially in 2005 and campaigned for a couple of years before that. We have been involved in the issues in the bill since 2002. Initially, our members were elderly. We do not keep a member registration list, but we have an informal group that we continue to consult across the board. There are former residents from different generations in Quarriers—[Inaudible.]—consult migrant children in Canada and Australia when we put together a policy.

Over the years, we have tried to represent the best interests of former Quarriers residents, but our ethos is to ensure that anything that is set up is for all survivors.

The end of the work should result in reconciliation for all parties and, for us, that is about reconciling the issues with Quarriers. On that basis, we have engaged with senior management at Quarriers over a number of years, and we are in discussions with Quarriers on the issues that it or we might have in relation to the bill, in order to try to find common ground.

11:15  



The Convener

Does Mr Aitken want to add anything to that?

Harry Aitken (Former Boys and Girls Abused in Quarriers Homes)

I do not need to; David Whelan has covered what we do quite well.

The Convener

I ask Flora Henderson to go next, on behalf of Future Pathways.

Flora Henderson (Future Pathways)

Thank you very much for having me.

Future Pathways is Scotland’s in-care survivor support fund. We were set up by the Scottish Government in 2016. We are overseen by an alliance leadership team that includes alliance partners, the Scottish Government and survivor representatives. Our alliance partners include Health in Mind, the Mental Health Foundation, Penumbra and the Glasgow health and social care partnership, in relation to the Glasgow psychological trauma service.

We are a needs-led service, and we exist to help people who have experienced childhood abuse or neglect in care to live healthier, more fulfilled and independent lives.

The response has been significant. More than 1,600 people are now registered with Future Pathways, and we have directly worked with 1,200 people. We work with people of all ages, from 18 to 89. Most of those people live in Scotland, but smaller numbers live across the United Kingdom and oversees.

We were developed to be a person-centred service, in appreciation of the fact that the impact of abuse can be wide ranging and lifelong. We have found that individual support needs vary considerably.

We have had plenty of experience of supporting people through the Scottish child abuse inquiry and other difficult processes, such as civil actions, and work in anticipation of the redress bill, which is now before you.

The Convener

I invite Helen Holland to go next, on behalf of INCAS.

Helen Holland (In Care Abuse Survivors)

Good morning. First and foremost, I highlight that INCAS stands for In Care Abuse Survivors, not In Care Survivors Scotland as the agenda states, but that is absolutely fine.

INCAS started in 1998, but it was formally formed in 2000. We have been involved from the very beginning. Initially, we just offered support to survivors, and then we had to go on the campaign trail to try to raise the issue of in-care abuse in the Scottish Parliament.

We have very much been involved in the process from the very beginning, through a petition that was lodged in Parliament. The Public Petitions Committee considered the petition, then there was a debate in the chamber, so we have been involved throughout the whole process.

We are a non-funded organisation. Hundreds of survivors are registered with us. We try to offer concise and accurate factual information to survivors because, for me, that is the most important thing. I have engaged with the Government on many occasions through every process.

We were also involved in the consultation on the bill. At that point, we asked the Scottish Government to make the consultation clearer because, initially, there was misunderstanding among survivors. Some people were struggling with the questions, so the Scottish Government said that it was prepared to come out and speak to groups of survivors, and offered to speak to groups and agencies that were representing survivors. INCAS took up that offer and held three meetings in Glasgow, two in Aberdeen, one in Perth and one in Dundee. We tried to go across the country to ensure that survivors understood the consultation, and to encourage as many survivors as possible to engage with it.

I am pleased to be here this morning and will be able to answer questions as they arise.

The Convener

Thank you. I apologise—my script is wrong. We will ensure that we get the name right in the future.

Would Simon Collins like to add anything?

Simon Collins (In Care Abuse Survivors)

Since 2014, I have been the legal adviser for INCAS in relation to lobbying and preparing for the child abuse inquiry. I represented INCAS at the inquiry, but I have also done work on redress.

For the past six years I have had the pleasure of working alongside Helen and the INCAS committee to help them. I have observed the work that Helen, David, Harry and other survivors do so selflessly to promote appropriate redress for and recognition of survivors of abuse.

The Convener

Thank you. We had an informal session with survivors this morning, which brought to the fore some interesting lines of thought that I am sure that the committee will pick up on. One of the themes was non-financial redress and apologies. In the spirit of David Whelan’s comments about reconciliation, I ask my colleague Ms Wishart to speak.

Beatrice Wishart

I want to ask about the public apology process. What are your views on the value of a public apology to survivors and what form might such an apology take?

The Convener

I will go to the representatives of Former Boys and Girls Abused of Quarriers homes.

David Whelan

It is up to the individual survivor. It has to be person centred. We have an apology law, which FBGA helped to get enacted, which enables the organisations to make an apology without fear of liability. We also believe that the organisations have a role to play in the non-financial redress process. Quarriers has an aftercare service. My understanding from the chief executive, Ron Culley, is that Quarriers has put substantial financial resource into that to address some of the historical abuse issues, to help survivors access records and to support relatives to locate families and so on. The terms of non-financial redress are very important.

It is really up to the individual survivor but, for me, a meaningful apology made directly to the individual from the organisation would be one of the most powerful and important things.

The Convener

Do you want to come in, Harry?

Harry Aitken

Good morning, Clare—I am sorry that I did not say that earlier. It is nice to see your smiling face.

I endorse what David Whelan has said. Recently, Professor Prue Vines visited Scotland from Australia to tell the people of Scotland how the apology in Australia had been managed. She ran a seminar and it was packed to the gunwales. The two things that I came away with were that any apology had to be meaningful and delivered at the right level of the organisation or Government and that it had to be validated. The apology must be made to a survivor with validation that authenticates it and shows that it has been done at the right level. The suggested level is the chief executive or chairman of the organisation. In the Government, it should be at the level of the First Minister. The First Minister already knows many of us and has worked with us, so I am sure that she would be quite happy to do that.

An apology has so much meaning to survivors. In some cases, if there were no redress scheme, the apology would be sufficient. We know from the people we deal with that it means a great deal to the survivor and to the family.

Flora Henderson

Future Pathways will not feel able to represent survivors directly on that matter, simply because we are aware that survivors will have a range of views about what is appropriate for them. We exist to be able to help irrespective of each person’s views on redress.

Helen Holland

An apology is very much about what makes sense to an individual. For some survivors, an apology is far too little, far too late. The damage has already been done and, sadly, a lot of survivors carry resentment and anger about what has happened to them. They have still not been able to process it and they are still dealing with the trauma. Their attitude is therefore that they do not want an apology. I am simply being up-front about the various views that our members have given.

There are other members for whom an apology is the most sacred thing that could come out of this, because it would acknowledge the abuse that took place and because it would be an apology not only from the Government but also—in some respects, even more so—from the care providers themselves. It cannot be simply a tokenistic apology; if it is a tokenistic apology, it will create more damage.

It very much depends on what the individual is looking for from an apology. It would be wrong for me to answer that question on behalf of survivors. If, however, you asked me to answer based on what it means to me, as a survivor myself, I would be able to give you a personal view.

For me, an apology needs to come from the Government in relation to why legislation was not followed, why all that abuse was allowed to take place in those institutions, why nobody followed it through, why social workers were not following up with the children and why children were locked up and forgotten about. To me as a survivor, that is what it felt like. The doors to those institutions were locked. We were not prisoners, but we had absolutely no rights and nobody bothered to ask us what was happening in those places. If anybody tried to tell somebody what was happening, they were accused of lying. There is a lot there.

Many years ago, I received an apology from an individual from the organisation that I was in, and I accepted that as a heartfelt apology at the time. However, to be totally honest, sadly, things that have happened since then have tarnished it a bit. I would like to try and hold on to my initial response to that apology rather than the tarnishing of it.

The apology is a difficult issue, because it very much comes down to the individual. The whole redress scheme is about individuals, their experience and what is meaningful for them. The only person who can say what is meaningful for them is the individual survivor.

Simon Collins

It is difficult for me to add to the views of or to speak on behalf of those who are survivors. I endorse what Helen Holland said in that, in many ways, it has to be a very personal matter.

What INCAS has been asking for by way of an apology is nothing new. Before the then First Minister’s apology—such as it was—in 2004, there was consultation on the terms of the petition that was lodged by Chris Daly. At that point, INCAS made clear that the apology that was being sought had to be sincere and heartfelt and it had to be delivered on behalf of the state and those responsible.

It is such a personal issue that it is hard to gauge what an apology might mean to the individual survivors. The committee has heard a range of views expressed on that. What an apology would be required to be was made clear by INCAS as far back as 2004, when the consultation was undertaken. It is no secret that an apology must be heartfelt, sincere and delivered on behalf of those who are responsible. Unfortunately, I am not sure that that was the result that came out of the consultation in 2004—in fact, I know that it was not—but the views of INCAS have been clear for some time.

11:30  



The Convener

I want to ask whether the provisions in the bill for support for applicants are adequate. I am talking not about legal support but about emotional support and any other kind of support that might be required. I am not looking for detailed answers at this point

David Whelan

The short answer is that I think that the Government has put in the right support; we will not know whether it is the right level of support until we know what each individual requires. However, we are pleased that the bill covers counselling and trauma support.

Harry Aitken

I agree with David Whelan. The Scottish Government redress scheme support teams are already showing their mettle. We know that that will continue when the scheme is up and running.

The support teams from the Scottish child abuse inquiry have been extremely helpful. If the redress scheme teams can be of the same quality, that would be wonderful for the survivors.

On the matter of support, it is surprising that support groups are being set up by survivors themselves. There is the FBGA and INCAS, and there is also a group called Safe. We heard recently that a lady up in Aberdeen has started a group of more than 20 people, some of whom were in foster care. Most of us have contributed in some way to initiatives that have been started by survivors.

Flora Henderson

We would echo the importance of making support available early to any individual who is considering participating in the scheme. Future Pathways has learned that many people can underestimate the personal impact of participating, so it is important not only that the support is made available as early as possible but that people have choices. Although individual support needs may differ, the theme that we would draw out, based on our experience of working with 1,200 people, is that psychological assessment and support is important. Out of the 1,200 participants, 493 people have accessed that from Future Pathways.

Counselling is also very important, and 518 people have accessed that. We work with 40 professionals and organisations. I say that to highlight how important it is for people to be able to choose what support they require, and for the support provider to do all that they can to ensure that people get the support that they need.

Finally, we should not forget the importance of practical support. That might be about managing the practicalities of the application procedure or interpreting what can be quite large amounts of information. People might need support through the whole process.

It would be remiss of me not to mention the importance of access to records. It is not only about accessing information from institutions and authorities; it is about the availability of emotional support alongside that, and the sincere and authentic involvement of social work, or the institutions themselves, so that the information is provided in the best possible way. Too often, people do not know what information is held and when they can access it. Sometimes, after long periods, they find that no information is available. That information is crucial for people who seek to proceed through the process.

Support will be required for the organisations that have shepherded people through the process and for the local authorities and institutions that should be providing the information in a way that is timely and easier to make sense of. We must appreciate that we are talking about people’s lives, so the issue is hugely significant not only for redress but for someone’s identity and understanding of their life.

Helen Holland

Support must come at two levels. There are two different types of support: life support and support through the redress process, which is a different thing entirely. I think that the support through the redress process should be equivalent to the support that is available to survivors through the inquiry process. I can honestly say that, despite the inquiry process being difficult for survivors, I have not had any survivor complain about the support that they have received from the support team as they went through it.

However, that relates only to the process of giving evidence for the inquiry. An independent support mechanism that is set up to take survivors through the redress process is totally different from the on-going support in their life—that is a different level of support altogether. However, those things are of equal importance.

The redress process will be more difficult for some than it will be for others. If we take the legal side out of it altogether and just deal with the emotional side, the exact same issues applied in relation to the inquiry process. I cannot think of anything more emotional than giving evidence to the Scottish child abuse inquiry. I gave evidence to it, so I know the emotional impact that it had on me, and I consider myself to be a particularly strong survivor. Support was available for every single step of that process, and that same level of support for survivors needs to be in place for the redress scheme.

The support must be independent, because there are so many views out there—this has been going on for far too long; for 20 years, people have been influencing survivors. A lot of things are going on now, which we will probably talk about as they come up.

The reality is that the process needs to be done in a way that is in the best interests of the survivor, not those of an organisation, a group, a survivor group or anything like that. The survivor must get the best possible information, and that information must be clear. There must be no pressure on them whatsoever, pushing them in one direction or another. They have to know that they are getting all the support that is required to go through the process, for however long it takes.

Simon Collins

I do not think that there is anything that I would seek to add, other than to echo that, although the child abuse inquiry and the redress scheme are totally independent of each other, there are such similarities not only in the people they are dealing with—the survivors—and their needs but in the work that they are looking at. There is the opportunity to learn from the experiences of the SCA inquiry.

For what it is worth, my observation is that the inquiry has put together a strong and effective support package. That may not be everyone’s experience, but that has been given to me throughout the inquiry. If you are looking for a model on how to provide support, that is a good example.

The Convener

I will move to the issues of waivers and fair and meaningful contributions. Two colleagues, Mr Gray and Mr Neil, have indicated that they want to come in on those issues.

David Whelan

Sorry, convener, I wanted to—

The Convener

Sorry, David—I missed you. You had highlighted that you wanted to come back in.

David Whelan

I agree with Helen Holland. Survivors have their own independent support mechanisms. We are not a support group, so we always refer survivors to the agencies, or wherever. For us, it is about the survivor being able to choose; some survivors are accessing qualified professionals and getting counselling and so on and we would want that to continue if that was that survivor’s choice and for the redress scheme to endorse that.

The model that the child abuse inquiry is using in relation to dealing with trauma and dealing with applicants and victims is exemplary; I went through it and, as Helen Holland said, we may be considered strong survivors, but the trauma that we endured is lifelong and it is very difficult even for someone like me. The support that I had through the child abuse inquiry was exemplary, and I have had feedback from other former residents of Quarriers who say the same thing, so it would be helpful to base something on that model.

The Convener

If committee members want to come in on other areas, it would be helpful if they could indicate that in the chat function. Iain Gray has a question on the area of waivers and fair and meaningful contributions.

Iain Gray (East Lothian) (Lab)

Colleagues will know that the bill contains a requirement for those who access the redress scheme to sign a waiver that they will give up their right to pursue a civil claim, and the Scottish Government has argued that that is necessary to incentivise the contribution to the redress fund from organisations that were responsible for the care of survivors in the past. Does the panel believe that that is desirable, necessary or acceptable?

David Whelan

Mr Gray, I noticed that you spoke in one of the first evidence sessions to Joanne McMeeking. In the 2017—[Inaudible.]

The Convener

We have lost Mr Whelan at the moment.

David Whelan

[Inaudible.]—consultation there was no mention of a waiver—[Inaudible.]

The Convener

David, I apologise, I have to interrupt—can I stop you there? Can broadcasting mute Mr Whelan? Mr Whelan, we cannot hear your contribution at all at the moment. The clerks will speak to broadcasting colleagues to see whether we can get you back on a better connection. We will let them do that in the background. Does Mr Aitken want to come in on the issue of the waiver and Iain Gray’s question?

Harry Aitken

The first thing to say regarding the waiver—

David Whelan

I think I lost you there.

The Convener

Mr Aitken, can you continue? We will try to sort out Mr Whelan’s connection.

Harry Aitken

I was just about to say that, in line with the European report, it is not acceptable that any Government should demand that a survivor or a citizen should sign away their rights—in fact, it should be the duty and obligation of a Government to protect citizens’ rights. We know that there are other ways of going through the redress process—for example, offsetting has been put forward by a number of people, and David Whelan has put forward suggestions to the interaction review group. I think that you have a copy of that.

However, one anomaly—it is probably stronger than an anomaly—involves the difficulty that has arisen with pre-1964 category applicants to the redress scheme. Since the Limitations (Childhood Abuse) (Scotland) Act 2017 came into force, many survivors have an unobstructed path to accessing justice. However, the application of the law on prescription denies pre-1964 survivors access to the civil courts. As a result, the proposed redress scheme does not meet either their needs or their expectations. To compensate those survivors for that deficiency, and to comply with all elements of the Scottish Human Rights Commission’s framework, the Scottish Government should give careful consideration to effectively rebalancing that discrepancy.

From the perspective of the number of submissions made to the committee, the issue is whether there is a groundswell of overwhelming non-support for the waiver. That is an indicator of how widely that is felt in the community.

11:45  



Flora Henderson

Again, Future Pathways will not feel able to represent survivor views directly, simply because they are varied and we are governed in partnership with the Government.

Helen Holland

To be honest, my initial response to the waiver was that it would protect abusers more than survivors.

The other reality is that, even if a survivor were to go down the civil court route, once an agreement had been made and they had agreed that it was of the right level or amount for them, they would sign something at the end of that process. So, even within the redress process, survivors should not be asked to sign anything up front. In Northern Ireland, survivors are asked to sign a waiver before the process even starts. At least in Scotland we are saying—and will continue to say—that no waiver should be signed until a survivor has been given 100 per cent of the information that they require to enable them to make a decision on whether the redress payment that they have been offered is correct for them and they feel that they are happy with it. Only when someone feels that it is the right choice for them should they sign a waiver.

As for saying that the scheme denies survivors the option of going down the civil courts route, the reality is that the time bar has been lifted since 2017. If a survivor had the body of evidence required to enable them to go down that route, the process should already have been started.

The situation for survivors is difficult. I know that some of them will be listening to this meeting, which is why I am trying to make my point clear. The reality is that there are choices. I hear people saying that survivors are being denied their rights. However, at this moment in time, they are not. No waiver will be signed until a survivor agrees that doing so is the right thing for them, at which point they will also be given legal advice.

It is true that there is an element in the waiver that protects care providers in relation to contributions. Perhaps some amendment could be made to that. If a care provider signs a waiver and then, further down the line, decides that it is not going to comply anyway, that waiver should be null and void and the survivor should have the right to pursue the provider elsewhere. There needs to be a clear definition of what is covered by the waiver.

The Convener

Mr Collins, do you want to come in? [Interruption.]

Please allow a wee bit of time. The delay is just because our broadcasting team has to catch up with us. It should be fine now.

Simon Collins

I have read a lot of the contributions from other firms of solicitors and the legal views that have been expressed by the Scottish Human Rights Commission. My reaction from a legal point of view—it is also my natural reaction—is to be entirely opposed to the waiver. However, I have to recognise that I represent the interests of INCAS. The committee has also heard Helen Holland’s view, which in many ways is a pragmatic one.

A couple of things need to be borne in mind. The first thing that struck me when reading the Scottish Parliament information centre briefing document for today’s meeting was that, on page 2, there is a suggestion that

“Applicants will have to choose between redress and civil actions”.

That suggests that there is simply a choice of one of two means, but that is not the case. Applicants would choose whether they were simply electing to accept a payment, but they would have to go beyond that—they would have to waive and give up a fundamental right to further action. Therefore, it should never be seen as just a choice. If there was no requirement for a waiver, there would be a straight choice.

The second point that the committee should bear in mind when considering such matters relates to something that was raised, if I remember rightly, in Digby Brown’s submission. There might be little or no possibility for civil action at the time at which a waiver is signed. There might not be the evidence, but times can change.

Someone might make a decision based on the fact that, at the time, they stand alone in claiming that they were abused in a particular setting and have no support. Throughout their life, since they were abused as a child, they have been alone and without support, so they might elect, properly and appropriately on the advice that is given, to go down the route of redress. However, a year later, or five years later, someone else might come forward and, all of a sudden, access to the civil courts would be opened, but that person would have signed a waiver that would prevent them from going forward. That might also impact on the other party who had not signed a waiver, because they would not have the support of the previous survivor. Such eventualities are unknown.

The committee needs to bear in mind that the bill provides for error within the payments and determination. In chapter 5 of the bill, section 71 envisages that there might be situations in which, despite the best intentions, a fundamental error is made in making a decision on redress that results in that decision being considered to be inappropriate and having to be revisited.

If the Parliament recognises that there can be error among professionals who are involved in the service, it must also recognise that there might be error on the part of a survivor who makes a decision that they later regret. The difference is that, when an error is made in the redress process, it can be corrected under section 71. When matters come to light later on that result in a survivor thinking that they were wrong to sign a waiver, there is no way back.

I am very anxious to address other issues around the waiver, such as the implication of section 89(3) in relation to the level of advice that is given to survivors and when that is given, and the position when a contributor is in default. I do not know whether those issues need to be addressed at this point, because the question that we were asked was about the waiver in general terms. I am happy to leave it at that just now, but I wish to come back to those other issues in due course.

The Convener

A few other members would like to ask questions now. If those issues are not covered, we will come back to you at some point.

Mr Whelan wants to come back in. I am sorry about the connection issues.

David Whelan

No problem. I apologise—I think that I got disconnected.

Our understanding is that legal advice is not being provided on whether to accept the waiver. We think that that is a crucial point. Our current position is that we are not in favour of the waiver. We support the offsetting proposal from the Scottish Human Rights Commission.

Somebody who was involved in the redress process and received, for example, £40,000 from redress Scotland could go down a civil route. However, if redress Scotland had paid someone, out-of-court settlements, court-awarded damages, payments from criminal injuries, payments from advance payment schemes and other ex gratia payments could all be deducted from the civil court process. We are taking away a right, which is choice. It should not be one or the other. The Scottish Government changed the time-bar law because it was wrong, but we are now putting into legislation something that will tell survivors that they cannot go down a certain route. Why was the time-bar law changed if people did not want us to take up the process?

The Convener

If Mr Gray has finished his questions, I will bring in Mr Neil.

Alex Neil (Airdrie and Shotts) (SNP)

Can we address that issue? The purpose of the waiver provision is to incentivise the offending institutions—if I can put it in that way—to cough up money as part of what they should be doing to account for past errors. Would taking away the waiver provision lead to those organisations making no contribution? Should the bill make their contributions compulsory rather than try to incentivise the institutions that got things badly wrong in the past?

The Convener

Does Mr Whelan want to go first? I am just calling witnesses in the order that I introduced them in.

David Whelan

The current organisation cannot be allowed to fail on the back of past wrongs. The organisation’s financial position needs to be considered, as does the delivery of services now and in the future. We have campaigned for the protection of children in the future. If organisations genuinely cannot contribute a substantial amount, an equitable solution must be found. As I said, organisations such as Quarriers have a good and substantial aftercare service. Should that be taken into consideration as part of redress? We have met Quarriers and it has told us that it has paid about £700,000 in relation to the Scottish child abuse inquiry and historical abuse issues. Should that be taken into consideration?

We never campaigned for all the changes in order to damage the organisation. Alex Neil talks about holding organisations to account, but the redress Scotland body will not do that; it will be there to acknowledge the trauma and the wrong that happened. The primary stakeholder that must take ultimate responsibility is the state, because it failed in its regulatory duty and its inspection duties. Some issues arose because of failures of the state. Yes—we think that there should be contributions.

Harry Aitken

I will add a couple of points. It would be right and appropriate for the demands on a former carer or a contributor to be proportionate to the number of survivors who have identified themselves as having been abused, but the very important thing is that the financial status of care homes must not be put in serious distress. The effect on an organisation’s capacity must allow it to continue, so that it can provide its services. We have been told that Quarriers services and supports 5,000 people in all kinds of ways. If the debts were called in, that could affect an organisation’s status or put it into liquidation. We can take it into account if organisations are giving non-financial support across the board; what they are doing in the community could be added to their contribution.

It is a balancing act. If we are too stringent on contributors, without looking into their financial status—if we expect that their debt must be serviced in some way—it will distress them beyond their ability to survive.

12:00  



The Convener

Ms Henderson, I understand that your organisation is slightly different from the other two in that you are fully funded by the Scottish Government, so you may not want to comment on the issue.

Flora Henderson

Thank you. I have no comment.

Helen Holland

Mr Neil asked whether the contributions should be compulsory. My response is yes—absolutely—because the reality is that those care providers allowed the abuse to take place. The majority of the care providers that are still in operation are covered by insurance companies, and the money that is paid out will come primarily from insurance companies and not from the organisations themselves. We know that many of the organisations have huge hidden assets. We had a situation a while ago in which a care provider said that it could not afford something. However, when we told it what was in its offshore account, the money was very quickly paid without any problem.

I see the waiver not so much in relation to contributions. The organisations are saying that, without a waiver, they are open to having to pay twice, but there are ways round that. That does not need to happen.

I am trying to think about it from the point of view of survivors who do not have access to civil court action but have access only to redress. Those survivors may not have the body of evidence or proof to go to the civil courts, or they may be unable to go to the civil courts because they are pre-1964 survivors. They might choose not to go to the civil courts for emotional reasons—that is their right. The most important thing is that the redress is fair and just for any survivor who chooses to go down that route. It is about justice for survivors, not what is easier for care providers.

I totally get the issues, but the reality is that this is about what happened to survivors. The Scottish Government is responsible in the sense that we were children and under the care of the state. When I was in care, my dad was paying the local authority contributions for my care. How disgusting is that? We are talking about contributions, and, to some extent, part of that contribution is protecting the care providers. Many other survivors were in the same boat. There are survivors who still have all the receipts that their parents kept for the contributions that they were paying towards their children’s care. They did not know that their children were being abused in the institutions, because they were not allowed anywhere near their children. That has huge connotations for the impact on survivors.

Simon Collins

I appreciate Mr Neil’s comment about the need for some form of incentive so that, as he put it, the providers cough up. The question is whether, if the waiver was not there as an incentive, they would cough up. I agree with Helen Holland that the contributions should be compulsory. There is an element of compromise in that, by offering some sort of carrot to providers, it is hoped that they will engage.

The providers have the advantage of engaging anyway, because if survivors are able to pursue a civil action, by resolving matters through the redress scheme, they will avoid the possibility of significant legal expenses. That is an incentive. However, there are many survivors who, as Helen Holland and others have pointed out, will not have any recourse to the courts.

I would put the question the other way round: where is the guarantee that, with the waiver, the organisations will contribute? At some point, I want to discuss the implications of section 12(7) of the bill. However, the simple fact remains that it is entirely possible that an organisation could undertake to contribute in a fair and meaningful way—we will have to take it that that will be transparent and obvious, so that survivors are satisfied that the contribution is meaningful—at the time that the survivor signs the waiver, but, the next day, it could walk away and refuse to pay. It would no longer be a scheme contributor, but it would still be protected by the waiver. That is illogical and dangerous.

It would be dangerous and illogical if it were merely a fanciful suggestion that care providers might indicate that they will contribute but thereafter renege—or default, as it is termed in the bill—on the deal. The issue is all the more important when you realise that that is exactly what happened in the Irish scheme, with care providers that had undertaken to be contributors having thereafter failed to contribute. It is to be expected that some care providers will say that they will be good guys and contribute in order to gain the advantage of the waiver so that, if they do not then contribute, they face the threat of the Government pursuing a debt rather than a survivor pursuing recognition, acknowledgement and proper redress. That is a real concern.

To answer the question, I agree with Helen Holland that the contributions should be compulsory. The best compromise might be to make contributions voluntary but enforceable on pain of the provider no longer being viewed as a scheme contributor if they do not contribute. The bill, as drafted, means that, even when they default as scheme contributors, they still have the benefit of the waiver because they obtained it as a scheme contributor even though that no longer applies to them. That is a nonsensical and dangerous position to leave us in.

I want to address section 12(7), but my comments might have covered the points, and I have highlighted my real concern.

David Whelan

If you are trying to effect reconciliation and get as many organisations, large and small, to contribute, yes, I agree that there is not a lot of trust in the survivor community. However, some groups have moved on with their care providers and so on, and they have constructive relationships with them such as we have with Quarriers.

How can you can compel an organisation to give something that it does not have? Some organisations employ the best financial minds and financial advisers, and they are able to hide assets. I think that there is a weakness in the bill anyway, because I do not believe that the Government will be able to chase a debt. The financial world is complicated, and the money will be hidden and protected. The Government will then have to spend money chasing money that it may not be able to get. These people have had years of experience of hiding and protecting assets, so it has become rather complicated when matters did not need to become this complicated.

On people signing a waiver, or signing away a right, I point you to my original comments on that issue.

The Convener

Do you want to come back in, Mr Neil?

Alex Neil

I will not ask another supplementary question, because we are running out of time. However, it seems to me—this is what I take from the discussion—that we need to separate out two issues: the redress scheme and the and the basis on which the institutions should be making contributions.

The universal point is that the waiver will not act as an incentive to deal with those who should be contributing. I take Simon Collins’s point that, even if an organisation agrees to contribute, it can renege on that agreement the minute that the waiver is signed.

There is a lot for committee members to look at. In the interests of time and to be fair to other members who want to ask questions on the subject, I am happy to move on, convener.

The Convener

Thank you, Mr Neil. That is helpful.

Jamie Greene

I thank Mr Neil for his generosity. I will not labour the point, but there are two schools of thought. Some who have given evidence in writing or orally are intrinsically against the concept of a waiver. On the other side of the coin, some accept the need for a waiver and see its benefit as an acceptable means of encouraging the participation of organisations that we want to contribute, as has been the case under schemes in other parts of the world. Finding the balance will be difficult.

Not everyone needs to answer my next question. Irrespective of what I have described, some people who have given evidence feel that the waiver will strip them of their right to pursue other action. This morning, I read some harrowing evidence in which somebody said that the bill

“strips us of our right to sue”

and that the Government is asking people to

“sign a waiver to give up their rights to raise civil action”.

Whether or not that is technically true, that is what people feel the bill will do.

How do we help survivors to understand what the bill is trying to achieve? How do we improve communication about what the bill will and will not do? The waiver issue flags up some of the communication problems that we face.

The Convener

I suggest to the witnesses that, if you do not have anything to add, you should not feel that you must respond.

David Whelan

We agree with Mr Neil—perhaps the committee needs to separate the waiver from the contributions. If there must be a legal text or a waiver, perhaps the committee could agree the wording, which should be publicised for everybody in the survivor community to see. I am not sure whether that could be put in the bill.

People are concerned about what they are signing away. We keep hearing, “This is for the survivors and the survivor community.” If it is for the survivor community—[Inaudible.] We are the primary stakeholders in all this—[Inaudible.] Everything that I see and read about the waiver—[Inaudible.] I doubt it.

The Convener

We are having a problem again with your connection, but we managed to hear most of what you said and we have got the gist.

I ask Mr Aitken to raise his hand if he wants to speak. I think that he is content not to contribute. Helen Holland’s hand is raised.

Helen Holland

I take on board what Mr Greene said. One of the most important points for survivors is that they are given factual information. The redress scheme is an alternative to—not instead of—civil court action. That needs to be made perfectly clear to survivors. There is a lot of confusion out there because there is a lot of misinformation and because survivors are being given a lot of inaccurate information, which does not help anybody.

No matter whether it is survivor organisations or legal representatives, they do survivors a disservice by confusing them even at this early stage. The reality is that redress is an alternative. We are all trying to make it the best alternative that it can be for those who choose in their own right not to go down the civil action route, for those who cannot go down that route and for those who take an out-of-court settlement. Some do not want finance at all—that is their right.

For every survivor, the whole meaning of redress is individual to them, but to make out that it is somehow fighting against a civil court action is wrong—it is an alternative to civil court action for survivors, and the whole point of the bill is to make it the best alternative possible.

12:15  



Jamie Greene

That perfectly sums up the scenario. Maybe something for us to consider is how the Government could better communicate what the redress scheme does and does not do, and what other options are available to people.

The Convener

Simon Collins wants to come in on that.

Simon Collins

From a legal point of view, it is clear that there is the signing away of a right. However, what is really being asked—and the point that remains—is what that actually means to survivors, and that depends on circumstances. For example, a pre-1964 survivor who signs a waiver is signing away nothing, because they have no right to access the courts as things stand. For others, it may depend on whether they would have the prospect of success in a civil case if they did not sign the waiver.

That brings in the issue of advice. I want it to be made clear that survivors must be given clear advice on what the impact of signing the waiver would be for them, as individuals, which would be different in every circumstance. For that to happen, as is envisaged in section 89(2), they must be given advice on whether to accept an offer of payment.

Much is made of section 89(3), which is about whether survivors would be allowed to have advice about accepting redress as an alternative to pursuing civil action. I read that section differently, though, and I want the committee to seek clarification of what is meant by section 89(3). It states that the fees for advice will

“not include any fees incurred in connection with legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment.”

I agree that, if someone who has not yet engaged in redress is asking for advice from a lawyer on whether they should go down the redress route or consider civil action, it is not appropriate to pay for that legal advice, because you would end up funding every survivor and every individual who wished to have advice on whether civil litigation was appropriate. If that is what that means, that is fine. I do not think that the section precludes someone from taking legal advice on whether to pursue litigation as an alternative to accepting an offer of redress—and survivors must have advice on whether they should accept an offer of redress that includes what their prospects of success in a civil litigation environment are, because, without that, they are signing away a right and they do not understand what they are signing away.

I ask the committee to clarify section 89(3). If it means legal advice prior to making an application and engaging in redress, I accept it. However, if it means legal advice at the point that is envisaged in section 89(2)(d), it is entirely inappropriate to put that condition on it. When survivors sign the waiver, they must know what they are signing away. I do not know whether that could be clarified in the bill, but it could certainly be clarified by the provision of appropriate advice at the time of signing.

The Convener

The next person to come in is Daniel Johnson; he had a question on the waiver, but he also has questions on the level of redress offers.

Daniel Johnson (Edinburgh Southern) (Lab)

If I may, convener, I will ask a brief supplementary question, and then go on to my questions.

Mr Collins and Mr Whelan alluded to a point that I want to make sure I have interpreted correctly. One issue at the heart of the waiver is that that approach perhaps views matters in too starkly a financial way. One of the key things about the waiver is that it will prevent an individual from getting an acknowledgement of culpability or fault, because redress Scotland will be unable to find fault. A payment is not an inference of fault—that is explicit in the bill.

We have heard about the importance of an apology and an acknowledgment of the wrongdoing, from the state and from individual organisations. Is the waiver problematic not just because it prevents access to the courts but because it prevents an individual from possibly gaining a formal attribution of culpability?

David Whelan

It is recognised that the redress Scotland scheme is an acknowledgment of the trauma; it is not about liability or accountability. For a number of survivors, accountability has probably come through the child abuse inquiry, although that has not yet concluded.

You are right that some survivors might want to go down another route, and I still think that there should be an option for people to do so. People should have legal advice from the beginning of their contact with redress Scotland—even before they sign the form to say that they are a participant, because there will be a caveat in the form involving an oath or affirmation. People should be given advice from day 1, when they indicate that they want to access the scheme.

Once that legal advice has been completely exhausted, if the survivor is happy with everything that they have been told, including any options that the advice might give them, and they then want to accept an award, they can receive a piece of legal text that confirms that they are accepting it, as happens with other schemes. We want the committee to consider the legal wording of such documents, which is why our submission includes suggested discharge documents. If people go down that route, it is important to consider whether to name the institution that was involved, a number of institutions or even the Scottish Government. Of our two examples, I would call one soft; the other is harder.

However, there is no acceptance of liability. We need to be honest with survivors and tell them that there is no accountability there. We always envisaged that the process would involve reconciliation. We cannot let such issues go on for years and years; we must address them. We support the principles of the bill, but we want to help to improve it.

I hope that I have answered your question, Mr Johnson.

The Convener

Daniel, I am conscious of the time. I see that Helen Holland wants to come in. I am also conscious that we have already covered a lot on this topic and other areas, so I will let Ms Holland in, and then it would be helpful if you could move on to your next area of questioning.

Helen Holland

I want to respond quickly to what Mr Johnson said. People can raise a civil court action in relation to the payment side of things, but there is nothing to prevent them from then coming to redress Scotland and asking for a letter of apology that acknowledges that abuse has taken place. They have an opportunity to seek financial redress through the civil court action, but they can also come to the inquiry and ask for an apology and an acknowledgment of what took place. They do not need to sign a waiver in order to do so. My understanding of the redress scheme is that that would be available to them. It would cover people who are going through civil court actions and those who are going through the redress scheme.

The Convener

Mr Collins wants to come in quickly. It would be helpful if everyone could keep their answers concise from now on.

Simon Collins

Very briefly, on the first point, if a provider makes a meaningful and fair contribution to a redress payment, that will involve a certain degree of acknowledgment, which in many ways will be of comfort to a survivor.

However, I want to come back on the point about the separation of contribution and waiver. My point is perhaps the opposite: the waiver must be conditional on contribution. Without contribution, there should be no protection for providers—otherwise they will just take advantage. They should not be protected in any way if they do not provide a fair and meaningful level of contribution. Otherwise, all that will happen is that the state will pick up the bill and the survivors will get no acknowledgment or redress from those who harmed them.

Daniel Johnson

My main question is about the three bands of payment, and in particular about individual assessments. There are two parts to my question. The only principle set out in the bill is on the extent and duration of the abuse that took place. First, I wonder whether that is too narrow. Should matters such as the consequences of the abuse, and whether it could have been prevented, be taken into consideration, and should such factors be put in the bill?

I have huge concerns about the sensitivity of what might be seen as tiering abuse. In a sense, survivors coming through the process will find themselves being categorised. The outcomes of that might be quite detrimental or traumatic if survivors find themselves being placed in one category or another, almost regardless of the levels of payment that might be attached to the three tiers.

What is the panel’s response to those thoughts?

David Whelan

We do not know how the formulas have been worked out or arrived at. As for the factors that should be included, I refer the committee to Dr Susannah Lewis’s submission. One has to ask why the impact of such abuse on a person has not been included. Dr Lewis said:

“The bill has proposed that impact will not be considered in terms of the level of redress payment, with the rationale this would disadvantage victims whose psychological or physical injury may outwardly seem less ‘severe’. However, I would ask that impact is considered within the context that it is evidence that the survivor was abused e.g. where there is evidence of Post-Traumatic Stress Disorder, behaviour consistent with ‘neurodevelopmental trauma’ (due to neglect), or where a survivor has mental health difficulties consistent with ‘attachment disorder’.”

If the scheme is intended to address what happened to individuals, it should remain person centred and individualised at all times. Why is there no consideration for loss of opportunity, whether it be in education, careers or jobs? We know that members of the survivor community have faced challenges even in participating in wider society because of what has happened to them.

Therefore, a number of factors are missing from the formulas. They should be based on the facts and circumstances that apply to each individual, on their experiences and on the merits of each case. However, we do not know how they were arrived at.

I do not want to be highly critical of the Government, because I appreciate that, like other schemes, this one will involve scales, and we have seen them here. However, we do not understand how the Government has arrived at the levels, and why they go from £40,000 to £80,000. We need to take account of the type, nature, severity and longevity of the abuse, the period during which it happened, the loss of opportunity that it involved, and its lifelong consequences. A number of those factors are missing from the current structure, which could be improved.

12:30  



Helen Holland

It will not come as any surprise if I say that we do not agree with the levels in any shape, form or manner. That is especially so if we consider them in comparison with the redress scheme in the Republic of Ireland. The same perpetrators were moving from Ireland over to Scotland, abusing children here and then moving back and abusing other children over there. I know that the Irish scheme is slightly different, in that it went through the equivalent of our civil courts. However, the payments offered there started at €50,000 for the lowest level and went up to €300,000 for the highest. With the greatest respect, when the same abusers have been allowed to travel between Ireland and Scotland, and to come over here and abuse children in the same way that they did in Ireland, how can claimants who were abused here be expected to accept payments between £10,000 and £80,000?

I know that going through the redress scheme might be seen as being a slightly less traumatic experience for the survivor, and I can understand that there might be a percentage of difference between the two approaches, but I cannot understand the level of difference that exists. I will be totally honest and say that, for me, the highest level of £80,000 is an insult to survivors who have experienced abuse. I am talking about people who were put into care as babies, infants or pre-school children. They have been denied their whole childhood, right up until they were aged 15 or 16, and within that period they have been abused at every level. How can a payment of £80,000 compensate for that? I know that it is horrible to have to put a financial sum against abuse but, if we are to do so, it must be a sum that is seen as representing justice for survivors, and an absolute acknowledgment or recognition of the level of abuse that they have been through.

Abuse never leaves a person. It is like a human shadow: sometimes it is behind you, and you can forget that it is there for a little while and get on, but then it moves to the side, at eye level, and you are conscious that it is there, so it starts to have an impact. However, there are other times when that shadow is right in front of you and, no matter how strong a survivor you are, you cannot ignore it and you have to deal with it. You do whatever you have to do to cope with it, including putting in place whatever support you can.

Abuse is a lifelong issue that survivors have to live with. It does not just go away, and nor will it go away once people receive redress—it will always be an issue for them. The damage has been done, and the impact on their lives is there. Sometimes, we can deal with it a little better than at other times, but the reality is that it is with us forever—it is like our arm or our leg. The fact that we have been abused as children does not have to define who we are as adults, but it is certainly still with us when we are adults.

The Convener

Thank you.

Mr Collins wants to come in, and then we will hear from Mr Aitken.

Simon Collins

Very briefly, on the first point, I am concerned about the broad banding. For example, if there has been a level of abuse that would justify a payment of £10,000 but the bandings go up to £20,000, then £40,000 and then £80,000, it follows that there will be a line in each of those bandings. Someone who falls on one side of that line will be looking at a scenario in which, because they have spent one week or one month less in care, or one less thing has happened to them, that level of grading means that they are assessed as having suffered abuse that has half the value of the next level up.

I will make two points about that. The first is that it does not seem particularly fair, and it runs the risk of survivors again being seen as a commodity, as has happened in the past. I am concerned about that. There needs to be a more individual assessment process.

The second point is that the upper limit must not apply to pre-1964 survivors. Along with Helen Holland, Harry Aitken, David Whelan and others, some of whom are no longer with us, I was in a meeting prior to time bar legislation being announced when Angela Constance told us that a solution for pre-1964 survivors would be provided that would put them on equal pegging with those who have a right to claim in the civil court. That was taken forward by Mr Swinney and others, and that is what we have always been looking at from the point of view of redress.

Pre-1964 survivors have no other means of redress. To cap their award at the top level that is provided here is not to treat them equally. As pre-1964 survivors, they do not have the right to access the courts. If that promise that meant so much to those who were in that room all those years ago is to be delivered, it requires that pre-1964 survivors should be assessed as they would have been had they been making a claim through the courts.

Harry Aitken

On the banding, there is a feeling around the community that the majority of survivors will be placed in the £10,000 band. For a person who has been in care for a year, that would be the equivalent of £27.40 per day. If they had been in care for five years, it would be £5.50 per day; for 10 years, it would be £2.70 per day; and for 15 years in care, it would be £1.80 per day. The method that the Scottish Government has used and the proposed range of awards do not acknowledge the full extent of the impact of a prolonged period in an abusive, neglectful and destructive environment. That is missing from the bill.

Another question that I would like to raise is about why the term has been cut short to five years. Other jurisdictions have given applicants a longer time span to apply. The key factor for the Scottish Government to consider is that the continued funding and duration of the Scottish Government redress scheme should allow that no victim or survivor is disadvantaged by whatever reason they have for delaying in applying.

I was about to raise the pre-1964 issue, but Mr Collins has done it well, so that will be enough from me for today.

David Whelan

We support what Simon Collins and Helen Holland have said about the pre-1964 issue; we were also at the meeting that was referred to.

On the levels, we said in our written submission that we would like to see the migrant issue addressed and we have suggested how that could be achieved. It feels strange to us that, in one part of the UK, there is a redress scheme that awards £100,000 to a UK citizen in that part of the UK, but we do not have that here.

We believe that the upper limit does not address the most complex and serious abuse, including the rape of a child over a number of years in an institution. That is just an example. We do not believe that £80,000 is sufficient to address that harm and the trauma that it created. We would like to see the panel being given explicit discretion in making decisions. It seems to us as though the Government has put something together and discretion has been taken away from the panel. We would like the bill to give the panel the discretion to make awards that fit the individual. Also, we still do not understand the gap between £40,000 and £80,000.

I have covered the points that I wanted to cover.

The Convener

Mr Johnson, have you finished?

Daniel Johnson

I could go on, but I recognise the time pressure.

The Convener

Ms Mackay, do you have questions on the issue, or have they been covered?

Rona Mackay (Strathkelvin and Bearsden) (SNP)

No, they have not, but I do not think that we have time to cover them at this stage.

The Convener

I know that several members have not taken part in the discussion—that is because there are areas that we have not been able to get to in the time available.

Before we finish, perhaps Ms Wishart could cover the issue of care settings.

Beatrice Wishart

I would like to hear the witnesses’ views on the care settings that are not covered by the scheme, particularly boarding schools. We received a submission that cited a scenario in which 10 children, three of whom were state sponsored, were abused at a boarding school. That would mean that three people would receive redress while the other seven would not. As has often been said, abuse is abuse. What are your views on that?

The Convener

I ask the witnesses to keep their answers succinct. Ms Henderson, I am conscious that you have not spoken for a while. Would you like to respond to that question?

Flora Henderson

Yes. Future Pathways recognises that it can be problematic if survivors who experienced the same abuse in the same setting are treated differently. That can have an extremely negative impact.

We are very much aware of the impact and hurt of abuse in all residential settings. In such circumstances, the day-to-day duty of care was in the hands of the institution. There is a significant vulnerability associated with children who live apart from parents or care givers for an extended period of time and the trust that is involved in that, and institutions should not be absolved of their responsibilities to children in their care.

The Convener

Does anyone else want to come in on that issue?

Helen Holland

We have always made it perfectly clear that the proposed scheme is a state-responsible redress scheme. The children we are talking about—the children to whom the petition that was submitted to Parliament related—are children who were under the care of the state. My heart goes out to any survivor, regardless of where they were abused, but the scheme is for children who were directly under the care of the state—in other words, children for whom the state had care responsibility.

I absolutely take on board the point that Beatrice Wishart made with the example that she gave, in which three of the children were state sponsored. With regard to the other seven survivors—and I say this with absolute respect, empathy and compassion—their parents could have turned up at the boarding school at any time and said, “I’m moving Helen from this boarding school to another boarding school because she’s not happy.” Our parents could not do that, because their parental rights were taken from them when we were under the care of the state. There is a massive difference between the situations of those two groups of children in relation to what the redress scheme is about. If that were not the case, the state would be responsible for redress for every kind of abuse, regardless of where it took place. That is not the way that it works. It makes no sense to widen the scheme to the point where what it exists to achieve is not achievable. For me, that is the major point.

Our parents were paying the state contributions for our care, yet there were times when my dad turned up to see me and the door was slammed in his face—he was not even allowed to come in. He could not phone up and say, “I’m going to move Helen from that children’s home because she’s not happy and place her in another children’s home with a better reputation.” That option was simply not available.

To me, that is the major difference in relation to the care settings—and I say that with all due respect to anybody who has been abused. In my opinion, if someone was abused in a care setting that had a board of trustees or other responsible people, they should be suing those people and targeting all their energy in that direction to make sure that they get justice. I whole-heartedly advise them to do that.

We are looking at in-care redress because, until 20 years ago, nobody was looking at the abuse of children under the care of the state, even when we first tried to bring the issue into the public domain and the Scottish Parliament. Many groups did not want to hear about it and did not offer any kind of support. The reality is that we have had to fight long and hard for the state to take on board that responsibility and acknowledge the fact that it was our parents. I hate saying that, but it is true. The state had parental responsibility for every child in the care system, and we are looking to the care system for redress. Children who were supposed to have the parental care of the state were abused instead of being properly looked after and were neglected instead of being cared for—they never had a cuddle, and they never knew what love was. Not all those children were in an abusive situation at an early age before going into care; some children entered care from a home where there was no abuse whatsoever. A parent might have died or a marriage might have broken down; in the society of the day, those children were automatically taken into the care of the state.

We were also financial commodities, because the care providers were given finance to provide a level of care under the state legislation. The Children Act 1948 talks about all the things that should have been in place. I went into care long after 1948 but suffered more than a decade of abuse. Being in the care of the state is entirely different; it is not a case of choices. There were no choices for children taken into the care of the state or for their parents to come and do something in relation to children under the care of the state. I say that with no disrespect to anybody who has been abused in any other setting.

The Convener

Thank you, Helen. Very briefly, Mr Whelan will have the final say.

David Whelan

If the state had a duty of care, responsibility and inspection and it failed in those duties, it failed those children, whatever setting they were in.

With regard to what Helen Holland said, if the Government cannot address those issues in this scheme, it should do the same thing as Ireland did with the Magdalen laundries, when another scheme came after the main redress scheme. The Government should not ignore the issue but address it, because, ultimately, the Government has responsibility for it.

The Convener

Thank you, Mr Whelan. I apologise to Beatrice Wishart; I hope that that has covered her question.

From comments in the chat function, there is a consensus that we have not covered all the areas today that we wanted to. Therefore, the committee needs to go away and think about how best to address that, whether that is through another committee meeting, if possible, or by letter. I apologise to colleagues who wanted to come in today but were not able to.

I extend a huge thank you to everyone who has, again, given their time. It is not the first time that they have helped us with our deliberations, and we appreciate that.

12:49 Meeting continued in private until 13:14.  



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Fourth meeting transcript

The Convener

Agenda item 2 is the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. We have with us a panel representing organisations that may wish to contribute to the redress scheme. We welcome Viv Dickenson, chief executive officer of the social care council of the Church of Scotland, which is known as CrossReach; Derek Yule, adviser on local government finance at the Convention of Scottish Local Authorities; Dr Ron Culley, chief executive officer of Quarriers; and Dr Judith Turbyne, senior manager for policy and improvement at the Office of the Scottish Charity Regulator.

I invite each witness to provide a brief description of their organisation and their interest in the bill.

Viv Dickenson (Church of Scotland)

Thank you for inviting me to give evidence. I am the chief executive of CrossReach, a large voluntary sector organisation that provides services across the country for users ranging from the youngest children all the way to those needing end-of-life care.

We have an interest in the bill. We support the bill and support survivors’ rights to redress. However, we face a number of challenges with the bill as presented. Those would make it difficult for us to contribute in the spirit in which we would like to. I am happy to give evidence.

Derek Yule (Convention of Scottish Local Authorities)

You will all be aware that COSLA is the member organisation for the 32 local authorities in Scotland. It is a councillor-led, cross-party organisation that champions the vital work that councils do to secure the resources and powers that they need to deliver a wide range of services across Scotland.

The issue of legislation on historical child abuse falls within that remit, as councils are the main providers of social care services, and particularly of children’s services, in Scotland. COSLA is likely to be a key financial contributor to the proposed redress scheme.

Dr Ron Culley (Quarriers)

I am the chief executive of Quarriers, which is a Scottish charity that has existed for around 150 years. Our modern organisation delivers children’s and adult services across Scotland. We support around 5,000 people in Scotland and employ about 1,700 staff.

Our interest in the bill is central to us as an organisation. We are committed to the rights of survivors and have a recent track record of working productively with survivor organisations. We think that the bill can be improved in some areas. We have significant concerns about the affordability of participation in the redress scheme. As an organisation that wants to participate, we would like to work with the committee, the Scottish Government and the Parliament to ensure that that can happen.

Dr Judith Turbyne (Office of the Scottish Charity Regulator)

Many of you will know that OSCR is the regulator and registrar of Scotland’s 25,000 charities. I thank the committee for inviting us to talk about this important bill. We support the desire to remove any real or perceived barriers to contributions by charities. Our submission is about the mechanics of the scheme and the resulting potential impacts on charity law, and we will confine our comments today to that.

The Convener

I remind members to put in the chat bar an R and an indication of when they want to speak. We are tight for time and the committee is big, so I say to the witnesses that, if they want to answer a question, I will not call them unless they put an R in the chat bar. Without further ado, we move to questions and answers.

Iain Gray (East Lothian) (Lab)

All the witnesses have talked in their introductions about their support for survivors’ rights to redress, but the committee has heard evidence from survivors that they feel that those rights will be compromised by the waiver that is in the bill, under which they would have to give up the right to civil justice in order to benefit from the redress scheme. All your submissions talk about the need for the waiver as an incentive to participate in the redress scheme. Is there a moral—albeit historical—obligation to participate, without the need for a financial incentive?

Viv Dickenson

We are well aware that there is a tension between our current position and that of survivors, and we are all keen to resolve that if we can as the bill passes through Parliament. We absolutely acknowledged in our consultation response that children were harmed in our care and that there is a moral obligation to put that right through apology and through a tangible contribution to the scheme.

The waiver situation is material to the ability to have wider conversations about financial contributions. We had hoped at some point to engage insurers, but they will contribute only if they have some certainty that they will not also be pursued for civil claims. We recognise that that goes to the heart of civil rights for survivors.

We understand now that insurers will not commit until the bill is passed, which puts us in a difficulty with the waiver. If there was another way for us to contribute meaningfully, carry out our charitable purposes and not be hit several times by costs for the same claims, we would be keen to explore it and find a resolution.

Dr Culley

I agree with Viv Dickenson. To answer Mr Gray’s question, we absolutely have a moral obligation—I do not think that any provider would contest that idea. The question is how we can create the conditions that will support participation in the scheme.

As Viv Dickenson said, the waiver has been proposed to create an incentive—principally for insurers, to be honest—by capping liabilities. However, even with the waiver’s inclusion in the bill, I am not sure that insurers will support the participation of the organisations that they are working with. If insurers were to participate, the waiver would be important, but that is highly doubtful at this stage.

Dr Turbyne

Absolutely, yes, there is a need and a moral imperative to deal with the harms of the past. Our interest in a waiver is around the assurance that it would give to charities. Under the Charities and Trustee Investment (Scotland) Act 2005, trustees of the charity have to act in the best interests of the charity at all times. That means weighing up those historical harms, which will have a very serious weight, with the impact of any contribution on current and future beneficiaries, many of whom will be vulnerable. In a sense, the waiver would be a way to give a level of assurance, so that that decision making could be as good as possible. It would be worth exploring another way of doing that.

Derek Yule

Mr Gray’s question goes to the crux of the dilemma, because he is absolutely right that there is a moral responsibility here. COSLA recognises that the collective and national responsibility must be addressed. To illustrate my response, I have had discussions with colleagues across the country who are dealing with this. There are about 200 litigation cases in progress, and I am hearing from colleagues that there is real difficulty in identifying where liability or responsibility falls.

Some of that has to do with local government reorganisation, some of it is to do with the passage of time and some of it is to do with the fact that some councils place children in other authority areas. Therefore, it has been difficult to identify where responsibility lies. That goes to the crux of the moral argument, because, if you are a claimant, you could be passed from pillar to post, with nobody really accepting responsibility.

We have to balance that moral argument against the financial argument of who contributes to the waiver, which is where the question about insurance comes in. Over the years, local authorities have generally carried liability insurance, which should cover them for claims in such instances, but, as you have heard from other contributors, the waiver potentially rules out the possibility of being able to get insurance to cover the cost of claims. Therefore, we have a dilemma: there is the claimant’s point of view about the ease with which they can have their claim heard and addressed quickly and there is the financial issue of who pays. I hope that that makes sense, but I am happy to expand on that if necessary.

Iain Gray

I ask for your forbearance, convener, as it strikes me that I should probably put on the record that I am an elder of the Church of Scotland, given its presence on the panel today. I am sorry—I should have done that earlier.

Those responses raise a lot of questions, and I am sure that colleagues will pursue some of them. However, everyone on the panel said that they are interested in discussing alternatives to the waiver, particularly those alternatives that could avoid the same claim having to be paid twice. In evidence to the committee, it has been suggested that an offset would achieve that, so that redress payments would be offset against any further compensation awarded through the civil courts. Do the witnesses consider that an offset could achieve the balance that they have all talked about?

The Convener

Ms Dickenson is first. Please could the other witnesses indicate if they wish to answer as well?

Viv Dickenson

The offset is a partial solution to the waiver. We have just started to consider it, but there are still legal costs that organisations will incur on top of that if they are to defend claims without insurance sometimes. Therefore, it is a partial solution. We would like to hear more about what is being proposed on that.

Dr Culley

We must be interested in any conversation about options that avoid the diminution of survivors’ rights. We are committed to exploring those options. The Parliament must decide to what extent it wants to set up a scheme that relies on funding from insurers rather than on funding that comes more straightforwardly from the participating organisations.

09:15  



The waiver exists to incentivise insurers. I do not think that it will do that well anyway, and the offset erodes the incentive for insurers to participate. I would rather dispense with insurers altogether and look at the option of participation without relying on the insurance contribution. That, however, raises a far more direct question about affordability. We are unable to participate now due to the level of contribution that the Government is asking for.

Derek Yule

I have a slightly different view. I am not a lawyer, although I have been involved with insurance for a long time due to my length of experience in local government.

I do not see the waiver as an alternative to insurance. My understanding of how the scheme would operate is that the individual would make a claim to redress Scotland. If redress Scotland found that the individual had a valid claim, they would be given the opportunity to sign the waiver. I see it as being like an out-of-court settlement. I am not sure whether that is a good comparison. My understanding is that a person who signed the waiver would not take out further litigation against anybody.

I do not see why insurers would want to contribute in that situation. The possibility for somebody to take out litigation against local authorities, voluntary organisations or charities would still be available to them until they signed the waiver. Are we encouraging people to make claims that might otherwise never have got as far as civil litigation? My perception—real or not—is that a lot of the people who will make claims are probably not people who might be prepared to go as far as court with civil litigation. That is where the insurers would come in: they might decide to defend a case at that stage.

An element of this goes back to the moral debate about the collective national responsibility for wrongs that happened in the past. There is a difference between that and what the waiver is intended to do. I think that, because there is the possibility that litigation might still be taken out, insurers will not be interested in the scheme and will see the risk for them as still coming from cases that will be settled in court. Councils and others will carry liability cover as insurance against that sort of situation.

That becomes a funding question, which may be the point that Dr Culley was making. The resources used to contribute to the waiver scheme might cover a risk that councils are currently insured against and that they have been insured against in the past. There would be an additional cost to councils for contributing to the waiver scheme, and they would still pay for insurance cover for cases that were taken through the court system.

Alex Neil (Airdrie and Shotts) (SNP)

The replies are interesting, and they raise a number of issues. I will begin with two simple questions.

First, what do the witnesses think about the waiver and the idea of offset? Are we better to do away with the waiver on the understanding that, should there be civil action and an award as a result of it, any payments that the participating organisations or insurers make as part of redress will be taken into account before any settlement is agreed in the civil court?

Secondly, Mr Yule raised an interesting point that we have not heard before, which is the question of who, at the end of the day, has liability in a civil action. What is the answer to that question? How do we resolve the matter of liability, and should it be addressed in the bill? I will welcome comments on those questions.

Derek Yule

Mr Neil has asked a question on, again, the legal perspective. I refer to my previous comments and to the experience that I hear colleagues and councils across Scotland that are dealing with claims are having around the difficulty in identifying responsibility. The collective argument perhaps comes in when we talk about funding the scheme.

There is recognition that local authorities are liable—there is genuine recognition, given the areas of responsibility, that there is a collective national responsibility. I suggest that it is better to consider the issue as a responsibility of local government as a whole than it is to try to identify which council might have been responsible. The latter approach makes it difficult for a claimant to identify where responsibility might lie—partly because of the reorganisation of local government over the period that the bill covers.

Cases in which councils might have placed children in care outside their authority area should go in the records. One of the strengths of the bill is that it might consider collective responsibility and resolve some of those cases, although one of my concerns is that that process could take a considerable time. I have heard examples of cases being batted from one council to another, as people argue about who is responsible. That issue needs to be recognised in the bill.

If it goes ahead, an offset, in my understanding, would consider the different levels of waiver, which would be a resolution to a case if the claimant accepts redress through the scheme.

I guess that, at some point, claimants would have to decide whether they believed that their claim was likely to be accepted through redress Scotland and whether the significance of the claim justified taking it into civil litigation action. The success of the claim would be strengthened if they took the discussions through redress Scotland and got to a stage at which redress Scotland believed that a settlement would be justified.

I am not sure where the matter would be left with a claim being made to the courts—one would have to identify a responsible party against which to raise a court action. One of the benefits of a redress scheme is the possibility of considering collective, rather than individual, responsibility.

Dr Culley

Alex Neil’s question is really good. There is less complexity for us at Quarriers, as an organisation, than there is for colleagues in the local government sector. If a survivor brings a case against us through the civil courts, the court will then establish liability as part of its judgment, and the liability will connect to whether an insurance payout will be made as part of the proceedings.

That point creates a dilemma with regard to the bill. What the bill does not and cannot do is establish liability, because it uses a non-adversarial process, and, by virtue of not establishing liability, the only way to involve the insurer is to create an incentive. I hesitate to use that language at all, given the sensitivities of the issue and the importance of the conversation about survivor rights and reconciliation, but the alignment of incentives is really important in all this. An insurer may take the view that, if there is a waiver that caps liability, it would be in their commercial interests to support participation. By contrast, if the offsetting mechanism was used, that would not, itself, limit liability. My reckoning is that it would weaken the incentive for an insurer to support participation by organisations that it supports.

Colleagues in Government have tried to put everything together to create a bill in which the incentives align. Unfortunately, however, I do not think that it will, in the end, be strong enough to secure the involvement of insurers. I come back to the issue of affordability: without insurance, we will not be able to afford to participate.

Viv Dickenson

I will pick up on that point. Ron Culley highlighted the importance of getting the conditions right so that we can contribute. As I said previously, offsetting might be part of the solution, but the real solution is to overcome the barriers to voluntary contributions. The way in which some of the policy documents around the bill are written—I am thinking of the financial memorandum, in particular—is based much more on an algorithm. The wording is not about voluntary contributions but about subscriptions to the scheme. That is one of the difficult issues, and it predicates against affordability.

Liability is a difficult area. The Church of Scotland has had a civil case in which we took absolute liability and made the best settlement that we could for the people who raised the case. What we did not do was fight the case on the basis that we had involved the police and the police had found that there was no case to answer at the time. We had asked the local authority to remove the children, because we felt that there was something going on, but the police could find no evidence for that. There was police and local authority involvement, but, at the end of the day we did not want to put in place a barrier to prevent the survivor from getting just recompense, so we settled. We did not want the survivor to have to go through a more adversarial process than was already encapsulated in the civil action.

The area is really complicated. The committee has a lot of work to do to understand some of the complexities around liability and to work them out as the bill goes through Parliament.

The Convener

We will hear a quick supplementary question from Alex Neil.

Alex Neil

I go back to the issue of collective liability. Perhaps Mr Yule can expand on how that would operate with local authorities, in particular, because they potentially have dual liability in some cases—as a provider of services, where there was alleged abuse, and as a regulator, where institutions in which abuse took place were not properly regulated.

Is Mr Yule suggesting that, in the charitable and non-local-government sector, the charities and the insurance companies could come together to provide a collective compensation fund instead of acting as individual organisations?

The Convener

We will go to Mr Yule first, and the other witnesses can indicate if they want to come in.

Derek Yule

I was responding specifically from a local authority point of view. First, we have to look at streamlining the process for survivors. That is a moral argument—we need to make things simpler. In examples such as I mentioned, it was difficult to identify which local authority was responsible.

I have had discussions about what the funding of the scheme might look like. There is a will for money to come from local authorities to pay into a redress scheme. That is certainly a potential solution, and it would streamline the process for survivors so that they would not have to take a case against a particular local authority; rather, there would be collective responsibility. There are advantages in trying to streamline the process for survivors, which is where I was going with my suggestion.

09:30  



It is about recognising the difficulties of funding, but, if local authorities do make a meaningful contribution, it should be paid collectively rather than by trying to assess liability at individual council level for each claim, which would lengthen the process substantially and, in many cases, be extremely difficult to prove.

Dr Culley

The charitable sector is slightly different to local government, for which there is probably a stronger argument for a collective or shared arrangement. We would be open to discussion on that, but I underline that I do not see there being sufficient incentive in the bill as drafted to involve insurers. It is difficult to say, because, up to this point, the insurers have not taken a view. However, at this stage, I cannot see insurers participating at all.

Jamie Greene (West Scotland) (Con)

Following Dr Culley’s comments, I am looking for education or clarification. Your comments seem to imply that you will have a choice with regard to how you fund the various claims and about whether you participate in the scheme, pay out voluntarily or through other means, or engage in civil litigation and that, therefore, insurers will also have a choice about whether they pay out or allow you to participate.

I am a bit confused, because a number of witnesses from victims’ organisations from whom we have heard seem to have the expectation that insurance companies will bear the brunt of the financial liability of charitable and third sector organisations such as Quarriers. Therefore, they feel less worried about the implications of making claims against such organisations, which they accept do good work. However, despite their understanding that insurance businesses will underwrite claims, you have suggested that there is uncertainty about whether the insurers will participate. Will you talk me through that?

Dr Culley

Yes—no problem.

It is worth distinguishing between the two routes by which survivors may achieve compensation: accountability and liability. The traditional route is through the civil courts. It is right to say that, in such circumstances, organisations will normally have taken the trouble to acquire insurance over the years and that the claim will normally be contested on the instruction of the insurer.

The survivors are right to say that, in most circumstances, as the claim goes through the civil courts, the first question is about the position of the insurer in respect of its decision to settle or contest the claim. Of course, I underline that there is a limit to all insurance policies. Most organisations will have exposure beyond the point at which they are insured. That is a real concern for organisations such as Quarriers, because we have to be alive to the limits of our insurance as cases are taken though the civil courts. Of course, we do not have a choice at all—nor should we—if somebody wants to pursue a legal case. It is completely correct that that should go through the appropriate civil court process.

The choice that we have relates to the scheme that is being proposed by the Scottish Government, through the Parliament. We want to participate in the scheme, because it is the right thing to do, but we do not think that the conditions have been created to allow for our participation. One of the reasons why that is the case is that there is no mechanism in the bill that requires insurers to participate or to fund the participation of organisations such as ours.

There are probably three scenarios that could play out. The first is one in which the Scottish Government identifies a large sum that needs to be paid by way of participation, in the hope that that is supported by the insurer. The second is one in which a more modest sum can be made available that does not require the participation of the insurer. In both those circumstances, we would participate. My worry is that we are in the third position, in which the Scottish Government is asking for a large sum, but there is no indication that insurance will cover the cost of that. Therefore, we will be asked for a sum that goes significantly beyond what we can afford to contribute. For me, that is a deeply frustrating position to be in.

Jamie Greene

I am sorry to interject in what is a very helpful answer, but I am not sure that, from a technical legislative point of view, the bill could bring in the insurance business anyway. You seem to be implying that, unless it is guaranteed that insurers will underwrite the pay-outs, you will not participate. Is that what you are saying?

Dr Culley

No. We want to participate, and we will participate if the sum that is asked of us is affordable. However, the sum that is being asked of us is a million miles away from being affordable.

The Convener

Ms Dickenson and Mr Yule want to come in.

Viv Dickenson

[Inaudible.]—as things stand.

The Convener

I am sorry, but we missed the start of your answer. Could you start again, please?

Viv Dickenson

No problem. On the point about insurance, my feelings are even stronger, in that I think that insurers are not likely to participate. I would be extremely surprised if, at the end of this process, the conditions will have been created for them to participate. That means that organisations will be left to make contributions ourselves.

Ron Culley’s point is entirely appropriate. He is saying is that there is a level of contribution that we are currently being asked for that is predicated on insurance backing it up. That amount is not affordable for many organisations, which is why we are saying that the financial memorandum needs more scrutiny so that members understand what we are being asked to contribute. The way in which the algorithm works means that we are in the invidious position of saying that we really want to support the scheme, but the current conditions make that unaffordable.

Derek Yule

My understanding is that the level of proof that will be required under the redress scheme will be lower than the level that is required to take a civil case to court. From a local authority perspective, councils will have insurance cover that covers civil litigation going to court. The insurers will recognise that they are carrying that risk and that they require to have sums of money available for that.

As I said, the redress scheme will involve a lower standard of proof. We can turn the question around. Why should insurers put money into a fund to meet the cost of that, which could be in addition to the cost of claims that they might face through civil litigation? We are talking about recognising the moral responsibility, but from the insurance companies’ perspective, their responsibility is to their shareholders. That is where the difficulty will arise when it comes to insurers being prepared to put money into the scheme fund. Putting money into that fund will represent an additional cost, which I do not believe will be covered by the insurance premiums that have been paid over a number of years. It presents itself as an additional cost that would have to be met; given the pressures in the current climate, that is a significant additional pressure.

Local authorities are perhaps in a slightly different position from other organisations that the committee has heard from as regards scale and affordability, but there is no doubt that the scheme would create a significant financial pressure and that it could put pressure on services that are required—social care, in particular.

I think that there is a dilemma. For me, the issue is to do with the level of evidence that would be required for a redress scheme, as opposed to a civil litigation scheme. Insurers will not contribute to the former if they need to keep their funds available to meet the costs of civil cases.

Dr Turbyne

I will be brief, because I know that the issue is taking up time. I go back to the decision making and the balancing act that trustees have to undertake in acting in the best interests of their charity. If the insurers are not on board with the scheme, affordability will be a serious issue for charities to take into account when they are working out what the impact will be on their current and future beneficiaries. I want to reinforce the point about the decision-making process that trustees will have to go through.

Daniel Johnson (Edinburgh Southern) (Lab)

I am somewhat troubled by some of the answers that have been given. Ultimately, we are looking at a scheme whereby responsibility for historical wrongs and abuse is acknowledged and compensation is provided on behalf of organisations, some of which the witnesses represent. The scheme is not to look at redress for historical wrongs that were undertaken by insurance companies. Although I clearly understand concerns about affordability, the fundamental point is surely about the responsibility of those organisations, not insurance companies.

I am not sure that we can legislate for how well organisations in Scotland that might be part of the scheme have done in putting in place and negotiating their insurance policies. Furthermore, if matters were taken to court—I acknowledge Mr Yule’s point about the burden of proof—ultimately, a court decision would not be predicated on affordability considerations, so why should the scheme be predicated on them?

Dr Culley

In many respects, I agree with the central thrust of the question. Do we acknowledge the moral responsibility to participate in the scheme? Absolutely. As part of the work that we have done with survivors over the recent past, we are absolutely committed to doing the right thing. The question, therefore, becomes whether we can create the conditions that empower and allow us to do the right thing.

To some degree, I agree with the point about the insurance sector. We almost need to set that aside and focus on affordable contributions from organisations such as ours that want to participate just now. Our great frustration is that we want to participate, but there is a hurdle to doing so that we cannot jump. The costs are so significant that there is no way we could meet them in the absence of other funding arrangements.

I would much rather the position be streamlined. We have had discussions with survivor groups about that. Incidentally, those groups are doing great work on the issue, and we have developed positive relationships with them. We need to get to a place where as many organisations as possible can participate, so that the primary policy objective of reconciliation is achieved. My great concern is that that policy ambition will be frustrated because the financial ask is too great.

Viv Dickenson

Of course, affordability is not taken into consideration by the court but, to go back to Dr Turbyne’s point, the major difference is that, when you are asking for contributions directly from charities, the trustees will have to say what they believe is affordable in relation to what they might be able to use from unrestricted reserves and what they can do in terms of fulfilling their charitable purpose. My worry is that there will be a conflict of interest between those two positions, so that needs to be removed.

Derek Yule

On Mr Johnson’s point, the various functions that councils carry out carry a number of risks, and councils have insurance cover in place for many of them. Some are self-insured and some are covered by insurance policies. All that we are flagging up here is Mr Johnson’s point, which is that the responsibility lies with local authorities, not with the insurers. Councils have insurance policies to manage a whole range of risks. If there were a successful claim against a council, it would look to its insurers to meet that. We are saying that the way in which the redress scheme is drafted would mean that there could not be valid claims against insurers, so to contribute to the scheme would require a financial contribution from councils. That is the same point that others have made.

Different organisations, whether they are in the charitable sector or local government, have other financial pressures. That is where the problem lies—the affordability of contributions to the redress scheme. That is not to take away that real—not just moral—responsibility. We think that the scheme would invalidate the insurance cover and that is why the committee is getting the negative responses to the proposed legislation.

09:45  



The Convener

I am conscious of the time, so I ask people to be as succinct as possible. I know that that is difficult, but it is a big committee. Are you finished with that question, Mr Johnson?

Daniel Johnson

The issue of restricted funds was just raised, and I was wondering whether I should ask about that or whether there are other supplementary questions.

The Convener

Let us come back to that as a separate item.

Daniel Johnson

I will wait.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, panel. I want to explore your concerns about the proposed “fair and meaningful” contribution test. Section 13 requires the Scottish ministers to publish a statement of principles in determining whether bodies have made a “fair and meaningful” contribution. Some of the submissions from charities state that there is a lack of transparency in how that will be done, for example, in relation to distinguishing between children in long-term care and those who were temporarily in care, and on whether contributors will be consulted prior to publication. They also question whether those principles should be included in a bill or a statutory instrument. COSLA believes that there is a lack of clarity about the likely amount that would need to be contributed.

We have heard what you have said and it has been very useful and interesting, if a little concerning. Can any of you come up with a fix for this? Should there be more negotiation between the charities as to how the decision on the level of contribution is reached? Should there be agreement on how much money you have and what it would be fair to contribute?

Derek Yule

The issue is what is meant by “fair and meaningful” and how we convert that into a cash sum. Some of the discussions that I have had with civil servants preparing the bill have referred to potential liability of £350 million. That is coming from actuarial assessments. The local authority share of that could be around £200 million. It is a substantial sum.

There are ways of spreading that cost over a longer period. I understand that the proposed redress scheme would operate over a five-year period. If there were a way to spread it over a longer period, perhaps with the Scottish Government carrying some of the cash flow across financial years, that would certainly help.

There is the question of what “fair and meaningful” means on the one hand, and what is affordable on the other. Local authorities are in a different position from the charitable sector in relation to what is deemed affordable. The more the councils have to contribute to the scheme, the more it will take resources away from a range of services and contribute to the pressures that are already there. In that sense, it is not about what is affordable but about the alternative use of the funding.

Dr Culley

Affordability and what is a “fair and meaningful” contribution is another important question. As the committee has heard earlier, and from elsewhere, that will be understood through the application of an algorithm. My worry is that that is relatively inflexible, and challengeable, as it is taken forward. I have concerns that its detail is not in the bill.

The bill places a duty on the Scottish ministers to consider whether a contribution is “fair and meaningful”. I think that we should add to that by asking the Scottish ministers also to have regard to its affordability, because that then becomes a negotiation. We are committed to being open and transparent on all our finances, so if that were to be taken forward, we would want to sit down with Scottish Government officials, put all our books in front of them and ask what would be a reasonable contribution for us to make in the circumstances.

My worry is about the algorithm—a big number pops out at the other end and we are stuck with it. I think that that is very important.

I will add that, in contrast to where I think local government may be on this, a big sum sitting on our balance sheet that is potentially repaid over a long number of years might not solve the problem for charities. It would still be a liability and, if it is a big number, it would affect the charity as a going concern. On the face of it, long-term repayment might help, but we need to be alive to its potential impact on the books of charities.

Viv Dickenson

We were surprised at the algorithm, when it came out. It is the tool that is being used to judge what is “fair and meaningful”. We had thought that there would be individual negotiations about that. We, too, are committed to the bill. We are committed to making redress to survivors. However, I think that the element of individual negotiation is what is missing. The algorithm is getting in the way.

Dr Turbyne

I think that transparency on what is “fair and meaningful” for charities is extremely important. I also throw into the mix that the proposals have been developed at a time during which more and more charities are very vulnerable, in terms of their medium to long-term survival, because of Covid. That should be taken into the equation, so that we can think about how charities can address the harms of the past and contribute to the scheme but also carry on supporting their vulnerable beneficiaries, now and in the future.

The Convener

Thank you. I had hoped to move on to another area, but I think that Mr Johnson has a pertinent question on the use of restricted funds.

Daniel Johnson

That was one of my main questions, and the topic has been referred to.

Obviously, significant concerns have been raised, and I think that they are very similar to those that have been raised by the insurance sector, regarding the use of restricted funds to meet the cost of contributions.

I put a very similar point to the witnesses. Although I understand their concerns about affordability, my point in essence is that, if we did not have a redress scheme, and people were taking those claims to court, a court decision would not look at whether the award could be met from unrestricted funds alone or would require restricted funds. Why should we make that distinction with the scheme if a court settlement would not—especially if using those funds was affordable? Again, I do not know that the concerns of fundraising teams from individual charities are a matter for the committee. What is the witnesses’ response to that?

Dr Turbyne

The use of restricted funds is one of our greatest areas of concern. I take your point that where the money comes from is not the concern of somebody who is making that decision. However, restricted funds are held for a particular reason. An individual or group of individuals might have given money for a particular project, there might have been an emergency appeal, the money might have been to fund a grant, or it might be a legacy or contract that charities are running with. That principle of the money being used for what it was intended for is key; it is the bedrock of confidence in how charities use funds. The worry is that legislating to remove donor conditions on restricted funds and enabling them to be used in a manner that is not consistent with their current charitable purposes might undermine that fundamental principle and have a longer-term effect by impacting future donations.

There are already regulations out there. The Charities Restricted Funds Reorganisation (Scotland) Regulations 2012 set out a clear policy intention for the reorganisation of restricted funds, in order to enable the resources to be applied to better effect for the charity’s purposes, but only when we cannot ascertain the donor’s wishes. In order to reorganise, a clear set of conditions have to be met. We are concerned because the restricted funds element has been placed in law and it is very important. It is not about fundraisers; it is about the beneficiaries of the charities. We want to make sure that money that has been given for a certain purpose—to support trusts and charities—does so. Undermining that principle could be very detrimental going forward.

Daniel Johnson

Before we bring in other witnesses, I will come back on that a little. Although funds are given for particular purposes, there is a cost for organisations of doing business. There will be administrative costs that come from running and maintaining the organisations and there might be costs if they get things wrong when pursuing the project that the money was given for. If the organisation was taken to court in the process or was fined, I assume that, in those circumstances, the restricted funds would and could be used. I would argue that this is a cost of doing business; there is an organisational legacy based on what has happened in the past. It is a cost of those organisations doing business and, therefore, the use of restricted funds has to be factored in and priced into the cost of those organisations carrying out their work.

Dr Turbyne

No, those restricted funds cannot be used in that way; the money would be prescripted to the specific piece of work. Although you are right to say that, if the charity had to cover a cost of business, it would do so, the money would not come from those restricted funds; it would have to come from other areas of unrestricted reserve that the charities hold. If the donor is still alive, if the funder or foundation is still in business or if it is a contract, there might be negotiations with them to use the restricted funds in a specific way. That can be done and it has been done during the Covid crisis, when charities have sometimes engaged actively with funders to change the use of restricted funds, but that is with the consent of the donor, so it is different. However, we cannot take a restricted fund and use it for another purpose or activity, because it has been earmarked for a specific thing.

Dr Culley

I agree with everything that Dr Turbyne said around the position that charities find themselves in. To go back to Mr Johnson’s original question, I am not sure that the analogy with the court process is fair because, although it is correct that courts do not have regard to the affordability question, it is also true that organisations can protect themselves against risk by taking out insurance. There is no mechanism by which organisations can protect themselves against risk in relation to participation in the scheme. We need to create conditions that support participation, but we are creating conditions that prevent it, and that is not a good thing for public policy in Scotland or the delivery of reconciliation, which has to be the primary policy objective.

10:00  



In relation to the bill, I am concerned that it is asserted—almost—that any contribution made is not

“contrary to the interests of a charity”,

but that is demonstrably not the case in some instances. If the board of Quarriers was asked to make a multimillion-pound contribution by way of participation in the scheme to the degree that it endangered the charity, by definition that would not be in the interests of the charity, but by reading the bill one would infer that it was perfectly fine, so that is highly problematic.

Viv Dickenson

I do not want to get into an adversarial position on the issue. We are genuinely seeking to have barriers removed from this, but the question of restricted funding is one of those barriers and it also goes to the heart of trust funding. There is charity law and there is trust law, which is very complicated; we have a number of trusts that feed into the organisation for things such as care of the elderly in very specific locations. We cannot just call on that money to put into a scheme that compensates or makes redress to survivors. We desperately want to do that, but we cannot call on those restricted reserves; if we did so, we could also be taken to court for the way we operated in those circumstances. Therefore, it is a complex situation that demands a lot of consideration of restricted funds, trust funds and the laws that surround them.

We hammer down on those points because they are the barriers. It would be great to find a way through all this that would allow us the conditions to talk about fair and meaningful contributions and voluntary contributions and get on and do what we really want to do, which is work alongside survivors and make the redress that they deserve.

Dr Turbyne

I want to reflect on something that Dr Culley said. I reinforce the importance of finding a way over the barriers, but creating something that puts more complexity into the system is unlikely to help charities when they make their decisions. We want charities to be able to respond to the harms of the past, because it is right and it is a moral responsibility; that is what we all want and finding the right way to do that is important. I suggest that the restricted funds route is slightly problematic because of the way in which it could fundamentally undermine trust in charities and charitable giving.

Ross Greer (West Scotland) (Green)

I will move on to questions about the next-of-kin payments element of the bill. We have spoken with previous panels about the hierarchy of spouses, cohabiting partners and children around who can make a next-of-kin claim. If you have any wider or more specific thoughts on the next-of-kin payments system, it would be great to hear them.

I have a specific question on the cut-off date that I would like to hear your thoughts on, particularly CrossReach and Quarriers. Survivors groups and others have raised a lot of concern that the cut-off date—applications can be made only if the survivor passed away on or after 17 November 2016—is arbitrary. For example, a person who passed away before then may clearly have put on the record that they were abused, and the cut-off date will arbitrarily block their spouse from being able to achieve redress through the scheme. What would your reaction be if the cut-off date of 17 November 2016 was removed or changed considerably?

Viv Dickenson

We have not made any submission about next of kin. We believe that the conditions should make it as easy as possible for people to have the redress that is due to them. Any change might change the potential contribution levels. That would be material to us, but finding a way through to make it as easy as possible for us to contribute voluntarily is more important to us than arbitrary dates.

Dr Culley

To echo Viv, and setting aside the wider question of affordability that we have already rehearsed, as a general principle we want to support the views of survivors as we work through the process.

I said that we have developed a strong relationship with Former Boys and Girls Abused in Quarriers Homes. If there was a way to support its views and those of other survivor organisations, we would want to do that. We must be committed to survivors through the process and to their wellbeing and that of their families.

Ross Greer

That is everything from me on that subject, convener. It does not look as though anyone on the panel has wider thoughts on next of kin, and I have no follow-up questions.

The Convener

We will move on to non-financial redress and apologies.

Daniel Johnson

When the committee spoke privately to survivors, I was struck by fact that, although financial compensation is of interest, what matters to many survivors is acknowledgment or a non-financial form of redress. What are the witnesses’ thoughts on the ways in which apologies could be provided through the scheme? How could that work?

Dr Culley

That is an important question. We are inevitably drawn into a lot of detail around financial redress, but there is an important discussion to be had on this area.

There are mechanisms for apologies. Organisations such as Quarriers have made heartfelt apologies through the Scottish child abuse inquiry. That is important. We heard survivors talk about the accountability process in that regard, and that is an important mechanism that is quite separate from the scheme.

Allowing organisations to apologise, from a senior level, to survivors who have endured pain is an important feature of the scheme, and I am committed to it.

Apologies become problematic only in relation to the civil court process, where there would be legal implications if an apology were to be offered prior to the conclusion of that process. Other than that, it is important to commit to apologies for the reasons that you identified.

There are other things that we can do. Quarriers has established an aftercare team that can support survivors with information and records. That is also an important part of the healing process for many people. We are doing a lot and will continue to do so, regardless of what the scheme establishes.

Derek Yule

I will not repeat Dr Culley’s comments, because I agree with everything that he said.

Local authorities are already investing considerable resources in this area. The point about the need to support families, relatives and next of kin has been well made. Demand for such work will probably increase when the bill becomes law; the work that takes place to support children and families will need to increase. I hate to say that a lot of that will come back to resources, but we must recognise that the non-financial elements of the redress scheme will manifest themselves in additional services to support children and families.

Viv Dickenson

Apology is at the heart of the issue. I have spoken to a number of survivors who chose not to go down a civil route because they were really looking for a genuine understanding of what they went through and a genuine recognition of and apology for that. That is an important issue that must be built in for survivors. Financial compensation will be the answer for some, but for many it will not be—it will not right the hurt. We need to find a way to do that more sympathetically.

Daniel Johnson

In thinking about the potential liabilities that an apology might incur, the question occurred to me whether a general statement to acknowledge historical abuse might be a useful part of the process. Contributing organisations should give individual apologies when that is possible, but they could also make a general statement to acknowledge the harms. It is explicit that participation in the scheme does not imply liability, but could a general apology or statement be a route forward?

Viv Dickenson

Yes—it could. We have already made a general apology to anyone who was harmed in our care and we would willingly and genuinely do so again. A collective apology is not problematic to us.

Dr Culley

Viv Dickenson just stole my thunder. Organisations such as Quarriers and CrossReach have already made apologies. Like Viv Dickenson, I apologise again today for all the harm that was caused. Such an apology would not be problematic and could help the process.

The Convener

Ms Mackay will ask questions about the abuse that the bill covers. I ask colleagues to put an R in the chat box if they want to come back in.

Rona Mackay

What are the witnesses’ views on the abuse that the bill covers? I am thinking of the exclusion of lawful corporal punishment and whether the bill needs to include a definition of abuse by peers.

Dr Culley

The questions are interesting and we want to be guided, to a degree, by survivors in coming to a view on them. We did not cover the issue in our submission, but we work closely with survivors and we want our policy on such themes to be informed by their views.

It is fair to say that organisations have a general duty of care, which probably extends into the territory of peer abuse, so that is a legitimate consideration. There are technical issues to unpick about things that were deemed to be lawful at the time; perhaps it would be better for legal advisers to comment on that.

10:15  



Viv Dickenson

My comments on that will be very similar. The committee probably needs to take legal advice on what was appropriate and legal at the time. It is a really difficult issue for us. I sometimes look back at what was permitted and think that, by today’s standards, it falls so far short; nevertheless, it was permitted at the time. It is tricky. I agree with Dr Culley that, if survivors indicate that something is important, we have a duty to listen to that and we should do our best to find a way forward.

The Convener

Mr Yule, do you want to come in on that important point?

Derek Yule

No, I am happy with the points that have been made so far. It is more a legal issue, to be honest.

The Convener

I invite questions from Mr Greene.

Jamie Greene

Thank you, convener. I have a more general question. The witnesses will be aware that we will take evidence from the Cabinet Secretary for Education and Skills, and I suspect that he has been listening intently to what has been said. Do you have one principal comment or piece of feedback for the cabinet secretary about how the bill could be altered to make it more palatable for you to participate in the scheme? What would that advice be? What is the main change to the bill that would make it easier for your organisations to participate? I get the sense that there is a willingness to do the right thing, but there are clearly some technical issues on your minds. I know that you have submitted written evidence, but, for the benefit of those watching the evidence session, can you summarise your views on that?

Dr Culley

The Deputy First Minister has taken a very helpful and conciliatory approach to all this, and he has been in correspondence with us and other organisations. We wrote to Mr Swinney, asking him to have specific regard to the question of affordability. If the bill could be changed to create a duty on Scottish ministers to have regard not just to whether a contribution is fair and meaningful but to whether it is affordable, Scottish ministers would have an obligation to at least consider the finances of organisations that wish to participate. I underline the point that you made that all of us absolutely want to do this; it is about creating the conditions that allow for that. That is the same message that we have sent to Mr Swinney: help us to contribute and to get to a place where we can be part of the national healing, because that is absolutely what we want to happen.

Viv Dickenson

I echo a lot of that. The bill itself is not so much the problem, although it would certainly help if the notion of affordability was put into it in some way. However, some of the documents behind the bill are really problematic. The financial memorandum and the way that “fair and meaningful” has been translated into an algorithm are particularly difficult and need further scrutiny. We are completely behind the bill itself and the intent behind it.

Dr Turbyne

This is a good way to sum up what we have been talking about. We want the bill to allow charities to contribute and to give trustees the freedom to have appropriate discussions about what is in the best interests of the charities. We have a concern about section 14, which refers to charities contributing to the scheme. We have had some influence on that part of the bill, but we still have some worries about it. We have offered to support guidance on that, to help charities to think through that decision-making process. That might be good.

We are specifically interested in looking at restricted funds again, because we are worried about the way that that might undermine public trust in fundraising and, ultimately, public trust in charities.

Derek Yule

One thing that the bill is good at is streamlining the process for survivors. We should not lose sight of that in all the discussion about the financial costs. As the committee has heard today and from other witnesses, there is a real willingness to uphold survivors’ rights to access redress. There has been a lot of focus on insurance today. That process can be extremely stressful and complex for survivors and can take considerable time. We should recognise the merits of the bill in that regard.

It is important to look at the issue in the round. There will be a financial impact on contributors. I think that the committee has heard that everyone is willing to contribute if we can find a way of making the scheme affordable. There has to be something about bringing insurance companies to the table to contribute. I am conscious that I and other witnesses have highlighted the difficulties of doing that, but we need, somehow, to engage with insurers on bringing some resource to the table to help with affordability for many of the organisations that are involved.

From a local government perspective, the question is less about the scheme’s affordability and more about the impact on other services. Given the financial pressures that councils are under at the moment, taking a significant sum of money out of the equation to fund a redress scheme will have significant consequences for other council services, including services that support children and families. There is a difficult dilemma in that sense, and insurers have to be part of the solution.

Jamie Greene

I thank the witnesses for those responses.

I think that anyone who has watched our evidence sessions on the bill will be aware of the dichotomy that we face. There is a huge amount of strong feeling out there, and there is a lack of trust in the approach to the bill and in organisations that have been asked to participate in the process, some of which are represented on the panel today. Rebuilding trust, through the bill, is pretty much all that we can do as a committee. Is there more that your organisations can do to ensure that the survivors—and not the insurance companies, the underwriters, the politicians and the civil servants—are at the heart of all this and have the loudest possible voices? How can we put survivors at the core of our deliberations? I think that many survivors still think that they are not, unfortunately.

Dr Culley

There are two things to say in answer to that. First, and quite independently of the bill process, it is incumbent on all organisations that are having to come to terms with a history of abuse to work with survivors and survivor organisations. That has been a priority for Quarriers. We have a developing relationship—it stretches back a number of years now—with Former Boys and Girls Abused, which, in truth, has been incredibly enlightening for us. The ability of colleagues in that organisation to speak powerfully on behalf of survivors to help Quarriers to move forward on the agenda has been crucial to the organisation. I commend the approach; I know that other organisations have taken similar routes.

You asked how survivors can be put at the heart of the bill process. I agree that there is a need to ensure that the survivor voice is the most prominent one in all this. The Scottish Government has set up a group to facilitate that, but there is always more that we can do. We want to work hand in glove with survivor organisations as the bill progresses, because ultimately such legislation is all to the good if it supports a process of reconciliation. That is what we all want to keep in mind.

Dr Turbyne

Absolutely. It is essential that survivors are at the core of the bill, and it has been great to hear the views of other panel members today in that regard. However, in doing that, we must not ignore the inherent tension that charities have to take into account when they make their calculations, which is the impact on their current vulnerable beneficiaries and their future vulnerable beneficiaries. That is not to take away from the harm and the fact that survivors should be at the core of the legislation, and we need to ensure that there is a way of absolutely demonstrating that. However, if we ignore that tension, we will come up with a bill that is not as good as it could be.

The Convener

I think that that rounds off the session well, but I have one technical question. We have had a general conversation about how appropriate the waiver is, and the use of offset or other options for that, and we understand that part of the bill process is to ensure that every help is given to a survivor to get the evidence that they need. However, the survivors are supposed to sign a waiver at the point at which they accept a redress settlement, and they have raised a concern with us about the fact that more evidence could come to light at a later date, either through further investigations or because of corroboration. Have you thought about that scenario? I do not know whether it is possible to caveat the waiver or something, but have you considered that issue and how it might be dealt with?

Dr Culley

All that I would say at this stage is that I have a great deal of sympathy with that concern. We have to create a process that is supportive of survivors in order to ensure that they are able to draw on whatever information is relevant across the process. It is incumbent on all of us to ensure that we provide maximum flexibility to ensure that there is a positive outcome in that respect.

Derek Yule

It is difficult to respond without taking a legal perspective. Support for survivors is key to the process. I know that a number of councils are starting to work together to streamline existing claims. That has to be part of the solution, so people are not passed from pillar to post. As part of that, there must be something in the system that ensures that, if new evidence comes to light, there is an opportunity for that to be looked at. We have to be supportive and sympathetic throughout the process. To me, the issue is all about the level of support that we can give to people who will not be familiar with the systems, the legal process and so on. We need to ensure that they are assisted as far as possible.

The Convener

Thank you. This has been a useful discussion, and we thank you all for your time.

We will now suspend until 10:45, when we will be joined by the cabinet secretary.

10:28 Meeting suspended.  



10:45 On resuming—  



The Convener

I give a warm welcome back to those who are joining us for this morning’s evidence session on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome John Swinney MSP, the Cabinet Secretary for Education and Skills in the Scottish Government. I invite the cabinet secretary to make a brief opening statement.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

Good morning. I welcome the opportunity to discuss this important bill with the committee during what is a uniquely challenging time for everybody.

Scrutiny of the bill is crucial in ensuring that, together, we agree a collective national response to the widespread failures of the past that resulted in the abuse of some of our most vulnerable members of our society—our children. I want the bill to provide survivors and their families with the acknowledgment and recognition that they rightly seek and deserve. The bill will sit alongside, and positively contribute to, the wider changes that we are making in Scotland to ensure that all our children are safe, protected and loved.

We have introduced this vital bill because acknowledging the unquestionable harm that was caused by historical abuse is the right thing to do. I want to take the opportunity to repeat the apology that I made to survivors on behalf of the Scottish Government in 2018. Their terrible experiences should not have happened, and we are truly sorry that they had to experience what they did.

The bill builds on the experience of the advance payment scheme, which opened in April 2019 and has made 500 payments to elderly and terminally ill survivors of historical child abuse in care. Through the delivery of the advance scheme, we have been able to gain invaluable insight and knowledge on the principles and processes of redress, which has greatly informed the content of the bill.

We know how important it is that a redress scheme offers more than a financial payment. Survivors will have their own views on what would make a difference in relation to acknowledgement, apology and support, and the redress scheme will offer access to those non-financial elements.

As I said in my statement to Parliament in August, it has always been a priority for me that survivors’ views be at the heart of designing measures that are introduced to support them. Consultation and engagement with survivors has been key in developing the bill, and survivor voices continue to be at the core of the bill as it progresses through Parliament.

I am well aware that not all survivors have the same views on every element of the redress scheme. It is crucial that we hear as many views as possible, and I am pleased that the committee has read and heard evidence from so many.

I have been listening to the wide range of evidence that has been presented to the committee, and my officials are carefully considering all the points that have been raised. As scrutiny of the bill continues, I look forward to working collectively with all interested parties, inside and outside Parliament, to build a redress scheme that meets the needs of survivors. We will continue to engage with those who provided care in the past, as we look to them to play their part in making fair and meaningful financial contributions and in delivering the redress scheme that survivors have told us that they are looking for.

It is important that we do not underestimate the complexity of the issues that are addressed by the bill and the impact that it will have on survivors, including those who have fought tirelessly for decades to get to this point. However, I am confident that, if we continue to work together constructively, we can create a world-leading redress scheme that symbolises Scotland’s national collective endeavour to address the failures of the past.

I look forward to having an open discussion with the committee and to answering the questions that the committee will have.

The Convener

Thank you very much, Mr Swinney. We will move straight to questions.

Iain Gray

Good morning, cabinet secretary. You said, as you have done on many occasions, that one of the most important things about the bill is that survivors see it as a proper acknowledgement of what happened to them, and that their voice is critical in making sure that that is the case. I know that you will have been following the evidence and that you will therefore know that survivors’ evidence has consistently been that they feel that the bill is undermined by the existence of the waiver part.

Earlier today, we heard evidence from some of the care providers who expressed an interest in at least exploring alternatives to the waiver in order to balance their interests, as I think they put it. What consideration are you giving, or are you able to give, to the replacement of the waiver with something else or, indeed, its removal altogether?

John Swinney

I am very happy to explore any aspect of the bill, because the issue that is most important to me is that we reach a point at which we have in place an effective redress system that enables us to address the experiences of survivors. My primary commitment is to make sure that we have an effective and workable scheme. Although I feel that the Government has brought that forward, I do not enter this morning’s discussion from a perspective of saying that every aspect of the bill must be fixed.

I take the view that the waiver is an important element in providing workability at the heart of the scheme, whereby we can provide a route that attracts financial contributions from those who should make them—I am certain that Mr Gray shares that view—and a means of providing survivors with a way of securing acknowledgment and redress. I think that the waiver has a critical role to play in our scheme. We looked at various schemes around the world in which a waiver was part of how financial contributions were attracted and enlisted from those who should be making them. That is how I come to this discussion; I think that it is the best way to deliver the purposes of the scheme.

Nonetheless, having said all that, I am very happy to consider alternative propositions that would achieve the same purpose. I want to achieve the twin purpose of delivering for survivors and ensuring that we receive financial contributions from those who should make them. I am very happy to explore the means to get us to that objective.

Iain Gray

I appreciate that answer from the cabinet secretary. Based on the evidence that we have taken, it appears that one of the concerns that the waiver tries to address is the possibility of redress being paid twice for the same abuse. The alternative to the waiver that has been proposed by a number of witnesses in the evidence sessions that we have had is an offset, whereby someone who benefits from the redress scheme and then also benefits from a settlement from the civil justice system would see that offset against any award that they had got.

Some of the evidence that we received from care providers this morning was that they do not feel that insurance companies will support them in contributing to the redress fund even with the waiver in place. Given that, does the cabinet secretary think that an offset might be a viable alternative that would allow survivors to feel that their rights to civil justice had been left intact?

John Swinney

There are two distinct elements in that question. One is about ensuring that survivors have the acknowledgement of their suffering and that it is addressed. I readily acknowledge that many survivors would want to be able to ensure that that was the case through civil court action. Mr Gray will have dealt with cases and survivors who have gone through processes of that nature. We are all familiar with the fact that there is no guarantee of an outcome through civil action. We have structured and designed the bill in a way that tries to ensure that survivors are given more certainty about achieving acknowledgement and reparation for the suffering that they endured.

I readily accept that in that analysis there is a point of judgment about whether the civil action route will be more dependable to secure the outcome that survivors are trying to achieve or whether the route that is provided for in the bill will provide such an outcome. That is a matter of judgment. I believe that, when all the issues about standards of proof in a civil action are considered and assessed versus the type of conditions and elements that are implicit in the assessment framework, which we have shared in draft with the committee, the redress bill provides a more reliable route for survivors.

However, that is conditional on whether we can attract the commitments of providers who should be making commitments to the process. In that lies a very careful judgment, which is at the heart of the offsetting model, as to whether providers believe that their requirement to contribute to address the suffering of survivors will be made through the channel of the bill and a waiver scheme that enables them to know the likely level of risk to which they will be exposed, or whether it is better to leave the issues to be dealt with in civil action.

I have tried to set out a route that I feel is more reliable and less traumatic than civil action in getting to the point of acknowledging survivors’ suffering, from their point of view. However, I accept that there is a point of judgment at the heart of that. From what I have seen so far, I am not satisfied that there is a workable offsetting model that would enable us to attract the contributions of providers at the same time as enabling survivors to pursue civil actions in the fashion that Mr Gray raised.

Alex Neil

Thanks very much for your comments, cabinet secretary, as they underline the complexity of the issue that we are dealing with. However, the evidence that we have heard this morning, which is backed up by the evidence given by others in earlier evidence sessions, is that there are difficulties with the waiver scheme. Survivors believe that it is an encroachment on their right to resort to civil action, even if they were to receive an award from the redress scheme. The evidence that we heard earlier this morning highlighted that there is no guarantee that the incentive element to try to get the insurers or organisations to contribute will work. Indeed, we have heard evidence that they will not contribute before waivers are settled.

During a previous evidence session, we also heard that, in Ireland, in a similar scheme, once the redress was settled, the contributions that were promised never materialised. There are real issues there, and perhaps there is a need to decouple the issue of the award to claimants from that of incentivising and encouraging organisations to make contributions. Furthermore, this morning, we heard a clear distinction between how that could be organised in respect of local government and how contributions could be afforded by and arranged from charitable organisations. Would you like to comment on that? It emphasises the complexity of those issues.

11:00  



John Swinney

Mr Neil sums up the complexity perfectly; there is no easy way of navigating our way through these judgements.

I take issue with one point in Mr Neil’s question; I view the approach that we are taking as providing an alternative means for survivors to properly acknowledge and address their suffering. I do not view it as an approach that removes any rights of survivors because, with the mechanism that we are putting forward, they have a choice. Survivors have a choice between pursuing a court action and participating in the redress scheme.

The Government is trying to put in place a reliable and dependable means for survivors to have an acknowledgement of their suffering and some reparation for that. It does not take away their right to go to court. In my view, as well as reparation, it most definitely must involve an acknowledgement and acceptance of the suffering that those survivors have endured. That commitment will be part of any payment scheme that we put in place.

There is a difficult issue at the heart of Mr Neil’s question about whether that is an infringement of the rights of survivors or, as I view it, an alternative means that perhaps provides more reliability in being able to secure acknowledgement and reparation for the suffering that survivors have endured.

Alex Neil

The evidence from the survivors suggests that they would ask why, in the bill as it is drafted, getting an award from the redress scheme and going to court would be mutually exclusive. If they sign the waiver, they cannot pursue civil action, and they unanimously regard that as a restriction of their rights.

We have heard other evidence. For a lot of people, the chances of being able to pursue a successful civil action are hampered by two or three things. First, in a civil case, they would have to provide proof to the court that would justify a civil action award. In a lot of cases, that will be very difficult, because of the absence of corroboration. The second point, which was made this morning, is the issue of liability. According to the representative from COSLA this morning, 200 cases of action against local authorities are already pending in the system, and the issue is pinning down which organisation is liable. He gave some examples, such as kids being hosted by one local authority but placed in another local authority—there is a legal dispute as to which local authority would be liable in any civil court action. From all the evidence that we have heard, it looks to me as though the number of people who are going to be practically able to pursue a successful civil action is limited and that it would require a lot of resources.

If the main point is to incentivise the organisations to contribute, the evidence that we have had from the organisations is, by and large, that the bill will not act as an incentive, because the main issue for them is not incentives but affordability and whether they or insurance companies will pay. We have also heard that, elsewhere, such an approach has not provided an incentive to institutions to make significant contributions.

John Swinney

The point that lies at the heart of this is the motivation behind the redress bill. The motivation, for me, is to provide acknowledgement and reparation for survivors. That is the purpose of it, and I aim to provide as dependable a route as I can to achieving that objective.

Your question highlights the uncertainty of pursuing a civil action. All the points that you make—about the required standard of proof, the evidence base and corroboration—are entirely legitimate and militate against cases being successful. The standard of proof that will be required in the bill’s redress scheme will, without a doubt, be significantly lower than the standard of proof in a civil action. Indeed, if we look at the criteria that are in place for the payment scheme, we see that the scheme is readily accessible in the context of standard of proof. I have to hand the number of cases that have been dealt with, which is 500, but I cannot quite recall how many cases have been unsuccessful. However, it is a very small proportion, because we deliberately set the criteria to address the circumstances of individuals who experienced abuse a long time ago, evidence of which is not readily available. Much of that sentiment will be taken into the approach in the bill.

For me, the core of the issue is this: what is the most reliable means of securing acknowledgement and reparation for survivors? It is also critical that providers contribute to that, and survivors definitely want that to be the case. The structure of the bill is designed to make tangible, practical and dependable our securing contributions from providers.

If we left open the possibility that an individual could pursue a case through the bill and pursue civil action—that is, if the waiver did not exist—I think that we would find it quite challenging to get contributions from providers; I think that that would be very difficult. The structure of the bill is designed to achieve the two objectives of providing a dependable and reliable route for survivors and capturing the legitimate and necessary contribution of providers who are making reparations for the suffering that exists.

Having said all that, I accept that a careful judgment has to be arrived at, and I will look carefully at the committee’s reflections as it wrestles with this dilemma. I hope that my response to Mr Neil will help the committee to see the dilemma that exists in providing a dependable route while managing to secure guaranteed contributions from providers.

The Convener

Do you want to ask anything else, Mr Neil?

Alex Neil

I will let other members come in. Questions have come up in evidence about the tiered—[Inaudible.]—and the payments scheme, which another member might want to ask. Given the number of committee members, it is only fair that I allow you to move on, convener.

The Convener

Thank you, Mr Neil. That is helpful.

John Swinney

Can I add one other point to my answer to Mr Neil? In relation to the advance payment applications that we have received, no cases have been rejected because of lack of evidence—none. That is an important point in the approach that we are taking to minimise the burden of proof on survivors and to maximise the possibility of securing acknowledgement and reparation. I hope that is helpful to the committee.

The Convener

Mr Swinney, before I move on to Mr Johnson, I will ask a question about the decisions that survivors are making at the end of the process if a waiver is in place. Decisions on what to accept from the redress scheme will be based, to a certain degree, on evidence that they have at that time, but a concern has been raised that, at a later date, significant evidence could come forward, particularly in corroboration of what survivors have said. Would that have led to a higher award under the redress scheme or would it have made it easier for them to pursue a civil court case had they had that information at the time? Have you considered that scenario, and is there any way to caveat the waiver or to look at the scheme at a later date if there is a significant change in evidence?

John Swinney

In the way that the scheme is constructed, an individual survivor’s case would be assessed by redress Scotland and the panel, and a conclusion would be arrived at. There is no means in the provisions that we already have for such a case to be reopened at a later date, but that is a question that we can explore to determine whether there are circumstances in which the evidence base could change. In the current provisions, there will be an individual judgment in individual cases.

Daniel Johnson

In the evidence session that we just had with some of the organisations that may be contributing to the scheme, they expressed concern regarding affordability. Their willingness is not in doubt, but they expressed grave concerns—waiver or not—about whether they could afford to contribute to the scheme. That begs two questions. First, to what degree is the scheme contingent on contributions coming forward? The flipside of that question is, to what degree is the Scottish Government underwriting the scheme regardless of whether contributions come forward?

Secondly, organisations’ concerns about affordability were based on the algorithm that they have seen regarding how those contributions would be calculated. I do not believe that we have seen the algorithm; I do not think it is in the financial memorandum, although I am happy to be corrected. I am interested in hearing from the cabinet secretary on the high-level detail of the algorithm and what discussions with contributors are going on. Finally, can that algorithm be published?

John Swinney

I would not describe the calculation as an algorithm. I am happy to share more information with the committee on that point so that it can make a judgment, because I fear that I may end up in a conversation with Mr Johnson this morning about what the difference is between an algorithm and a calculation, and we might spend an awful lot of time debating how many angels are dancing on the head of a pin. A calculation will be made on the basis of the individual circumstances of organisations. However, if it would be helpful to provide the committee with more detail on that calculation, to enable it to judge whether it is an algorithm or a calculation, I would be very happy to write with that detail.

11:15  



The point about financial contributions is an important one. Throughout my evidence, and as I have spoken about provider contributions, I have been using the word “should”. I have said that contributors and providers should be making those contributions. That is a moral obligation. The state is facing up to its moral obligation through what we are doing with the scheme, and others must face up to their obligation, too, if children who were in their care have been failed or have had experiences that they should never have had.

We are in discussion with a variety of organisations to ensure that they make financial contributions to the scheme. Those organisations have an important moral question to address. I am not hiding the fact that there will be financial challenges for everybody, but the greater challenge for the country is to address the moral challenge that the issue poses for us. A consequence of facing that moral challenge will be that we will thereafter do the right practical and financial things to address the suffering that survivors have experienced.

Daniel Johnson

The scheme will progress, whether or not contributions are received. Is that the short version of your answer?

John Swinney

The scheme will progress, and it will establish an obligation on providers to make contributions beyond the £10,000 per case that the Government has committed to making. By virtue of that commitment to and participation in the scheme—which I see as both a moral and a financial requirement—those organisations will be held to the payments that they are due to make. Financial recompense to support the scheme should be secured from any organisation that was a provider of care and under whose care abuse took place.

Jamie Greene

This line of questioning has thrown up a tension. On one hand, survivors are telling us that the scheme does not go far enough, either financially or otherwise. On the other hand, the organisations that will be asked to contribute say that the financial onus that will be placed on them by the bill as it is drafted is already too great.

We heard earlier from a witness who said that he thought it was unlikely that an insurance company would be interested in participating in the scheme as it is drafted, because it is an addition to, not instead of, the liability that exists under civil litigation. There would be no commercial benefit, and the company would be unlikely to participate.

That raises a question. If organisations say that they will not or cannot participate in the scheme, will you make them do so? If you do not make them participate in the scheme, who will participate? If the Government’s payment is capped at £10,000, does that mean that the number of claims is capped or that the financial pot that is available for the payment of claims is capped? Or is there an unlimited liability on the taxpayer to pick up the tab when either insurance companies or organisations have said no?

John Swinney

That question contains a number of potential scenarios, and I have recourse to the design that the Government has put forward for the scheme.

The scheme is designed to address the fundamental point that Mr Greene raised at the start of his questions: I consider the scheme to be an alternative to court action. From that point of view, it is a compelling moral and financial route for providers to support. It is a route that allows providers to face up to their moral responsibilities. As a country, we can provide a mechanism that gives survivors more certainty that they can secure an outcome, as I said to Mr Neil. They cannot be certain about securing that through a civil action process.

We have chosen an approach that has sufficient reliability and dependability, from the survivors’ perspective, for securing acknowledgement and reparation. It will also give providers certainty that they can see the route that is available for resolving the issues, which they must resolve because of their moral obligation in relation to failures of the past, which the Government is facing up to and which other players must face up to.

Mr Greene is correct in highlighting the issue as the nub of the scheme. The Parliament must consider—first through the committee, with its evidence, and then as the bill is scrutinised in detail when it proceeds through Parliament—what the most reliable means is for addressing the fundamental dilemma that Mr Greene has highlighted. I think that my proposal will provide not only reliability and certainty for survivors but clarity and reliability for providers. I invite the Parliament to consider whether that approach is correct.

Jamie Greene

I respect the fact that you agree with my summary, but, with respect, that was a clever way of saying, “No comment.” I asked the direct question whether you will make providers participate in the scheme, and your response was that it will be up to Parliament to decide whether to amend the bill to that effect. However, it is the committee’s job not to come up with solutions but to highlight the problem.

John Swinney

I felt that I answered the question. The direct answer is that I cannot compel an organisation to take part. However, I can put in place an arrangement that provides the appropriate opportunity for survivors to seek the acknowledgement and reparation to which they are entitled and that enables providers to address that in a way that meets survivors’ needs. For everybody concerned—whether it is a survivor who carries stress and trauma or a provider that carries financial and legal risks—there will be a reliable route for addressing and removing issues.

The Convener

Does Mr Greene have another question?

Jamie Greene

I have a question on the bands and amounts, but I might save it for later, because I know that other members want to speak.

The Convener

Thank you. That is helpful.

Before we move off the topic, I will ask about the involvement of insurance companies in the scheme, which was raised earlier. Some survivors are concerned that an insurance company could pick up the tab, if you like, for what has happened. They are keen for responsibility to lie with the organisations. Have you discussed with insurance companies how they might indemnify the redress system on organisations’ behalf?

John Swinney

From recollection, I think that my officials have had discussions with representatives of the insurance industry, but I had better reserve my position and write to you to clarify that point. I think that that is the case, but I had better confirm it in writing.

The Convener

Thank you very much.

Ross Greer

I want to ask about the provision in the bill for payments to next of kin and the safeguarding of survivors who receive payments. Will you explain the rationale behind the November 2016 cut-off for payments for next of kin? That has caused a bit of concern in the survivors groups that have submitted evidence to the committee.

John Swinney

In essence, the rationale is to provide some order to the eligibility for the scheme. It was in 2016 that I announced that we were going to move to such an approach. It is about establishing the moments at which we make defined judgments about eligibility—I suppose that that is the best way of describing it. The rationale is of a similar character to that behind the definition of historical abuse as that which preceded December 2004, which was when the former First Minister Jack McConnell made a public apology in Parliament to survivors. It is simply about establishing reference points for eligibility for the scheme to make absolutely clear the circumstances in which individuals—or, as in the point that Mr Greer has put to me, next of kin—would be eligible.

Ross Greer

I understand the need for a line to be drawn somewhere, although I am sure that you would accept that any date that is set is arbitrary to a significant extent. The concern that has been raised is that, because it is such a recent date, a lot of people who are the next of kin of a survivor would have the evidence and would meet the other criteria for getting a payment, but their relative—or whoever it might have been—passed away before November 2016. Quite a lot of people would potentially feel—and would be—closed off by that.

Would the Government be amenable to moving that cut-off date? I am not proposing a specific date at this point, but is it set in stone, or would the Government would be open to an adjustment that might address some of those concerns? As I have just said, any date is ultimately arbitrary to some extent.

John Swinney

I am very happy to explore that point and the possibility of considering an alternative date. Mr Greer is absolutely correct: choices have to be made about those dates or points of eligibility. Nothing about that is absolutely set in stone, and I would certainly be happy to consider the issue and to hear the committee’s views on that question.

Ross Greer

Thank you.

To move on to the mechanics of the next-of-kin payment, the bill specifies a six-month period for a cohabiting partner to have cohabited with the survivor before they become eligible ahead of any spouse that the survivor may have had. However, no time period is provided for them to become eligible ahead of children. In essence, as soon as a cohabiting partner moves in with a survivor, they will become eligible ahead of the survivor’s children in a situation in which they become next of kin.

The Faculty of Advocates has suggested that the six-month period be extended to the question of a cohabiting partner’s eligibility ahead of children, so that there is consistency in how a cohabiting partner is viewed relative to a spouse and relative to the survivor’s children. Will you explain the rationale for that not being in the bill? Would the Government be open to that proposal from the faculty?

John Swinney

I am certainly prepared to look at that question again. Those are matters of judgment. One thing that we would have to look at carefully is any interrelationship between those questions and questions of family law—I say “family law”, but I do not think that it is quite the right term. We need to ensure that no residual rights are in any way conflicted by any decisions that we make. Fundamentally, these are judgments about the appropriate point at which the arrangements should be put in place. As with all such questions, I am very happy to explore the detail behind the issue and see whether there is a more appropriate way in which things can be constructed.

11:30  



Ross Greer

My final question is on that point about consistency with other areas of law, although not on next-of-kin payments. The bill provides redress Scotland with the power to assess the capacity of a survivor to handle the payment. That is reasonable, because payments can be significant and survivors can be particularly vulnerable individuals. However, the framework for making such decisions already exists in the Adults with Incapacity (Scotland) Act 2000. I am not sure why that is not being used as the framework. Why does the bill create a whole new legal basis for establishing capacity when we already have a framework for doing that in law?

John Swinney

I am not sure that I would quite see that as an issue. The concept of capacity is well defined in Scots law. What we are trying to do in the bill is acknowledge that some survivors will have experienced such trauma that they face significant challenges in their lives and may require some support to deal with issues that may emerge from the redress scheme and also the substantial payments that may arise. I do not think that those survivors would be classified within the terms of the Adults with Incapacity (Scotland) Act 2000, but they will be provided with some support to help them to manage their affairs.

With the support mechanisms that are put in place for survivors—through the work of Future Pathways, for example—a lot of practical support is given to people who have been traumatised and damaged by their experience. Support to assist them is put in place that is not formal legal provision such as that provided for by the 2000 act. It is about having a more pragmatic and flexible support arrangement to try to ensure that individuals are better supported to handle issues that will arise from a payment from a scheme of this type. I would not equate that role with the formal legal provision of the 2000 act. We are certainly not trying to construct any provision that is a rival to the terms of that act, for which there is a very specific, defined purpose.

The Convener

Another issue to do with timing is the five-year duration that is proposed for the scheme. We have taken evidence from schemes elsewhere that shows that that is quite a tight timescale, particularly for people affected who may be living abroad and may be unaware of the scheme. Could any consideration be given to extending the duration slightly, albeit perhaps in a scaled-down version of the redress system?

John Swinney

There is provision in the bill for ministers to extend that five-year period by regulation. Obviously, we could formally extend that timescale, and I am happy to consider that, but a mechanism is in place that would enable ministers to extend the timescale, should that be required.

The Convener

I want to go back to the issue of banding, which Mr Neil and Mr Greene have questions about.

Alex Neil

We have heard evidence about the issue of the tiering and banding of payments. How do you decide who goes into which band? How do you set the borders between one band and another? Survivors and their representative organisations have expressed doubts about whether banding was the right way to go about this.

I have two main questions. First, what is the rationale for the banding, and what other options were looked at? Secondly, does that issue need to be included in the bill? It seems to me to be something that might require adjustment anyway if the scheme lasts for five years or more, if only in order to take account of inflation, for example.

John Swinney

To be frank, I find this a difficult issue to talk about because, fundamentally, judgments will have to be made about the level of abuse that has been suffered by individuals. I cannot find a better way to respond to Mr Neil’s question than with those words, and they feel like totally unsatisfactory words to use. However, essentially, the scheme is predicated on making an assessment of the degree of suffering that individuals have experienced and then attaching a level of financial reparation to that assessment.

We have shared with the committee some of the draft of the assessment framework, which we will be working on to help to inform the decision making. Again, this is a topic in relation to which it is difficult to work with survivors, because we need to be very careful about ensuring that we work properly with them. I want survivors to be reassured by the approach that is being taken but, to do that, I need to engage survivors in a discussion about material that can be extremely traumatic for them, and we have to handle that with enormous care and sensitivity. Naturally, I am keen to understand the committee’s perspective on that question, because we are having to navigate our way through extraordinarily sensitive territory in order to make the right decisions in the interests of survivors.

Alex Neil

What were the criteria for deciding what the bands should be?

John Swinney

Essentially, we looked at a range of schemes in different jurisdictions and examined the feedback that we received in relation to the advance payment scheme, and then we constructed the model that is in the bill, which involves the assured payment from Government and then, based on the evidence that is able to be drawn together about the experiences of individuals, three additional individual payment levels that could be constructed, which we feel are sufficiently distinctive to be materially different from each other and to provide the opportunity to recognise the difference between the levels of abuse that individuals suffered and for which reparation is to be made.

Alex Neil

It would be useful if we could get the details of that assessment. I do not think that we have that in anything that I have read so far.

John Swinney

The draft assessment framework has been shared with the committee, but only very recently—just in the past couple of days. I stress that there has to be an assessment framework at the heart of the bill that explores the contents of each of the levels. Again, I want to have a very open discussion with the committee and survivors about the composition of that approach.

The Convener

Thank you, cabinet secretary. That information has, indeed, been shared with us recently. We have also received a paper from our adviser, Professor Kendrick, which contains a detailed comparison of schemes elsewhere. I thank him for that.

Jamie Greene

I absolutely accept the cabinet secretary’s uneasiness with the notion that we are attaching a level of financial compensation to the level of abuse that took place and the hurt that was experienced. That is uncomfortable for us all. There is also, perhaps, due reason for that, given the amount of evidence that individuals will be asked to submit in relation to the levels.

There is a genuine question about what the maximum compensation should be. Many people from whom we have taken evidence think that a highest level of £80,000 is nowhere near enough. The Republic of Ireland’s residential institutions redress scheme, for example, has awarded up to €300,000, and the maximum payment in a scheme in Canada is $250,000. The Scottish scheme seems to be at the low end of the scale, compared with schemes in other parts of the world. I am not saying that that is right or wrong, but I would welcome clarity on how the numbers were arrived at and whether they need to be in primary legislation.

Many survivors have suggested that it would be beneficial to have survivors on the panels that decide on awards, and they have said that provision for that could be in the bill, to ensure that there is always representation from survivors or survivor organisations. They have said that that might go some way towards rebuilding trust in the awards system. Do you have a view on that, cabinet secretary?

John Swinney

First, on the levels, our assessment is based on a range of international evidence. The committee will benefit from Professor Kendrick’s input on that point, and we will look carefully at the evidence that it considers and at its report on the provisions in the bill.

Secondly, on the difficult issue of whether survivors should be on awarding panels, I am not opposed to the idea. The feedback from our dialogue with survivors was that we must consider whether being involved in decision making on cases would potentially traumatise survivors—and we came down on the side on which we came down in that regard.

Having said that, the Government wants to ensure that we constantly hear survivors’ views in the process, to ensure that we understand, are aware of and take account of the survivor’s perspective in every way that we can in the shaping and delivery of the scheme.

Jamie Greene

That is important during the bill process, but in the long term, over five years, applications will be dealt with on a case-by-case basis. The feedback that we have had is that, although it might be difficult for members of the awarding panel to hear some of the evidence, there are survivors out there who have the strength of character to put themselves forward to take on that role and who think that it is entirely right that a survivor be part of the process, because only a survivor really understands the consequences and effect of the abuse on an individual, which would help to determine the right level of compensation due in any individual case. We have been told that their presence should therefore be mandatory.

11:45  



John Swinney

As I said, I am not opposed to that. There are sensitivities involved, but, equally, Mr Greene is correct that there are survivors with whom I interact regularly who have enormous strength of character. I am full of wonder at how they have such strength of character, but they are amazing people. They would certainly be immensely capable of doing that. Again, I am open to considering that issue.

The Convener

That is an area on which survivors had very strong views, but it reminded me of some of the discussions around the Social Security (Scotland) Bill, as it was then. There were two issues in relation to that bill that might be helpful to survivors. One is the phrase that was used in many of the documents about compassion, fairness, integrity and respect. I wonder whether you would consider including it in the bill. Also, mindful of how survivors want to be involved in some way in the redress panels, could consideration be given to an experience panel to inform decisions in the same way as happened with the social security bill?

John Swinney

I am certainly keen that we have survivor input to all aspects of the design of the scheme. We are constantly involved in that dialogue. We have taken great care through the consultation exercises and in the preparation of the bill to ensure that we hear that point. Indeed, the point that I articulated in my response to Mr Greene was a reflection from the consultation exercise that we undertook with survivors. There was some concern about whether survivors sitting on panels would run the risk of traumatising survivors further. I am not, for a moment, saying that that is a universal opinion for survivors. Mr Greene is absolutely correct that there are some survivors with astonishing strength of character who would be able to make a significant contribution, and I am determined to ensure that we have that option at all times.

On your point, convener, about some of the characteristics of the bill, you make a fair point that perhaps one element that we have not stamped all over the bill is the ethos that we expect the approach to involve. That was the approach taken in the Social Security (Scotland) Act 2018, and there is certainly the opportunity for us to ensure that the bill conveys that ethos, to ensure that it starts its work on entirely the correct footing.

The Convener

Mr Johnson, if you could ask your supplementary questions and then move on to the area of non-financial redress and apologies, that would be helpful.

Daniel Johnson

I will do that, convener. I have two questions about the tiered payments. First, colleagues have correctly outlined the real sensitivity about the new body, in essence, distinguishing between different individuals and different experiences. In some ways, Alex Neil’s suggestion that keeping how that will be done completely out of the bill is one way of doing that, because it needs to be done sensitively and, indeed, flexibly, on the basis of individual experience. However, my feeling is that the bill neither specifies the approach nor leaves it to the body, because the bill says that, in essence, it is about the materiality of the abuse that took place—both its duration and the seriousness of the acts.

First, I wonder why the consequences and preventability of those tragic events will not be taken into consideration. Secondly, I wonder whether the bill should specify in more detail the principles—in terms of statements of values, not detailed decision-making processes—on which those decisions should be made. What is the cabinet secretary’s response to those thoughts?

John Swinney

I hope that part of what I said in my previous answer to the convener reassured Mr Johnson about the need for the ethos, which we think is important to underpin the bill, to be very clearly understood. In the light of the discussions with the committee, I want to make sure that we reflect on whether that needs to be made more explicit in the bill. We will consider that point.

With regard to Mr Johnson’s question about whether consequences and preventability are duly taken into account, I contend that they are. If we take the concept of preventability, none of that abuse should have been happening, so there has to be an acknowledgement that failure by providers led to children having those experiences. Preventability is written through the ethos of the bill, because none of it should have been happening, but it happened and we have to face up to that as a country. That acknowledgement informs the judgments and decisions that the panel arrives at, based on the experiences of individual children and cases. In my view, all those questions should be material parts of the discussions and deliberations that are taken forward by the process in which we are involved.

Daniel Johnson

I will stay on the topic of tiers before we move on. As is set out in the draft framework, the experiences that are outlined in relation to level 3, which would receive an £80,000 award, are sexual abuse, trafficking and hospitalisation or injuries that should have incurred hospitalisation. My intuitive feeling is that £80,000 is a very low amount for those sorts of injuries and experiences. What possibility is there of revisiting that maximum award? I would like to get the cabinet secretary’s reaction and thoughts about whether that maximum award could be revisited as we progress through stages 2 and 3.

John Swinney

There is no perfect, defined position. I hope that the committee is getting a sense this morning that I am keen to make sure that, as a Parliament, we agree how we are going to progress. I cannot say to Mr Johnson that there is a cast-iron reason why the maximum payment has to be that figure; it would not be appropriate for me to say that. There is every opportunity for us to look at such questions—the committee is taking evidence, the Government has looked at comparative experiences, and Professor Andrew Kendrick has informed the committee with his paper. All those pieces of evidence need to be reflected on, and I am open to considering the appropriateness of the levels, including the maximum level, in the spirit of an engaged parliamentary process.

Daniel Johnson

The survivors that we have heard from have made it clear to us that non-financial redress is a very important part of the process. I will put to the cabinet secretary the two propositions that I put to the previous panel. First, could we explore the creation of a mechanism to provide individual apologies to applicants? An apology could be provided to applicants by the individual contributors to the scheme.

Secondly, could there be a broader and more general statement that all contributors would be required to sign up to? This is a no-fault scheme. Such a statement would mean that no contributor could get away with saying that it had made its contribution and its payment but that it had done nothing wrong and that the scheme had said that it was not at fault. A broad, general apology that everyone had to sign up to would prevent that unfortunate circumstance.

What are the cabinet secretary’s thoughts on those two propositions?

John Swinney

I take the view that the scheme—along with the Scottish child abuse inquiry that is hearing evidence under Lady Smith’s leadership and the advance payments scheme—is part of an exercise that we, as a country, must face up to. In the past, we presided over the completely and utterly unacceptable treatment of children. That must be faced up to and addressed. The former First Minister Jack McConnell apologised on behalf of the country. I have apologised on behalf of the Government, and I will have more to say about those issues in the future. If I feel that and if Mr McConnell felt that, providers should also feel that.

Mr Johnson’s point is a fair one. What I have heard from survivors is that they are very interested in an apology. They want the country and the organisations that were meant to be caring for them to face up to the past, and they are right to want that. I view it as an implicit part of our approach. We are confronting the need to make an apology and amends for what has happened in the past. I conclude my answer by going back to the beginning and my response to Iain Gray’s questions. The most dependable way of doing that is to draw providers into a reliable and dependable mechanism that uses the waiver and that attracts the financial contributions of providers. That will give us a means of reliably and dependably addressing the suffering of some of our fellow citizens.

Rona Mackay

I want to ask about the types of abuse that the bill covers. First, corporal punishment, which we would now see as assault, is not covered. Why was that not included? Secondly, in my earlier question, I said that abuse by peers is not defined, but I did not put on record that the explanatory notes indicate that such abuse is covered. That relates to the distinction between a one-off fight that staff might not have known about and a pattern of behaviour that staff turned a blind eye to. Why is that aspect not in the bill? What are your views on corporal punishment?

12:00  



John Swinney

Corporal punishment feels like a difficult issue as we sit here, in Scotland, in 2020. It is a matter of fact that corporal punishment was still provided for in our society until the early 1980s, if my memory serves me right. The approach that is taken in the bill reflects the circumstances of the time. However, an important caveat is that, although it might have been permissible at some time in the past for corporal punishment to be administered to young people in a school situation—heaven forfend—the use of that power was also abused through excessive or inappropriate use.

The bill does not say that corporal punishment is disregarded as a factor; it says that, although there was provision for corporal punishment in the past, if it was used zealously and inappropriately, that can be taken into account in reparations that are made. Therefore, it is not an unconditional writing-off of the concept of corporal punishment. It is, in essence, trying to apply a proportionate element.

I think that the aspect of peer abuse is adequately covered. However, if issues emerge during our dialogue and scrutiny as we go through the detailed provisions of the bill, I will, of course, be happy to reflect on the matter further.

Rona Mackay

Thank you, cabinet secretary. That is really helpful.

The Convener

I do not any member indicating that they would like to come in, but there are a couple of issues that we have not covered yet, one of which is the settings that are covered by the bill. We were very moved by all the evidence from survivors, but the issue of young people being placed in long-term hospital care came up, in particular. Do you have any thoughts on the representation that we have had regarding that issue?

John Swinney

The judgment that we have applied relates to situations in which organisations were acting on behalf of the state in replacing the role of parents—that is the definition of the parameters of the in-care scheme that we are developing. I suppose that, in certain circumstances, it comes down to how long term a long-term hospital setting was. We will, perhaps, explore the detail of that to determine the extent to which it comes within the definition of eligibility and the scope of the general presumption that the bill is trying to reach those cases in which a provider was acting on behalf of the state in circumstances in which parents would normally have provided the care.

The Convener

Jamie Greene has an additional question.

Jamie Greene

I want us to benefit from being comprehensive. We have not asked for the cabinet secretary’s view on applicants with convictions, which is an issue that has come up. There are different schools of thought, and a range of views have been expressed on that sensitive issue. Does the Government have a view on the barring or exemption of any applicant based on criteria around different convictions?

John Swinney

I am against barring individuals from applying because they have had convictions, simply from the point of view that, although individuals who were the victims of abuse might have committed serious offences, none of us has an understanding of the trauma and experience that preceded the actions that led to those convictions. I feel more comfortable with—this is in the bill—those issues being subject to the review panel’s judgment. There is no automatic right to acknowledgement and reparation, nor is there an automatic debarring from acknowledgement and reparation. That feels to me to be the right way in which to handle a difficult situation.

I completely understand why people would be concerned by the possibility that someone with a serious conviction might be able to secure compensation, but none of us truly understands the trauma that individuals will have experienced. Sensitive, careful, case-by-case judgment is required.

Jamie Greene

I appreciate that. I am not taking a view on the matter; each case is an individual one. However, the general public would have a view if they thought that a Government and taxpayer-funded scheme was providing compensation to people who had been convicted of serious sexual assault against children or women, for example. Given the levels of compensation in the scheme, we have a duty to justify that to the public as we go through the process.

The only other issue that I want to raise that has not come up is the interesting idea of non-financial redress. In the table of comparisons with other schemes around the world, there are helpful and interesting examples of other ways that Governments have been able to support victims without making compensation payments. For example, victims could have counselling, education and training funds, assistance with tracing their families and dental care—it ranges from country to country. Is non-financial redress part of the redress scheme, or will the Government deal with that elsewhere?

John Swinney

We have significant experience of that from the work that has been developed over a number of years with Future Pathways. That approach, and others, works directly with survivors, supporting them and identifying with them what the best mechanisms of support would be.

We are making significant progress in improving the quality of life for survivors. I see an on-going requirement for us not only to address the issues of acknowledgment and reparation that I have talked about extensively today, but to put in place support for individuals that enables them to move on in their lives and come to terms with the trauma that they have experienced.

The Convener

The final issue, which came up in written submissions and also in evidence from our earlier witnesses, is concerns about charity law. The use of restricted funds and the issue of trust law came up today for the first time. Charities must be sure that they are not going to breach any existing provisions by agreeing to redress. Is the Government aware of the issue? What are your thoughts on it at this stage?

John Swinney

The Government is aware of the issue, and we have engaged with OSCR on those questions. It is important that the distinctions that you have properly set out are fully respected and that we fully meet the requirements of charity law and of charitable organisations. I am satisfied that the provisions of the bill are compatible with those requirements and approaches. The Government will continue to engage on those questions.

The Convener

That concludes the committee’s questions. Thank you for your attendance, cabinet secretary. Your evidence has been extremely helpful.

12:09 Meeting continued in private until 13:37.  



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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).

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