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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 3

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.

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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30 September 2020

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7 October 2020

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28 October 2020

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4 November 2020

Education and Skills Committee Committee's Stage 1 report 

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).

Delegated Powers and Law Reform Committee's Stage 1 report on the Bill

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-23707, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

14:51  



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

I am pleased to open this debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. The bill is a significant milestone in delivering a redress scheme for survivors, which many have fought relentlessly to achieve. I acknowledge their bravery and resilience, which have brought us to this point.

I also acknowledge those who are no longer with us. It is right and necessary that we remember their contribution to today’s debate and their persistence in ensuring that we reached this point. I hope that we can now join collectively, as a Parliament and as a nation, to deliver a redress scheme that acknowledges the injustice and the suffering with honesty, humanity and dignity.

The work, the bill and the scheme are for survivors. I extend my sincere thanks to all the survivors who have engaged with us throughout the consultation and the bill process. Their input has been crucial in shaping the bill, and they will continue to play a central part in the development of the scheme.

I thank the Education and Skills Committee for its comprehensive stage 1 report and the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill. We responded to the Education and Skills Committee’s very detailed report in a very short space of time. I hope that members of that committee and the Parliament find the Government’s response of assistance in considering how we will take forward the issues that the committee raised. I am grateful for that committee’s support for the general principles of the bill and its acknowledgement of the work that has been done to date with survivor communities and organisations, and I look forward to the debate, which will—I have no doubt—be open, positive, compassionate and constructive. I assure members of the Government’s willingness to engage constructively on the issues that the Education and Skills Committee raised in its consideration of the bill in order that we can maximise agreement on the bill’s provisions.

The bill deals with extremely complex and sensitive matters, and the development of the redress scheme has involved many difficult and balanced judgments. We have learned from schemes around the world, and we will continue to do so as we design and deliver the best redress scheme for the circumstances in Scotland.

We have excellent practice at home from which to learn. Our advance payment scheme has continued to make payments throughout the pandemic. Since April 2019, we have been able to make payments to more than 520 survivors. Financial redress and also the acknowledgement and the apology that are so important to our most elderly and ill survivors have been provided. The scheme has proven that we can deliver a scheme that works for survivors.

Scotland failed to protect its most vulnerable children. The bill is one part of our unshakeable commitment to face up to that shame and make sure that that never happens again. That must be a collective endeavour, and we believe that all those with a responsibility for the failings of the past have a responsibility to do the right thing today. I want to work with the Parliament to deliver the best possible scheme for survivors and to ensure that those who have a moral responsibility to participate do so. The scheme encourages, facilitates and recognises those that are willing to make fair financial contributions to redress payments of survivors. That is what survivors have repeatedly told us that they want to see.

I have noted the committee’s emphasis on the affordability of the scheme for providers. A central element of our approach has been to link contributions to a proportion of the actual redress payments that would be made in the lifetime of the scheme. Taking an alternative approach, such as seeking a capped or fixed contribution, fails to deliver assurance that the organisation will play its part for every survivor who receives a redress payment. It also carries a risk, as seen in other redress schemes around the world, that the cap could be set too low, given the uncertainty over how many survivors will apply to the scheme. [Interruption.]

I will give way to Jamie Greene, first, and I will then come to Mr Johnson.

Jamie Greene (West Scotland) (Con)

I hope that I do not pre-empt Mr Johnson’s question, but does the cabinet secretary accept that, without a cap, the stark reality is that many contributing organisations would simply not participate and that they could not possibly recommend participation in the scheme without some form of cap? That open-ended liability would hit them financially.

John Swinney

Mr Greene makes a fair point, but we have to make judgments about the way in which we are able to address survivors’ legitimate aspiration for there to be a contribution that relates to the circumstances of their abuse. That is the mechanism that we have chosen in trying to address that issue. Obviously, if we put a cap on that, we may not be able to fulfil the commitment that survivors wish us to fulfil. We need to arrive at a balance of judgment. Fundamentally, it comes down to the workability of the scheme and how we can elicit those contributions.

I will give way to Mr Johnson.

Daniel Johnson (Edinburgh Southern) (Lab)

I am grateful to the cabinet secretary for giving way. Will he comment on the concept of sustainability being included in the bill, as is highlighted in the committee’s report?

John Swinney

That is a reasonable point for us to consider, because there is a fine balance to be struck. Although there is a need for organisations to be held accountable for abuse that has taken place in the past, I do not think that anybody wants that to happen at the expense of the survivability of an organisation that is delivering vital services today to protect the wellbeing of children and young people in our society. A careful balance has to be struck. As we work our way through the detailed text of the bill, I am sure that, as a Parliament, we can come to a conclusion about that issue.

The quality of redress for many survivors comes, at least in part, in seeing their provider make a fair and meaningful contribution. That is the point that I was making to Mr Greene. I commit to continuing to work with organisations to ensure that a fair contribution is deliverable in a way that is not detrimental to vulnerable service users today.

I have listened to the concerns regarding what is in the bill about the use of charities’ restricted funds—some of that relates to Mr Johnson’s point. Although the provision was intended to empower organisations and to remove barriers, I accept that that has not been welcomed by organisations and I agree to remove section 15.

There is no doubt that the proposed waiver in the bill has been contentious, and I welcome the committee’s consideration of that important issue. I have wrestled with how to fairly encourage contributions and to recognise the organisations that have made them while maintaining the integrity of the scheme for survivors. A scheme without contributions from other organisations would mean that survivors who sought acknowledgement and financial redress from those other than the Government would need to take civil action, and we know that there are many reasons why some survivors are unable or would choose not to pursue that route.

The committee highlighted the evidence that it heard about offsetting being a preferable way to encourage contributions. My concern is that offsetting may provide only nominal contributions to the scheme. Organisations would still require to plan for the high costs of future litigation. If offsetting led to only nominal contributions, the onus would remain on individual survivors to pursue court actions in order to compel those responsible for their care to make adequate reparation. That would exclude pre-1964 survivors, survivors who do not feel that they have the evidence to go to court, survivors who do not want to go to court and survivors who are elderly or unwell and might not live long enough for a court action to conclude.

We have looked at other redress schemes, but we do not know of any that secure contributions by using an offsetting model, nor of any scheme in which providers make contributions but receive no waiver. I have, however, listened to the concerns that have been raised about the waiver, and I will continue to listen today and beyond in order to reflect on whether that remains the right path for the proposed legislation.

To put those two points simply and in summary, I am keen to develop a scheme that secures contributions from providers and meets the needs of survivors. After careful and exhaustive consideration, I came to the conclusion that the waiver was the reliable way to do that. I recognise that that view is not shared across the board in Parliament, or even among survivors, but I am keen to air the issues in order to take an approach that means that we can secure the outcome that I have highlighted. I will engage constructively with members of Parliament in order to do that.

I appreciate the significance of the choice that the waiver asks survivors to make. I have heard the evidence on the importance of survivors making that choice only once they know the full redress payment that they would receive from the scheme, are able to access appropriate advice and know who is making a fair contribution to their payment. I will lodge an amendment to ensure that the decision has to be made only at that point.

I recognise that, for many survivors, the decision will not be easy. I have considered the evidence that the committee has heard and I commit to lodging amendments at stage 2 to increase the 12-week acceptance period to six months and the four-week review request period to eight weeks.

I also listened to the evidence that the committee heard on payment levels. I want to provide fair payments according to a fair structure, and I will revisit the level of the increase between the different payment levels. The redress scheme is an alternative remedy for survivors. It does not follow the same rules and procedures as a court and it is not designed to achieve the same outcome. Redress payments may be lower for some than would have been awarded by the courts; for others, the opposite may be true. However, I listened to the evidence and will reflect on the maximum payment level that is available.

I understand the need for clarity and transparency in the assessment and decision-making processes, and I will reflect on calls from survivors, organisations and insurers for greater clarity as to the standard of proof that will apply in determining redress applications. It is vital that everyone has confidence in the decisions that are taken by redress Scotland and that survivors and organisations know that applications are considered carefully and supported with the right information. I am aware that, should the integrity of the scheme be called into question, the impact that that would have on survivors cannot be overstated.

Survivors have given powerful evidence on the purpose of the scheme. The scheme looks to address the widespread and systemic failures in our historical care system that led to children being abused. Those who were abused in care prior to 2004 were abused at a time when their welfare was not prioritised as it should have been and when any complaints that were made were less likely to be believed or to result in any action. Survivors from that time period have also faced a series of obstacles to accessing justice through the civil or criminal courts.

The scheme is about a particular part of our history and the particular circumstances of children in care at that time, when we collectively failed them. Now, we must collectively respond. An important part of that response is in recognising the survivors who did not live long enough to access redress. The committee heard moving evidence about the importance of recognising those deceased survivors. Today, I commit to amending the bill to change the eligibility criteria for next-of-kin payments, to extend those to the next of kin of survivors who died on or after 1 December 2004.

I welcome the committee’s recognition of the importance of support, both practical and emotional, for those who apply to the scheme. I am committed to designing and delivering a trauma-informed service, working with survivors to ensure that their needs are met. A survivor forum will be in place so that continuous monitoring and feedback can lead to on-going improvements in the scheme.

We know that, on its own, a monetary payment will not deliver the redress that survivors need. For too long, survivors were not believed. As part of our collective endeavour, we must now right that additional wrong and apologise both for the abuse and for the length of time that it has taken for it to be fully recognised and acknowledged. The redress scheme will offer individual applicants the opportunity for support and apology as well as a financial payment. On behalf of the Scottish Government, I reiterate the apology that I made in the chamber in 2018 and I say to survivors, “We believe you and we are sorry.”

I hope that what I have just said demonstrates the care and compassion that have been invested in the development of the bill. Our approach represents a thoughtful and authentic desire to do the right thing, to provide survivors with the collective response that they deserve and to provide those who are facing up to the harms of the past with a fair way to do so.

The scheme is not for lawyers, insurers, providers or the Government; it is for survivors, whose interests must dictate its design and determine its delivery. We must balance the various interests to the best of our ability, and we must do so with integrity and compassion, for that collective expression of our humanity will be the measure of our nation in its response to one of the darkest chapters in our history. We owe it to the children whom we failed—and to the adults that they have become—to deliver the best possible scheme. I look forward to working with members across the chamber to make that a reality.

I move,

That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

The Deputy Presiding Officer

I call Clare Adamson to open the debate on behalf of the Education and Skills Committee.

15:06  



Clare Adamson (Motherwell and Wishaw) (SNP)

As convener of the Education and Skills Committee, I welcome the opportunity to highlight its views on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. Before I do so, I thank everyone who took time to share with us their views on the bill, whether in evidence or privately. I also thank our adviser, Professor Andrew Kendrick of the University of Strathclyde, who so generously shared his expertise with the committee throughout the stage 1 process; the committee’s clerks and the Scottish Parliament information centre staff for their endeavours; and, indeed, the committee’s members, who throughout the process have approached it with sympathy, sensitivity and compassion.

I feel that I can speak for the whole committee when I say that we recognised that victims/survivors campaigned for such a bill for many years, including some who are no longer here to see it become a reality. We know that that has involved working constructively with both the Scottish Government and care providers who were responsible for historical child abuse. In particular, we thank victims/survivors for doing so, as that has allowed us to reach the point where we believe that we have a straightforward, easy-to-access scheme that will play a vital role in helping victims/survivors to obtain the redress remedy to which they are entitled.

The bill creates a new way for victims/survivors of historical abuse to seek redress. It recognises that civil litigation is not for everyone. For many victims/survivors, making their way through an adversarial system and reliving their childhood experiences is not something that they will feel able to do. Consequently, the committee supports the bill’s intention to create an accessible alternative. As the cabinet secretary highlighted, for victims/survivors of abuse that took place before 1964, the scheme creates a route to redress that would not otherwise have existed, which is particularly welcome.

I turn to some of the issues addressed in the bill. The need for dignity, respect and compassion was a theme that the committee picked up, and it was also a key theme in the evidence that we heard. We need to ensure that victims/survivors who access the redress scheme are treated with dignity, respect and compassion throughout that process. Victims/survivors themselves spoke very clearly about the dehumanising effect that abuse had on them, and of how it had impacted on their families.

In our stage 1 report, the committee asked the Scottish Government to include in the bill a statement that would recognise the need for the principles of dignity, respect and compassion to be applied across each element of the redress scheme—from the application process, through to the support provided to access care records and the issuing of apologies from care providers. We welcome the fact that the Government has gone some way towards recognising that need, and indeed has agreed to some of our recommendations being put in place.

I cannot cover the whole bill, because I will soon run out of time, but I will turn to the waiver and the fair and meaningful payments. The bill encourages care providers whose organisations were responsible for historical child abuse to make a fair and meaningful contribution to the redress scheme. A victim/survivor accepting a redress scheme payment will be required to waive their right to take future civil action against any contributing organisation. Victims/survivors viewed the waiver as restricting their rights and suggested that an off-setting payment might be a better model.

Care providers raised concerns that there is currently no way of them knowing how much their overall contribution to the scheme would be. They also pointed out that their trustees could not agree to participate where that would breach their duties to safeguard the organisation’s longer-term financial viability. It was also unclear whether insurance providers would commit to making a payment on their behalf, undermining the case that the waiver would encourage organisations to contribute. In its report, the committee suggested that further work on those provisions was required ahead of stage 2. We note the Government’s very detailed response to our report—in a short turnaround—and I welcome the news that a waiver will not be given unless the body is a contributor to the scheme. We look forward to discussing those issues at stage 2 and seeing how we can develop them with the cabinet secretary, as he has indicated that he is willing to do.

The committee heard from many victim/survivors that a meaningful apology was a vital element of the redress scheme.

Eligibility for the scheme is another important area. Although the committee welcomes the aims of the bill, we heard concerns from victims/survivors and other stakeholders about aspects of eligibility criteria including qualifying dates and the definitions of relevant care settings and abuse. To qualify for a payment under the proposed redress scheme, a victim/survivor must have experienced abuse in a relevant care setting before 1 December 2004. In contrast, the Scottish child abuse inquiry can consider abuse that occurred up to 14 December 2014. We could see no justification for the disparity between those two dates and suggested that they should be aligned. We take on board the cabinet secretary’s comments in response to that and in the chamber today.

Some settings and circumstances are currently excluded from the definition of “relevant care setting” and we heard evidence on how that would affect eligibility for the scheme. While recognising that there was a need to clearly define the limits of the redress scheme, the committee believed that there should be scope for redress Scotland to be able to consider some cases on an exceptional basis and recommended that the Government should revisit the eligibility criteria and relevant care settings in the bill in advance of stage 2. We welcome the acknowledgement that Scotland placed some young people in care settings across the border and that that issue will be considered.

The bill clearly defines the kinds of abuse that can be considered under the scheme and stakeholders expressed concern at the apparent exclusion of corporal punishment from the definition of abuse, where it was considered lawful at the time. The concern was that that would deter some victims/survivors from applying to the scheme. The committee was grateful for the cabinet secretary’s clarification that there would be no blanket ban on including corporal punishment as a form of abuse and that, when assessing claims, corporal punishment would be considered in the full context in which it was used. I look forward to working with the cabinet secretary to understand how victims/survivors can be informed of that to the fullest possible extent, so that no one is excluded from applying to the scheme because they think that the abuse that they experienced would not be considered.

I also welcome the cabinet secretary’s comments on the levels in the scheme. Currently, the bill sets out two different kinds of payment that can be made to victims/survivors: a fixed-rate payment of £10,000 and individualised payments set at £20,000, £40,000 and £80,000. There were concerns that there were large gaps between the levels. It was unclear how that would be decided by the administrating panel and how fair that was. I welcome the Government’s willingness to consider those levels again before stage 2.

Redress Scotland will be a new non-departmental public body—an NDPB—which will administer the scheme, and decision making will be guided by an assessment framework. As I am running out of time, I hope that some of the other areas will be picked up by my committee colleagues—

The Deputy Presiding Officer

If you have more to say, just say it. We have time.

Clare Adamson

Okay, thank you. That is slightly unusual for you, Presiding Officer.

The Deputy Presiding Officer

Excuse me! I might get piqued by that and change my mind. No, I am too big a person to do that.

Clare Adamson

I am grateful, Presiding Officer, especially as it is a very important bill and we want to give due consideration to the other areas. However, I will conclude by saying that we welcome the efforts that have been made by the Scottish Government to work with victim/survivor communities to shape many aspects of the bill. We hope that that will continue as the bill progresses through stage 2.

We would also like to thank the bill team for its constructive engagement with the committee throughout stage 1. Although there are fundamental issues with the bill’s waiver provisions that we are unclear about, we absolutely support the bill’s principles. Therefore, on behalf of the Education and Skills Committee, I am pleased to commend the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill to the Parliament and recommend that they be agreed. Thank you.

The Deputy Presiding Officer

Thank you, convener. I call Jamie Greene to open for the Conservatives.

15:16  



Jamie Greene (West Scotland) (Con)

Thank you, Presiding Officer. I look forward to your generosity in equal measure to members on these benches.

The Deputy Presiding Officer

We do not want to set a trend.

Jamie Greene

The stark and sad reality is that there is little that we can do to fully compensate victims of abuse in care. Words, pounds, letters and payments are the physical manifestations of compensation schemes such as this. They are tokens of apology. They are an acceptance of our modern-day endeavours to right the wrongs of the past. However, no apology will ever right the wrongdoings of others, no legislation will bury memories of horrific abuse and no compensation scheme will replace traumatic memories of unhappy childhoods with happy ones.

Yet we have to start somewhere. That somewhere started in December 2004, when the then First Minister, Jack McConnell, told the Parliament:

“Now that we know what has happened, it falls to us, as representatives of the Scottish people, to acknowledge it.”—[Official Report, 1 December 2004; c 12389.]

Today, we do our bit here, by acknowledging that a redress scheme such as this has been a long time coming. It is an acceptance by the Government of the day that Governments of old failed thousands of young children in state care. The weight of that responsibility lies heavily on our shoulders—on the shoulders of the committee and of the cabinet secretary, who will guide the bill to completion before the Parliament dissolves.

At the end of that journey, it must be a bill that we are proud of. The journey will not be easy, because, as those who sit on the committee have learned, the subject is one of great sensitivity and debate, with uncomfortable substance. Despite our nuanced and differing approaches to the bill, I am pleased that we came to consensus. I record my thanks to my colleagues on the committee, the convener, her adviser and the clerks for putting together for the report.

Today we debate the key recommendations, which are based on the evidence that we took. Our biggest thanks must go to those who took the time to enable us to come to those conclusions: the survivors who spoke frankly and honestly with us. I cannot even begin to imagine what some of them have lived through. It still lives with them. As one survivor put it,

“Abuse never leaves a person. It is like a human shadow”.—[Official Report, Education and Skills Committee, 28 October 2020; c 29.]

The debate is for them. The bill is technical, with technical problems that will require technical solutions, but at its heart lie brave people.

I turn to those technical issues now, because although the committee endorses the general principles of the bill, it also raised a number of difficult issues that the Government must contend with. I welcome that the cabinet secretary has already indicated that he will give way on some of those issues. I hope that that is a sign of things to come. We acknowledge in the report, right from the outset, that the scheme will not cater for or work for everyone. It is intended to offer an alternative to civil court proceedings and an easier route to redress. However, that alternative must be fair and affordable. The scheme has limitations, and we must be honest with people about what they are.

There are also flaws and assumptions that we think require revisiting. The first of those is the waiver, which is the biggest of those hurdles and the most contentious area of the bill. There remain large differences between its intended purpose and the reality of what its presence in the scheme would mean. Absolutely nobody had anything positive to say about the waiver, which should serve as a warning to us as we go through the bill process. In the committee, I said from the beginning that I would like to give the Government the benefit of the doubt on the issue, but I will be honest and say that I do not think that evidence in favour of a waiver has been strongly given—a conclusion that I came to reluctantly.

We also talked about what is fair and meaningful, and the words themselves provide a clue here; the bill must be fair and meaningful. The concerns about the waiver, for example, would potentially discourage some survivors from applying because it could prevent them from opting in to civil litigation in future. Many have expressed discomfort and have said they might feel compelled to sign the waiver because of their current financial hardship.

Such victims need to be fully aware of the implications of their decision, and that leads on to what is fair and meaningful. The point of the waiver is apparently to encourage participation, but we heard openly and directly from organisations that are potential contributors that they would not recommend to the trustees of their respective charities participation in the scheme as proposed. That is not because they do not want to participate but because they feel that the open-ended nature of participation and the large sums of money being asked of them would entirely jeopardise their abilities as current, on-going concerns. Nobody wants that—not least the survivors.

That, plus the absence of ensured participation, means that it is likely that organisations will need to meet the commitments in the scheme through their own funds—their working capital. That will provide a disincentive to participate. I think that the organisations want to do the right thing; the ones that I have spoken to absolutely do. They feel the moral obligation that we know exists. However, those contributions must be fair, and not least, fair to the users of existing services, which is why the concept of sustainability that the committee talked about is so important and must be taken into account.

I must also touch on the difficult issue of money, which is not an easy subject when we talk about abuse, but we must give clarity on it. The Government has already said that it will cover compensation up to £10,000 per application, which covers the lowest level with the lowest evidential threshold, but that could result in public funds having an open-ended liability and covering massive proportions of the payments, even with contributions.

John Swinney

I am grateful to Mr Greene for giving way. He has just made the point that contributions are necessary to limit the impact on the public purse. That is one of the arguments that I would marshall as to why the waiver is important: to elicit those contributions in the first place. I ask Jamie Greene to consider the relationship between the concept of contributions from providers and the necessity of providing a waiver in a fashion that gets those contributions but restricts liability on providers. That was the point of the intervention that Jamie Greene made on me earlier in the debate. There is a relationship between the two that I invite him to reflect on.

Jamie Greene

I understand and accept that relationship. We all want maximum participation in the scheme for the benefit of everyone: contributing organisations, the taxpayer and so on. We must make the pot as large as it can be, but there has been no evidence—the committee took none—of the link between the concept of the waiver and participation. The real problem for the contributing organisations was the open-ended liability that would be placed upon them. The sums of money that they would have to pay up front have not been quantified to the committee, but those huge sums of money would come out of organisations’ working cash reserves and would directly affect their abilities to be on-going concerns. It was nothing to do with the waiver. I do not make that link in the way that the cabinet secretary does.

There is a conundrum there that needs to be resolved. Linked to that are the payment levels, which create a hierarchy of abuse. That makes some people incredibly uneasy, but is it necessary to compensate at higher levels with higher evidence thresholds? Again, the Government will have to contend with that. I do not think that the pound and pence value needs to be in the bill, because value changes over time, and I hope that the cabinet secretary will reflect on that.

I have limited time, but there are two other areas that I want to briefly touch on. One is the application process and who can apply. We want a survivor-centric approach to be at the heart of the bill’s operation. This must be an easy-to-navigate, inclusive process. That leads me to an important discussion about who should be eligible to apply to the scheme. There is a serious moral question about whether making a payment from the public purse to someone who has been convicted of the most heinous acts of violence, sexual violence or harm to children is fair or in the public interest. The committee rightly recognises that some offending behaviours can be rooted in trauma caused by abuse. Any survivor of abuse should therefore be eligible to participate in the scheme, but the bill itself cannot be the moral arbiter. My view is that it is right and fair that the awarding panel should make those decisions based on clear guidance and parameters and on individual evidence. That is a fair compromise, and one on which the committee reached consensus.

The final issue is that of an apology. “Sorry” is the hardest word, but an apology will go a long way. Helen Holland told the committee that, for some victims,

“an apology is the most sacred thing that could come out of this”.—[Official Report, Education and Skills Committee, 28 October 2020; c 10.]

Some victims even said that they would forgo money in favour of an apology.

There are other ways to support victims. The committee encourages those. We also encourage the Government to look at other countries’ schemes and I hope that the cabinet secretary will reflect on those asks.

This is a short debate on a big report. I end knowing that those who engaged with the committee have done themselves proud. It is not an easy bill. There is debate about what should be included in it and there are warnings from all sides about possible barriers to participation. There is much work to do: the cabinet secretary and the Government have a difficult task ahead of them.

My offer is that Conservative members are open to discussion, debate and amendment. We will go into stages 2 and 3 constructively. We will work across parties, with the Government, stakeholders and, not least, with survivors. We all want this to work, because it must. The work of the committee will continue, but the word of apology must now be translated into action.

The Deputy Presiding Officer

There is some time in hand. Members may expand a little in this sensitive and important debate.

15:26  



Iain Gray (East Lothian) (Lab)

Today has been a long time coming: too long in many ways. It is the latest, and perhaps last, link in a chain of recognition, regret and now, hopefully, redress—as far as that is possible.

We are once again called on to face up to and acknowledge our collective guilt regarding one of the darkest and most shameful chapters in our recent past. The most vulnerable of children were taken into our care, looking to us for love and nurture, only to face abuse—sometimes for years on end—while we looked the other way.

The process of facing up to what was allowed to happen, and to the lifelong consequences that that has had for so many survivors, has taken us from Jack McConnell’s apology 16 years ago, as referred to by Jamie Greene, through to the agreement to a public inquiry, the removal of the time bar and the creation of the advance payment scheme, and we have now come a bill that will provide redress to survivors and their families.

None of that would have happened without the determination of survivors themselves, who had the courage to relive their abuse by speaking out and the persistence to make themselves heard at last.

Governments and ministers of all parties, including mine, were too slow to listen and respond. So, we should take the opportunity to add our apologies to that given by the Deputy First Minister. We are sorry that the abuse was ever allowed to happen, that survivors were not listened to or believed for so long and that we have been so slow to act.

However, we are here today and I give Mr Swinney credit for that. Since he took on this responsibility, he has delivered the inquiry, the advance payments scheme and now the bill. His desire to get this done at last is clear and sincere.

What must we do to get the bill right? Above all, it must create a scheme that survivors believe is fair and in which they can have confidence. They must know that they will be believed as part of a process that, unlike civil or criminal justice proceedings, is not confrontational.

Survivors want to see both the state and the organisations in whose care they were abused make a contribution to their redress.

To achieve all that, there are some difficult circles to be squared, but square them we must. Although the bill sets out to achieve all that, the committee was clear that some changes are required. I am pleased to see from the Government’s response that it accepts that in a number of areas.

First, the overall level of payment and the proposed bands need to be reconsidered. The bands are too far apart, particularly the jump from £40,000 to £80,000, which is too big a jump. However, it was also clear from the evidence that survivors feel that the maximum payment is not enough, especially when they look at other schemes, such as that in Ireland. This is not really about the money, of course, but about the seriousness with which we take the matter now. As I have said, I believe that the Deputy First Minister is serious about it, so I am sure that he will consider the payment aspect again.

Secondly, the burden of proof that will be required is critical to the success of the scheme. It must be enough to provide confidence for survivors and contributors but not be so burdensome as to be simply a civil court by a different name or to discourage applications. The committee understood how difficult that is, but we felt that more clarity was required.

However, it is on the question of the waiver that perhaps the bill will succeed or fail. The evidence of survivors was clear. They see the requirement to give up their right to civil justice to benefit from the redress scheme as an abrogation of their rights that would compromise their confidence in the scheme. Their concerns were echoed by those who support survivors and, indeed, those who represent them, including the Faculty of Advocates. All recommended some form of offsetting and all opposed the waiver.

The committee report reflects that and, appropriately, does so in a way that tries to offer the Deputy First Minister the space to respond. However, I want to be clear. Our view is that the waiver compromises the integrity of the bill. It cannot stand; it must go. That is not a party-political position; indeed, I think that it is shared across the Parliament.

The Deputy First Minister has explained that the waiver is there to incentivise contributions from care providers, and it is true that survivors want those contributions. However, the evidence heard by the committee was that the waiver will not work as an incentive. Some providers expressed initial support for the waiver, but as scrutiny proceeded, it became clear that because their insurers are unlikely to support their contributions to the scheme—although they would support them in legal action were they engaged in it—the waiver was no incentive. In fact, arguably, it is a disincentive to the organisations to take part in the scheme.

John Swinney

I understand the argument that Mr Gray is marshalling. However, the waiver point is critical, because it hinges on the question of how we enable contributions to be made to the scheme by providers. That is the question that we are all trying to answer. In the judgment that I have come to, the point that Mr Gray makes about the relationship to insurers is adequately dealt with if the waiver is there, because it provides an alternative to court action. In marshalling his argument, Mr Gray acknowledged that an insurer might stand behind a provider in a court action. What I am trying to do with the bill is to find a means whereby the insurer will stand behind the provider for the alternative route. Without that, I cannot see how we elicit the contributions that we all want to see made by providers to a scheme of this type.

Iain Gray

I take the point and I appreciate that that is the Deputy First Minister’s intention. However, all the evidence that we heard from providers and, indeed, from the Association of British Insurers was that insurers would not stand behind providers in making contributions to the redress scheme. That is partly because of the level of contestability of the evidence given in the scheme. However, we cannot compromise that because we want the scheme to be easy, or as easy as possible. We do need an incentive, though, and we need the contributions.

Providers also told us that the calculation of contribution that was being developed and the requirement for future unspecified contributions once in the scheme meant that their participation would jeopardise their continued existence and that trustees would not be able in law to agree to participate.

Providers are saying that they will be unlikely to be able to participate with the waiver in place. I think that the incentive that they need is a contribution formula that takes account of affordability, sustainability and the legal position of their trustees. I agree with Jamie Greene—they are not looking for a way out of the scheme; they are looking for a way into it, because they accept that they have a moral responsibility to take part in it.

The danger that we face is having a scheme that asks survivors to give up their rights to justice but fails to attract the contributions from providers that survivors want. That is the circle that must be squared. That is not easy, but my concern is that the Deputy First Minster’s response—in his letter to the committee and today—shows that he is still not seized of the need to find an alternative to the waiver or to change the contribution scheme.

I ask him to do that now, because time is so short, and if we are to get it right, he and his officials need to be working now with stakeholders to introduce those changes.

I will be honest: if need be, we will consider introducing amendments at stage 2 to remove the waiver and establish the principle of affordability in contributions. However, it would be much better if the Government were to start on that work immediately and do that itself.

Time is short. It has taken so long to get here, and we all want to get to the same place, so let us get it right. That is what we all want.

15:36  



Ross Greer (West Scotland) (Green)

The introduction and the passage of the bill were always going to be a painful experience for many survivors. I pay tribute to the survivor groups and individuals who have fought so hard and for so long to bring us to this point, and to those who have shared their experiences and relived their trauma in the process of explaining why redress is necessary. Their bravery and dignity over many years has been astonishing, and their contribution to the Education and Skills Committee’s scrutiny of the bill has had a profound impact on the conclusions that we have arrived at collectively and individually.

We all support the general principles of the bill, and we all acknowledge that survivors deserve redress for the abuse that they suffered. It is the responsibility of the state to ensure that that redress is delivered. However, the clearest message received during the committee’s scrutiny—from survivors, lawyers and the organisations that would be expected to participate in the scheme—is that the model that is proposed in the bill simply would not achieve its intended goals.

The committee’s recommendations for change are extensive, covering almost every section of the bill. I will pick up just a couple of those, the first of which is the proposed waiver, which others have already mentioned and which I expect will be discussed extensively this afternoon.

The waiver is the most contentious provision in the bill, particularly for survivors. Many survivors are understandably extremely distrustful of the state and other authorities. To be blunt, they see the waiver as a way to silence them. Organisations that are likely to be involved in the scheme certainly do not all appear to support the waiver either, although that is for different reasons.

The argument for the waiver is based in part on the premise that organisations and insurers will not pay out without it, but the committee did not consider that the evidence submitted supported that claim, as Iain Gray has highlighted.

The technical argument about whether a waiver would allow organisations to contribute fully to the scheme is a secondary one. The primary reason to oppose the inclusion of the waiver is that it violates the right of survivors to pursue justice at a later date. It is extremely common in cases of abuse for an individual to have insufficient evidence of their abuse to pursue civil action, only for that evidence to later emerge through others coming forward or records being found.

If a survivor were to take financial redress through the scheme, because sufficient evidence was not available to them at the time, but that evidence was to emerge later, they should not be restricted from then pursuing action.

The committee does not support the waiver, and I struggle to see how the bill could achieve majority support at its final stage if it were to remain. That would be a source of profound regret.

The bill also contains provisions for a survivor’s next of kin to apply for and receive the payment, provided that the survivor made a statement prior to their death that they suffered abuse. The Greens certainly welcome that, but the bill proposes an odd hierarchy for the next of kin. By default, the next of kin are the spouse or the civil partner of a survivor, and after them, it is the survivor’s children, which is relatively normal. The exception to that in the bill is for cohabiting partners. A cohabitant must have lived with a survivor for at least six months to be eligible ahead of a spouse. That would indicate de facto separation. There is no time period required for the cohabitant to come ahead of the survivor’s children. The moment that the cohabitant moves in, they come ahead of the children. That is inconsistent and it could cause unnecessary conflict. I am grateful that the committee agreed and recommended that the six-month cohabiting requirement should apply before a cohabitant is eligible ahead of a survivor’s children, equalising that with the position for a spouse or civil partner.

The final issue is one about which I harbour a personal concern, although Jamie Greene also partly raised it earlier. Although my concern was shared by other committee members, it was not quite a feature of the report. It is about the viability of delivering a just system of tiered payments. The committee made a number of recommendations on payment levels, but I would like to go a bit further and question whether the system should be tiered at all. Although we might all recognise that, however uncomfortable it sounds, some abuse is of such severity that a larger financial payment might seem appropriate, I struggle to see how that can be codified in such a manner that it would not result in a great deal of upset and even further trauma for some survivors. Any tiered system would unavoidably create a hierarchy of abuse, as Jamie Greene said.

The survivors who have spoken to me—people whose experience of abuse was very different, as they would collectively recognise—do not support such a system. They would prefer to see a system of flat payments. Not only would that avoid the morally questionable creation of such a hierarchy of abuse; it would dramatically simplify the system. I am inclined to agree with such a position.

I recognise that there will be a diversity of opinion among individual survivors and different survivors groups. I can speak only for those who came forward to engage with me during the process—people who had different experiences of abuse, but who collectively agreed that a flat payment system would be the most effective way of ensuring a just form of redress for them all.

As with the waiver, I came to agree with that position for practical and ethical reasons. We all want the scheme to work. I have no doubt that the Government and the cabinet secretary are committed to that. However, as I said, the bill will require substantial changes if the cabinet secretary is to be confident that it will command the support of Parliament and, more importantly, that it will have the confidence of survivors and provide them with the redress that they deserve.

15:42  



Beatrice Wishart (Shetland Islands) (LD)

I, too, am pleased to be speaking in the stage 1 debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill; the bill has been described as technical, but it is also complex.

At its heart, the bill is about vulnerable children who were abused while in residential care settings and who have had to live with the consequences of that abuse. I thank all the victims/survivors who engaged with and gave evidence to the committee, either in person or by writing to us. As other members have done, I add my thanks to the unseen but important committee support team that has enabled us to reach this stage.

I also thank colleagues on the Education and Skills Committee and convener Clare Adamson for her leadership. The committee worked in a spirit of co-operation with the aim of meeting the needs of victims/survivors, and ensuring that it did so with dignity, respect and compassion. The responsibility weighs heavily on me, as I am sure it weighs on all of us.

The bill aims for a trauma-informed, non-adversarial process that acknowledges the abuse and provides redress through a fast financial payment. It should be noted that, for some victims/survivors, meaningful and individual non-financial redress is as important—perhaps more important in some cases—as receiving any payment.

As we have heard this afternoon, there are continuing concerns about the waiver in the bill. The Scottish Government has suggested that the waiver is necessary to incentivise contributions to the redress fund from organisations that were responsible for the care of children, but the evidence from some care providers and survivors indicates that it will not function in the way that the Government intends. By signing a waiver, survivors will give up the right to pursue civil justice. As the stage 1 report indicates, the evidence heard by the committee from the victims/survivors is that the waiver would restrict their choices and should be removed.

The cabinet secretary has suggested that no other redress scheme anywhere in the world has been identified in which providers make contributions but receive no waiver. That is not a reason not to establish an alternative method that is suitable for this redress scheme. The Scottish Human Rights Commission suggested a different approach by proposing an offsetting option rather than a waiver.

It is clear that survivors do not seek double payments by accessing both the redress scheme and civil action. Obviously, that would not be equitable. In the written evidence that she provided to the committee, Dr Maeve O’Rourke from the National University of Ireland Galway stated:

“In forcing survivors to choose between a guaranteed financial payment and accountability, the waiver arguably emits a message to survivors themselves and to the general public about survivors that they are interested in money above all else. This is simply untrue and degrading to survivors.”

I remain unconvinced that the waiver scheme is appropriate. In fact, it goes against natural justice and it will not work.

Beyond the waiver, views differed about the payment levels and tension exists in relation to institutions and their financial contributions. Institutions and charities want to contribute and they are committed to the survivors and the important process of national healing and reconciliation. However, some have said that they cannot sign up to an open-ended chequebook and the estimated figures.

The modelling of the overall cost of £408 million is on the basis of 11,000 payments to victims/survivors, with a further 1,000 payments to next of kin. It is in nobody’s interests to lose institutions or charities that are carrying out good work now because contributions for past wrongs become unsustainable. Financial risk has to be managed and charity law has a role to play in that, too.

Viv Dickenson of the Church of Scotland social care council said that the level of contributions being asked for was predicated on contributions being backed up by insurance. That may be a dangerous assumption to make. Charities have said that they do not have spare cash lying around. The scheme has value only if it works. There needs to be clarity about what institutions are being asked to contribute and about the process, if it is to be affordable for them.

Another issue that must be ironed out is the qualifying age. The qualifying age for the advance payment scheme was 70 years old; it has been brought down to 68, but a written submission asked for it to be reduced to the state pension age.

Finally, the bill must be properly trauma informed. In that light, the way in which the scheme deals with applicants with criminal convictions must reflect what we know about the impact of adverse childhood experiences. Some evidence has shown that those with significant ACEs can be 20 times more likely to be incarcerated at some point in their lives. The scheme cannot be ignorant of the relationship between its subject and the impact of that trauma.

There is work to be done, but today I and the other Scottish Liberal Democrats are happy to support the principles of the bill.

The Deputy Presiding Officer (Linda Fabiani)

Before we move to the open debate, I remind members that, if they are taking part in the debate, they should be in for all the opening speeches and that, even if previous business finishes earlier than expected, business items run on one from the other.

We have a little time in hand, so I can give a bit of space for interventions. Speeches can be up to six minutes long.

15:49  



Kenneth Gibson (Cunninghame North) (SNP)

As we know—and to our collective shame—over several generations, many Scottish children who were placed in the care of organisations or boarded out by the state were victims of widespread, serious, systemic and societal failings. Those trusted organisations badly let down many of our most vulnerable children in their basic duty of care.

Because of the systemic nature of the abuse and the lack of accountability, survivors were betrayed by those who should have protected them. The Scottish Government has a moral obligation to those children, who are now in their adulthood. The bill aims to fulfil that responsibility by attempting to address, in modest financial terms, the damage that was caused to survivors of historical child abuse in Scottish care institutions.

The committee heard a range of views from stakeholders regarding the value at which recompense should be set. The bill currently sets out two types of payment under the scheme: a fixed payment of £10,000 and individualised payments dependent on the scale of the abuse experienced. Those are dependent on the provision of evidence and are set at £20,000, £40,000 and £80,000.

The committee heard concerns from survivors that those sums are significantly lower than could be gained through civil litigation. That is designed to reflect the fact that the scheme will have lower evidential requirements than courts have. However, the proposed payments are considerably lower than those for similar schemes in other countries. The £10,000 fixed-rate payment was particularly unpopular among survivors. My view is that the gap between where evidence is required and where it is not is too narrow, given the need to provide evidence for an increase just from £10,000 to £20,000.

It is vital that we remain open to considering the appropriateness of all levels as the bill proceeds. Some stakeholders suggested that, rather than have set amounts, the panel should have powers to make payments within bandings. The broad levels in the bill create uncomfortable lines, and survivors with very similar experiences might fall either side of those. One survivor could conceivably receive £40,000 less than another because they spent one month less, or even one week less, in care.

However, there are also difficulties with wholly individualised sums. As the bill’s policy memorandum states, there is a risk that that would

“further individualise payments and distinguish the experiences of survivors”.

Different levels allow for different payments without necessitating overly detailed and highly individualised assessments.

It is not easy to create an assessment framework that avoids a so-called hierarchy of abuse and recognises that some experiences may have been more severe than others. Nevertheless, there might be scope to retain levels as envisaged in the bill while making the differences between them less stark. The decision on that must be reached in consultation with stakeholders to ensure that an appropriate balance is struck. As much detail as possible must be provided to make the process as transparent as possible.

The on-going Scottish child abuse inquiry seeks to understand the scope of the abuse of children in care and is investigating the type of abuse, the effects on children and their families and the extent to which organisations failed in their duty of care. The inquiry is also examining whether legislative changes are necessary to protect children who are currently in care.

To encourage organisations to contribute to the scheme, the bill states that those who make a fair and meaningful contribution will benefit from a waiver. We have heard extensively about that particularly contentious issue. The committee heard that the waiver is unpopular with survivors, as many view it as restricting their right to pursue future civil litigation. For many survivors, acknowledgement of culpability is as important as financial redress. As Jamie Greene said, for some people, an apology is worth more even than the money.

The issue of a waiver is emotive, so we must take into account the views of survivors. Above all, we have to recognise the role that must be played in the scheme by the organisations that ran the institutions where abuse took place. However we proceed, maximising care providers’ participation is a pivotal part of ensuring meaningful redress.

It would not be appropriate for applicants for redress to have to contribute to associated legal fees, and nor is that expected. However, legal fees are an important consideration when assessing the cost of redress, and a cap on the legal fees paid by the Scottish Government is necessary. Other redress schemes—for example, that in Ireland—found that the overall cost escalated due to spiralling fees. By 31 December 2015, the Irish Residential Institutions Redress Board had approved fees of €192.9 million to 991 legal firms, with 17 paid between €1 million and €5 million each and seven paid between €5 million and €19 million each. That was certainly an unanticipated aspect of the scheme and an example from which we can learn. By ensuring that fees are subject to an appropriate cap, we can ensure that the money in the scheme goes where it should go: to survivors of historical abuse.

Currently, the scheme is intended to redress abuse that took place before 1 December 2004, which was when the then First Minister, Jack McConnell, issued an apology on behalf of the Scottish Government to victims and survivors of historical abuse in care. That acknowledgement is often considered to be Scotland’s first step in coming to terms with systemic abuse in its institutions. However, the evidence suggested that the date should be reconsidered. Abuse in care did not end on 1 December 2004.

The inquiry can consider abuse that took place up to 14 December 2014. The committee heard in evidence that the qualifying date for redress payments should be aligned with that date. As the bill stands, survivors of abuse in care that happened between 1 December 2004 and 14 December 2014 could contribute to the inquiry but would not be eligible for redress.

The bill also permits a survivor’s next of kin to apply on their behalf after their death, provided that the death was after 17 November 2016. I am pleased that the cabinet secretary has said that that date will be changed to 1 December 2004. While partners and spouses can claim redress, the children of survivors should also be considered, in line with existing Scots law.

Scotland’s reckoning with our legacy of historical child abuse has been a long process, and we are by no means nearing the end of that journey. That said, the bill is vital for demonstrating Scotland’s commitment to delivering justice for survivors. We have listened carefully to their experiences and heard the lessons of previous redress schemes, and we must continue to do so as the bill progresses. If we do, we can create a bill that will work for Scotland’s survivors, who were let down so badly.

I know that the cabinet secretary will give further consideration to improving the bill, and I am pleased to support it at stage 1 today.

15:55  



Oliver Mundell (Dumfriesshire) (Con)

I am pleased to follow a number of thoughtful speeches.

I start by making it clear that, for victims and survivors, no amount of money nor any apology can take away or make good what has happened to them. Although, as others do, I believe that the bill is right and necessary, we must never fall into the trap of believing that we are somehow righting any wrongs or doing something good to make up for the actions of others.

For a start, despite the Deputy First Minister’s significant efforts on the issue, which Iain Gray rightly referenced, we have collectively come to the matter far too late, so—as the Deputy First Minister acknowledged—some people have not lived to see the legislation coming before Parliament. I could fill many speeches with the how, when, where and why of what has gone wrong over the years, but I would rather focus in the time that is available on a few practical concerns that relate to the bill.

First, I will raise two general points, then highlight a specific constituency example that has come to my attention that shows why those points are important, and which continues to give me cause for concern when I look at the bill.

I know that the cabinet secretary takes very seriously his responsibility for making the bill as robust and effective as possible, and I know that he has responded at length to the committee’s report. I know that he cannot please or help everyone, and I know that that fact will weigh heavily on him. However, from the point of view of expectation management and in the interests of clarity, I think that it is important that we understand the limitations of the proposed scheme and how it will work in practice.

The first issue that I want to understand better is the evidential threshold that will be required and the principles that will guide that. I note that the cabinet secretary has said that the tests that will be used will be lower than those for civil proceedings, but I am not clear what that will mean in practice. I would like to be included in the bill a provision that would put in place a presumption throughout the process that the people who come forward will be telling the truth. That sounds obvious, and it is the position that everyone here starts from, but I think that including that in the bill would be symbolic and would help the scheme in the future.

I also think that it is important that the process should recognise where individuals have made all reasonable endeavours and have exhausted inquiries when trying to produce evidence. I hope that that will be a factor that can be taken into account when decisions are made about whether, and at what level, to make an award.

The second issue on which further clarity is needed is the related issue of how the quality and availability of evidence will interact with the different levels of payment. Ross Greer made a number of important points on that. Evidence could become available at a later stage, after people might have signed a waiver, and if they had had that evidence at the time, they might have been eligible for a different award.

There is a more fundamental challenge. I find it very difficult even to say that there are different levels of harm. However, as a Parliament, we must recognise that that is an existing concept in the Scottish legal system; in many difficult areas, it is already accepted that there are different levels of harm. It is right to recognise that people who have experienced very serious abuse might legitimately expect the system to take that into account—albeit that I would not like to try to work out where the different thresholds should sit.

We really need to understand what evidence will be required and how the testimony of individuals who come forward will be looked at. I, for one, do not want people to be taken through a process that asks them to set out a great deal of detail, which will often be difficult and personal to them, only for them to be knocked back from a higher payment. Again, I would be grateful if the cabinet secretary could say more about that, so that I can understand his thinking on it.

Partly to illustrate the points that I have just made, I will highlight a constituency example. Over a number of years, the local authority that my constituency is in was in the habit of paying bursaries for young people to attend St Joseph’s college. I am aware of individuals who can prove that they were there because they have photos and certificates, and former teachers remember them. Those teachers also remember or believe that those individuals were on bursaries. It is well known and accepted that the bursaries were a common practice that the council adopted at the time.

Some of these individuals were abused—or, rather, some individuals who attended the school were abused; I do not want to mix up the two. However, those individuals cannot show that they were in receipt of a bursary, because the records no longer exist. My problem is that, when I look at the criteria that are set out for the redress scheme, I cannot be sure whether those individuals will be successful in seeking redress and, if they are successful, at what level. That illustrates how complicated the scheme is, and it is why it is so important that we understand what the evidential thresholds will be, what people will need to prove and when they will simply be taken at their word.

16:01  



Rona Mackay (Strathkelvin and Bearsden) (SNP)

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill has been shaped and is owned by the many people who suffered abuse by people who were supposed to be caring for them.

In 2004, former First Minister Jack McConnell apologised on behalf of the Scottish people, and in 2018 the Deputy First Minister, John Swinney, apologised on behalf of the Scottish Government. The bill is the next step on that journey for the many survivors who are haunted by those terrible experiences. Money alone could never erase the memories and hurt, but for some people, whose life chances have been severely affected by what happened to them, it is a tangible way for society to say that it is sorry.

I, too, thank the many survivors who bravely gave evidence to the Education and Skills Committee. It was not an easy thing for them to do, but their views have been invaluable in shaping the bill, which is their bill.

Of course, not all survivors will want to take the route that is set out in the bill. That is understandable and it is their right. However, for some survivors, it just might make a difference in helping them to get on with their lives. The organisations that failed them will be asked to make fair and meaningful contributions: to me, that seems to be entirely right.

The bill is complex and the committee struggled with many aspects during its scrutiny. As the convener outlined, we have sought to ensure that our recommendations reflect the desire that victims/survivors be treated with dignity, respect and compassion. That is the least that we can do.

The bill will allow applicants to choose whether to apply for a fixed-rate redress payment of £10,000 or an individually assessed redress payment of £20,000, £40,000 or £80,000. An independent non-departmental public body—redress Scotland—will make the decisions on applications for financial redress.

The most contested element of the bill is the waiver that would mean that a person who chooses the redress scheme would be unable also to choose civil litigation. The waiver would allow survivors to access justice without the implications of taking court action, and to receive compensation from the organisation that was responsible for the abuse. It would mean that the survivor would choose the path that they take. They would have a choice.

However, the overwhelming view that victims/survivors conveyed to the committee was that the waiver would restrict their choices, so it should be removed. The committee also spoke to many care providers at stage 1 and heard no evidence to suggest that the waiver would incentivise them to participate in the redress scheme. To be clear, I note that a survivor would not have to waive their right to pursue litigation where a provider did not contribute. The waiver would apply only where organisations made a fair and meaningful contribution. The committee has determined that the waiver provision as drafted would not function in the way that the Scottish Government hopes.

There are issues about the sustainability of charities and organisations and about restricted funds, and there is doubt about whether insurers would pay out in relation to the scheme. I am pleased that the Government has committed to considering that aspect before stage 2.

The time period around the waiver is also a problem, but the Government has listened to the evidence that was taken by the committee and will lodge amendments at stage 2 to increase the 12-week extension period to six months, and the four-week review request period to eight weeks.

There is also an issue with survivors who are more than 70 years of age whose records have been destroyed and who therefore cannot access redress. I hope that that can be considered before stage 2.

Another crucial issue is relevant care settings, and the disappointment that was expressed by some survivors that their abuse will not be recognised because they were placed in a care setting by a parent or guardian. Many children found themselves in care due to having a disability, through a scholarship or for religious reasons. Their abuse was no less than that which was suffered by children who were placed in care by the state. However, the Government believes that if the eligibility criteria are open ended, that could undermine the scheme, and it is content that there is

“an appropriate limit to set.”

I am pleased that there is, however, some flexibility in the regulation-making power, should the position change.

I turn to the definition of abuse. The Government decided that an exhaustive, rather than inclusive, definition was better for legal certainty, but it conceded that an amendment to align it with previous legislation would be considered. In addition, the ongoing drafting of the assessment framework will reflect the evidence that was heard at stage 1. In that regard, corporal punishment that was legal at the time when it took place, for example, would be considered to be abuse if it was excessive. That is the right course of action.

The issue of cross-border placements will also be addressed in an amendment at stage 2.

Qualifying dates for the scheme are contentious, so the Government has committed to considering its position on them in advance of stage 2.

Evidential thresholds and payment level thresholds are matters on which there are strong views. As others have said, this is a very sensitive area in which it is important to avoid a hierarchy of abuse. How could we say what level of cruelty traumatised one person more than it did another? It is certainly not for the committee to recommend payment bands, but we believe that the assessment framework is integral to the scheme. I am pleased the Government has committed to looking at the issue and to adopting flexibility where necessary.

The bill deals with issues that are understandably sensitive and complex; those that I have highlighted are just some of many that were considered during scrutiny. I am extremely pleased that all the issues that were highlighted by the committee are being carefully considered by the Government. I am also encouraged that every part of the process, should a survivor take the redress route, will be led by trauma-informed practitioners, and that wellbeing support will be available for survivors.

People who have not been abused as a child will never know the lifetime of trauma that it causes survivors. A meaningful apology might make a huge difference. The redress scheme is not a magic bullet, but it offers something tangible—it offers choice to survivors.

I will be pleased to agree to the bill’s general principles at decision time.

16:08  



Jackie Baillie (Dumbarton) (Lab)

I thank the Scottish Government and the Education and Skills Committee for their work on the bill, and I thank all the survivors who helped to shape it.

The bill is incredibly important and significant, because the provisions that it seeks to create for survivors of child abuse have been a long time coming. For many survivors, providing redress signifies a step forward in their on-going recovery. The redress payment signifies far more than just the giving and receiving of compensation. It represents the justice that survivors have been seeking for decades.

Since I was first elected as MSP for Dumbarton, back in 1999—I was young then, Presiding Officer—I have been working with an incredibly brave woman, who has already been mentioned in the chamber today, called Helen Holland. Helen is a constituent of mine who, throughout the 1960s and 1970s, faced unimaginable abuse and neglect at the hands of nuns and other care workers at Nazareth house in Kilmarnock. The stories that Helen has shared over the years about her time in care are harrowing, and she still suffers the lasting effects of her experiences each and every day. For many survivors, simple daily tasks are difficult, and some are still affected by the deep trauma of their past. Over the past 20 years, Helen has spent her time fighting to ensure that no child in care ever goes through what she and so many others did.

In 2000, Helen worked with others to found INCAS, which supports survivors of in-care abuse. The organisation was set up because there was nowhere that survivors could turn to for practical support and help at the time. More than 120 survivors went to INCAS’s first gathering. Since then, the organisation has grown and grown, and it continues to provide support and therapy for people who are still struggling to cope. It also campaigns for justice for survivors. It has been at the forefront of the fight for redress, and its continued efforts will result in many survivors receiving long-overdue justice and recognition.

When I spoke to Helen a couple of days ago about today’s debate, she told me that, although the bill is very welcome, amendments are needed if it is to truly support survivors. Therefore, I welcome the cabinet secretary’s indication that he is listening and willing to lodge amendments.

As Iain Gray has already explained, the waiver in the bill presents a number of problems. By signing the waiver, survivors would be agreeing not to start or continue any civil legal action on their abuse against the Scottish Government or, indeed, any other care provider. I understand that the Scottish Government is trying to incentivise care provider participation, but the waiver as it stands perhaps does the opposite of what we want it to do. It is wrong to deny survivors an informed choice. Surely that could be easily resolved if the bill was amended so that the courts were directed to deduct from any future damages awarded the amount already paid to the survivor by the Scottish Government or the relevant care provider.

Many survivors simply cannot cope with going to court and being forced to relive their unbearable levels of suffering. Because of the historical nature of the abuse, many survivors are now elderly and have long-term mental health problems; indeed, some of them have terminal illnesses. It is right that they should receive a redress payment while they are still able to do so, but it is not right that they should be forced to sign away their right to pursue the matter in the courts. Allowing survivors to seek informed advice from a legal representative on any future action that they may wish to take is probably the most straightforward and obvious way of ensuring that justice is truly served for them.

The second area of concern that Helen raised with me is the payment amounts that are set out in the bill. Helen and, indeed, all the survivors whom I have met will say that it is not about the money. No amount of money will ever be adequate compensation for what they went through, but there are significant inconsistencies between the maximum amount that Scottish survivors can receive and the amount that Irish survivors, for example, receive. They are different countries with different legislative systems, but abuse is abuse, and abuse should not be of less importance because of the country, especially if the abusers were the same people.

Helen told me about two sisters. One was sent to a home in Ireland and the other went to a home in Scotland. Both were in Nazareth house homes, and they were abused by the same individual over a number of years. However, the sister in Ireland has received 200 per cent more in compensation than the sister in Scotland is likely to receive. That is because the block payments in Ireland range from €50,000 to €350,000, whereas the range in Scotland starts at £10,000 and rises to a maximum of £80,000. Given that the only difference in many cases is the country in which the child was abused, it is vital that more consistency is created in the amounts that are paid out.

As we have heard from colleagues in the chamber, there is also an issue to do with the structure of the block payments. The payments, which are set in blocks of £10,000, £20,000, £40,000 and £80,000, are decided according to the severity of the case. However, as others have said, the level of proof that is required is not clear, and there appears to be no flexibility in the level of award. That is unfortunate, and I hope that it will be addressed at stage 2.

It is 21 years since I met Helen Holland. It has taken a very long time to get to this stage. As Iain Gray said, there was an apology to survivors from Jack McConnell in 2004. We have had the removal of the time bar and the public inquiry, but it would be another 16 years before a redress scheme was before the Parliament. Today is very welcome, and I commend John Swinney for his efforts in ensuring that that has happened. It is time for justice for survivors, and I urge support for the bill.

16:14  



Alex Neil (Airdrie and Shotts) (SNP)

I very much welcome the bill. As other members have said—in particular, people such as Jackie Baillie and I, who have been in the Parliament since day 1—we have lessons to learn for the future. The bill should have come to the Parliament many years ago—probably 20 years ago—rather than now.

However, we now have the bill at long last. As a Parliament, we have two duties to survivors. The first is to make sure that the bill is enacted as legislation and gets royal assent before the election next year. We cannot afford to delay any longer and we need to do all that we can to get it right. This is not a party-political issue. We all accept that it is a good bill, but we—and that includes John Swinney—also accept that there are one or two areas where we can improve it to make it an even better bill, which we should do over the next couple of months.

Like others, I will start with the waiver. The first thing to understand is that the waiver is the totemic issue for survivors. Survivors are not happy with it, because whether the law says so or not, they are of the view that it undermines their human rights. With the horrendous experiences that those people have already been through—and I commend the cabinet secretary for listening to what survivors have been saying—we have to listen to what survivors are saying about the waiver.

Survivors have two fundamental concerns. I have already referred to the first, which is that they believe that it is a waiver of their human rights and that they should have the right to go to court if they feel that they should, even if they have been paid the maximum amount, or indeed any amount, under the redress scheme.

Secondly, and this has been mentioned briefly in passing by a previous speaker in the debate, the waiver could be a disincentive to some survivors to apply for the redress scheme. That is absolutely not what any of us wants. We have to take the survivor community’s views seriously about the waiver. I welcome John Swinney’s open response to the committee’s recommendations on that issue.

On the other side, as it were, providers are not happy with the waiver either. They indicated that had they been consulted a bit more—and they believe that they were not consulted enough pre-legislatively—they would have pointed out that the waiver as it is currently constituted will not act as an incentive. The incentives will come from handling the contribution scheme in a different way. Neither the survivors nor the providers are happy with the waiver scheme.

In the committee’s evidence, we heard about an issue with the legal enforceability of the waiver in Ireland, which has not been mentioned in the debate so far. The Irish had a waiver that was subject to legal challenge under the United Nations convention against torture. The legal point that was made in that challenge was that, despite the fact that the waiver—the Ireland residential institutions redress board scheme—had been legislated for and established in Irish statute, it was still open to challenge by international law on the basis of rights that are given to and exercised by people under the convention against torture. There is still a big question mark over the enforceability and legality of the waiver from a human rights point of view, which is a point that was also expressed by the Scottish Human Rights Commission.

I do not think that it is black and white, but there are serious question marks. Looking at the Irish experience also suggests that the offset route, whereby courts are directed to take any settlement in any court action into account, might be a better way to do it. Other halfway measures may be possible and, obviously, the Government will be looking at that. I welcome the fact that the Government is looking at that issue again.

I come to the contribution scheme. Most of the providers whose organisations have been responsible for historical abuse want, in principle, to contribute to the scheme. Anybody with any feeling of moral responsibility who is running those organisations would, obviously and correctly, feel that they should contribute. However, there are a number of issues that could incentivise and facilitate contributions from the providers, if they were added to the bill.

At the moment, the bill establishes, rightly, the principle that those organisations’ contributions should be fair and meaningful, and there is a clear message from Parliament about the moral obligation on all those providers to participate in the contributory element of the legislation. However, there are three areas of concern.

The first is that levels of compensation should not be such that they undermine the financial viability of the organisations. That point was supported by the survivors in their evidence to the committee. They do not want to ruin the providers financially, because, although they are critical of the providers’ history, they are often very supportive of the work that the providers are doing now. The second issue is that survivors do not want levels of compensation to be so high that they could endanger the quality or level of services provided by organisations to the people who need those services today.

I absolutely support John Swinney’s point about not putting a cap on contributions—that would send out completely the wrong message—so the way to handle those concerns is to add to the bill the principles that, as well as being fair and meaningful, compensation levels must not in any way be threatening to the financial viability of the providers or threaten the services that are provided by them. Including those principles would help us to incentivise people to contribute. Organisations are worried about what they perceive to be the open-ended nature of the commitment that they might be signing up to, but if those principles are established in the bill, those worries should disappear.

Let us not forget that many of the organisations are charities. Under charity law, the directors of a charity cannot sign up to any scheme that has the potential to threaten the financial viability of the organisation. Establishing those two principles, in addition to having fair and meaningful payments, would strike the right balance and allow us to ensure that we get contributions from those organisations.

The Deputy Presiding Officer

Come to a close, please.

Alex Neil

We should look at what we can do in respect of organisations that should be contributing but do not do so, albeit probably not on a statutory basis. By making those changes relating to the waiver and the contribution scheme, the cabinet secretary could achieve his very worthwhile objectives.

16:23  



Brian Whittle (South Scotland) (Con)

I am pleased to speak in the stage 1 debate on what is a very important bill. I commend the Education and Skills Committee for its in-depth and comprehensive report and John Swinney and the Scottish Government for their swift response to that report. In the limited time that I have, I will cover some specific points where I think that the bill needs strengthening.

As I said in last week’s debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, this type of bill demonstrates that Parliament is prepared to tackle a difficult topic and to bring the issues out of the shadows and into the light. Sexual abuse—specifically, child sexual abuse—has been swept under the carpet for far too long, with victims left without the support that they so desperately need.

As many of my colleagues will be aware, I have been working on such an issue on behalf of a constituent. It is fair to say that, over the prolonged period of time during which she has been seeking justice and redress, as my understanding of the trauma that she has suffered has increased, so have my discomfort and disquiet about how the ways in which victims are retraumatised and left open to suffering secondary abuse have continued to rise. The organisations that have been brought into question in my constituent’s case include local government bodies, an education authority, the police, the church, support services and the Scottish Government. We should not shy away from scrutinising the actions of any such organisations that might be involved in such cases.

The redress scheme is designed so that it is easier to access it than it is to take a case through the civil courts. However, the Criminal Injuries Compensation Authority already has a similar scheme in which decisions are based on the balance of probabilities. That is a different standard from that which is employed by a criminal court, which decides whether a case has been proved beyond reasonable doubt. The victim does not need to wait for the outcome of any criminal trial if enough information is already available for a decision to be made on their case.

Crucially, though—and contrary to the bill’s intention that the victim should waive their right to future civil action—should any subsequent payment be made arising from a civil action on a CICA compensation payment, the CICA payment should be reimbursed, which other members have said should be an option. I contend that, in that respect, the bill is flawed. It should not impose a ban on future civil action, otherwise why would a victim not just approach the CICA instead?

Furthermore, I contend that many of the support organisations for survivors are too close to the Government and receive funding directly from central Government, which potentially impacts their ability to act autonomously.

Another issue that has been raised in the debate is record keeping, which is currently woefully inadequate. As I said in last week’s debate, that is especially the case among local authorities, where there does not seem to be any requirement that they record potential cases of abuse within facilities that are run by them. Oliver Mundell also made that point.

Most importantly, the bill is currently designed specifically to provide financial redress for survivors of historical sexual abuse in care in Scotland. Of course, that is welcome, but in my view that aim is too narrow in scope. When I questioned the cabinet secretary on the eligibility criteria and urged that victims of sexual abuse in school settings should also be included, he responded that the scheme was designed to compensate those in relation to whom the state had undertaken parental responsibilities, by which he meant those in care homes. However, the bill that led to the Education (Scotland) Act 1980 used the term “in loco parentis”, which has the effect of transferring parental responsibilities to schools temporarily. That would also be true in other instances. That being the case, the bill as it is currently drafted could leave the Government open to potential challenge in the European Court of Human Rights or by the Equality and Human Rights Commission because of the inequality in its approach to victims of crime, and especially such a heinous crime. Alex Neil was hinting at that in his contribution.

The cabinet secretary may be aware of a related case in which a judge found that the Irish Government had misrepresented a ruling by the European Court of Human Rights by excluding from its redress scheme children who had been abused in Irish schools. I accept that the issues that were dealt with in that ruling were not exactly the same as those that we are debating, but that situation suggests that the bill that is before us could be open to a similar legal challenge.

As is the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which was passed last week, the bill that is before us is very welcome and long overdue. In developing it, though, it will be incumbent on us all to ensure that it is the very best that it can be for all those who have been victims of such horrendous crimes and who have to carry that burden throughout their lives. Financial redress will never heal their wounds, but it might at least give them comfort that their voices have been heard and there is an acceptance that they have been victims.

However, so much can be and needs to be done. Understanding the journeys of victims—both those who speak out and those who initially cannot—and the repeated trauma caused by having to retell their stories to multiple agencies, and tackling the lack of accessible, adequate support must all become part of the jigsaw. I have absolutely no doubt about Mr Swinney’s commitment to those who have suffered such crimes. However, I ask him to be a bit braver—to look beyond the limitations created by the way in which the bill is currently drafted and towards those who have suffered in similar ways but who are currently excluded. If we do not do so, it will only require more legislation further down the line. I urge him to make the bill everything that it can be.

The Deputy Presiding Officer (Lewis Macdonald)

The last member to speak in the open debate will be Annabelle Ewing.

I am sorry, but we cannot hear Annabelle Ewing because there is a problem with the sound. As we have some time in hand, I will suspend for a few moments to see whether we can connect Annabelle Ewing.

16:30 Meeting suspended.  



16:32 On resuming—  



The Deputy Presiding Officer

We can now hear you loud and clear, Ms Ewing.

Annabelle Ewing (Cowdenbeath) (SNP)

Perfect—I am very pleased to be called to speak in the debate.

Although I am not a member of the Education and Skills Committee, which is the lead committee, I have a particular interest in the subject matter because I was the Scottish Government minister tasked with steering through the Limitation (Childhood Abuse) (Scotland) Bill. In the stage 3 debate on the bill in June 2017, I considered it of the utmost importance to recognise the bravery and perseverance of survivors, who have had such a long and arduous fight to set right the terrible injustices that they have suffered.

The Limitation (Childhood Abuse) (Scotland) Act 2017 was passed unanimously by the Scottish Parliament. It was just one element of a suite of actions that the Scottish Government undertook to carry out following on from the recommendations set forth further to the Scottish Human Rights Commission’s interaction process. Further to that process, the Scottish Government has taken several actions, including setting up a national confidential forum, the establishment of the Future Pathways support fund, the support for Margaret Mitchell’s member’s bill, which became the Apologies (Scotland) Act 2016, the establishment of the Scottish child abuse inquiry and the undertaking to propose a redress scheme. We have heard about the advance payments that have already been made under that scheme. It has evidently been a long journey for the Scottish Parliament, and importantly, for the survivors.

It is important to recall the backdrop to the bill, because it puts several key issues in context. The key issue that the bill must address is the most efficacious way in which to set up the non-adversarial redress scheme. It will have to have the means to pay out the contributions from the providers of care concerns. I understand that that is a key issue for the survivors because, quite rightly, they feel that those providers of care have a moral responsibility. I agree entirely with that sentiment. Seeing society recognise the harm that was done to those individuals and doing right by them is part of the important task that we are engaged in. That has been a persistent ask of survivors over many years.

As to the mechanics proposed, I know—and we have heard this afternoon—that the most controversial issue is the waiver. I note that the Law Society of Scotland, for example, has raised particular legal issues with it. As a member of the Law Society of Scotland, I understand the rationale for those concerns but I feel that they could be overcome, certainly from a legal perspective.

In considering the issue, it is always important that we keep two particular issues in mind. The first is the role of the redress scheme. The scheme is to be a non-adversarial alternative to court, offering a faster and more straightforward process. It is intended to be less traumatic for survivors, in particular, because of the in-built support that it entails. Also, it will encompass within its scope the pre-1964 survivors, which was an issue that we simply could not square under limitation legislation, in the light of the prescription law of Scotland. The second important issue to keep in mind is that not all survivors want to go down the court route. They might find that it is not for them, or they might not be able to do so successfully given the very significant procedural and evidential hurdles that remain. In that regard, I note that the limitation legislation did not remove all barriers to a successful action. It removed one barrier—the three-year time bar, which applied de facto in all cases that were brought. Those two key issues are important as the backdrop.

The cabinet secretary has said that he will continue his reflections on this important subject, and I welcome that approach. I think that it is recognised that the cabinet secretary has a deep and personal commitment to securing access to justice for survivors. In the instant case, that means finding a redress system that is workable in practice. It is not good enough for Parliament simply to come up with something on paper that will not work in practice and that does not take account of what are perhaps unrealistic expectations of the role of the redress scheme and, in some instances, of the role of civil litigation with regard to this issue, because of the immense hurdles that survivors will face in the civil courts in terms of evidential and procedural rules.

It is fair to say that the cabinet secretary made the point in his response to the stage 1 report—I think quite fairly—that there is no evidence of any international redress scheme with no form of waiver in place. It is also fair to say that we can come up with something different. However, the international evidence suggests that the issue has been wrestled with by many people in many places and no workable alternative has been found. That is important to bear in mind in future considerations.

I understand that some care providers, in their written submissions to the committee, suggested that the waiver was important to the making of financial contributions. Those care providers included Aberlour, Quarriers and the Church of Scotland’s CrossReach organisation. That issue has to be weighed significantly in the further deliberations on the bill, and I am sure that it will be. It is fair to say that, without financial contributions, there will not be a redress scheme—that is the stark reality, and I believe that, if that happened, it would be a failure on the part of the Parliament in its duty to survivors.

Parliament has had an honourable track record in recent years. It has shown that it recognises the state’s failure in its duty of care to some of our most vulnerable children. It has also shown that it is really determined to see justice done. Therefore I feel confident that, after further scrutiny has taken place, we will see, in due course, the bill pass at stage 3.

The Deputy Presiding Officer

We move to closing speeches. We have a little time in hand, so speakers have a generous six minutes.

16:39  



Daniel Johnson (Edinburgh Southern) (Lab)

I begin by expressing a hope that, collectively, we live up to survivors’ expectations and that we meet their needs.

It is difficult to articulate the injustice and suffering that the bill seeks to address. Over generations, countless children were placed in the care of authorities and organisations where they were supposed to be kept safe, looked after and cared for. Instead, they were abused, exploited and preyed upon. Not only was that not prevented, but in many cases it was ignored and covered up.

As many speakers in this afternoon’s debate have commented, we have been on a very long—perhaps too long—journey. We heard apologies from the former First Minister, Jack McConnell, and they were repeated by the Deputy First Minister. We have also seen the creation of the independent child abuse inquiry. The debate is an opportunity for us to repeat those apologies and acknowledge the seriousness of what occurred in the past.

The debate also provides us with an opportunity to collectively take an important further and, I hope, final step. We must go beyond simply acknowledging the abuse and the wrongs that were done in their generality. We must seek to ensure that survivors have their personal experiences acknowledged and receive an apology and justice for the wrongs that were done to them as individuals. I will reflect and reiterate the Deputy First Minister’s comments, because I think that it is vital that we treat this as a genuine, collective endeavour and responsibility. There is a duty on all of us—not on any particular party—to live up to the expectations that so many survivors quite rightly have.

The creation of redress Scotland aims to create the means for survivors to seek justice in a way that is more straightforward and less burdensome that that of pursing a claim through the civil courts. Its creation also recognises that many might find it difficult to evidence their experience to the level that would be required in the courts. It is the right approach.

Experience in other countries tells us that we must avoid adversarial processes such as those that might occur in the courts. It also tells us that it is important to ensure that survivors are helped to make their claims, rather than having to fight for recognition, particularly given that so many have been fighting all their adult life for recognition and redress.

Labour will support the bill at stage 1. However, it is important that we highlight the areas that must be improved so that the bill achieves its aims as effectively as possible and provides justice to survivors.

As many speakers—Iain Gray, Jamie Greene, Rona Mackay, Beatrice Wishart, Alex Neil and Kenny Gibson—have noted, the waiver is the central issue that we must address. It is fair to say that we understand the intent behind the waiver, which is to incentivise organisations and maximise the number that participate by protecting them from further claims in the civil courts. However, the provision is deeply problematic for two reasons.

First, as Ross Greer, among others, set out, in the eyes of many survivors, at best, the waiver provides them with an invidious choice between compensation through the scheme or going through the courts; at worst, it is a removal of their rights.

Furthermore, and perhaps more fundamentally, I do not believe—nor do most members—that the provision does what it sets out to do. It does not provide an incentive for participation, because it is likely that participating organisations will not be assisted by their insurers in making payments, whereas they would get that assistance if they were taken to court. Bluntly, based on crude financial calculations, providers will be worse off if they participate in the scheme than they would be if they were sued. That is the blunt and simple reality that many of providers will face, and it is the basis of their concerns.

John Swinney

I am grateful to Mr Johnson for giving way. I follow the rationale behind his argument. However, does he accept that, if that were to be the case, the provisions in the bill would run the risk of not requiring providers to make contributions to the scheme if they thought that it was more in their financial interests to rely on court action being taken against them?

Daniel Johnson

I accept the point that the waiver cannot simply be additional to any potential liability that providers might find themselves facing. However, that is why it is incumbent on all of us to find alternative mechanisms to provide incentives. I think that the waiver sets out to provide an incentive, but it ultimately fails because it does not establish liability, and therefore the policies that providers have in place will not cover them. It also fails because uncapped liability might mean that trustees are simply unable to allow their organisations to participate, which is the point that Jamie Greene made. For both those reasons, the waiver is deeply flawed, although I understand the predicament and the challenge that the Deputy First Minister set forth.

There are also issues with the calculation of fair payments. It is essential that the concept of sustainability is included in the bill as a guarantee to organisations that participation will not put them, or the important services that they provide, at risk.

The issues concerning individual assessment have been made clear by Kenneth Gibson, Oliver Mundell and Ross Greer. It is the most delicate area of the work that redress Scotland will undertake. We are asking the organisation to listen to survivors, determine the veracity of their claims, assess the severity of that experience and then award a compensation payment commensurate with that.

Although I understand Ross Greer’s suggestion that a single payment should be made, I disagree with him. However, we must set out clearer principles on which the assessments can be made and on the evidence that is required to establish proof. Those principles should be in the bill with further detail in regulations. The only way to provide justice for survivors is to have a clear process so that any decisions made by redress Scotland will be beyond reproach.

The bill is complex. There are other areas that I could and should give attention to, but I do not have time.

I thank my colleagues on the committee and note the collegiate and constructive way in which everyone has approached the bill. I thank the clerks for their work. I have no doubt that we can address the issues that have been identified and that we can make sure that the bill does what survivors require of it.

16:47  



Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

In closing for the Scottish Conservatives, I record my gratitude to the survivors who gave evidence to the committee and bravely came forward to tell their stories.

Members from all parties have made excellent, poignant and thoughtful contributions to the debate. As my colleague Brian Whittle pointed out, this is a difficult subject for some of us who have constituents who have been affected.

I thank the Education and Skills Committee for its work on this important step in redressing historical child abuse. Jamie Greene rightly said that no compensation can make up for the dark times experienced by survivors. However, members have acknowledged that we are taking a positive step for victims who suffered years of abuse that was largely ignored and swept under the carpet.

I am also pleased to hear the Government’s commitment to work with Parliament to get the bill right for those who were failed as children. Scottish Conservatives will work with the Government as the bill progresses.

Not only will the bill deliver fair and accessible forms of financial and non-financial redress for survivors, but it marks our recognition of the abuse and harm caused to the youngest in society, which should never have been tolerated.

The detailed text of the bill will be set out in the coming months. It is encouraging that we have much common ground to work on. First and foremost, we feel that we must do what is right and appropriate for victims and survivors. That is why Scottish Conservatives will support the bill.

The choices to be made by victims and survivors must be at that heart of the support mechanisms that the bill creates. I am glad that the committee noted that victims and survivors should

“be treated with dignity, respect and compassion”.

Those words should form the foundations of the bill.

We also welcome the Government’s commitment to establishing the survivor forum that John Swinney mentioned in his opening speech. Given the difficult circumstances that many survivors have faced for many years, it would be wrong not to make that a driving force behind the bill.

Support must be better tailored to what victims and survivors would find most helpful. We welcome the redress scheme that is set out in the bill, as it is designed to be far more accessible than the process of taking a case through the civil courts. We know that civil and criminal court cases can cause survivors harmful memories. As many speakers have said, it is vital that we ensure that the process is less arduous and damaging for survivors of abuse.

We welcome the inclusion of next of kin in the redress scheme. There seems to be unanimous agreement that, in certain cases, even if the requirement to take a case to the civil courts is removed, it is difficult for an individual to access support. The Law Society made an important recommendation in that regard, particularly for those who might find it difficult to seek redress, such as adults with incapacity.

That issue has not been mentioned in the debate as much as I thought that it would be. Adults with incapacity might have difficulties in relation to some aspects of making and processing an application for a payment, but they should not be excluded as a result. One way to address that issue would be to appoint a guardian or intervener under the Adults with Incapacity (Scotland) Act 2000, to allow an application to the redress scheme to be made on someone’s behalf.

I turn to what is included in the bill’s definition of abuse, which is another point that has not been mentioned in the debate as much as I expected it to be. Probably because I am not a member of the Education and Skills Committee, that caught my attention more than some of the other points that members have made, which I will summarise at the end of my speech.

Many stakeholders have expressed concerns about the omission of certain terms from the definition, but the one that has come to the forefront is the omission of corporal punishment, which in days past was commonplace in many settings, such as schools and children’s care homes, with teachers and care staff abusing their power. Because corporal punishment was permitted at the time, people who experienced it being used in an abusive way might feel discouraged from coming forward.

I understand that the cabinet secretary has given assurances regarding the redress Scotland panel taking a one-size-fits-all approach, and that it will consider whether corporal punishment should constitute abuse and whether redress should be considered for that. However. I agree with the committee that it is vital that the Government reflects on the wealth of compelling evidence on that point and addresses stakeholders’ views in forming a robust and encompassing definition.

Many members have spoken about the importance of the waiver and of the balance that must be achieved for the future viability of organisations. I am sure that that will continue to be a subject of debate, but we are here to encourage, not discourage, debate and participation. That is the approach of not only survivors but of members to the bill.

Jackie Baillie, Iain Gray and my colleague Jamie Greene are concerned that the waiver is a disincentive and said that they had heard evidence to that effect. The key issues of affordability and sustainability have also been raised. We must be able to attract contributions from organisations, and it has been suggested that the Government must look at that issue carefully if it is to get cross-party support on it at stage 2.

My colleague Oliver Mundell expressed his wish to see all evidence being taken at face value, which is an important point. There should be a presumption that those who come forward are telling the truth.

The committee suggested that, instead of fixed payments, payments should be made in bandings. As Jackie Baillie said, abuse is abuse, and there should be more consistency in payments, as well as in relation to the level of proof required.

Many members raised the requirement on survivors to make key decisions regarding offers of redress in a short timescale.

There is a lot to work on with the bill, but the Conservatives will vote to support its general principles at stage 1. John Swinney deserves grateful thanks for his pursuit of the bill, as everyone who has spoken in the debate has mentioned. We take our hats off to him.

We echo the calls in the committee’s recommendations and we look forward to making amendments to the bill at stage 2.

The Deputy Presiding Officer

I call John Swinney to wind up the debate. Cabinet secretary, you have until 5 past 5.

16:54  



John Swinney

I thank colleagues from all political parties for their thoughtful and substantial contributions to the debate, which I think will help us significantly in advancing the development of the bill and in the resolution of the issues on which there is not yet agreement.

The only place that I can start in closing the debate is with Jackie Baillie’s contribution—not because of the quiet banter that was going on during the suspension, which happened before Annabelle Ewing’s wise and thoughtful speech, but because of her comments about Helen Holland.

Helen Holland is one of the most remarkable people I have met in my life. I cannot begin to imagine the suffering that she has endured in her life; I cannot begin to fathom and understand any of it. However, she has devoted the past 20 years of her life to making sure that the world is a better place as a consequence of all the terrible suffering that she has endured. If there was ever an example to any of us as to how we should live our lives, it is how she has devoted the past 20 years of her life to the pursuit of justice, which is not really for herself at all but for everyone else. It has been the privilege of my life to get to know her and to be motivated by the spirit that motivates her.

Members have been generous in their comments about my personal commitment to the bill. My very high personal commitment to the bill, which is traced back to Helen Holland, is to make sure that I complete a task that she has been determined to complete. I pay warm public tribute to the many survivors who I have had the privilege to meet, but particularly to Helen for her determination in that endeavour.

Annabelle Ewing talked about the journey that we have been on. A few weeks ago, I gave evidence to the Scottish child abuse inquiry. I accepted—indeed, I offered this up to the inquiry—that I felt that we are getting to a place in which we are completing the addressing of the historical wrongs that have afflicted our society on these issues, with the Limitation (Childhood Abuse) (Scotland) Act 2017, for which Annabelle Ewing was responsible; the apology that the former First Minister Jack McConnell made; the Apologies (Scotland) Act 2016; the establishment of the Scottish child abuse inquiry; the establishment of the advance payment scheme; and now the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

It has taken us too long to get here—I accept that point in front of Parliament today as I accepted it in front of the Scottish child abuse inquiry when I gave evidence to Lady Smith—but we are here and I am absolutely determined to ensure that we get it right now that we have arrived at this point.

One of the strong points that Annabelle Ewing made—Jamie Greene, Daniel Johnson and Iain Gray made it, too—is that the purpose of the waiver scheme is to provide an alternative to court. It is to provide a reliable, dependable route that saves survivors going through the ordeal of providing evidence in a court case in an adversarial setting where it may be difficult to address the issues and find the evidence to successfully win a court action. As it is an alternative to court, it does not require the same burden of proof that a court requires. I will come back to that point in a moment.

Crucially, Annabelle Ewing also made the point that the scheme must work in practice. In that respect, Iain Gray’s comments are important. We all want to achieve the same objectives through the bill. The heart of the matter is that we want survivors to have an alternative to court that secures a dependable outcome for them and we want organisations—providers—to make a contribution. We are all agreed on those points. However, we are not quite agreed on the mechanism by which we can enable those two things at the same time.

In the spirit of the fair contribution that Daniel Johnson made to the debate, in which he called on us all to live up to the hopes of survivors to do it properly—I am completely committed to doing that—I invite members to go into the next stage of the process with an open mind and to try to address the question that I have posed: how do we design a mechanism that enables us to secure contributions from providers and delivers an outcome for survivors? That is the spirit in which I am going into the discussion.

I have proposed that the way to do that is through a waiver scheme, but if there is a better idea, I am prepared to contemplate it.

Iain Gray

An important element of this is the discussions that have taken place and of which the committee has some awareness—although perhaps not a great awareness of the detail—between Mr Swinney’s officials and the organisations about how the calculation would work and what the contribution would be. Will Mr Swinney go back into those discussions and revisit some of that because he clearly feels that there was a problem with where they had got to?

John Swinney

I am absolutely committed to doing that. I would also welcome some cross-party discussions before we get too far into stage 2 so that we can air openly the evidence and assumptions that underpin the Government’s position and hear what underlies other opinions. I am very open to that so that we can focus on answering the question how we design a mechanism that secures contributions and enables us to make payments to survivors. I have put a model on the table, but I would welcome a commitment to open cross-party conversations before we get to stage 2 amendments that will enable us to hear some of the detail that underlies that. I commit to that today.

Jamie Greene

I appreciate the cabinet secretary giving up his time in this short debate. I welcome his openness, and Conservative members will, as I am sure that other members will, fully participate in those discussions with transparency and an earnest intention to get to the root of it. However, the stage 1 report is based on evidence that the committee took. Paragraph 510 notes that the care providers that we spoke to said that there was no suggestion that the waiver would incentivise them to participate. The answer therefore lies in the contributing organisations. What do they say to us and what do they say to the Government? If they come forward with a suggestion that works, of course we will look at it, but ultimately it will be those organisations that pay the money. What do they say to you, cabinet secretary?

John Swinney

As I said to the committee, I have in my briefing the point that various organisations have welcomed the proposal for a waiver provision, including the Aberlour Child Care Trust, Quarriers, and Church of Scotland CrossReach. These are the issues that we have to explore. I want to answer Mr Greene’s question and I want these organisations to provide, because I want to address the issue that Helen Holland raises—she wants to make sure that these organisations are accountable to many survivors.

On the issue of the burden of proof, which Daniel Johnson raised, one of the important opportunities of the scheme that we are providing is that we do not have to have the same standard of proof as would be required in a court setting. We have set out that we are attracted by a standard of proof that is something equivalent to a civil standard, where the balance of probability is essentially assumed to be on the side of the victim and that something is more likely than not to have happened.

Crucially, in the advance payment scheme, 520 cases have been fulfilled and not one of them has, to date, been rejected on the basis of a lack of evidence. My officials are working hand in hand with survivors in some cases to find proof to substantiate the claims that are being made, but it is important to reassure Parliament that, in the approach that we have taken on the advance payments scheme, we have not rejected any cases on the basis of a lack of evidence so far.

Daniel Johnson

On the point about helping claimants to find the evidence, could that be put in the bill? That was something that I did not manage to say when I spoke earlier.

John Swinney

Without a doubt. That might also help to define in more detail, perhaps to the reassurance of Parliament, what is envisaged in terms of the standard of proof that might be required to address these questions.

Oliver Mundell

Does the cabinet secretary accept that the point that he is making becomes more complicated when it comes to determining the different levels or does he just not envisage a problem there? I worry that, to get the higher-end payments, the balance of probabilities might be interpreted differently.

John Swinney

I meant to mention Mr Mundell in relation to the burden of proof question, because his speech was dominated by that point. However, his intervention leads us to one of the other issues, which was covered in Ross Greer’s contribution. Another question that we have to resolve is whether we believe that a flat rate payment is more appropriate than a range of payments.

I suspect that going down the route of having a range of payments would require more evidence to be marshalled, whereas a flat-rate payment—which is what the advance payment scheme is based on—would perhaps make it more straightforward to enable payments to be made without it becoming a traumatic and arduous process for survivors.

There are choices to be made about the payments; in relation to that question, again, I am not wedded to a particular approach. I will listen carefully to where Parliament is on those questions and I will listen to survivors because, fundamentally, we want to secure a scheme that meets the needs of survivors and does not add to their trauma.

I hope that I have helped to reassure Parliament this evening that the Government will engage constructively on those questions. The bill has to be workable, because we have to be able to look survivors in the eye after the bill has passed and give them confidence that it delivers what they expect of us. I commit myself to that and I am greatly encouraged by the response of members this afternoon as to the commitment that is shared across the political spectrum.

The Deputy Presiding Officer

That concludes the debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

Vote at Stage 1

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Vote at Stage 1 transcript

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is decision time. There is one question to be put as a result of today’s business. The question is, that motion S5M-23707, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill at stage 1, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

The Deputy Presiding Officer

That concludes decision time.

Meeting closed at 17:07.  



MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.


The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.


The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.


The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.


Depending on the number of amendments, this can be done during one or more meetings.

Evidence at Stage 2

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Evidence at Stage 2 transcript

The Convener

Item 7 is an evidence session on the bill. I welcome our witnesses. I have a note from the clerks that says that David Whelan from Former Boys and Girls Abused in Quarriers Homes is in attendance but that we are still waiting for confirmation of Mr Aitken’s attendance—we will bring him on board if he manages to join the meeting. We also have Helen Holland and Simon Collins from In Care Abuse Survivors and Janine Rennie, the chief executive of Wellbeing Scotland.

I ask members to indicate that they wish to ask a question by putting an R in the chat box.

Iain Gray

The witnesses will know, because they were there, that the evidence that they gave at stage 1 led in particular to the recommendation in the committee’s report that the waiver whereby survivors who are to benefit from the redress scheme must waive their right to seek justice in the civil courts should be removed from the bill. The witnesses will have seen from the correspondence with the Deputy First Minister that he is going some way to mitigate some of the waiver’s effects. For example, he has listened to the evidence that more time is needed to allow survivors to decide whether to accept a redress payment and sign the waiver or to refuse the payment and keep their right to civil justice.

My question to the witnesses is simple: in your view, and in the view of the survivors whom you represent, is that enough of a change, or do survivors still feel that the principle of the waiver undermines their confidence in the bill?

09:00  



The Convener

If any panel member wishes to come in, they should indicate that by putting an R in the chat function. As I cannot see everybody on the screen, I am afraid that raising a hand will not help very much.

Janine Rennie (Wellbeing Scotland)

We had a meeting with a large team of survivors yesterday. We also have a team of survivors who have introduced a petition about the waiver. Survivors are not satisfied at all by the changes that have been proposed. They still feel that the waiver is a betrayal of everything that they have been through over the years and a large number of survivors have said that they would fight it all the way if they felt that a waiver was still going to be in place in the bill.

They come back to the same argument, which is that a lot of survivors would sign the waiver but, years later, circumstances might change. For example, there might be a case that was not able to succeed; however, more survivors could come forward and then it would be able to succeed. Survivors feel that, when they signed the waiver, they would not know all the possible ramifications, which might be two or three years down the line. Things are changing all the time, with more survivors coming forward and more ability to seek civil redress.

Survivors want the choice to seek that, and a number of them have told me that they feel that the waiver is a betrayal. The meeting yesterday was very angry; every meeting that we have had has been the same, and nothing that has been produced has changed that. They feel that it is an absolute betrayal and that their choice should absolutely be respected.

Although I understand that there has been a waiver in a lot of other countries, survivors feel that the situation in Scotland is unique and should not be considered along with evidence from other areas.

Helen Holland OBE (In Care Abuse Survivors)

In relation to INCAS and the many survivors who engaged with the consultation, I agree that there was an element of misunderstanding—that is probably the right word—across the board. The biggest issue with the waiver is that it is linked to contributions. It is all well and good to say that Scotland is unique, but it is not unique in the sense that we are talking about redress, and there has been redress in many countries.

Even if I went down the civil court route, for example, the reality is that I would probably need to sign a full and final settlement agreement or some kind of financial agreement at the end of that process; if I was doing an out of court settlement, I would probably have to do the same thing.

The survivors have the right to go down the civil court route. In relation to the bill, we are now talking about a prolonged period of time of six months for the survivor to get independent legal advice. Within that legal advice, the survivors would be able to make a choice. What is coming across from our members is that, although everybody is talking about rights, they have not heard people talking about choice.

Survivors have waited a long time for this coming and—quite frankly—many have already made that choice for themselves. We have members who are going down the civil court route; equally, we have members who are patiently waiting for the redress scheme to open. It will never suit everybody; I do not dispute that at all.

There appears to be a lot of confusion, which for me is the biggest difficulty. People do not fully understand that there would be an agreement at the end of any financial settlement. The reality is that it has happened in every other country in the world. My concern is that, if it does not happen here, care providers will simply stand back and do nothing. They will not engage unless there is a waiver and, if there is no waiver, who will pay the redress? It would have to be the taxpayers of Scotland, and how is that justice for the survivors? It would mean that, at the end of the process, the care providers would walk away without acknowledgement of the fact that the people who allowed the abuse, or the organisations where the abuse took place, had not been held to account. I do not know any survivor who would find that to be justice.

I am not saying that there is an easy answer; it is extremely difficult. It is not for us to decide—it is for the committee to decide. That is the predicament.

The Convener

Thank you very much. I will bring in Simon Collins.

Simon Collins (In Care Abuse Survivors)

It was helpful for Helen Holland to speak before me, because she has explained the views of INCAS members. I am aware that there are different views and legal opinions on the waiver. Now that the committee has heard the INCAS view in general on the waiver, I return to the question that was asked, which was whether we are satisfied with the steps that are proposed as the bill goes from stage 1 to stage 2. There are a couple of things to say. First, the increased length of time to consult is essential—that is recognised and welcomed.

Secondly, if there is to be a waiver, which is still a big issue that others will engage with, it is also essential that consideration is given to making the waiver capable of revocation. Survivors do not believe that every organisation that undertakes to contribute will follow through. That doubt is based on what has happened in the past; it is not wild supposition, because it is based on examples. Survivors want to know that, if they sign a waiver and waive their rights, conditions have to be met, and that, if those conditions are not met, they have the right to put the waiver aside and pursue an action.

The issue that remains is the provision of proper advice. From our written submission, members can see that I am still concerned about the interpretation of sections 89(2)(d) and 89(3) of the bill. Section 89(2)(d) says that a survivor will be given cover for legal advice on

“whether to accept an offer of a redress payment and sign a waiver”,

but section 89(3) suggests that that will not include

“legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment.”

That reads as meaning that people will not be able to seek legal advice before they engage in a process and before they make an application—that is how I understand it. However, if it is intended to be at the point when the waiver is signed, it is totally unacceptable. You cannot waive a right without full understanding of what the right is.

That part of the bill must be made clear, because my reading of it is not clear. It must be made clear that, at the time that a survivor has to sign a waiver—if they are to sign a waiver—they will be given proper advice. I suggest that that should mean counsel’s opinion on the prospects for and likely outcome of civil litigation. That is the only way that someone can make an informed decision.

The Convener

Mr Whelan has been able to join us. I will bring him in shortly, after quickly going back to Janine Rennie.

Janine Rennie

I have a clarification to make. Helen Holland alluded to survivors not understanding, but it has been clear to me throughout that survivors have a really clear understanding of the process. When survivors receive legal advice at the beginning of the process, they do not know the future and what the prospects are for a civil action three years hence. A lot of survivors have expressed that concern to me.

I forgot to mention that the insurers have not been at all clear about whether they will contribute to a redress scheme. Although for, say, Quarriers homes, some survivors might sign a waiver, there might be a large cohort—we have worked with 135 survivors from Quarriers homes—that will not sign. An organisation contributing to the waiver scheme will not mean that there will not be litigation against it because, although one survivor might waive their rights, another 100 survivors might not. I do not see that there is an incentive for insurance companies to contribute to the waiver scheme.

The survivors do not see a connection between the contribution of organisations and whether they have accepted the waiver scheme. They are not really interested in whether organisations have signed up to that. They are more interested in receiving maximum compensation and justice for what they have endured.

The Convener

David Whelan, would you like to come in on that? I appreciate that you were not with us when the question was asked.

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

Good morning. Can you hear me?

The Convener

Yes, we can.

David Whelan

Sorry about that. There was an issue in logging on.

I picked up some of the last part of the conversation. I understand that it was about the waiver and contributions. For us, the issue is about those two things being linked. There was no suggestion of that in the consultation; I agree with Janine Rennie, who said in her submission that no linkage was made.

When it comes to the waiver, I find it extraordinary that—[Inaudible.]—may want to contribute, such as Quarriers. Those residents will have to sign a waiver, if the scheme comes into place. If other institutions do not contribute, their former residents will not have to sign a waiver. Whoever thought that up has created a system that discriminates completely against various residents, at a basic level.

We have been told that the waiver is based on contributions that will come from the insurers. FBGA has worked out the liability for the current Quarriers cases. It is significantly lower than what the Scottish Government is asking the organisation to contribute. Insurance companies are commercial private companies and therefore have a financial interest whenever they do business. Why does anybody think that insurance companies would contribute to a scheme far more money than is their current liability, as they are being asked to do? I do not understand the rationale behind that plan.

If I missed part of the question, convener, you can give it to me and I will be happy to answer.

The Convener

We will keep the debate going, Mr Whelan, and if you want to come back in we will bring you back in. I will bring in Helen Holland briefly, before we go back to Iain Gray.

Helen Holland

I have a very brief response to what Janine Rennie said. What I meant by survivors being confused was to do with the consultation paper and process in that the link between the waiver and the contributions was not clear.

The Convener

Thank you. I will bring Iain Gray back in.

Iain Gray

I am happy for colleagues to come in.

Rona Mackay

To move on a wee bit, what are the witnesses’ views on the variations between payment levels and the maximum level of payment? Do they think that higher payment levels might make survivors more amenable to the waiver? If there was less of a difference between the different levels of redress scheme payment and civil court awards, would that make a difference to witnesses’ views on the waiver?

Helen Holland

I think that it would—absolutely. In comparing the redress scheme with civil court action, we must consider the reality that many survivors are over 65. For them, and especially for the pre-1964 survivors, who, let us remember, have no choice about the court option, if the settlement figures were more in line with civil court action—again, with the correct legal advice—yes, absolutely, that would be deemed fairer for the survivors who engaged with the redress scheme.

09:15  



If a survivor comes to the redress scheme and, within that period their legal advice is, “Actually, with the evidence that you’ve got, you would be better taking civil court action”, it will be for the survivor to make the choice. If a survivor says to their lawyer, “I know I could probably get more from civil court action, but, for me, it’s about more than finance,” that needs to be respected as well. It is unique to the individual, but my understanding from the consultation process is that the majority of survivors who have been waiting 20 years just want it to be done and dusted. They want to be able to move on with their lives and put all this behind them, because the longer it goes on, the longer they have to engage with those thoughts and memories. Therefore, just on the basis of what has been said, it probably would make a difference to the survivors.

Simon Collins

Helen Holland mentioned that a higher level of payment would assist. I want to make two points, one of which is about the difference between the proposed levels of payment and the payments that were made in Ireland. Looking at the responses to level 1 payments, reference is made regularly to the intention to set up a non-adversarial system. I cannot understand why, from a legal perspective, that is linked to the level of payment. The benefit of the non-adversarial system is the ease of access for those who apply and the reduced legal costs. As a lawyer, suggesting that legal costs should be reduced could get me turned out of my private clubs, but there we are. Reducing legal costs is the advantage of the scheme, but that should not affect the level of payment, because the abuse that has been suffered is what triggers a level of payment. The fact that we have made it easier to access that should not justify a lower level of payment.

Helen Holland mentioned the pre-1964 survivors. When consideration of redress was first raised along the lines that we are talking about today—it has been discussed for many years—one of the significant moments was Angela Constance announcing that there would be a bill to remove the time bar. David Whelan, Helen Holland and others were in the room at the time. The promise that was made was that those pre-1964 survivors, who cannot have their time bar removed, will be treated equitably, in a way that is comparable to the position of post-1964 survivors. The only way that that can be achieved is by the pre-1964 survivors being able to achieve through this scheme what they would have achieved through the courts. Unfortunately, for obvious reasons, there is a reducing number of pre-1964 survivors, but if we are to deliver on the promise that was made back then, and which has continued to be made, pre-1964 survivors must be eligible to be assessed for the payment that they would have achieved in court, because they do not have the option of going to court. There should not be an upper cap on that.

On the banding of payments, there are huge jumps, from £20,000 to £40,000 to £80,000. In paragraph 80 of its response to the committee’s stage 1 report, the Scottish Government states:

“We remain concerned that a wider range of payment levels may result in different payments being offered for similar experiences.”

Wherever you draw a line and people on one side of the line receive one payment and people on the other side of the line receive another, there will be people who fall either side of that line whose experiences might be similar. When there is such wide banding, the difference is double the payment—it jumps from £20,000 to £40,000 to £80,000. That is much starker than if the difference were less, so a greater number of bands and more assessment are needed.

The Convener

Mr Aitken has managed to join the meeting, so I welcome him.

David Whelan

I thank the clinical professionals whom we commissioned to write a response to the Government’s draft assessment framework on behalf of Former Boys and Girls Abused. It is clear that many elements were missing from the Government assessment paper.

Based on the consultation, it became very clear that survivors wanted their individual experience recognised in any process, and that they wanted further assessment of testimony that would recognise the whole experience of the survivor—not only the abuse experienced but the life circumstances. Aggravated circumstances are not currently recognised in the assessment framework. Experience of sexual incidents, disability and racial discrimination—a number of children suffered abuse in Quarriers homes because of their colour—are a significant handicap to survivors as they enter the labour market, because of what occurred. There is a loss of opportunity, which is not addressed.

That goes to the heart of what the payment system actually is. It should be there to address the whole-life experience of the survivor. Currently, the figures go from £40,000 to £80,000. The financial memorandum makes clear that the Scottish Government based its calculations on the fact that everyone will be pushed down into a calculated sum and the majority of payments will be around £32,000.

First, I do not know how the Government arrived at that calculation, without seeing the detail. Secondly, the payment levels can certainly be expanded and improved; we only need to consider other schemes. If what we and our clinical professionals have said is missing from the assessment framework is addressed, those gaps will also be addressed. The payment level should go all the way up—beyond £80,000 to £100,000 and £125,000 for the most extreme and exceptional circumstances.

I ask the committee to have a good look at the Lambeth children’s homes redress scheme and its modelling approach, which identified levels on a scale and matched them with people’s experiences. The Lambeth model is excellent. Eighty-three per cent of applicants to the Lambeth model received payment, council legal fees were 7 per cent and applicants’ legal fees were 10 per cent.

We want a survivor-centred, trauma-informed process that—as the convener has said—puts the survivor at the centre of the process. It is difficult to see how the Government’s figure was arrived at. We are working with the model that came out of the consultation, but, from my recollection, there were no other models on the table. We have considered Janine Rennie’s model, and there is merit in some of that. However, we are working with the Government’s model, and there was no choice of others, based on my recollection.

We have tried to improve the bill as best we can and to help the Government. I want to thank the Scottish Government, particularly John Swinney and his officials Claire Soper and Donald Henderson. We recognise that there has been significant progress in latter years, which has happened under Mr Swinney’s brief. We thank him for that and for engagement with Scottish Government officials. The conversations are difficult but that can be overcome and we are committed to working with the Government to overcome those difficulties.

The Convener

Thank you, Mr Whelan. I am going to bring in Ms Rennie.

Janine Rennie

[Inaudible.]

The Convener

Ms Rennie, we missed the start of that.

Janine Rennie

Can you hear me now?

The Convener

Yes, we can.

Janine Rennie

On the question of whether survivors would accept the waiver if there was a higher level of payment, the survivors have been very clear that they would not. They still feel that they should have the choice. They know that there are plenty opportunities where, if there has been double counting of money then, as with the criminal injuries cases, there could be other ways of reclaiming any money that has been paid out. The survivors are very clear about that.

It is not about the amount of money. The survivors have been very clear that it has nothing to do with the money; it is about the betrayal that they feel. They are clear that they would never agree to the waiver. They feel very strongly about that, and they wanted me to stress it.

I welcome David Whelan’s paper. That is the first time that we have ever really talked about the impact on survivors. When I was reading through it, everything that was said about the long-term impact on survivors of abuse resonated with me. I do not think that the levels of redress are adequate. We have been delivering the In Care Survivors Service Scotland since 2008—for 12 years—and I have worked personally with survivors on a therapeutic basis. The level of physical, emotional and all other forms of distress that we have seen in everybody that we work with is significant. Essentially, £80,000 is two years’ salary for a lot of people, whereas we have worked with people who have never been able to work because of the severe distress that they have faced. How do you compensate them for that? I feel really strongly about that.

I should also say that the clients do not want a panel; they are very unhappy about the idea of a panel. They do not want to have to speak about their experiences to anybody else, because they have done it so many times.

Since we started, 12 years ago, we have worked with thousands of survivors in a clinical way and we have a huge number of incredibly thick clinical files. Survivors have said to us that they are quite happy to access their files and then present them as evidence. That shows the significant levels of physical and emotional distress that survivors have faced. In some ways, survivors feel that those files are their evidence.

Some of those survivors have worked with us for the whole 12 years, and one of them gave me a letter to bring to the committee. He feels really strongly that nobody represents him and that he has to speak for himself. He knows that there are other survivor organisations but he feels that nobody represents him and that he has been betrayed for the whole of his life. That particular survivor has not worked for the past 20 years because of the level of abuse that he received, and he lives in poverty. He said that he might feel compelled to take the money but that he might want to kill himself a year later because he had felt compelled to take it.

That is what we need to consider. As David Whelan’s paper shows, we are dealing with human beings who have been through distress that nobody should ever have to experience in their lives. They were betrayed and let down.

I find it really uncomfortable that we are arguing over a waiver, because it should not exist. It should absolutely be the case that the survivors get the choice that was taken away from them as children. They did not have a choice then. They were placed into a care setting against their will and their lives were essentially destroyed.

09:30  



We cannot take the choice away from them. It is what we have all been fighting for for years, and the survivor who I referred to has been fighting for it for his entire life. We should not take away the choice for those survivors as to how they receive their redress and whether they go to a civil court or to the redress scheme. No amount of legal advice will be able to make them understand what it will mean to them when they make that decision. That is what is important to me, because I know survivors who settled but then felt horrible about that. We need to think about what the impact of suicidal ideation will be down the line, as I do not think that that has been considered.

The Convener

Thank you. I see that both Mr Whelan and Ms Holland have indicated that they want to come back in on that point. However, I note for the record that I am bringing Ms Mackay back in and that Ms Wishart, Mr Johnson, Mr Greer and Mr Greene all want to ask questions as well, so if the survivors do not mind, I will not come back to you this time. You may address previous points when you answer the questions going forward, if you want to do so. I want everyone to have the opportunity to say their piece and to ask their questions, if that is okay with everyone. I will go back to Ms Mackay just now. [Interruption.] I think that Ms Mackay has finished her questions. I will move now to Ms Wishart.

Beatrice Wishart

What are the witnesses’ views on the composition of the redress panel? I would like an understanding of where they are on that at the moment.

David Whelan

The redress panel should have a wide range of skills. Clearly, it is basic that it should be trauma informed. We suggested in our first submission what the skill set might be. The important thing for us is that the panel is independent and impartial and has lawful discretion to make independent and impartial decisions. We believe that the words “lawful discretion” in relation to the panel should be included in the bill.

I want to go back to a couple of previous points. We have had legal advice from international lawyers that, in the Scottish circumstances, the waiver will be unlawful, even if the Government tries to argue that there were different circumstances in the Irish case. We had that confirmed last night by the international lawyers who worked on the Irish case. I am saddened that we have got to this point and that, as Janine Rennie said, we are arguing over a waiver that has many strands to it but is supposed to make the scheme successful. It is just incredible.

I am also astonished by the deafening silence from the Catholic church and the Catholic establishment. We have not heard anything. I do not represent the children who were in those institutions, but I think that the Parliament has a clear duty with regard to the voluntary contributions. Quarriers, CrossReach and Aberlour have committed to trying to find a way to make contributions if the conditions are right. We believe that, if the waiver is not there, people will be able to make those voluntary contributions. People are looking at Aberlour, Quarriers and CrossReach, but they have already committed to the voluntary contributions. I think that we should be looking the other way, at all the organisations that have not committed to the voluntary contributions.

The other point that I want to make is about eligibility. The Government must understand that we are really struggling with the fact that the Scottish child abuse inquiry has investigated all these institutions but it is not legitimate for former residents in half of them to access the redress scheme. How can you have a system, on which there has been an inquiry, that denies those former residents access to a redress scheme?

We are saying to the Government that it has a once-in-a-lifetime chance to redress all the issues. Ireland has done that. It is now setting up its third redress scheme, which will take about three months—it is due to start in April.

The Irish route is addressing all the issues of all the survivors from every institution. The Scottish Government needs to consider doing that, too. The Government will have to revisit the issue. We are telling it that it has an opportunity to address the issue and make the scheme one of the best in the world. We, in Scotland, are the last to do anything—let us stop pretending that that is not the case.

The Convener

I will bring in Ms Holland at this point.

We seem to be having a wee bit of trouble with the connection.

Helen Holland

Can you hear me now?

The Convener

We can hear you, but we cannot see you.

We can see you now.

Helen Holland

I am sorry about that. I got logged out of the system.

The consultation papers mentioned the redress panel, but, to be honest, there has not yet been a great deal of discussion around who would be on the panel, and so on. That has still to be covered. We ask that the panel members be qualified with trauma-informed and financial qualifications—whatever the situation requires—but those conversations have not taken place yet.

On the issue of who is engaging with whom on redress, we are not privy to the conversations that are taking place between the Government and care provider bodies. That might be right, in a way, because the burden of responsibility of deciding who is paying what should not lie on the shoulders of the survivors. They are already carrying so many burdens, and that would be yet another one.

As I said, the conversations have not taken place yet, so it is difficult to answer the question.

The Convener

Okay. I have not seen any indications from Ms Rennie or the other witnesses that they want to come in on that question, so I will go back to Ms Wishart.

Ms Wishart has indicated that her question has been answered, so I will move to questions from Mr Johnson, please.

Daniel Johnson (Edinburgh Southern) (Lab)

I have two related questions on the evidential requirements for redress, so I will wrap them into one. There was a lot of detail on that topic in the written submissions, and we have examined the matter quite a lot. My questions follow on from Janine Rennie’s comments.

My first question is: what should the evidential requirements be for making an application? Do the witnesses agree with Janine Rennie’s points? How should the requirements be formulated, so that it is clear and easy for survivors to present that evidence?

Regarding my second question, I received a direct communication from a survivor who is keen that any information or evidence that is obtained by redress Scotland be provided to survivors. Many survivors do not necessarily know everything that happened to them, including where they were, or why. It is therefore possible that redress Scotland could obtain information that survivors simply do not have. That is not a matter on which we took evidence, so I am interested in hearing from witnesses about the possibility of requiring redress Scotland to hand back any information that it holds, subject to the protection of other individuals’ privacy.

My two questions are on evidential requirements and the requirement to hand back any information to survivors at the end of the process.

Simon Collins

At INCAS, we have a lot of experience of engaging with the child abuse inquiry. It is clear from what Janine Rennie said that there are organisations, such as hers, with which survivors engage and to which survivors spend a lot of time explaining the traumas that they have suffered, to the extent that they relive them. Whatever the basis of the evidence gathering, at all stages, it should be borne in mind that, whenever it is possible to gather evidence from a source without requiring survivors to go over very painful ground, that is the only appropriate approach.

I welcome the fact that an approach will be made to the inquiry. Many, although not all, survivors who want to come forward have engaged with the inquiry, and that is one means of gathering their evidence. Therefore, I welcome the fact that an approach has been made to Lady Smith about whether the information that is already held there can be used.

On the point about returning information, I am aware that, in the course of giving evidence to the inquiry, survivors have encountered documents relating to them that they have not seen before, including records that had been lost. Survivors might have spent many years struggling to find that information and, in some cases, put together a sense of identity from it. I cannot speak on behalf of survivors, but I have observed the distress that can be caused when such documents are locked back in a vault because they are part of confidentiality arrangements. Having observed the reaction of survivors, it seems to me that information that is obtained should be left with the survivor to use as they wish.

David Whelan

As Simon Collins said, we do not want the survivor to have to keep retelling their experience, as they will have repeated it many times. For us, it is important that the survivor is at the heart of the process and chooses the support mechanism that they want to take them through it.

On evidential requirements, people ask me, “David, when did this all happen?” For FBGA, it all started in 2002. I pay special tribute to two women who had the courage and tenacity to highlight the Quarriers abuses. They were in the media in 1984—one was Jan McQueenie, and the other was Doris Black. They were ostracised by the state and the Government because they had the tenacity to raise issues in the media about the abuse that they suffered in Quarriers in the 1940s, 1950s and 1960s. Unfortunately, they are now deceased, but their families will have some evidence, which is where next of kin come into it.

09:45  



I have a second point, on evidential requirements. In our submission, we talk about the standard of proof, which needs to be lawful. We keep hearing from the Government that the process is not a civil proceeding, but we want the evidential standard of proof to be robust and credible. My concern, if I have one, is that the pre-1964 records of many survivors were destroyed, which means that much of what the committee might consider to be evidence that would normally be available to meet the requirements is, unfortunately, not available to survivors. We are concerned that, if the bar is set too high, it will exclude many survivors. The committee needs to consider that when it thinks about where the threshold should be set. We have an open mind on that—we have addressed it with regard to what I have just said.

On the governance of redress Scotland, it is important to put on record that we believe that redress Scotland should be independently regulated, with independent audits and impartial surveys of its functions. It will not give survivors confidence if the whole process is embedded in the Government. If a report were to come out from the Government that said that the organisation was doing fine, it would not, unfortunately, be independent or impartial.

On the gathering of evidence, we are concerned about what happens to the evidence when it is submitted to the process. Where does it go? Where does the consent and permission of the survivor start and end? If the survivor submits a document that requires to be validated, we believe that there is a need to go back to the survivor to ask for permission. There should not be a unilateral decision to send the document to a third party without the permission and express consent of the survivor.

On sharing information and data, I agree completely with Mr Johnson. If redress Scotland has information to which a survivor has not previously had access, it needs to find a way to share that with them while abiding by the data protection legislation. Redress Scotland cannot simply take the view that it can hold everything. If it has information on people who have not been able to access that information, it should share as much of that data and information as possible with the individual.

Janine Rennie

It is important that going for redress is a survivors’ process. It should be for survivors to choose which information they provide to whatever body is set up. We have been very much involved with the advance payments scheme in respect of access to records. Since the In Care Survivors Service Scotland was established, in 2008, one of its main roles has been to access records for survivors, so we already hold substantial records that survivors have been looking for over the years. A lot of the client files will contain their access-to-records information, with evidential information on what care home they were in and so on.

As I said when I gave evidence previously, one concern is the number of fires and floods that have occurred, which means that a lot of evidence unfortunately no longer exists. We have had reports back from two of the care homes that we are currently dealing with to say that there are absolutely no records. We have tried our hardest to go through school records and all sorts of different routes to find evidence that people were in a certain care home and, from that, to provide evidence that abuse took place, but it has been really challenging.

One important point that comes across all the time from survivors is that, when clients access their records, those are their records—and they should have support to go through them. We initially developed the model of access to records through the Care Leavers Association down south, which gave us some support in setting it up, drawing on its experience. It came across clearly from the association that there would be things in files that people did not know about. For instance, siblings had no idea about all sorts of information, which was a surprise to them. For their safety and to address risk, it is really important that people are supported through the process of accessing their records. We have been encouraged by the advance payment team, who have provided support and worked responsibly with us to ensure that we can access client records. We hope that that will continue. In Care Survivors Service Scotland has 12 years’ experience of that.

The records should belong to the survivor—I have been clear about that from the beginning. Every bit of information on a survivor should belong to the survivor—and that fits with the general data protection regulation, or GDPR. If the panel manages to find any additional information, it should go to the survivor first so that they can choose what information is then shared, as somebody would if they were looking to give their general practitioner’s records to an insurance company. What information is shared should be the survivor’s choice, as there might be aspects of their past that they do not remember being discussed and they should have a chance to reflect on that.

I would ask the panel to reflect again: how would you feel if some stranger got hold of your GP records and there were things in there that you did not want anybody to know? It should be the survivor’s choice what is known. The redress scheme is the survivor’s scheme, and it should absolutely be their choice what is shared within that.

Helen Holland

At the moment, there is an assumption that there will have to be a high level of evidence, but nothing has been said in the debate or anywhere else to suggest that. The whole point of the redress scheme is that the evidence required would be less.

I take on board exactly what is being said. For years, survivors were told that records did not exist and so on, but the child abuse inquiry has proven that to be absolutely wrong. For example, I was told that there were no procurator fiscal records, but they appeared before I was due to give evidence, so the reality is that there are records that are not being made available.

In the redress board, perhaps something could be put in place whereby the people who hold the records are compelled to provide them and the survivor—together with a support worker—is able to go through the records, not necessarily for the sake of proving that they were abused or whatever, but to find whatever it is that they wish to put before the panel.

INCAS’s position is that providing any evidence that is already out there, in order to avoid a survivor having to go through their experience over and over again, has to be a priority.

Many of our members who applied to the advance payments team thought that they did not have anything—they were told that they did not have anything—but the support people in the advance payments team or the people who were dealing with the applications were able to find that evidence. There is a lot of evidence out there that people think is missing, but it is still there. I am not, however, saying that that will be the case for everybody—some survivors will have difficulty, and I would not sit here and say otherwise.

Going back to the question about the basis of evidence, we do not know what level of evidence is being asked for at this stage. Until there is clarity on that, we are making the assumption that a high level of evidence will be required, although my understanding from the feedback both from the minister and from officials is that the level of evidence that will be required will be much lower. Given how the scheme has been set up and how things have been written, the redress is said to be more trauma informed, and there is no desire to make survivors relive all their experiences. That is my understanding, to date, of how the redress scheme is being set up. I may have picked that up wrongly, but I do not think so.

David Whelan

I agree completely with what Janine Rennie says and also with a number of the points that Helen Holland raised. Mr Swinney is on record as saying that the evidential requirement will be lower—that is in our submission. The committee and the Parliament will have to come to an agreement on where to set the standard of proof, so that it matches the lower evidential requirement.

The Convener

We will move on to questions from Mr Greer.

Ross Greer (West Scotland) (Green)

Let us turn to the issue of fair and meaningful contributions from organisations, following up on something that Helen Holland said in response to the first question from Iain Gray. There is some tension around the matter of fair and meaningful contribution. If we work on the assumption that contributions will be met directly by the organisations—probably from their reserves, because it is not a scheme that the insurers will engage with—the challenge becomes how to ensure both an appropriate level of contribution from the organisation and that any survivor who comes forward is able to get financial redress, no matter what.

That takes us to the point that Helen Holland made about how much comes from the Government and is public money. Some organisations will be able to cover all that is asked of them, although whether they do so is up to them, as it is voluntary. However, given that we cannot predict how many people will come forward and how much the sums will be, it may simply not be financially possible or realistic for some organisations to cover it all themselves. Also, some organisations may wish to give a lump sum at the start of the process but, by the end of it, survivors’ demands of that organisation might outstrip that sum.

I am not asking the panel to come up with a solution, and I recognise that what survivors want, overwhelmingly, is redress from the organisations, not from the Government. However, it would be helpful to hear the witnesses’ reflections on what it would mean for survivors if we ended up in a situation in which organisations made what was broadly regarded as a fair and meaningful contribution but that did not cover the demand, so that financial redress for some survivors came overwhelmingly from the Government.

David Whelan

Respectfully, Mr Greer, I disagree with what you are saying about survivors expecting the institutions to carry the complete burden of redress. The ultimate responsibility lies with the state, so it should be a shared burden. The providers, as we can see, have asked that conditions be set so that contributions are fair and meaningful, affordable and sustainable, which would enable them to contribute.

We believe that that would also enable lots of other institutions that wish to contribute to do so. Some of the institutions no longer exist, so there is, again, an issue with the waiver. Some of the institutions have trust funds that are on-going and that operate slightly differently, but they may wish to contribute a sum. I think that the committee needs to take an open view of the matter, because every organisation will be different.

The expectation is that, based on numbers, one organisation could pay more than another organisation that is very rich today or that maybe does not exist but that has assets all over the place that could be accessed. The scheme has to operate in a way that makes it attractive for institutions to contribute.

10:00  



It is inevitable that some institutions are not in existence and other institutions cannot afford to contribute. It is on record that the survivors do not wish to damage the institutions. The issue with the contributions is about the waiver. I apologise for going back to that, but I will tell you what we have told Quarriers. I have been asked by survivors what I will say to Quarriers if the waiver comes in. We have told Quarriers that we recognise that it is trying to reconcile and that it has made huge steps, just as the Scottish Government has made significant steps to address the issues in the past few years, and we recognise that it wishes to contribute.

Generations of children have been failed by the organisation, and the organisation recognises that through the child abuse inquiry. We are saying, “Don’t fail the current children and current users.” If the waiver comes in, we will say to Quarriers, “We respectfully acknowledge that, but we’re asking you to keep that contribution and put it into enhancing the aftercare service and back into current services. If you put us in a position in which we have to sign something that is unlawful and that will not hold the Government to account, will not hold the abusers to account”—as Helen Holland said—“and will not hold the institution to account, we do not wish to sign that, so keep your contribution and put it into non-redress and enhance the aftercare service.”

Janine Rennie

David Whelan makes an interesting and useful point about aftercare. We have worked with and have evidence of 367 care establishments. As well as that, we have evidence of probably as many foster carers who abused children in the past. Barnardo’s, Quarriers, the Catholic church and other large institutions are a bit of a distraction from that. Although a number of survivors were abused in those settings, many of the settings have not even been investigated by the child abuse inquiry. As David Whelan said, a lot of institutions are no longer with us—they shut down years ago—and a lot of foster carers are no longer alive, so there is no way that they could contribute to the scheme.

Another thing that the survivors said to me loud and clear is that they feel that there is a focus on particular institutions and that that excludes them entirely. That is the wrong approach, because it makes survivors feel that some organisations are in the limelight as the ones that have abused children. Obviously, the child abuse inquiry has been focused on those organisations, but a whole load of survivors feel lost in among that. They are the ones who were perhaps abused by a small institution. There might be two, three or four people who were in that institution, but it is no longer there, so there is nobody to be held accountable.

A large number of survivors say that it is the absolute responsibility of the state. A number of the homes that they were in were institutions that were run by the state, perhaps through local authorities, so the survivors feel very strongly that, in a way, the issue of institutions paying into the scheme does not affect or apply to them. Even if we get what would be perceived as a reasonable contribution from an organisation that is now running as a charity that helps people, survivors will worry and have concerns about that, as David Whelan said.

It is important to see that that is in no way the answer, because it will miss out all those people. How do you answer those who will be excluded because their foster carer died 10 years ago and cannot contribute to the scheme? You need to think about what we are dealing with—it is not just what is in the public eye or in the big stories; it is every single establishment. As I said, Wellbeing Scotland and In Care Abuse Survivors have evidence of abuse in 367 establishments and by probably just as many foster carers, so it is not an easy issue to consider.

The Convener

We will go back to Ms Holland and then back to Mr Greer.

Helen Holland

Mr Greer, I appreciate the fact that you were not asking us to come up with solutions. However, I agree with Janine Rennie that many survivors were in foster care and the reality is that the foster care system is under the care of the local authority, so the Government would be responsible for covering the costs. There are also establishments that, because of the length of time that has passed, no longer exist, and the redress relating to them, unfortunately, would probably lie with the Government as well.

However, when care provider organisations could contribute to the scheme—and there are still quite a few of them—our opinion is that they should do so. Ninety per cent of survivors have said that they want contributions to come from the state, which was primarily responsible, and from the organisations, which, in many cases, were aware of the abuse but did nothing about it.

This is not an easy issue for the panel. Ross Greer made it clear, when he asked the question, that it is not for the survivors to come up with solutions to every question. Survivors have enough of a burden on their shoulders without having to come up with all the solutions for redress. Yes, we can give input, and I am grateful for being able to do that—as, I am sure, David Whelan and Janine Rennie are—but the reality is that it is not for us to come up with the solutions. Redress has taken place all over the world, and there have probably been the same difficulties. I never expected Scotland to be different; I always knew that this was going to be the most difficult part of everything that we have done over the years, and that has absolutely proven to be the case.

Ross Greer

The answers to my question have been more than adequate, so I do not feel the need to come back in, although Mr Whelan might wish to come back in on that point.

The Convener

Mr Mundell has a supplementary question in the same area—it is either on Ross Greer’s question or on the previous one—so I will go to him first, and then Mr Whelan can wrap up his responses to both questions.

Oliver Mundell (Dumfriesshire) (Con)

My question is supplementary to the question before Mr Greer’s—I was probably slow in typing into the chat box. It follows up on the points that Daniel Johnson made and is about the burden of proof and evidential requirements.

I am not looking for the witnesses to come up with the solutions, but I am interested in their thoughts on whether survivors and victims would expect a different level of evidence to be provided for the higher award payment or whether they would expect the approach to continue to be that the same burden of proof and evidence would be required across all the payment levels.

David Whelan

I fully support what Helen Holland said in response to the previous question—I want to put that on the record. In fact, I would say that Helen has just answered the next question as well, because it is really not down to us what evidential levels will be required. We are being asked to come up with various solutions. Although we can help to explore those, we feel that it will be for the panel to make the ultimate decision, and it should have the power to do so independently and impartially.

If you are saying that there should be certain thresholds for certain payments, we would agree. However, I say that with caution in relation to the evidence that is available to survivors. For example, a 1964 survivor might struggle to find evidence that meets the higher threshold. The Scottish Government has already acknowledged that such a survivor will also be disadvantaged by not being able to access civil litigation. As Helen Holland said, we will continue to explore with the Government solutions for a number of the questions that have been raised, and we hope to help it to find those solutions.

The FBGA feels that, just as is the position with the Scottish child abuse inquiry, in which there will come a point at which the chair has to make decisions, there will also come a point at which the proposed independent and impartial decision-making panel will have to make decisions. I reiterate that provisions on the panel’s discretion, independence and impartiality should be in the bill. It needs to be given such powers.

Simon Collins

The part of the question that I noted asked whether, if a standard brief were to be set, it should follow that a higher standard should be applied when higher payments were sought. The simple answer has to be no. The standard of evidence required to establish that abuse has taken place must be the same; it is the level of payment that should reflect the level of the abuse. Someone who has suffered the most horrific level of abuse as a child and throughout the rest of their life should not have to meet a higher standard of evidence to establish it than someone who suffered abuse that, although still horrible, could be considered to have been at a lower level. The standard should not change.

I want to raise a point of which the committee might already be aware. The inquiry’s experience has been that various organisations have been called upon to observe survivors’ evidence and have the opportunity to put questions to them. However, not a single survivor who has given evidence of the abuse that they have suffered at the hands of those providers has had their evidence challenged by them in any significant way. At the end of every passage of evidence, the providers have been given an opportunity to make submissions, and they have either accepted it or have stated that, although they might not know what happened, they are not saying that the survivor’s position as it was advanced is untrue.

So far, that position has been adopted by a number of organisations. Whatever else might be said about providers seeking to avoid liability, it seems that, when they are publicly faced with the situation, there is no appetite among them for suggesting that those who have been brave enough to come forward and share their childhood experiences should be disbelieved. I suggest that, if an organisation has spoken at the inquiry and has accepted, without dispute, that abuse has happened, the panel should be able to take that into account as a relevant factor for consideration when it weighs up redress claims.

Janine Rennie

[Inaudible.]—That was one of the tensions that was mentioned by most of the survivors to whom we spoke. We also did a survey that asked them about it, and around 90 per cent said that they did not want there to be a scale. They did not want survivors to have to meet different levels of evidence, because that might make one feel that their experience had been worse than someone else’s whereas the situation might just be that the other person had been unable to provide the same level of evidence.

As I have said previously, some survivors have never told anyone in their family that they were sexually abused and they will never tell anyone else about it. Yesterday, I spoke to one of the survivors whom I counsel, and he said that he will never tell anybody that he was sexually abused, even if doing so meant that he would get redress at a higher level on the scale.

It is really difficult. We need to look at the complexity of the issues and consider whether people feel comfortable about disclosing abuse.

10:15  



Many survivors were not part of the original consultation—way back, when the scale was first presented—and they felt that the scale was the only option that was being presented to them in the subsequent consultation. They say that, if they had been asked the question, they would have said, “No—there should be a reasonable level of redress for everybody,” and that everybody should be treated equally, because we cannot scale the impacts. Somebody might have had an experience of abuse that affected their entire life, whereas somebody else might have experienced abuse and managed to function in life, going on to live in a really fulfilling way. It is therefore very difficult to make such an assessment.

With all due respect, even if the decision-making panel is made up of a lot of professionals, they are not going to be able to make such an assessment without knowing the survivor, and they will not get to know the survivor during the time for which they access the panel.

Throughout my years of working in the field—I am now standing back from it a bit, because I am the chief executive of an organisation—I have seen survivors pitched against survivors, and it has been really damaging for everybody throughout the process. I am really concerned that we could have a process that would continue that.

David Whelan

Some of what Janine Rennie has said has merit. If we had had more time, we could have scrutinised the model that she is talking about. That would have been helpful.

On the evidential thresholds and requirements, we say in our submission:

“these Redress evidential levels are required to be robust and credible, to prevent fraud and support genuine applications.”

We are talking about the process here. There has to be a recognition that this is public money and it must be managed appropriately and properly.

Helen Holland

In response to what Janine Rennie said, I note that our members have made it perfectly clear, as did the people who engaged with the consultation, that they do not agree with a flat-rate payment. I cannot think of anything that would be more unfair. How could that be justified? Some people went into care as toddlers, and we have a member who did not leave the care system until the age of 24. They were not signed off from the care system until then, and they suffered horrific abuse during that period.

I am not saying that abuse does not take place only for a few months, a year or whatever, but the reality is that people’s experience of the care system is unique to them and there are individual circumstances regarding the length of time they were in care, the level of abuse, and so on. In the opinion of the people of INCAS, it would be unfair to make a flat-rate payment across the board, and they would not see that as justifiable. If anything, it would probably cause even more division among survivors.

This is about justice. It is about survivors being able to walk away from redress feeling that they have achieved justice and that they can get on with their lives and start repairing the damage that has been done to them.

The Convener

Mr Mundell, do you have a final question, or are you content?

Oliver Mundell

I am happy with those answers, which were helpful. I clarify that I do not have a strong view one way or the other; I just wanted to highlight that it is a complicated issue.

The Convener

I will go back to Mr Whelan for a final comment, because he has put an R in the chat box. I say to everyone that, if there is something that you wanted to say today but have not been able to say, you should get in touch with our clerks and we will ensure that it is shared with the committee before we start our stage 2 deliberations.

David Whelan

I agree with Helen Holland. As you can see from the clinical assessment paper that we provided to the committee, this is about the individual and their unique experience. That is what we are talking about. The work is survivor centred and survivor informed. It is about the individual and their lifelong experiences in relation to what may have happened to them in care.

The Convener

I thank the survivor organisations that have been with us today for their willingness to engage with the committee during this process. Your evidence has been extremely helpful.

I will suspend the meeting for two minutes, to allow the minister to join us and the current witnesses to leave.

10:20 Meeting suspended.  



10:22 On resuming—  



First meeting on amendments

Documents with the amendments considered at the meeting on 10 February 2021:


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First meeting on amendments transcript

The Convener

We move to item 2. This will be my first stage 2 as convener; I know that some committee members have dealt with bills at stage 2 in other committees. I will endeavour to get through the amendments as efficiently as possible.

When members wish to speak in the debate on an amendment, I ask them to indicate that by typing R in the chat bar. If members wish to intervene on a speaker, I ask them to please type I in the chat bar. I will give further information on divisions if we come to one. We move to consider amendments to the bill.

Section 1—Overview of Act

The Convener

The first group of amendments is on the waiver. Amendment 1, in the name of Iain Gray, is grouped with amendments 38, 2, 40, 3, 43 to 45, 48, 5, 84, 6 to 17, 106 and 107. I draw members’ attention to the pre-emption information that is in the groupings document. If amendment 3 is agreed to, amendment 43 will be pre-empted. If amendment 17 is agreed to, amendment 100, from the group on initial determinations, will be pre-empted.

Iain Gray (East Lothian) (Lab)

I will speak to amendment 1 and the other amendments in my name. It is appropriate that the group on the waiver is the first to be debated, because it goes to the heart of the bill’s purpose. As we know, the redress scheme is the final stage in a very long process of recognising the appalling treatment that many children suffered when they were supposed to be in our collective care. It took years for their stories to be heard at all; years more for those stories to be believed; longer still for an apology to be made to them—initially by the then First Minister, Jack McConnell; and years more until their experience was formally investigated and recognised in an inquiry.

It has taken yet longer to produce the legislation that will provide those people with redress. The abuse that they suffered has blighted their whole lives, which have been further hurt by the struggle for justice that they have faced. We all want to get the scheme right—above all, for survivors. The bill that we pass and the scheme that it creates must be trusted by survivors, yet the bill as introduced has at its heart a measure that threatens to compromise such trust. As the committee has heard, some survivors consider that measure to be a betrayal.

Under the waiver, if a survivor benefits from the redress scheme, they are required to give up their right to pursue civil justice. The cabinet secretary argued to the committee that that is necessary to ensure that care providers in whose care survivors were abused contribute to the scheme. It is true that survivors want care providers to contribute. However, the cabinet secretary has been unable to put before the committee the evidence that the waiver is the critical element that will ensure that contributions are forthcoming.

The committee heard evidence from potential contributors that, although a waiver might help them, it is not the critical factor—that is the affordability of the required contribution and the fear of a commitment without limit, which we will deal with under other sections. The providers were at best ambivalent about the protection that the waiver purports to provide.

We must remember that contributions will be voluntary, with or without the waiver in place. There will be no compulsion. In effect, we are being asked to include in the bill a measure that threatens to undermine the scheme in survivors’ eyes, and to do so in the interests of those who historically allowed the abuse to happen, without creating a compulsion on care providers to contribute.

The key amendments are amendments 6 and 7, which would remove the waiver requirement. The other amendments that are in my name are consequential to those amendments.

I acknowledge that the cabinet secretary has made significant efforts that would mitigate the effect of the waiver, but it would remain in place even if his amendments were agreed to. He has not managed to square the circle of the waiver and contributions. Given the choice, we should choose to square that circle on the side of survivors. We should protect their rights and ensure their confidence in the bill.

I move amendment 1.

08:45  



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

I thank Mr Gray for raising the issue of the waiver. It has been a key issue throughout the scrutiny of this bill, and it is important that we discuss it today. I also thank the committee for its careful consideration of this complex and sensitive matter. During the past weeks and months, we have all been navigating our way through a wide range of evidence and an even wider range of views on this issue.

[Inaudible.]—explore alternatives, and we have looked far beyond our shores at the experience of other schemes. The result of that exploration and consultation has confirmed my belief that the inclusion of a waiver represents the best possible way of delivering a collective approach to redress that secures the financial contributions that survivors want and deserve.

There can be no mistaking the commitment and desire of all of us in Parliament to do the very best we can for the survivors that our country has let down so badly.

I fully acknowledge that there are no easy options, but I continue to believe that the waiver is the best option available to us. The waiver is an important mechanism to encourage the participation of organisations. It is the only route to securing meaningful contributions at a level that can be considered fair and appropriate. The waiver helps to secure financial contributions by reducing the risk of litigation that organisations, the Scottish Government and local authorities would otherwise face in relation to abuse covered by the scheme. By reducing that risk, the waiver enables those organisations to commit to larger contributions than would be the case if there were no waiver and the risk of future litigation were not reduced.

Alex Neil (Airdrie and Shotts) (SNP)

As the cabinet secretary knows, I am not enamoured with the waiver, although I recognise that in his amendments he has gone a long way to try to deal with the concerns of survivors. A major concern for some survivors is that, after they sign a waiver, additional information might become available that would have given them a good chance of success in getting substantially more compensation and redress in court. Between now and stage 3, will the Government consider the possibility of amendments to address that situation, so that if any survivor finds themselves in it, the waiver could be waived?

John Swinney

I am grateful to Mr Neil for the intervention. I listened carefully to the concerns raised by survivors and others on that point and, if new evidence emerged, the amendments that I am lodging would allow redress payments that have already been accepted to be revisited to take account of that fact.

I want to create a redress scheme that is fair to survivors. That means empowering them to make the right decision, with independent legal advice, and to choose the right path. I lodged amendments to ensure that survivors have the time that they need to make those decisions and that the scheme is open long enough to allow them to fully explore other options. They also have the option to pause their redress application at any time before a determination is made.

However, Mr Neil made an important point, and I will consider that issue again in advance of stage 3. If there is more that we can do to strengthen the safeguards for survivors, we will certainly aim to do so.

The primary purpose and intention of the waiver is to ensure that those who are seen as responsible contribute to the scheme and the national response to historical child abuse in care in Scotland in a sizeable and meaningful way.

It is important to state that it is only by participating in the scheme at an acceptable threshold, by making a fair and meaningful contribution, that any organisation could have the waiver apply to it. In the absence of that fair and meaningful contribution, survivors will be able to receive their redress payment and still retain the option to raise legal action against the organisation.

It is my judgment that removing the waiver would have a significant impact on the Government’s ability to secure financial contributions for redress payments to survivors. We know that from our extensive engagement with organisations and from the written evidence that was submitted at stage 1. Survivors responded in large numbers to both the 2017 consultation and the pre-legislation consultation, and in both cases the overwhelming majority stated that they wanted those responsible to contribute financially to the scheme. Without the waiver, it is unlikely that we will be able to deliver to survivors the redress scheme that they want. That would leave pre-1964 survivors with no avenue through which to hold their provider to account by way of receiving a financial payment from it because, as we all know, court options are not available to pre-1964 survivors.

Some organisations have told us and the committee that the waiver will not make a material difference, as they cannot afford to contribute at the threshold required to be covered by the waiver. However, the scheme cannot be designed around their needs alone, and it is important to recognise that, for many others, including some of the biggest potential contributors, the waiver is essential. Many of those organisations want to do the right thing but, without the waiver, they may not be able to do so, largely because they would continue to face the financial risk of civil litigation.

I understand the concerns that have been raised, and we have sought to safeguard survivors’ rights in the bill—for example, by funding independent legal advice for applicants to ensure that all decision making is fully informed. I am also proposing a broad range of changes to the bill that seek to further strengthen those protections. They include extending the time period that survivors have to make key decisions and removing initial determinations so that the waiver will come only at the very end of the process, when a fully informed decision can be taken. They also include allowing the ability to bring a second application for an individually assessed payment to redress Scotland in light of new evidence, even if an earlier payment of less than the maximum amount was already accepted and a waiver was signed to bring matters to an end.

I will come on to the mitigating measures that I am proposing, including ensuring that waivers can be revoked if an organisation reneges or defaults on its commitment to make the agreed financial contributions to the scheme. That will ensure that waivers will, as intended, stand only in situations in which an organisation made a fair and meaningful contribution to the scheme.

I appreciate that the redress scheme will not be the right path for everyone. Indeed, it is not designed as such; I do not hide from that. It is a route to financial payment in respect of historical abuse for those who currently have no route. For those who already have the choice to go to court but do not want to do so, it offers an alternative option that many, but not all, will find attractive. The right of survivors who can and want to go to court instead of receiving a redress payment is entirely unaffected.

I have carefully considered the alternatives that were discussed in the stage 1 evidence sessions, such as offsetting, but I do not consider that there is an option that is as workable or as effective as the waiver in being able to deliver up front the scale of contributions that we seek for survivors. I have listened to the concerns of those who have given evidence, and I do not in any way dismiss them, but I ask colleagues to consider carefully what we are seeking to do. I believe that, to achieve the aim of providing meaningful redress, which includes payments that contain a contribution from providers, our scheme, like other schemes around the world, must include the waiver.

For the reasons that I have set out, I invite committee members not to agree to Mr Gray’s amendments, which have the intention of removing the waiver.

I have heard concerns expressed by some survivors that organisations that agree to make fair and meaningful contributions to the scheme may not ultimately do so. It is essential that survivors have confidence in the commitments that are made by organisations that choose to participate. The scheme looks to organisations to play their part and to make fair and meaningful contributions to redress payments. It is only on that basis that survivors can be asked to sign a waiver in relation to the organisation, and it is essential that the basis on which that waiver is signed is respected and delivered.

I listened to the concern that waivers, once granted, are currently not affected if an organisation defaults on its agreed payments. The bill, as introduced, provided that unpaid contributions could be recovered as a debt owed to the Scottish ministers. I recognise and acknowledge that that simply did not go far enough for survivors, and I believe that returning the survivors’ rights to them as if they had not signed the waiver against the defaulting organisations in the first place is the fairest way to proceed. The amendments will allow that.

Where it transpires that an individual survivor’s redress payment did not include a contribution from a particular organisation because it failed to pay what is promised, that individual survivor’s waiver will not continue to apply against that organisation. The intention is that survivors sign a waiver on the understanding that they receive redress that includes a fair and meaningful contribution from their provider. If that contribution is not delivered, the survivor should have returned to them the right to pursue that provider in the civil court, through the retrospective removal of the organisation from the contributor list.

I understand that an applicant may choose redress precisely because the scheme has received provider contributions. For some, that will be a preferable way to hold providers to account and to receive financial payments from them. For such survivors, it would be unjust if, in good faith, they signed the waiver but the organisations defaulted and failed to pay. I hope and am confident that all contributions that are agreed in our scheme will be delivered. I have taken significant steps to facilitate participation and to address affordability concerns. Organisations that are seeking to fairly play their part in the scheme are looking to face up to the past with integrity. We will work with them to ensure that their agreed contributions are made. However, in relation to the prospect of default where agreed payments are not delivered, my amendments on the subject will strengthen the rights of survivors. If the contribution is not delivered in full, the settlement cannot be considered to be final.

My amendments will make it possible for the Scottish ministers to retrospectively remove organisations from the contributor list where they default on their agreed fair and meaningful contributions. The amendments put the needs and the confidence of the survivors at the forefront of the process. I therefore ask that the committee supports those amendments.

The committee recognised the Delegated Powers and Law Reform Committee’s concern that the negative procedure would not provide an adequate opportunity for scrutiny of the form and content of the waiver, given its significance in the context of the redress scheme and the potential implications for applicants. In response to the stage 1 report, I committed to lodge an amendment at stage 2 to make the regulation subject to the affirmative procedure. My amendments 106 and 107 will do that. Effective and thorough scrutiny of the waiver is important to ensure that applicants and organisations have confidence in relation to its functioning and that of the scheme as a whole. I hope that that amendment to the procedure for the regulations on the matter will go some way to ensuring that that is the case.

Daniel Johnson (Edinburgh Southern) (Lab)

I thank the cabinet secretary for his contribution and for the manner in which the Government has conducted its engagement with the committee. I also thank fellow committee members. I think that we all understand the seriousness and importance of the bill.

I understand the purpose and intent of the waiver. The bill is about a series of balances between the rights and requirements of survivors and the limitations and restrictions that there might be on providers, and it is important that both of those groups participate. However, despite the significant number of changes that the Government has introduced, which I welcome, there continue to be issues with the waiver.

The first is whether the waiver adequately secures the participation of providers. As Mr Gray alluded, it is far from clear that it will do that. That is simply about the incentives that the waiver will create. Although it would prevent participating organisations from being taken to court, at the moment, it is not clear that that provides those organisations with an incentive, given the arrangements that they might or might not have in place with insurers. In short, if providers are uninsured or their insurance does not cover them whereas it would cover them if they were taken to court, by participating in the scheme, they would be exposed to additional financial liabilities to which they would not be exposed if they simply sat it out and, in essence, allowed people to pursue their claims through the courts. That remains a significant issue.

09:00  



The other critical issue concerns survivors’ rights. We are essentially asking survivors to set aside their rights in order to take part in the scheme. I understand and appreciate that, for a great number of survivors, it might not be possible—or they might not be willing—to go through the courts. Nonetheless, there are questions around whether the scheme as it is currently constituted would adequately ensure that they were informed in making that decision. There is also the question of scope, given that the scheme does not cover damages in all respects, particularly loss of earnings. Finally, there is the question of whether it is legitimate to ask people to set aside their rights. It is not always acceptable to enable people, regardless of how informed they might be, to set aside their rights voluntarily.

For those reasons, I still question the waiver, particularly as it would apply in situations in which new information came to light, as Mr Neil highlighted. In addition, there is the question of whether it would be legitimate in situations in which the cost lies outside the scope of the scheme. In such cases, individuals must surely retain the right to pursue their claims through the courts.

I ask Mr Swinney, in summing up, to say whether he would consider other compromises and additional situations in which the waiver might be set aside, either by redress Scotland itself or through application to ministers or some other mechanism. For example, if significant new evidence came to light, an individual might ask ministers or redress Scotland for the waiver to be set aside—

The Convener

I am sorry to interrupt, Mr Johnson, but I will pause you there. The cabinet secretary said that he will not move the amendment, so he will not have an opportunity to sum up the debate on it. However, Mr Swinney is in a position to intervene in response to your comment if he wishes to do so and if you wish to take the intervention. I will pause for a moment to see whether that happens, and then we can move on.

John Swinney

I am happy to make some comments in response to Mr Johnson’s very fair observations on the situation. Through the amendments that I have lodged, I am trying to take a number of steps to ensure that, while there is no erosion of survivors’ rights, they have available to them the maximum choice as to what course of action they wish to take.

I have made it clear enough—and I put it on the record again—that the scheme was designed to give survivors a choice in the route that they decide to follow. They are not obliged to use the redress scheme, but it is designed to be an alternative to court action should they consider that to be viable.

As I said to Mr Neil, I certainly commit to identifying, during the remaining period available to me between stage 2 consideration of amendments and stage 3, whether there are other steps that we could take that would go beyond the amendments that we have already crafted to address the issues that Mr Johnson, Mr Neil and Mr Gray have raised in committee this morning.

Daniel Johnson

I appreciate that commitment, and I would seek to work with colleagues and the Government to explore whether there are possibilities in that regard.

I will highlight one other situation in which an application would clearly not be in the interests of the applicant, given the nature and the quantum of the compensation that is available. There might well be situations in which it is apparent that a claim, if taken through the courts, could result in an award that is much more generous than what is available under the scheme, or in which the amount of damages might be such as to cover the loss of earnings, as I mentioned. It might be clear to redress Scotland that it could not make an award to the same degree or extent as might be available through the courts.

I wonder whether, in that situation, we should make it possible for redress Scotland to make an exemption to the waiver at the point of the award or, indeed, to explicitly point that out to the individual. Ultimately, I am asking whether redress Scotland should have an overarching duty to act in the best interests of the applicants, because this is not a judicial process—it is not a process that finds fault, and it is not an adversarial process. Indeed, in many ways, we could regard it as an investigative process that seeks to establish facts. Therefore, I think that it would be perfectly legitimate for it to do that, and that would be one other possibility.

Finally, I understand Mr Swinney’s point that it is about making sure that the scheme works—that it secures contributions from providers. In essence, he has alleged that, without those contributions, the scheme simply would not work at all. My simple point to him is this: we are dealing with people who were placed into care at the behest of the state, and it is ultimately a state responsibility that we are seeking to set up a compensation scheme for. Although providers might have provided that care and might be culpable or responsible for what happened thereafter, it is ultimately a state responsibility and that is explicitly part of the bill. I absolutely understand that it would be preferable for the providers to take part and make financial contributions to the scheme. However, that being the case, ultimately, the state should be underwriting the scheme and should be making sure that, if applicants come forward, they receive compensation regardless of whether we secure the participation of providers. That is the bottom line.

I accept that the participation of providers would be preferable. However, ultimately, I do not think that it is necessary for the scheme—albeit that, if they did not take part, the scheme would come with a higher price tag for the Government.

Ross Greer (West Scotland) (Green)

Like Mr Johnson, I thank the Government for the extent of its engagement in the process and its very sincere attempts to find a resolution to some really tricky issues.

That being said, with the waiver included, the scheme simply will not achieve its objectives. The waiver directly infringes the rights of survivors, and many survivors have made it clear to us that they will not engage with redress Scotland if the waiver is retained.

Last month, we heard that the main organisation for survivors of Quarriers homes has told the organisations not to bother contributing if the waiver is there. That calls into question the viability of the whole scheme and of the bill. Organisations that have engaged with the committee, including Quarriers, have made it clear to us that a waiver is not a condition of their participation. Those organisations that spoke to me were far more concerned about the imposition of a cap on contributions and the formula that will be used to calculate contributions. To the Scottish Government’s credit, those concerns seem largely to have been addressed.

Insurers have submitted evidence explaining that the inclusion of the waiver does not change the likelihood of their paying out. If there are organisations whose participation is dependent on the waiver, they have chosen not to engage with the committee or with the Parliament, and we can proceed only on the basis of the evidence that is in front of us.

One other issue at play in the waiver debate, which Mr Johnson just touched on, is the extent to which the Government will end up paying the costs. I understand entirely the Scottish Government’s reluctance to confirm that it will end up covering a significant amount of the costs if doing so might give some organisations less incentive to contribute. However, that is the reality.

Survivors have clearly told us that it is not important to them that the organisation that was responsible for their abuse should make the majority contribution towards their payment. In some cases, they explicitly do not want that organisation to contribute, because they believe strongly that, as the state carried ultimate responsibility for their welfare, the state should recognise that by making financial redress itself.

The evidence that was submitted to the committee at stage 1 was overwhelmingly clear, and our recommendation was unanimous: the waiver must be removed. No evidence has since been submitted to change that, and, throughout the process, survivors have made it clear how devastating the waiver’s inclusion would be to them. If we cannot respond to the clearest message that survivors have given us, we, as a political class, risk failing them once again. I cannot countenance that, so I will vote for the amendments in Iain Gray’s name.

Jamie Greene (West Scotland) (Con)

Good morning to colleagues and to the cabinet secretary. Where do we start with this? The issue has been a conundrum for the committee. Reflecting on the words of Daniel Johnson, I think it is about striking a balance. The whole bill is about striking a balance between the technicality and the morality of it, which is what we have struggled with.

As others have said, this is a state-operated scheme. The Government of the day made a political and policy decision to set up the scheme, which I think we all endorse. The scheme will go ahead irrespective of the inclusion—or otherwise—of the waiver and contributions from providers. The question on our minds is how we can ensure that the scheme balances the rights of survivors—which have been discussed in great detail—with being workable and maximising contributions from the providers under which much of the abuse occurred. I do not agree with the point that, if no providers contribute to the scheme, it will still meet its purpose. I will comment mostly on that, because it is imperative that providers financially contribute to the scheme in order for it to close—[Inaudible.]—its intention.

Although I know that it is an emotive subjective, the waiver is a technical issue. As the Government has argued throughout—although not always particularly well—the premise of the waiver is that it will secure contributions from providers. However, as others have said, very few of those providers have been forthcoming, privately or publicly, to state that link in the great terms in which the Government has stated it. That has created an issue for the committee. Nonetheless, it remains the case that, if the waiver is removed, there will be significant challenges for the Government in securing contributions from organisations.

I do not think that the scheme is designed to replace court action for many people. Indeed, I think that many of the people who will best take advantage of the redress scheme would rarely seek benefit from court action. However, there may be those in the higher echelons of the payment scales—whatever we agree those are at the end of this process—who may well benefit from court action. Therefore, I fully expect the scheme to signpost and direct people to all the options available to them.

We have come a long way since we started this process. Some of the amendments that the Government has lodged move us in the right direction in relation to the legal advice that will be on offer and its associated costs, the length of time that people will have in which to consider the options available to them, and, as we have discussed, some of the issues around what would happen if contributors refused to participate in the scheme.

I have lodged other amendments that will put on the record the levels of contribution that we expect contributors to make in order to improve transparency. If survivors feel that those organisations have withdrawn from the scheme, I would welcome there being further flexibility on the issue of the waiver. As we have heard, the waiver has many drawbacks, not all of which are moral—some of them are technical. However, we must be clear that no credible alternative has been offered, and it is not the job of the committee to come up with alternatives; that is the job of the Government. It has been fairly forthcoming on all options throughout this process, and I am not convinced that a credible alternative proposal has been offered at this stage. I am also acutely aware that the Parliament will dissolve in a few short weeks, and I would like to see the bill come to fruition. Indeed, there is an obligation on us to ensure that we get the scheme under way and do not push it into the long grass of the next Parliament.

I was never convinced that the Government had not explored all the options; I do not think that the waiver is in there for the fun of it. I have never believed that the cabinet secretary or his legislative team have it in there for no reason, because of all the difficulties that it comes with.

The view of the survivor community has been extremely forthcoming on the matter, but we have to separate the morality of the issue from the technicality of what we are working with. I want a scheme that contributors pay into—it is quite simple. If the bill provides the way to achieve that, it will offer a scheme that is fair and just. I will talk about “fair and meaningful” and “just” in more detail later.

09:15  



Rona Mackay (Strathkelvin and Bearsden) (SNP)

I largely agree with what Jamie Greene has been saying. What he just said is crucial: I, too, want a scheme that contributors pay into. The proposed scheme has pros and cons, and the issue is a difficult one—it is a balancing act. On balance, we should consider the positives and the fact that the scheme provides an avenue for the pre-1964 survivors. The waiver is not perfect, but, on balance, it has to stay.

The bill is crucial—it has to be enacted—and the amendments that the Government has lodged to mitigate some of the concerns, including the point that Alex Neil made about further evidence that may be forthcoming, will go a long to reassuring survivors that the proposals represent the best way forward. For those reasons, I do not support Iain Gray’s amendments.

The Convener

The hybrid system makes it a bit difficult to have a debate, but I am conscious that there were some direct questions for the cabinet secretary in members’ contributions. Does Mr Swinney wish to address any of those questions before we go back to Mr Gray to wind up on the group?

John Swinney

Thank you, convener. I am grateful to you for giving me the opportunity to contribute again. I will make two observations on the comments that colleagues have made, in addition to my earlier remarks.

First, Mr Johnson made some further remarks about what could be the perspective of redress Scotland or the obligation put on it. We need to explore further the question as to whether there are further duties or obligations. I am mindful of the grouping of amendments in your name, convener, that we will come to later, which set out the ethos of the scheme, if I may describe it in that fashion. We perhaps need to address some similar issues regarding redress Scotland that are not addressed in today’s Government amendments, and we could consider those at stage 3. I am certainly happy to engage with Mr Johnson and other colleagues on that.

Turning to my second observation, I appreciate that the committee has received a range of evidence, both oral and in writing, on the question of the waiver. Evidence has been put to the committee on the necessity of having the waiver to establish the case for provider contributions. Such evidence was submitted by CrossReach, to name but one organisation that provided written evidence that the committee has considered. The committee has also heard from the Convention of Scottish Local Authorities on the matter.

Although I acknowledge that some survivors are strongly opposed to the concept of the waiver—and I understand their concerns—there are also survivors who believe that the waiver is a necessity for ensuring one of the fundamental objectives of survivors: that the providers that failed them—as the state failed them—make a contribution. That is enabled by the presence of the waiver. The state will, of course, make contributions to the scheme—that is an absolute given—but Mr Greene pointed out the importance of ensuring that providers, too, make contributions. In my view, the waiver is an essential ingredient in making that possible.

I am grateful for the opportunity to reflect on some of the points that committee colleagues have made.

The Convener

I invite Iain Gray to wind up and to press or withdraw his amendment.

Iain Gray

I will address some of the issues that have been raised—in particular, some of the cabinet secretary’s points. He spoke about the consultation that happened during preparation of the bill and pointed out that the survivors who responded to that want the organisations that were responsible for the abuse to contribute. That is absolutely true. However, survivors also made it clear that they did not want to give up any right to take civil action.

In the evidence that the committee took, organisations that work with survivors made it clear on several occasions that the consultation made no link between the waiver and contributions. Therefore, I do not think that survivors made the choice that the cabinet secretary is suggesting they did. He said that the idea of the bill is to give survivors a choice between the less onerous redress system and the potentially far more onerous civil justice system, which is correct. He also said that it is not about giving up rights but about giving a choice, but the choice that we are asking survivors to make is to give up their rights. That is the fundamental point.

With regard to securing financial contributions, the cabinet secretary said that major contributors have said that they must have the waiver in order to be able to contribute. Nevertheless, there are potential major contributors who did not say that when they gave written or oral evidence on the record. For example, the cabinet secretary referred to CrossReach, which said in its early written evidence that it was in favour of the waiver. However, in oral evidence it made it clear that that was not a red line. That was not the critical issue that would decide whether it was able to contribute.

One major contributor that has been consistent in its support of the waiver is the Convention of Scottish Local Authorities. It communicated with the committee late last night and reiterated that position. However, an examination of its case shows that its desire for the waiver is driven by a desire to reduce the costs to local government of providing redress, and that is not the strongest of arguments in terms of the moral obligation that we have to respond to survivors.

As the cabinet secretary and others have said, significant concessions have already been made on the waiver and further significant concessions are likely to be made if the amendments that are before us, concerning the contributions, are agreed to—a cap on contributions, for example. Significant concessions are being made by the cabinet secretary to the contributors; my argument is that we need to make a concession to the survivors as well, which would be to remove the waiver.

I acknowledge that significant changes have been made and that the cabinet secretary says that he will make further changes before stage 3. I will look closely at those. However, for me, the basic circle that requires to be squared has not yet been squared. For that reason, I will press amendment 1.

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division. In the chat box, please type Y or “Yes” to vote for the amendment, N or “No” to vote against the amendment, or A to abstain.

May I prompt Mr Gibson to cast his vote? It does not seem to be recorded in the comments.

Kenneth Gibson (Cunninghame North) (SNP)

I cast my vote earlier, convener. I am happy to have it counted twice, if that helps.

The Convener

I am afraid that it did not come through, Mr Gibson—it is easy for that to happen—but it has been recorded now.

For

Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Greene, Jamie (West Scotland) (Con)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)

The Convener

The result of the division is: For 4, Against 7, Abstentions 0.

Amendment 1 disagreed to.

Section 1 agreed to.

Sections 2 to 5 agreed to.

Schedule 1—Redress Scotland

The Convener

The second group of amendments is on redress Scotland’s chief executive. Amendment 34, in the name of the cabinet secretary, is grouped with amendments 35 and 36.

John Swinney

The establishment of redress Scotland—a new non-departmental public body—will deliver the independent decision making that is essential for survivors and others to have confidence in the redress scheme. I recognise that building that confidence involves ensuring the good governance of redress Scotland in a transparent way.

Redress Scotland will be subject to a number of statutory duties and other obligations that will ensure its good governance without compromising its independence. Although the bill allows redress Scotland to appoint staff, it does not require the appointment of a chief executive. It was initially considered that that would not be required, because of the organisation’s relatively small size. However, having considered the matter further in the light of the committee’s stage 1 report, and as I outlined in my response to that, I am of the view that requiring the appointment of a chief executive will help to provide further assurance on the good governance of redress Scotland. Amendment 34 provides for that, and amendments 35 and 36 are consequential amendments.

I move amendment 34.

09:30  



Daniel Johnson

I welcome the amendments. The separation of the chief executive and the chair is important. Although redress Scotland will be a relatively small organisation, its sensitivity—and, more important, its complete independence from the Government—means that we need the best levels of oversight and of scrutiny and good governance. It is a well understood point of principle that the separation of the chief executive and the chair is an important way of ensuring that, so I welcome the amendments and thank the Government for lodging them.

John Swinney

I take the opportunity to reflect slightly more on what Mr Johnson said in the debate on the first group and to welcome the comments that he has just made. I absolutely accept the critical importance of redress Scotland’s independence and the clear separation of the exercise of its functions from those of the Government.

I will remain open to the fact that it is important for us, between stages 2 and 3, to consider further whether the character of redress Scotland is absolutely correctly set out in statute. In the earlier discussion, Mr Johnson raised a number of points that have merit, and, if the committee believes that we should consider other issues, I will be open to doing so as part of preparation for stage 3. I conclude my summation with those comments.

Amendment 34 agreed to.

Amendments 35 and 36 moved—[John Swinney]—and agreed to.

Schedule 1, as amended, agreed to.

Sections 6 to 11 agreed to.

After section 11

The Convener

I hand over the convening to the deputy convener, Daniel Johnson.

The Deputy Convener (Daniel Johnson)

Thank you. I ask for the committee’s co-operation, and I hope that I do not make the convener regret handing over the chair.

Amendment 20, in the name of Clare Adamson, is in a group on its own.

Clare Adamson (Motherwell and Wishaw) (SNP)

From the comments that members have made today, there is no doubt that we feel the responsibility on our shoulders to do the very best that we can to ensure that victims and survivors have confidence in the redress Scotland bill. In its stage 1 report, the committee recommended that

“the Scottish Government considers including a statement on the face of the Bill recognising these qualities and the need for them to be applied across each element of the redress scheme.”

In response, the Scottish Government agreed with

“the Committee’s acknowledgement of the importance of these values”

and committed to considering further how the aim could be achieved.

The redress scheme has been designed with victim and survivor needs and expectations at its forefront, and it aims to ensure that applicants are treated with dignity, respect and compassion throughout the process. Incorporating a statement in the bill will demonstrate the importance of that and the commitment to victims and survivors in following a trauma-informed approach. The amendment places the duty not only on the Scottish ministers and redress Scotland but on scheme contributors and others that perform functions under the duties that are in the bill. I trust that it will give victims and survivors confidence in the legislation.

I move amendment 20.

John Swinney

I thank the convener for lodging this important amendment, following her interest in this potential addition to the bill during the stage 1 evidence sessions. I share the convener’s view, which the committee supported, that all who are connected with the redress scheme should be fully committed to treating survivors with dignity, respect and compassion.

I fully support amendment 20, which will express that commitment in the bill as a clear demonstration of the scheme’s survivor focus and trauma-informed approach. It will ensure that everyone who is involved in the provision of the scheme, including those that contribute to it financially, is committed to its values when carrying out functions under the act. The amendment also provides us with the opportunity to reflect further on some of the issues that you have raised, deputy convener, and the Government will engage constructively in that respect.

Amendment 20 agreed to.

The Deputy Convener

I hand back the chair to the convener.

Section 12—Scheme contributors

The Convener

The next group is entitled “Scheme contributors: acknowledgement of harm”. Amendment 21, in the name of Daniel Johnson, is the only amendment in the group.

Daniel Johnson

In many ways, this amendment follows on from amendment 20, as it is concerned with establishing the clear intent and principles that lie behind redress Scotland.

From the beginning of our examination of the bill, I have wrestled with the fact that we are not talking about a judicial process and that, explicitly, redress Scotland will not find liability or specific fault. That raises a practical point and a point of principle, which I feel require remedy in the bill.

The point of principle is that, by taking part and making compensation settlements, the providers have to acknowledge their responsibilities in terms of the harm that has been caused to the individuals who are receiving compensation. That is an important point of principle, and, although I understand the reasons why redress Scotland will not find formal liability, I think that it is important to accept liability.

The practical point concerns the fact that the way in which the scheme is currently configured means that it would be possible for providers to participate in the scheme and pay into it to make compensation settlements to individuals and yet be able to claim that they did nothing wrong. It is important that that is made absolutely impossible. Participation in the scheme must require an acknowledgement of the harm that was done and the wrongfulness of that, and an admission of responsibility. That is what the amendment intends to achieve.

I will listen to the contributions that are made in the debate, as I understand that there are complexities around the form of words that the amendment uses in relation to the broad acknowledgement of wrongfulness.

I might choose to withdraw the amendment at the close of the debate if the Government is willing to work with me to find a more suitable form of words, but I will press it if the Government feels that the wording is adequate. I will be mindful of that as I listen to members’ contributions.

I move amendment 21.

The Convener

No members wish to contribute to the debate. I call the cabinet secretary.

John Swinney

I thank Mr Johnson for lodging amendment 21. I absolutely agree with him on the sentiment behind it and share his determination that the scheme provide tangible acknowledgement of the harms of the past and the failings that led to those harms. Although I envisage some difficulties with the detail of his amendment, I hope that he will agree to work with me in lodging amendments at stage 3 to address the issue to the same effect.

The acknowledgement of the role of providers in looking after children at the time they were abused underpins the concept of provider contributions to the scheme. The organisations that participate in the redress scheme must do so with integrity and the understanding that a fair and meaningful contribution is one that acknowledges the harm that arises from historical child abuse in the care settings.

Participation in the redress scheme is more than a financial transaction. That sense of acknowledgement—of facing up to the past with honesty and candour—and a willingness to apologise are essential to the commitment to the national collective endeavour that the scheme represents. It is those fundamental principles of participation that, I believe, Mr Johnson has sought to reflect through amendment 21. I share that objective.

The redress scheme deliberately does not seek to establish liability. The approach that we have followed allows providers to participate in the scheme by making fair and meaningful contributions without legal consequences beyond the redress scheme itself. It allows them to participate in a process that follows different rules from those that are followed in court, where providers would have the opportunity to examine and challenge the evidence against them, because the consequences of redress determinations are different from determinations made by a court. For applicants, that approach allows a faster, more survivor-focused and trauma-informed path to redress than is found in the civil courts.

The risk with amendment 21 is that the making of a contribution could be interpreted as meaning that organisations accepted legal liability, which would have consequences beyond the scheme itself and leave those organisations with greater exposure to litigation. Ironically, the amendment might mean that the organisations that are the most interested in contributing would find themselves at the most risk of litigation costs, which would, in turn, reduce their ability to contribute.

I ask Mr Johnson not to press his amendment at this stage, on the basis that he and I will work together in the coming weeks to further explore what can be done to meet an objective that is common not only to us both but, I think, to all members of the committee. I want to ensure that contributions are given and received in the right spirit for the benefit of survivors, and I am certain that we can find a suitable way to address this critical issue in advance of stage 3. I commit myself to doing so in the weeks to come.

Daniel Johnson

I thank the cabinet secretary for his constructive remarks. I agree with his broad points, and I understand his specific points on the issues with the amendment as drafted. I look forward to drafting an amendment that adequately addresses those points in the coming weeks.

Amendment 21, by agreement, withdrawn.

09:45  



The Convener

The next group is on “Scheme contributors: amount of contribution (publication, affordability, and use of charitable funds)”. Amendment 37, in the name of Jamie Greene, is grouped with amendments 39, 41, 42, 46, 47, 4, 49, 50 and 105.

Jamie Greene

The amendments in this group largely fall into two categories. The first deals with the publication of financial amounts, and the second deals with affordability. I will start with the first.

It is important that the scheme that the bill establishes is as transparent as it can be. The list of contributors and a statement of principles underpinning the scheme are essential aspects, but the bill should go further and offer clarity about the nature of the contributions that are made to the scheme.

Survivors must be given all the information necessary for them to be able to make an informed decision about whether to apply to the scheme and, if they do, whether to accept a proposed payment. There is merit in including in the bill an explicit requirement to publish contribution amounts, which would give providers a greater understanding of how the organisations that are relevant to them have committed to contribute to the scheme, or, indeed, confirm that those organisations have not committed to contribute to the scheme. That is an important point, as such information might be more necessary than ever if it affects issues around the waiver, which we have discussed.

The publication of contribution amounts will demonstrate an organisation’s commitment to work in the spirit of the scheme.

Amendments 37, 39, 41 and 42 aim to enhance confidence in the scheme among survivors and organisations that are looking to play their part. Different organisations will contribute different amounts, depending on the nature of the organisation and its historical legacy. I am reassured that the Government will look to ensure that organisations make contributions that address their legacy with fairness and proportionality. Publishing the amounts that are committed to the scheme will demonstrate our commitment to ensuring that the scheme is as open and transparent as it can be.

The second category relates to the scheme’s affordability, which is an important issue. The committee took evidence on the affordability of contributions, which was a key concern for many provider organisations and will be one of the deciding factors in whether they choose to participate in the scheme. We have to bear in mind that the scheme is not compulsory and the Government cannot mandate any providers or organisations to contribute, so the scheme must be workable in order to maximise contributions.

The committee reflected those concerns in our stage 1 report, in which we suggested that the Government should consider the issue further. I thank the Government and its team for working with me to develop wording that reflects the concept of contributions that are fair, meaningful and affordable.

As we have discussed, this is a crucial issue. The scheme will operate irrespective of contributions from organisations. Organisations had difficulty with the proposed levels of contributions being asked of them—we do not know what the numbers were, but we have to take at face value the fact that organisations were uncomfortable. Therefore, my amendments seek to ensure that ministers consider the affordability of payments when negotiating contribution amounts.

That is important because the history of care in Scotland is very wide ranging and complex. Indeed, the nature of the organisations is also varied and complex. Some are religious organisations, some are public sector bodies and some are small charitable trusts. Some do not exist any more. What those that are still in operation have in common is that they face significant financial challenges—challenges that have been made worse by the pandemic over the past year. I want to ensure that providers participate in a way that does not threaten their viability as going concerns, but which still results in payments that are fair and meaningful for survivors. It comes back to balancing fairness for both sides.

The matter of affordability should never diminish the commitment of organisations to the redress scheme, but nor should we make survivors feel responsible for the financial circumstances of the organisations that previously caused them such harm.

Organisations have a moral obligation to face up to the harms of the past. Equally, as many survivors have told us, participating in the scheme and facing up to that moral obligation should not be to the detriment of anyone who uses the services of that organisation. Getting that balance has not been easy. The Office of the Scottish Charity Regulator flagged concerns to us that significant contributions that came from reserves or restricted funds would put charities in an extremely difficult position.

I look forward to hearing members’ contributions. I ask them to consider supporting my amendments so that affordability is considered as a factor when the Government negotiates the amounts that providers will contribute.

I move amendment 37.

Iain Gray

In evidence, we heard a great deal about contributions and the concerns of charities that wish to contribute. They recognise their moral obligation to contribute but fear that they would not be able to do so given the size of contribution required of them, because it is not clear what “fair and meaningful” means.

Other amendments deal with various aspects of that issue, including Jamie Greene’s amendments, which I will support. However, amendment 4, in my name, makes it absolutely clear that one of the criteria should be the sustainability of the charity, particularly where it continues to provide valuable care or other services today.

Simply put, in seeking to right the wrongs of the care system of the past, we should not destroy the care system of the present. The combination of amendment 4 with other changes to the bill, such as a cap on contributions and the maintenance of reserved or restricted funds, should make it much more likely that the trustees of a charity will be able to recommend participation in the scheme, while not jeopardising their legal duty to protect the charity’s interests.

The amendments in this group go a long way towards making participation in the scheme more likely on the part of many charities.

John Swinney

I am grateful to Mr Greene for lodging amendments 37, 39, 41 and 42. I share his call for contribution amounts to be understood in context, which is, after all, an important part of our redress work. How can we understand what a fair contribution should be if we do not understand an organisation’s past and present? No figure should be thought of as too high or too low without that understanding. I would like to work with organisations to provide the best possible information on why a contribution is “fair and meaningful” for survivors.

Our work on redress shows us that abuse has taken place in care settings that were run by a wide variety of organisations. Some were small and some were large. Some are still providing services for children and others today, and some have completely different roles. The redress scheme will provide each organisation with the opportunity to play its part in redress in a way that is right for it and, importantly, for survivors.

The approach to “fair and meaningful” contributions must be consistent and principled. Survivors have been clear on the importance of openness and transparency throughout the process. I therefore support Jamie Greene’s amendments.

Turning to amendments 46 and 47, I share Mr Greene’s focus on encouraging organisations’ participation in redress for survivors in ways that do not risk the important functions that many of them undertake today. It has always been the intention that fair contributions would be affordable and manageable for the organisations involved. Amendment 46 provides clarity that that will be the case.

Many charitable organisations find themselves in challenging financial circumstances, particularly in relation to the pandemic and its impact on charitable giving. Many of our discussions with organisations are focused on how contributions can be made meaningful while being manageable in organisations’ operating context and while reflecting the needs of their service users. Amendment 46 will assist in creating the conditions for organisations to participate in the redress scheme through making fair and meaningful contributions that are manageable and affordable over time.

We also recognise that the issue of responding to historical child abuse in care through financial redress is characterised by uncertainty, as the time periods involved and the sensitive subject matter make application rates difficult to predict. It is therefore important to consider how that uncertainty can be addressed. Following stage 1, I proposed changes to our approach to contributions. I have made a number of significant changes that I believe will give organisations greater clarity and certainty when considering whether to contribute to the scheme.

I will introduce a cap for contributions based on the best available evidence on potential applications, which will give organisations some certainty in their financial planning. I will also increase the Government’s proportion of the contribution for each individually assessed redress payment to one third of the total payment or £10,000—whichever is the higher amount. I believe that those changes make fair and meaningful contributions more manageable for organisations, and provide the certainty to enable financial planning in these very uncertain times. Crucially, the changes will do so while ensuring that contributions remain at a level that is meaningful in redress payments for survivors.

Organisations have told us that they wish to support the redress scheme but might struggle to do so. Amendment 46, alongside other measures that are being pursued alongside the bill, will go a long way towards addressing that concern. It is in everyone’s interest to facilitate contributions so that providers can face up to their moral responsibilities; so that, for the taxpayer, the state alone does not shoulder the cost of redressing harms; and, most important, so that survivors receive meaningful payments in tangible recognition of the abuse that happened.

I thank Mr Gray for focusing on affordability for potential contributors to the scheme that are charities. Creating the conditions to facilitate a collective approach to redress is an important aspect of the work. As I have already described, I have been carefully reviewing the approach to contributions in the light of the committee’s stage 1 report and representations that were made by potential contributors that are charities.

Addressing the issue of affordability must take into account the circumstances of the organisation and should not risk its current services. I believe that we are all in agreement on that point. However, addressing affordability should not be to the detriment of survivors who apply for redress. Survivors of historical abuse are not responsible for the financial functioning now of the organisations that caused them harm, and they should never be made to feel that way.

We have put together a package of measures that maximises opportunities for organisations to participate, while not compromising the ethos of the redress scheme that we want to establish. The amended approach to contributions is complemented by amendments 46 and 47, which have been lodged by Mr Greene. They seek to ensure that affordability is given appropriate consideration and that organisations are supported to contribute in manageable but meaningful ways. Mr Greene’s amendments will secure that necessary consideration in the context of the scheme that we are seeking to create.

In contrast, I have reservations about amendment 4, which has been lodged by Mr Gray. It would apply only to charities and not to the full range of organisations with which we are seeking to engage. Section 14 is designed to enable charities that want to make a contribution to do so. My concern with Mr Gray’s amendment is that it would introduce an unnecessary limitation and, potentially, a further barrier to contributions, which will, in any event, be sought on a voluntary basis. The amendment risks being perceived by charities as an extra barrier in law and an extra risk to their making a contribution. Mr Gray’s amendment would place decisions in relation to affordability on charities themselves, but I argue that existing charity law is sufficient to ensure that charities take all relevant considerations into account in making a decision on whether to contribute.

From the outset, I have spoken about the need for collective national endeavour. In no area is it more crucial that we take a collective approach than the making of contributions. We must seek to create conditions that allow organisations to join in order to demonstrate their integrity and commitment to survivors. We must not create excuses, dilute the response or make it easy to withdraw from moral obligations.

I acknowledge colleagues’ responses to the important matter of affordability and I am encouraged that we all share the view that contributions should be both affordable for those who make them and sustainable, so that important services can continue. Having considered—

The Convener

I am sorry to interrupt, cabinet secretary, but Mr Gray has indicated that he would like to intervene on the point that you have just covered. Are you willing to take that intervention?

John Swinney

Of course.

10:00  



Iain Gray

On the point about the relationship between affordability and the ability to continue to provide services, I hear what the cabinet secretary says and I realise that affordability of contributions is covered in other amendments, but the very specific point about the capacity to continue to deliver services being an element of affordability is important. I am willing not to move amendment 4, but I would be grateful if the cabinet secretary would consider whether there is any way that the matter might be made explicit at stage 3.

John Swinney

I am happy to explore further the possibilities in that respect. As I said, Mr Greene’s amendments substantially address the matter, but I will, once we see what alterations are made at stage 2, be happy to engage in further dialogue with Mr Gray and other colleagues to determine whether more needs to be done. I encourage the committee to support the amendments that Mr Greene has lodged. Mr Gray has said that he might not move amendment 4, on the basis of willingness to engage further. I happily commit on the record to that engagement before stage 3.

I turn to amendments 49, 50 and 105, which are in my name. I have listened to concerns about what the bill says about use of charities’ restricted funds. Although section 15 was intended to empower organisations and remove barriers to their contributing, in the stage 1 debate I accepted that it has not been welcomed by organisations and committed to lodging an amendment to remove that provision from the bill. Amendment 50 will do so, and amendments 49 and 105 are consequential to that.

Removal of section 15 will mean that there will no longer be a mechanism in the bill whereby charities would be permitted to use restricted funds to make a contribution to the redress scheme. I hope that, with amendment 50, the provisions in respect of contributions to the redress scheme from charitable organisations are such that those who look to play their part for survivors can do so.

Daniel Johnson

I will briefly elaborate on the point that Mr Gray made in his intervention. Although I acknowledge that Jamie Greene’s amendments are a substantial step forward, there is a clear distinction between affordability and sustainability—in particular, sustainability of services. They are related but different concepts. If we take a broader understanding of charities’ financial requirements in managing their profit and loss accounts and balance sheets, we can see a number of circumstances in which contributions might seem to be affordable but would make it difficult to maintain their current level of services, either in whole or in part.

I acknowledge that the detail of the interpretation of affordability might allow such considerations to be taken into account in assessing fair and meaningful contributions from providers, but it is important that sustainability of services is made explicit in the bill, so that we ensure that such considerations are taken into account.

I am encouraged by the cabinet secretary’s having said that he will work with Mr Gray before stage 3. Sustainability is an important concept that should be in the bill.

The Convener

I invite Jamie Greene to wind up and to press or seek to withdraw amendment 37.

Jamie Greene

I thank members and the cabinet secretary for their contributions. I will keep my comments brief.

The main point that I have taken from our discussion is that although my amendments 46 and 47 go some way towards improving the provisions on affordability, they perhaps do not go the whole hog, which I accept. I appreciate the cabinet secretary’s willingness to work with members. Contributions should be not only affordable—a concept that relates to a point in time—but sustainable in relation to the future activities of organisations, whether they be charities or otherwise.

Therefore, I, too, would like to work on augmenting my amendments ahead of stage 3, either through the Government working with me and other members, or doing so itself, to ensure that we take cognisance of the sustainability of organisations that want to do the right thing.

I will add a brief closing point on this important area. It is entirely right that organisations face up to their past and that they do so not only with honesty but with confidence in the scheme. Equally, however, it is right that survivors know which organisations are contributing and to what extent. It should be a point of pride that organisations are facing up to a very difficult past and will play their part by participating in the scheme, which should recognise those that want to do the right thing. However, there should also be no reputational risk from participation. I would go as far as to say that perhaps questions should be asked of those that choose not to participate.

I will press amendment 37.

Amendment 37 agreed to.

Amendment 38 moved—[John Swinney]—and agreed to.

Amendment 39 moved—[Jamie Greene]—and agreed to.

Amendment 2 not moved.

Amendment 40 moved—[John Swinney]—and agreed to.

Amendments 41 and 42 moved—[Jamie Greene]—and agreed to.

Amendment 3 not moved.

Amendments 43 and 44 moved—[John Swinney]—and agreed to.

Section 12, as amended, agreed to.

Section 13—Statement of principles in relation to contributor list

Amendment 45 moved—[John Swinney]—and agreed to.

Amendments 46 and 47 moved—[Jamie Greene]—and agreed to.

Section 13, as amended, agreed to.

After section 13

Amendment 48 moved—[John Swinney]—and agreed to.

Section 14—Financial contributions by charities

Amendment 4 not moved.

Amendment 49 moved—[John Swinney]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Financial contributions by charities: restricted funds

Amendment 50 moved—[John Swinney]—and agreed to.

Section 16 agreed to.

Section 17—Meaning of “abuse”

The Convener

The next group is on “Eligibility: abuse”. Amendment 51, in the name of the cabinet secretary, is grouped with amendments 22, 52, and 53.

John Swinney

During stage 1, evidence was heard about the fact that the definition of “abuse” in the bill is different from the inclusive definition in the Limitation (Childhood Abuse) (Scotland) Act 2017, the legislation that removed the three-year limitation period for court action for damages for personal injury arising from childhood abuse.

10:15  



The current definition in the bill provides that “abuse” means

“sexual abuse ... physical abuse ... emotional abuse”

and

“abuse which takes the form of neglect”

rather than that it includes those things, as in the definition in the 2017 act.

We always intended our definition of “abuse” to cover all the forms of abuse that survivors might have suffered, and our view was that the very broad categories set out in the bill achieved that. However, during stage 1, concerns were expressed that it was possible that some types of abuse might be excluded by the bill and would therefore not be eligible for redress. I have listened to those concerns and am persuaded that, for the sake of clarity, consistency and reassurance for survivors, there is merit in aligning the definition in the bill with that in the 2017 act. Amendment 51 therefore substitutes “includes” for “means” in section 17(1).

Ms Mackay’s amendment 22, which is on corporal punishment, also relates to the definition of “abuse”. I am happy to support the amendment and I welcome the additional clarification that it brings. Potential applicants to the scheme should be in no doubt that abuse was abuse, whether or not it was disguised as corporal punishment, and all survivors of abuse in care must know that the scheme is there for them. The committee recommended that

“the Scottish Government should consider how best to instil confidence in ... survivors that the excessive use of corporal punishment will be covered by the scheme.”

I believe that Ms Mackay’s amendment appropriately and directly addresses those concerns.

My amendment 52 provides additional reassurance that the regulation-making power in section 18(4), which allows us to modify the definition of “residential institution”, will be used only to widen eligibility for the scheme. Some of those who gave evidence at stage 1 said that they were concerned that the power could be used to narrow eligibility, with the effect that eligibility requirements as to the care settings covered by the bill could change over the lifetime of the scheme and that a person who anticipated being able to apply now may no longer be able to do so in the future. I reassure survivors and the committee that that is not the intention. The power in section 18(4) is already intended to be used to widen eligibility, not narrow it. That power is separate from the power of ministers under section 21 to create exceptions to eligibility where that is necessary, and it is consistent with the underlying purposes of the scheme. Similarly, that power could not be used to narrow the settings that come under the scheme. However, it may be used to exclude specific circumstances or arrangements that led to the child being cared for in the setting—for example, short-term respite care may be excluded.

We have the power in section 18 in order to ensure that the definition of “residential institution” can be adjusted in due course should that prove necessary in the light of experience gained during the lifetime of the scheme. We must remember the complexity of the care setting landscape over the period in question. It is important that we keep a level of flexibility available for any necessary amendment, even though we may anticipate that the power would rarely be used. The future exercise of the power in section 18(4) will already, quite properly, be subject to the Parliament’s approval under the affirmative procedure. However, we have considered whether the power could be amended to reinforce the intention that its exercise should result in no detriment to survivors. Amendment 52 provides reassurance on that.

Amendment 53 is a technical amendment to make it clear that abuse that occurred on trips outside Scotland will be covered by the scheme. Section 20 already provides that

“A reference to being resident in a relevant care setting includes a reference to being absent from the care setting while under the care of”

that setting or a person authorised by it. The effect of the amendment is to clarify that it does not matter whether the child was within or outwith Scotland during such a period of temporary absence from the care setting. That means that potential applicants who experienced abuse outwith Scotland in those circumstances should not be deterred from applying because of doubt on that point.

I move amendment 51.

Rona Mackay

At stage 1, many of those who gave evidence expressed concern about the bill’s current treatment of corporal punishment. The bill states that, where corporal punishment was permitted by law in force at the time that it was administered, it will not constitute abuse eligible for redress.

In their evidence, a number of stakeholders argued that, although corporal punishment was legal in the past, its application could have been, and often was, highly abusive. The scheme must encourage those who were abused to come forward. The committee heard that excluding corporal punishment, when it was lawful, from the definition of “abuse” could deter victim survivors from applying, either because it is difficult to know what was lawful at the time or because they might feel that the Government had somehow sanctioned assault. I appreciate that abusive corporal punishment is not excluded under the bill as it stands, but there would be a benefit in setting out in more positive terms for survivors that such behaviour is excluded. I am therefore pleased to have lodged amendment 22, which would reverse the emphasis in section 17(2).

Amendment 22 sets out more clearly the circumstances in which corporal punishment would not have been lawful and, therefore, when it constitutes abuse for the purposes of the scheme. In accordance with the wording of the amendment, corporal punishment that was “excessive, arbitrary or cruel”, “administered for an improper” use or not “permitted” by the law for any other reason will constitute physical abuse and therefore satisfy the abuse aspect of the eligibility criteria under the scheme.

I urge members to support my amendment 22.

John Swinney

I am grateful to Rona Mackay for lodging amendment 22, which relates to corporal punishment. I hope that it and my amendments on the definition of “abuse” and the use of regulations in the future will provide reassurance on the approach that is to be taken through the redress scheme. Today’s discussion shows the care that all members have taken to improve this important aspect of the bill where necessary.

I invite members to support the amendments in the group, which will strengthen the bill by providing further clarity on corporal punishment and other aspects of abuse.

The Convener

I will pause before putting the question on amendment 51. One of our members has left the meeting temporarily, so we will give him time to come back.

We seem to be having some difficulties, so I suspend the meeting—a little earlier than I normally would—for a comfort break. We will resume at 10:30.

10:23 Meeting suspended.  



10:30 On resuming—  



The Convener

I welcome everyone back to the committee. We have completed the debate on amendment 51, so I will put the question on it.

Amendment 51 agreed to.

Amendment 22 moved—[Rona Mackay]—and agreed to.

Section 17, as amended, agreed to.

Section 18—Meaning of “relevant care setting”

Amendment 52 moved—[John Swinney]—and agreed to.

Section 18, as amended, agreed to.

Section 19 agreed to.

Section 20—Meaning of “resident”

Amendment 53 moved—[John Swinney]—and agreed to.

Section 20, as amended, agreed to.

Section 21 agreed to.

Section 22—Eligibility to apply for a next of kin payment

The Convener

The next group is on eligibility: next-of-kin payments. Amendment 54, in the name of the cabinet secretary, is grouped with amendments 58, 23 and 24.

John Swinney

An important part of our collective response to the harms of the past is recognising those survivors who did not live long enough to be able to apply for financial redress. At stage 1, the committee heard powerful and moving evidence about the importance of recognising the experience of survivors who are no longer with us. Iain Gray, in his earlier remarks, made the point that it has taken a formidable amount of time for the Parliament to be able to legislate to address issues such as redress and for the inquiry to take its course.

Provision for next-of-kin payments is, therefore, an important part of the redress scheme and is aimed at acknowledging the experience of survivors who are no longer with us. In particular, it seeks to recognise that some of those survivors may have formed a reasonable expectation that a redress scheme was to be established and that they would meet the eligibility criteria but that, sadly, they died before the scheme opened, before their application could be fully considered.

The bill as introduced provided an eligibility date for next-of-kin payments of 17 November 2016, which was the date on which I announced to Parliament a commitment to formal consultation on redress. However, I have reflected on the recommendation that was made by the committee and the evidence that was given during stage 1 that that date would unreasonably restrict access to the redress scheme for next of kin. Indeed, I have heard how that would exclude the next of kin of some survivors who themselves had fought and advocated tirelessly for a redress scheme.

Amendment 54 delivers on the commitment that I made during the stage 1 debate and proposes a change to the cut-off date to ensure that families of eligible survivors who passed away on or after 1 December 2004 can access redress. That aligns with the date that is used for survivors who apply for redress, whereby abuse must have occurred on or before 1 December 2004. As the committee notes, that is the date of the then First Minister Jack McConnell’s apology. I consider that it represents an appropriate date for the forming of a reasonable expectation of eligibility for any future national scheme aimed at providing recognition and redress to survivors of historical child abuse in care in Scotland. It is right and necessary that we remember the experience of those who are no longer with us and their perseverance in ensuring that we reach this point.

My other amendment in the group is a technical amendment concerning the next-of-kin provisions. Amendment 58 clarifies the rule about prioritisation of applications when there is or was both a spouse or a civil partner and a cohabitant. The decision about which of those is to be treated as the partner for next-of-kin purposes is intended to be a final one. After that, if the partner dies without making a claim, the right passes to the survivor’s children. The amendment clarifies that the subsequent death of the partner after the death of the survivor does not change matters in the determination of which partner is the specified next of kin.

I am grateful to Ross Greer for identifying the provisions around eligible cohabitants that would benefit from further consideration and for lodging amendments 23 and 24, which the committee will deal with today. I support Mr Greer’s amendments, which will provide a clear and consistent approach across next-of-kin applications, as well as being in line with other legislation, when it is considered appropriate to require a minimum period of cohabitation.

I move amendment 54.

The Convener

I invite Mr Greer to speak to amendments 23 and 24 and to the other amendments in the group.

Ross Greer

I will not repeat the cabinet secretary’s remarks about the value of including next-of-kin payments, but I certainly associate myself with them. They are very much reflective of the committee’s conclusions in our stage 1 report. Next-of-kin payments are a powerful example of how we have committed to listen to survivors throughout what has been a long process.

As the cabinet secretary said, the purpose of my amendments is to ensure consistency. At the moment, the bill has two hierarchies for eligibility when it comes to receiving a next-of-kin payment: one between a spouse or civil partner and a cohabitant, and another between the children of the survivor and a cohabitant.

When there is both a spouse or civil partner and a cohabitant, the cohabitant must have been living with the survivor for at least six months prior to the survivor’s passing for them to be eligible ahead of said spouse or civil partner. That is a demonstration of the fact that they were the survivor’s partner at the time of their death. There is no six-month requirement in the bill as it currently stands for the cohabitant to be eligible ahead of a survivor’s children. Essentially, the moment that someone moves in with a survivor and cohabits with them, they immediately become eligible ahead of that survivor’s children. There is no clear rationale for that inconsistency, and I think that we can all see the potential for conflict to arise there. The purpose of my amendment is to require that any cohabitant must demonstrate six months’ cohabitation with a survivor immediately prior to their passing in order for them to be eligible to apply to the scheme. So, the term “cohabitant” would, if the amendments were agreed, be defined as a cohabitant of at least six months’ duration. That means that, if a period of cohabitation was less than six months, the children of the survivor, if there were any, would be eligible to apply, not the cohabitant. That would ensure a clear and consistent approach to the operation of section 26, and it would be a means of evidencing the stability of the relationship by reference to its duration.

I thank the Government for its support for the amendments, and I support the amendments in the cabinet secretary’s name.

John Swinney

I thank Mr Greer for his engagement on this important subject. I encourage the committee to support his amendments and those in my name.

Amendment 54 agreed to.

The Convener

The next group is on previous payments. Amendment 55, in the name of the cabinet secretary, is grouped with amendments 56, 102 and 103.

John Swinney

Amendments 55 and 56 are technical amendments that ensure consistency in the terminology that is used in the bill when it refers to redress payments that have previously been paid to a survivor. They adjust the provisions that provide that eligibility for a next-of-kin payment does not arise when the deceased survivor had already received a redress payment before they died.

Amendments 102 and 103 are also technical in nature. They provide that, in the interpretation of provisions of the bill that involve considering whether a person has previously received a redress payment, account is taken of any redress payments being paid “in instalments or otherwise” that are still in the process of being paid. The amendments do not affect a person’s right to receive any payments that are due to them; they simply provide that, when it is necessary, the entitlement to the whole redress payment is recognised even if the payment has not yet been made in full.

I move amendment 55.

Amendment 55 agreed to.

Section 22, as amended, agreed to.

Section 23—Eligibility to apply for a next of kin payment: exceptional circumstances

Amendment 56 moved—[John Swinney]—and agreed to.

Section 23, as amended, agreed to.

Section 24—Review of determination made under section 23

The Convener

The next group is on extending time periods. Amendment 57, in the name of the cabinet secretary, is grouped with amendments 85 to 91, 93, 96 and 98.

John Swinney

The committee’s stage 1 report highlighted the significance of the decisions that applicants are asked to make within the redress scheme, the complexity of those decisions and the range of factors that have to be considered before, during and after applying to the scheme. The report raised concerns that the time periods that are provided in the bill for applicants—in particular, survivors—to make those decisions are too restrictive, given that legal advice and other support might be needed to reach an informed decision.

In response, I committed to lodging amendments to increase the periods of time that applicants have in which to make key decisions under the scheme. My amendments in this group propose to extend the 12-week period that applicants have in which to accept an offer of a redress payment to six months and the four-week period in which they may request a review of any matter to eight weeks. The period that is given to nominated beneficiaries to allow them to take over an application or that is given to people who want to make representations about reconsiderations is also extended, from four to eight weeks.

10:45  



I fully appreciate the significance of the decisions that applicants—survivors, in particular—will make in connection with their redress application, and I do not wish them to be under any pressure when making those decisions. Accepting a redress payment has emotional significance and a symbolic meaning. Survivors must not feel rushed. They must have the time that they need to obtain independent legal advice and access any other support that they require in order to carefully consider the options that are available to them.

As I have said, for some survivors, redress provides a route to financial payment that they might not otherwise be able to access. However, for others, there will be a choice to make between pursuing their case in court and accepting redress under the scheme. The scheme has been designed to support and empower survivors to make the right choice for them, based on the right level of information and advice. These amendments will strengthen that approach and ensure that applicants are given the time that they need.

I move amendment 57.

Amendment 57 agreed to.

Section 24, as amended, agreed to.

Section 25—Outcome of a section 24 review

Section 25 agreed.

Section 26—Meaning of “specified next of kin”

Amendment 58 moved—[John Swinney]—and agreed to.

Amendments 23 and 24 moved—[Ross Greer]—and agreed to.

Section 26, as amended, agreed to.

The Convener

That ends the first day of stage 2 consideration of the bill. The committee will resume its stage 2 consideration on Wednesday 17 February. Any further amendments to the remaining provisions of the bill should be lodged by 12 noon tomorrow, which is Thursday 11 February.

I thank the cabinet secretary and committee members for attending this morning.

Meeting closed at 10:47.  



Second meeting on amendments

Documents with the amendments considered at the meeting on 17 February 2021:


Video Thumbnail Preview PNG

Second meeting on amendments transcript

The Convener

Item 5 is day 2 of our consideration of stage 2 amendments to the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I confirm to members that I intend to pause for a comfort break between 10.00 and 10.30. If members wish to break before that, they should indicate that by entering “break” in the chat function.

I welcome the Cabinet Secretary for Education and Skills, John Swinney, to the meeting and move immediately to consideration of the bill.

Section 27 agreed to.

Section 28—Cases where more than one application permitted

The Convener

The first group of amendments is on second application in light of new evidence. Amendment 59, in the name of the cabinet secretary, is grouped with amendments 108, 67, 74 to 76, 78, 80, 82, 83 and 94.

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

Good morning. In speaking to these amendments, I acknowledge last week’s contribution on the subject from my colleague Mr Neil, who raised his concern about the need for further options for survivors should additional information come to light after they have already accepted a redress payment and signed a waiver. I thank Mr Neil for raising that concern and, although I think that the amendments that I have lodged in this group take significant steps to address it, I reiterate my commitment to consider further options to address it in advance of stage 3. If more can be done to strengthen the safeguards for survivors, we will certainly aim to do that.

Throughout stage 1, I listened to the concerns that survivors and representatives of the legal profession have raised about the challenges that can be faced in evidencing an individual’s abuse in care. I want to ensure that survivors get a redress payment that properly reflects their experience. That means ensuring that, should new material evidence become available after they have made an application and received a redress payment, they will be able to make a further application based on that new evidence and might be awarded a further redress payment.

The amendments that I have lodged are to address the committee’s concern that survivors are asked to take decisions on an all-or-nothing basis, solely relying on the evidence that is available at the point at which the redress payment offer is made, with no opportunity to seek a further payment should new evidence come to light. The principal amendment in this group, amendment 59, will allow a survivor, in the light of new evidence, to make a further application to redress Scotland, which will decide whether that evidence is sufficient to move the determination from one payment level up to another. To maintain the appropriate rigour of the scheme, redress Scotland will require to be satisfied that there is a reason why the new evidence was not provided previously and that that reason justifies a further application.

I do not consider that the need for survivors to rely on that provision will be a common occurrence in the scheme, as the inclusive design and approach to evidence will mean that it should rarely be necessary for a survivor to submit new formal evidence in order to have their experience fully recognised by redress Scotland and reflected in their redress payment. However, it is important that the scheme is flexible and can adapt to the changing landscape of knowledge and evidence that relates to historical child abuse.

The other amendments are consequential to amendment 59 and ensure that the consequences of an application for a further payment are reflected, as appropriate, in other provisions of the bill. These amendments further strengthen the survivor focus of the scheme and illustrate that the process and outcomes of redress are different from those that are available through litigation where it can be difficult to revisit awards or settlements.

I invite committee members to support the amendments.

I move amendment 59.

The Convener

Thank you, cabinet secretary. No member has indicated that they wish to contribute to the debate on amendment 59.

Amendment 59 agreed to.

Amendment 108 moved—[John Swinney]—and agreed to.

Section 28, as amended, agreed to.

Section 29—Application period

The Convener

The next group of amendments is minor and technical. Amendment 60, in the name of the cabinet secretary, is grouped with amendments 113, 115, 119, 130 and 101.

John Swinney

This group consists of a number of technical amendments on various provisions of the bill. Amendments 60, 101 and 130 ensure that, for consistency throughout the bill, references to the term “application period” will have the meaning that is provided for in section 29, which sets out the application period for the redress scheme.

I also, separately, lodged substantive amendments to section 29 concerning the anticipated duration of the scheme, which will be debated later.

Amendments 113 and 115 simply ensure consistent references in provisions of the bill concerning nominated beneficiaries who may take over redress applications when the original applicants have died.

Amendment 119 amends section 85, which concerns the provision of support to persons in connection with an application. It clarifies that those support provisions apply to those who have applied for redress as well as to those who may still be in the process of preparing or considering an application.

I move amendment 60.

The Convener

No member has indicated that they wish to contribute to the debate on amendment 60.

Amendment 60 agreed to.

The Convener

The next group of amendments is on the period for submission and prioritisation of applications. Amendment 109, in the name of the cabinet secretary, is grouped with amendments 110, 111 and 62.

John Swinney

I thank the committee for raising the issue of scheme duration in its stage 1 report, and I am in whole-hearted agreement with its conclusion that the duration of the application period should not represent a barrier to redress for survivors. Amendment 109, along with amendment 110, amends section 29 so that the application period will last either for five years or for two years beyond the lifetime of the Scottish child abuse inquiry—whichever is the longer period. Although the amendment provides for potentially longer application periods, under subsection 29(2) there will still be scope to make regulations to extend the application period beyond that, which would be subject to the Parliament’s consideration and approval under the affirmative procedure.

Amendment 111 places a new duty on ministers to review the length of the application period that is set out under amendment 110. That must be done 15 months before the period is due to end unless steps have already been taken to extend it. Furthermore, amendment 111 requires that the findings of the review be published and laid before the Parliament.

I believe that those changes will instil confidence that the question of whether to extend the application period will be given thorough and timely consideration and that there will be transparency around the decision-making process. Subject to the Parliament’s approval, regulations could subsequently be made to extend the application period in line with the conclusions of that review.

Although the bill as introduced provided that the redress scheme would be open for a period of five years and gave the Scottish ministers power to extend that period by way of regulations, the amendments that I ask the committee to support today will make sure that the scheme remains open for applications for a substantial period after the Scottish child abuse inquiry has concluded and produced its final report. That is to ensure that those who might be encouraged to come forward—or who, as a result of the inquiry’s findings, ask for an earlier award to be reviewed—will have the opportunity to do so. Also, by providing that the scheme will remain open for a sufficient length of time to take account of potential changes to the evidence that is available to survivors, we will ensure that survivors will have the time that they need to fully explore other options that are available to them. The scheme will be open for long enough for survivors to pursue a civil action in the first instance, if that is their preference, and to apply to the redress scheme if they are unsuccessful in the court action or if the outcome is a financial award that is lower than what they might receive by way of a redress payment.

Amendment 111 will also guarantee that there is proper consideration of whether the application period should be extended beyond the period that is being set today under amendment 110, with appropriate transparency around that.

Amendment 62 relates to the requirement that redress Scotland must have regard to an applicant’s age and state of health when determining which applications are to be prioritised. The amendment strengthens what is currently provided for in section 32, ensuring that action is taken around ill health when that is disclosed later in the application process, including after an application has been submitted to redress Scotland. I hope that members will support those amendments.

I move amendment 109.

09:00  



Daniel Johnson

I should say at the outset that I welcome these amendments. It is important that we maximise the opportunities for survivors to make applications. However, especially bearing in mind that it can take many people a number of years to come to terms with their experiences and even to acknowledge them to themselves, let alone to others, and given the length of time that has passed, could we go further than the amendments that are in front of us? My simple question to the cabinet secretary is this: why does there need to be a finite period at all for applications to be made? I acknowledge that we would expect the bulk of applications to come forward in the early years, but I am not entirely clear, at least in principle—I recognise that there may be practical reasons—why there should be any time limit whatsoever. Will the cabinet secretary set out the logic and thinking behind that?

John Swinney

There is no absolutely precise answer to that question; it is a matter of judgment. The thinking behind the timescale has essentially been that it provides an opportunity for applications to be made. We have extended the timescale beyond the duration of the reporting of the Scottish child abuse inquiry to provide adequate opportunity for individuals to come forward. There is also provision in the bill for ministers to extend the timescale should they judge that to be appropriate.

I suppose that there is an argument—I accept this point from Mr Johnson—that we might never know the moment at which an individual will find it possible to address the issues. That might not be within the timescale that the bill prescribes; it might be some time afterwards. I take Mr Johnson’s point that somebody might be able to face up to the issues long after the timescale that is set out has formally been reached, and I suppose that they would have just as much right to have their circumstances addressed as anybody else.

I am happy to reflect further on that point in advance of stage 3. There are provisions in the bill to allow the timescale to be extended, but not, I think, in the fashion that Mr Johnson highlights—in the scenario in which, some years later, an individual is able to face up to all the issues and wishes to pursue them. I am certainly prepared to give the committee a commitment that I will consider that point in advance of stage 3 in addition to the proposed changes in this group of amendments.

Daniel Johnson

I thank the cabinet secretary for those remarks.

Amendment 109 agreed to.

Amendments 110 and 111 moved—[John Swinney]—and agreed to.

Section 29, as amended, agreed to.

Section 30 agreed to.

Section 31—Withdrawal of application

The Convener

The next group of amendments is on initial determinations. Amendment 61, in the name of the cabinet secretary, is grouped with amendments 65, 68, 77, 79, 81, 92, 95 and 99.

John Swinney

Last week, I said to the committee that I want to make sure that the operation of the waiver is fair to survivors. Some of the views that the committee heard at stage 1 and that the Government has heard throughout the engagement with survivors indicated that the provisions in the bill on interim payments could undermine that objective. In particular, there was a concern that some survivors could choose to sign a waiver before knowing the final outcome of the individually assessed redress application and, crucially, whether they are satisfied with that.

Although the option to receive an interim payment was only ever intended to increase survivor choice, given the concerns that have been raised and the commitment that I made in the stage 1 debate, I have lodged amendments that will remove the concept of interim payments in relation to individually assessed applications.

The principal amendment, which is amendment 68, will remove section 36, which is the source of redress Scotland’s duty to make an initial determination. The other amendments in the group make consequential adjustments to the other provisions of the bill that refer to initial determinations, including the provisions on the waiver. The amendments will mean that survivors who apply for individually assessed payments will only ever be asked to sign the waiver when they know the final outcome of their application and the full details of any redress payment that they are being offered.

As I have said before, the process of redress is intended to be faster than civil litigation and is intended to feel different from traditional court-based processes. That will be uppermost in our minds as we progress with scheme design and build capacity to deliver. We will make sure, in all respects possible, that the processes and timescales to consider and assess applications deliver a swifter, more accessible, survivor-focused and trauma-informed alternative to court proceedings.

The bill also provides that redress Scotland must prioritise applications, having regard to the age and health of applicants. That will allow the elderly and those with significant health issues the opportunity to have their applications determined properly and to receive their full individually assessed payments as quickly as possible thereafter. The amendments are part of a package of stage 2 amendments that are designed to enhance—[Inaudible.]

The Convener

Mr Swinney, we lost your connection there, so we missed the last few sentences.

John Swinney

Okay. The amendments are part of a package of stage 2 amendments that are designed to enhance the protection for survivors. I ask the committee to support the amendments in the group, for the reasons that I have set out.

I move amendment 61.

Amendment 61 agreed to.

Section 31, as amended, agreed to.

Section 32—Prioritisation of applications

Amendment 62 moved—[John Swinney]—and agreed to.

Section 32, as amended, agreed to.

Section 33 agreed to.

After section 33

The Convener

We move on to determination of applications. Amendment 25, in the name of Daniel Johnson, is grouped with amendments 63, 112, 104 and 104A.

Daniel Johnson

It is a fair reflection of the evidence that the committee took and the discussions and deliberations that the committee carried out in public and in private that the most sensitive and delicate issue in relation to redress Scotland and the way that it is proposed to work is the determinations of individual payments that it will make.

In essence, we are asking redress Scotland to determine the veracity and, indeed, the seriousness of the testimony that it will receive from survivors. Clearly, that is a very delicate and sensitive matter. Determinations need to be carried out with that in mind, but they also need to be carried out in a robust and understandable manner. Therefore, understanding of the burden of proof that will be applied to applications and of the evidential requirements for the testimony and information that is provided by applicants to the process is critically important.

As it stands, the way that such matters will be determined will be subject to guidance. I and the committee questioned whether that was robust enough for the purposes of redress Scotland. I understand that the intent behind it is to provide sufficient flexibility, which is important given the difficult nature of the subject matter and the time and complexity surrounding it. However, although I recognise that, we have to bear in mind the independence of redress Scotland in carrying out its work. Once the body is up and running, it will do so very much independently of Government, which is right and correct. It is therefore important that we set out in the bill the principles that it will work under in relation to evidential requirements and the burden of proof. However, it is also important that we continue to have flexibility.

Amendment 25 sets out a number of principles under which applications will be determined and the burden of proof that will be applied. Those are important in order to provide clarity for people who are applying so that they understand what will be required of them and how things will be understood, as well as for legal robustness; having in the bill the principles under which those decisions will be made means that they can be scrutinised and legally challenged if required. Those principles will be expanded and made more substantial through regulation, which is important in providing the flexibility that was initially sought and in recognising that these issues are complicated and therefore require more substantial elaboration than is provided for in the bill.

I will explain some of the detail. Subsection (3) of amendment 25 sets out key principles, which I acknowledge are complex and untested. However, I seek through the amendment to provide key principles by which redress Scotland could sensitively but coherently assess the evidence that it receives from survivors. It is important that we do not have principles that may put undue stress on individuals. It is therefore important that we have an assumption of coherence regarding evidence; that is, that we move away from ideas of consistency, which is sometimes problematic for survivors. Given the stress and trauma that they have endured, they may not necessarily have given consistent accounts over time or even in a specific period. What is important, therefore, is that evidence is assessed as to whether it is coherent in the broader context of the experiences that they endured and whether it fits within the pattern of other survivors’ evidence and the information that we know about the broader context in which they may have endured the abuse that they suffered. That is why paragraph (b) states that

“evidence of the experience of an applicant may be inferred from”

other accounts. It is also important that there is a presumption that applicants are to be believed, in relation to which I note Alex Neil’s amendments later in the group.

Subsection (3)(d) of amendment 25 is about how it is important that the overarching responsibility to establish the facts of the application falls on redress Scotland rather than the individual applicant. The process will be traumatic and difficult, and if we are seeking a process that is substantially different to going through court, it is important that there is an obligation on redress Scotland to seek to establish facts itself in partnership with the applicants, and not to be a passive body that simply receives evidence on behalf of applicants.

09:15  



Indeed, it is also important that we do not ask survivors to produce evidence or give testimony when they have done so elsewhere. That relates to quite a powerful, personal representation that was made to me following our initial evidence taking, that many survivors give their stories time and time again, and, every time they do so, they relive their experience, which is traumatic. Therefore, when that evidence has already been provided—in particular, to the inquiry—it is important that that is taken into account and used as a primary source, and that we do not require survivors to retell their stories when they do not have to because they have already told their stories elsewhere. It is also important to establish that the standard applied should be no higher than the balance of probability.

I hope that that sets out my logic. I apologise for having gone on at some length, but this is a complicated area. I recognise that an awful lot of these principles are untested and that there will be significant legal complexity. Therefore, these are probing amendments and I am minded not to press or move them when we come to that point. However, I would like to establish with the cabinet secretary and other members whether they think that principles along these lines may be appropriate. I certainly think that the bill must set out more substantial principles than are currently set out or that would be provided for in the other amendments in the group. It is important that we have legal robustness and that we have clarity for those seeking to make applications to redress Scotland.

I move amendment 25.

John Swinney

I thank Mr Johnson for lodging amendment 25. I agree in principle with elements of the approach that is set out in the amendment, some of which have been included in my amendment on the standard of proof and in Mr Neil’s amendment on the presumption of truth.

We all want the redress scheme to operate with integrity and robustness but without placing unduly onerous burdens on survivors. On that point, I agree very much with the sentiments that Mr Johnson has expressed and in no way wish further trauma to be inflicted on survivors by the application process that is envisaged under the bill. Indeed, my contention is that we are trying to minimise that trauma where we possibly can through the approach that we are taking. We must make sure that individuals are able to obtain redress without the trauma that Mr Johnson refers to.

However, there are a number of practical and technical issues with Mr Johnson’s proposal, and I welcome the fact that he told the committee that his amendments are probing amendments, because, once the committee has disposed of these sections of the bill, I would be happy to reflect with Mr Johnson on whether there are any further outstanding issues that need to be addressed to take into account the legitimate points that his amendments raise.

There is a judgment to be made—it runs through a number of the comments that I could make in relation to this section—about just how much detail to put in the bill and how much should be left to the guidance that we put in place. However, I would be happy to engage further with Mr Johnson on those points once the committee has expressed its view on the various amendments in the group.

I will sum up my observations by saying that I share Mr Johnson’s commitment to a trauma-informed approach and that I want to apply the proposed test to the provisions of the bill once the committee has completed its scrutiny in advance of stage 3.

On the presumption that applicants are to be believed, I am committed to delivering a scheme that tells survivors from the outset that we believe them. That is important when, so often in the past, they were not believed. I give my support to amendments 112 and 104A, lodged by Mr Neil, which call for a presumption of truth in the bill. I thank Mr Neil for amendment 112, which maintains the integrity of the scheme by selecting the presumption of truth as the starting point, while leaving the panel the flexibility that it requires to ensure that decision making is robustly credible. That supports our non-adversarial approach to all aspects of the redress scheme, it recognises the challenges for individuals having to disclose abuse and it underlines our commitment to a trauma-informed approach and to providing practical and emotional support to applicants throughout the application process and beyond.

Turning to Government amendments 63 and 104, I have heard the evidence from the committee and have reflected on calls from survivors and organisations for greater clarity as to the standard of proof that will apply in determining redress applications. I lodged amendment 63 to apply the civil standard of proof “on balance of probabilities”, which means that something was more likely than not to have occurred. Survivors have asked for a standard of proof that provides clarity for the applicant and safeguards the integrity of the scheme. Organisations need to be confident that their contributions will relate to redress payments that are determined by the panel in accordance with a clear and consistent standard of proof; amendment 63 provides the clarity that is sought.

Although the standard of proof that is applied by amendment 63 is the same as the civil standard, that does not mean that the process would be the same as in a civil court. Civil court rules on admissibility of evidence are not applied to the redress scheme by the amendment or otherwise, and the matters that require to be demonstrated apply only to eligibility, not to liability. Adversarial processes that are raised to establish liability have no place in the redress scheme.

The practical measures that are put in place through the design of the scheme will more broadly support survivors to access redress by helping them to access, so far as is possible, any and all available information and evidence to support their application in meeting the desired standard of proof. It was always intended that redress decisions would be taken to a clear and consistent standard. It is vital to ensure that all of us—including survivors, organisations and others—have confidence that decisions on redress applications will be based on a clear and appropriately robust standard of proof. The balance of probabilities provides that confidence.

I therefore ask the committee to support my amendments 63 and 104, as well as Mr Neil’s amendments. I invite Mr Johnson not to press amendment 25, and I give the undertaking that I will engage constructively with him and the committee on what further steps need to be taken to address any outstanding issues that he has raised in amendment 25.

Alex Neil (Airdrie and Shotts) (SNP)

I thank Daniel Johnson and the cabinet secretary for their supportive comments in relation to amendment 112 and consequential amendment 104A.

As we all know, survivors of abuse in care have campaigned with dedication and perseverance to access justice—[Inaudible.]—and redress. There have been too many times in the past when survivors have taken the brave step to disclose abuse experience, but have not been heard or, indeed, believed. Like everyone else on the committee, and like the cabinet secretary, I have heard from survivors. They have stated that being heard, being believed and having their abuse acknowledged are important elements in accessing justice. For many individuals, those things are vital in helping them to move forward.

In response to those calls, I lodged amendment 112 to place a presumption of truth in the bill. It will mean that applicants will be in no doubt that, when they apply to the redress scheme, the default position will be that they are believed. The amendment forms part of an unwavering commitment to listen to survivors and to act with dignity, respect and compassion in acknowledging and accepting the truth of the abuse that they suffered in care.

The presumption of truth will work alongside the standard of proof. Together, they will reinforce the supportive and trauma-informed approach to survivors and to the robust review of applications, with each element promoting confidence in the scheme. Survivors can be assured that they will be believed, and that will be in the text of the bill.

Jamie Greene

I have two brief comments on the amendments in this group. One is on the evidence threshold. In theory, we would have supported Mr Johnson’s amendments, on the basis of principle rather than technical precision—I appreciate that there are some difficulties with the wording of them. The idea that the evidence that is provided must be proportionate to the award that is made is a fair principle, and I hope that the Government will consider that.

The only issue that I have with Mr Johnson’s amendment concerns the provision that those who participate in the schemes should not have to present evidence that has already been given. In theory, that is ideal, but in reality the situation will not always be ideal. There might be cases in which it is necessary for the panel that is making the award to request evidence or information that would be a fair ask of participants in the scheme. Again, however, I come back to the first principle of the proportionality of the evidence that is required, given the nature of the scheme, which is very different from civil action. We should, and could, avoid that situation in almost all cases, but the scheme needs to be given the flexibility to empower the panel—and its members themselves—to make reasonable and rational decisions around what they think is required of them in order to allow them to make an overall decision. What might seem quite easy in theory, and what might look practical in the text of a bill, might be quite difficult in reality.

I look forward to seeing how Mr Johnson and the cabinet secretary progress the matter. The Scottish Conservatives would support any measures, and any future amendments at stage 3, to make the process as easy as possible for those who come forward.

Oliver Mundell (Dumfriesshire) (Con)

Like Jamie Greene, I support Daniel Johnson’s approach while recognising that there are technical issues with his amendments. I am keen to see what progress is made ahead of stage 3.

However, I draw the attention of Mr Johnson and the cabinet secretary to Alex Neil’s comment in relation to the interaction between the presumption of truth and the standard of proof that is required. What concerned me at stage 1, and what continues to concern me, is how those who cannot provide documentation or hard evidence will be treated when they can nonetheless provide circumstantial evidence and other compelling information that would, in the view of most reasonable people outside the court process, meet a balance of probabilities test. For example, will a sworn statement or previous remarks to the inquiry be taken as being enough evidence? What happens when documentation does not exist? How do those two principles interact when they are both in the bill? I am keen to get a better understanding of that from the closing remarks.

The Convener

Mr Mundell, the cabinet secretary has requested to intervene.

Oliver Mundell

I am happy to take the intervention.

John Swinney

I am grateful to Mr Mundell for accepting the intervention—I do not have the opportunity to sum up in this debate, so it gives me a chance to respond to the legitimate points that he has raised.

I hope that members conclude that the support that I offer to Mr Neil’s amendment 112, which proposes that there be, in essence, a presumption of truth being told by applicants, combined with the standard of proof applied in my amendments on the balance of probabilities—meaning that something was more likely than not to have occurred—provides a framework that addresses the points that Mr Mundell raises. I accept that documentary evidence is unlikely to be available in every circumstance to a level of certainty that would satisfy other tests within the judicial system.

It is interesting to reflect on the Scottish child abuse inquiry’s approach, in which it has felt to me, as a layman, very much as though survivors presenting evidence have been believed from the outset. That has enabled the inquiry to produce such powerful reflections on the issues about which we are all troubled. I have tried to reflect some of that thinking in the amendments that the Government has lodged and the amendments that Mr Neil has lodged, which I am happy to support in relation to the points that Mr Neil has raised.

I hope that that goes some way to addressing the points that Mr Mundell has legitimately raised, which I acknowledge he raised at stage 1, as well.

09:30  



Oliver Mundell

That is exceptionally helpful. I am grateful to the cabinet secretary for that, as I know that it will provide a lot of reassurance to survivors and victims, as will the amendments. Thank you.

Daniel Johnson

I thank the cabinet secretary and committee members for their comments on the amendments to this section. I acknowledge that the amendments proposed by Alex Neil and the Government will move us forward. However, the comments by Jamie Greene and Oliver Mundell point to the fact that there is at least the scope to look at whether we could move further. It is a simple fact that many survivors will struggle to provide documentary evidence and that they will have provided evidence elsewhere. We need to be mindful of the fact that redress Scotland will not just determine whether testimony is true but will establish the extent of the trauma in the particular circumstances of the applicant, because it will have to discriminate between different payment levels. Obviously, we will come on to that when we deal with the next section.

It is therefore a question of establishing not just whether abuse occurred but the extent to which it did. Because of that, we require to elaborate on the valid ways in which redress Scotland can substantiate testimonies, which is the point that Oliver Mundell was getting at and very much the point that I sought to probe through the principle of inferring evidence from the accounts of other applicants or the wider context.

However, it is important, as Jamie Greene pointed out, that redress Scotland seeks evidence that might be available elsewhere. I acknowledge the complexity here, so I will not press amendment 25. I urge committee members to support the amendments in the names of John Swinney and Alex Neil.

Amendment 25, by agreement, withdrawn.

Section 34—Determination of applications

Amendment 63 moved—[John Swinney]—and agreed to.

Amendment 112 moved—[Alex Neil]—and agreed to.

The Convener

The next group is on findings of fact. Amendment 64, in the name of the cabinet secretary, is grouped with amendments 66 and 97.

John Swinney

A fundamental aspect of the redress scheme is its non-adversarial nature. It is intended to be an alternative to a court-based process, and its purpose is not to determine liability for abuse in a way that a court would or in a way that would have legal consequences outside the redress scheme itself. Rather, its purpose is to provide tangible recognition of abuse and a survivor-focused, non-adversarial route to redress.

Thus, section 34(3) states that redress Scotland,

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

Further, section 34(6) provides:

“Neither the offer of a redress payment nor the failure to make an offer”

is to be construed as a finding that a person named in an application acted in a particular way.

In the evidence that was received at stage 1, concern was expressed that those provisions might prevent redress Scotland from determining whether abuse actually took place. That is certainly not the intention. Indeed, making such determinations is obviously essential to the performance of redress Scotland’s functions. In our view, it is entirely possible for redress Scotland to make a determination that abuse occurred without having to make a specific finding as to whose fault or negligence led to that abuse. However, it is clear that the concerns that were raised relate not to the principle of the provisions but only to how they are expressed. I am content to present the three amendments in this group to clarify our intention.

Amendment 64 amends section 34(3) to provide that redress Scotland has no power to

“rule on, and has no power to determine, any person’s civil or criminal liability”

when considering a redress application, as that would be the role of a court. The intended effect is to make it clearer that, while redress Scotland has no power to do those things, it will nonetheless be able to make determinations on the key question of whether or not abuse took place for the purpose of offering a redress payment.

The purpose of amendment 66 is to put it beyond doubt that neither the offer of redress nor the failure to make such an offer can be relied on in other court proceedings as evidence that the acts complained of occurred. That was already the intention, but the amended wording of the provision puts it beyond question that we are talking about how the outcome of a redress application is viewed in other proceedings.

For the sake of consistency, I also lodged amendment 97, which amends section 72(6). That provision contains similar wording to that of section 34(6), but in the context of a reconsideration of a determination where there has been a possible material error. Similarly to amendment 66, amendment 97 is intended to put it beyond doubt that, for the purposes of other proceedings, nothing done under a reconsideration is to be taken as a finding that someone acted or failed to act in a way suggested in the application for redress.

I move amendment 64.

Amendment 64 agreed to.

Amendments 65 and 66 moved—[John Swinney]—and agreed to.

Section 34, as amended, agreed to.

Section 35—Assessment of amount of redress payment

Amendment 67 moved—[John Swinney]—and agreed to.

Section 35, as amended, agreed to.

Section 36—Applications for individually assessed payments: initial determination

Amendment 5 not moved.

Amendment 68 moved—[John Swinney]—and agreed to.

Section 37 agreed to.

Section 38—Individually assessed payment

The Convener

The next group is on payment amounts. Amendment 69, in the name of the cabinet secretary, is grouped with amendments 70, 26, 27 and 71 to 73. I draw members’ attention to the pre-emption information that is shown in the groupings. If amendment 27 is agreed to, I cannot call amendments 71 to 73.

John Swinney

Before discussing the amendments in the group directly, I would like to acknowledge the sensitivity of this part of our debate. It is one of many difficult topics in the context of redress. I know that committee members have said that they are uncomfortable with drawing lines between experiences of abuse and attaching a monetary value to each level; I share that discomfort and I must say again that we know that no amount of money can adequately reflect the reality of abuse and the harm caused. Nothing that we discuss here should be considered to diminish any abuse experienced by any survivor, but if we are to provide individualised payments, as survivors have asked us to do, this is a discussion that we must have.

The work on the assessment framework will continue, so that survivors have clarity when they are considering applying for redress. We must recognise that not all experiences of abuse are the same, and therefore it is right that the redress scheme provides for those distinctions in a way that is fair and makes sense for survivors. The matter of payment levels is therefore critical but sensitive.

I have considered carefully the evidence that the committee heard during stage 1. I want to provide fair payment according to a fair structure that is sensitive to the needs and circumstances of those who apply to the scheme. I have revisited the level of the increase between the different payment levels and lodged amendment 71 to introduce a new £60,000 payment level to address concerns that the gap between the current £40,000 and £80,000 payment levels in the bill is too great. Amendment 72 is consequential to amendment 71.

I have also considered the evidence that the committee heard during stage 1 that, for some cases, redress payments might be lower than would have been awarded by the courts or provided by some other redress scheme. The redress scheme is an alternative remedy for survivors. It does not follow the same rules and procedures as courts and it is not designed to achieve the same outcome. The redress scheme is driven by the needs of survivors and is designed to operate in a supportive and non-adversarial way, while still providing contributions from the organisations responsible.

09:45  



It is important that the redress scheme offers choice in the form of a meaningful alternative. Having listened to the evidence, particularly the views of survivors, I have also lodged amendment 73, which introduces a new top-level payment of £100,000. A revised financial memorandum will be published to set out what impact that will have on the anticipated cost of the scheme, if the amendment is agreed to today. Amendments 69 and 70 are further consequential amendments.

Those payment levels will allow survivors’ experiences to be further differentiated and the application process to be further individualised.

Mr Johnson’s amendments 26 and 27 would also amend payment levels. Although I agree with the need to increase the top-level payment, I believe that his suggestion that there should, in effect, be no upper limit presents a number of challenges. The biggest challenge is that the lack of clear parameters around the payments available would lead to a lack of transparency for survivors, either in advance of applying, or once they have received an offer of a redress payment. There would also be difficulties in seeking contributions from providers worried about affordability if payment amounts had no upper limit. That could undermine other measures that we have considered and debated previously that seek to ensure the affordability of financial contributions for providers and to secure their contributions.

We should provide clarity for survivors wherever we can. Mr Johnson’s amendments would, instead, provide uncertainty around the payment levels available and how decisions are made. They would also likely increase the number of requests for a review of decisions, which would slow the settlement of applications and the capacity for the redress scheme to help survivors move swiftly through what is undeniably an emotional process.

I listened to the points that Mr Johnson raised previously about the survivors whose experience might take them to the highest level of redress payment available. As with all applicants, and perhaps even more than others, it is right that those survivors have the opportunity to access independent legal advice, that they know the options that are available to them and that they can carefully consider whether pursuing court action would instead be in their best interests.

Supporting survivors to make the right choice for them would, I suggest, not be helped by failing to provide clear levels of the redress payments that are available. However, a matter that could be further explored is how the scheme ensures that survivors are adequately signposted to the alternative paths available to financial redress. For some, those paths might result in a higher settlement than those that can be afforded by the redress scheme.

I note Mr Johnson’s previous powerful contributions on the matter and I want to see what more can be done, whether by stage 3 amendment or otherwise.

I have listened to the concerns that were voiced to the committee about payment levels. As I have set out, I have lodged amendments to introduce further individually assessed payment levels at £60,000 and £100,000. I believe that my amendments strike the right balance and respond to the concerns that we have heard while still ensuring that there is certainty and transparency. I therefore ask Mr Johnson not to move his amendments today.

I move amendment 69.

Daniel Johnson

I acknowledge that the cabinet secretary’s amendments in this group move us forward substantially. The £60,000 payment level removes the large jump between the £40,000 and £80,000 payment levels, which is important. I also welcome the introduction of the £100,000 payment level, which, again, is useful.

However, it is important to acknowledge two critical issues. There may well be people who come forward whose experiences are very serious and who may well be successful if they pursue the matter through the courts. Indeed, their experiences might be such that, if the matter was successfully pursued through the courts, it would attract a much more generous payment than would be currently available through redress Scotland.

I fully acknowledge that it is people’s choice to pursue a particular avenue, whether that is making an application through redress Scotland or taking the matter through the courts. However, it is still problematic—certainly for me—that we could have a scheme that would knowingly settle claims in such a way that those individuals would have no further possibility of pursuing their claims through the courts and that they could receive substantially less through the scheme than they might receive through the courts.

It is critical that redress Scotland acts in the best interests of survivors, both in the way that it handles their claims and in the awards that it makes. The intention behind my amendment was to remove the upper limit so that redress Scotland could make larger payments on an exceptional basis. I acknowledge that that would require further fleshing out, but it is an important consideration.

During last week’s consideration of amendments, I made the point that there might be circumstances in which individuals were able to receive higher claims and that redress Scotland would need to act in their best interests. I ask the cabinet secretary to consider whether there should be provision in the bill for exceptional payments, with whatever caveats may be deemed warranted, so that in circumstances where it is clear that large awards could be achieved redress Scotland is able to make such awards on an exceptional basis.

John Swinney

I acknowledge the points that Mr Johnson has made. I addressed a lot of them in earlier comments, so I will not rehearse them again. Mr Johnson raised the specific scenario of the provision of payments in truly exceptional cases. The difficulty is that such provision would conflict with the aspiration to have transparency within the system, which is essential so that all applicants know where they stand—so that they know the available parameters of the scheme and what they are making a judgment about. That enables them to make a judgment as to whether the scheme is for them or they wish to reserve the right to pursue civil litigation, which lies at the heart of survivor choice.

I am happy to give further consideration to the points that Mr Johnson has put on the record today. I acknowledge the issue that he raises, but I would be concerned that it could undermine the transparency of the scheme. I give the committee an undertaking that I will reflect on it further and I will be happy to discuss the issue with Mr Johnson in advance of stage 3.

Amendment 69 agreed to.

Amendment 70 moved—[John Swinney]—and agreed to.

Amendments 26 and 27 not moved.

Amendments 71 to 75 moved—[John Swinney]—and agreed to.

Section 38, as amended, agreed to.

Sections 39 to 41 agreed to.

Section 42—Deduction of previous payments: further provision

Amendments 76 to 78 moved—[John Swinney]—and agreed to.

Section 42, as amended, agreed to.

Sections 43 and 44 agreed to.

Section 45—Waiver

Amendments 79 to 84 moved—[John Swinney]—and agreed to.

Amendment 6 not moved.

Section 45, as amended, agreed to.

Section 46—Form and content of waiver

Amendment 7 not moved.

Section 46 agreed to.

Section 47—Period for which offer valid

Amendment 85 moved—[John Swinney]—and agreed to.

Section 47, as amended, agreed to.

Section 48—Acceptance of offer and making of payments

Amendments 8 to 10 not moved.

Section 48 agreed to.

The Convener

It is approaching 10 o’clock. I suggest that the meeting be suspended for seven minutes or so before we move on to the next group of amendments.

09:58 Meeting suspended.  



10:06 On resuming—  



Section 49—Payments to vulnerable persons

The Convener

We move to payments to vulnerable persons. Amendment 28, in the name of Kenneth Gibson, is grouped with amendments 29 to 31.

Kenneth Gibson (Cunninghame North) (SNP)

Good morning to colleagues and the Deputy First Minister.

In its stage 1 report, the committee raised concerns about section 49, stating that the section is unnecessary due to existing legislation that was designed to protect vulnerable people. It therefore recommended that section 49 be removed from the bill. The committee’s concerns related primarily to the fact that the Adults with Incapacity (Scotland) Act 2000 already provided sufficient safeguards. Although I realise that section 49 is well intentioned, I agree with the concerns that the committee raised. For that reason, I propose that the paragraphs referring to adults with incapacity and to people whose capacity “is otherwise impaired” be removed from the bill.

However, I think it important to consider the other group of vulnerable applicants who are included within the scope of section 49. In certain circumstances, children will be able to apply to the scheme, as next of kin. Some might receive significant payments, as nominated beneficiaries, should a survivor unfortunately pass away prior to their application being fully determined and a payment being made. In those circumstances, we must consider the impact that a large lump-sum payment might have on a child—in particular, one who might be dealing with additional vulnerabilities such as having experienced trauma, being at risk of exploitation or dealing with bereavement.

For that reason, I suggest that the committee take an approach that is similar to that of the Criminal Injuries Compensation Authority, whereby redress Scotland would have the power to make directions on payment and management of an applicant’s award, when the applicant is under the age of 18. As we know, that is the age at which the bill draws a line between children and adults. That power would mean, for example, that a payment could be made in instalments or retained until the child turned 18.

In the group of amendments, I have also reflected the criminal injuries compensation scheme’s approach by including a subsection that would allow a child to request a payment advance—for example, when the applicant lives independently or to assist with their education costs. In any event, amendment 31 would guarantee that once the applicant reached the age of 18, the whole of the redress payment or the balance would be paid to them, as it would be paid to an applicant who is aged over 18.

I feel that the group of amendments to section 49 would deal with the committee’s concerns about treatment of vulnerable adults while ensuring that appropriate safeguards and protections for children remain in place.

I move amendment 28.

Amendment 28 agreed to.

Amendments 29 to 31 moved—[Kenneth Gibson]—and agreed to.

Section 49, as amended, agreed to.

Section 50—Review of direction made under section 49

Amendment 86 moved—[John Swinney]—and agreed to.

Section 50, as amended, agreed to.

Section 51 agreed to.

Section 52—Right to a review

Amendment 87 moved—[John Swinney]—and agreed to.

Section 52, as amended, agreed to.

Sections 53 to 55 agreed to.

Section 56—Period for which reviewed offer valid

Amendment 88 moved—[John Swinney]—and agreed to.

Section 56, as amended, agreed to.

Section 57—Withdrawal of review request

Amendment 89 moved—[John Swinney]—and agreed to.

Section 57, as amended, agreed to.

Sections 58 and 59 agreed to.

Section 60—Review of a section 58 determination

Amendment 90 moved—[John Swinney]—and agreed to.

Section 60, as amended, agreed to.

Sections 61 and 62 agreed to.

Section 63—Nomination of a beneficiary

Amendment 113 moved—[John Swinney]—and agreed to.

Section 63, as amended, agreed to.

Section 64 agreed to.

Section 65—Review of determination made under section 64(3)

Amendment 91 moved—[John Swinney]—and agreed to.

Section 65, as amended, agreed to.

Section 66 agreed to.

Section 67—Applicant’s death after offer accepted

Amendment 92 moved—[John Swinney]—and agreed to.

Section 67, as amended, agreed to.

Section 68—Invitation to nominated beneficiary to take over application

Amendment 93 moved—[John Swinney]—and agreed to.

Section 68, as amended, agreed to.

Section 69—Application taken over by nominated beneficiary

Amendment 94 moved—[John Swinney]—and agreed to.

10:15  



The Convener

We move on to legal fees. Amendment 114, in the name of the cabinet secretary, is grouped with amendments 117, 120 to 126, 131 to 133 and 136 to 139.

John Swinney

Funding for applicants to obtain independent legal advice is a key element of the redress scheme. It is essential that we give survivors a meaningful opportunity to obtain all the support and advice that they need to allow them to make fully informed decisions when they are considering an offer of a redress payment.

However, as the committee commented in its stage 1 report, there is a need to manage legal costs. We are learning lessons from other redress schemes in which legal costs have escalated and which have been subjected to criticism. We do not want that for this scheme; we want the majority of the money to go to survivors, so we need to respect the importance of independent legal advice for survivors, while providing to those who provide the advice clarity about the arrangements that will apply.

In the evidence that the committee heard, there was criticism of what some felt to be the complex nature of the legal fee provisions in the bill. There was concern that the approach introduces an unnecessary bureaucratic burden on solicitors in applying for legal fees, and on redress Scotland in assessing them. A desire was also expressed for greater certainty as to what payment solicitors would receive for their work.

After reflecting on that evidence, I have lodged stage 2 amendments to introduce fixed fees for legal advice. The new provisions are more straightforward and will give more surety about legal spend. Furthermore, the new approach will mean that there are simplified processes in which, rather than all fee requests being passed to redress Scotland for assessment, only those that require an element of judgment and decision making will be forwarded. That will cut administration costs further, and will allow redress Scotland to apply its expertise and to focus on assessment of redress applications, rather than on assessment of legal fees in every case.

At the same time, the provisions will retain an element of flexibility. Although the amendments provide for fixed fees, solicitors will still be able to apply for a bespoke assessment to be carried out in cases in which there are exceptional or unexpected circumstances that the solicitor believes might justify payment of an additional sum.

The bill as introduced provides that legal advice that is paid for under the scheme would not include advice on whether to pursue litigation as an alternative to making a redress application. We have heard criticism of that approach. My amendments recognise that giving notice of civil litigation as an alternative to the redress scheme can legitimately be funded by the scheme, to the extent that the advice is part of other work on making an application. Where advice is essentially about deciding whether or not to sign a waiver, that is covered.

However, it will still be the case that the amount at which the fixed fee is set will not be based on the expectation that extensive advice on civil litigation will form part of the process. That type of advice can often involve significant investigation by the solicitor, and expert reports and opinions from various professionals—for example, from counsel or medical experts.

Although complex and thorough legal analysis can be necessary in civil litigation, the redress scheme is deliberately designed to remove some of the complexities. Existing funding routes, including legal aid and no-win, no-fee arrangements, are in place to assist people who wish to pursue a civil case. I encourage survivors who have an interest in exploring potential litigation to take legal advice on that and to use the existing available funding options. If a survivor is unable to do that prior to submitting their redress application, or if they decide that they want to explore that after they have submitted their redress application, the redress scheme will allow them to pause their redress application.

My officials will continue to work with the Law Society of Scotland and other stakeholders, and to learn from other redress schemes, in order to ensure that the fees that are paid by the scheme are reasonable, and that applicants can access good-quality legal advice without unnecessary or excessive costs being incurred by the scheme.

I am grateful to Mr Gibson for lodging amendment 124, which will prevent solicitors from being able to top up the fee that they receive from the redress scheme and to recoup further fees from applicants. I fully support the amendment, which will provide survivors with reassurance that they will not have to top up the scheme’s legal fees from their own funds or their redress payment.

I move amendment 114.

Kenneth Gibson

Survivors should have the security that they will not face legal fees in addition to those that are paid for by ministers under the redress scheme, and I want to ensure that solicitors who obtain fees under the scheme cannot bill their clients for the same work. They cannot do that under the legal aid system, so they should not be able to do it under the redress scheme.

Amendment 124 will offer protection to survivors by assuring them that the scheme is designed to pay all reasonable legal costs in connection with redress applications. Survivors should fully expect to keep the entirety of their redress payments without more legal fees being deducted; amendment 124 will ensure that that is the case. The legislation cannot be a dripping roast for lawyers, as appears to have been the case in Ireland, so I therefore warmly welcome the Deputy First Minister’s amendments.

Amendment 124 also recognises that survivors might receive some advice on civil litigation prospects as part of the advice and assistance that they receive in connection with the application process—in particular, with regard to signing a waiver and choosing to accept an offer of redress, rather than going to court. That will be paid for under the redress scheme. However, if a survivor decides instead to pursue the court route, and commissions extensive legal advice on that, the solicitor should not be prevented from billing them or from receiving legal aid funding for that work.

I urge committee members to support amendment 124, which will add clarity to the provisions on legal fees and provide reassurance to survivors and those who advise them.

Jamie Greene

I thank the cabinet secretary and Kenny Gibson for their important amendments. I flagged the matter as an area of concern in the early days of the bill’s proceedings.

I am, however, unsure about the net effect of the amendments. Could they result in a scenario whereby, if an award were given to an individual, that individual would retain 100 per cent of the award, come what may? I ask that in order to establish whether there is any technical opportunity under the bill, and through the amendments, for a solicitor, who has been appointed by an individual to act on their behalf, to deduct, through fees or some other means, a portion of the award money that is paid? Are we 100 per cent sure that the effect of the amendments will be that, even if they have had third-party help from an organisation, including a solicitor, applicants will keep 100 per cent of the money that has been awarded by the panel, regardless of whether the money is paid directly to them or through a third party?

Daniel Johnson

I begin by reminding the committee that my wife is a practising solicitor. At the outset, I state that I agree whole-heartedly with the sentiments and intent behind the amendments from the Government and Kenneth Gibson.

In particular, Kenneth Gibson is correct in saying that we must ensure that legal compensation is not used by solicitors to, in essence, unduly gain compensation through the scheme. We must learn the lessons from such schemes in other jurisdictions.

However, could some clarity be provided? I am concerned about unintended consequences of the amendments—for example, where an application is made and an individual subsequently seeks clarity. It is possible that mistakes could be made and clarification sought, and decisions and awards that have been made by redress Scotland could then be challenged legally.

Amendment 124 is very understandable and important, but I would not want people to be barred from getting legal advice as a result of the amendment, if they legitimately seek to clarify or, potentially, to challenge decisions. The ability to do that is an important principle in a democratic society and is, I believe, a requirement under human rights law. I seek clarification that the amendment will not restrict people’s ability to get legal advice and to seek legal redress.

The Convener

I am conscious that this platform makes debate quite difficult. There were some direct questions from Mr Johnson and Mr Greene. Would Mr Gibson like the opportunity to address those?

Kenneth Gibson

Yes. Solicitors will not be able to top up the fee that they receive from the redress scheme and recoup fees over and above those that are paid by the scheme in relation to an application. Therefore, crucially, the approach that is proposed in amendment 124 will not impact the final sum that is received by the applicant. However, it does not restrict applicants from pursuing additional legal advice, which would, I hope, be paid for through legal aid. For example, a survivor could pursue the court route and commission legal advice from a solicitor. The solicitor would not be prevented from billing them, and that would be paid for by legal aid work. Therefore, there should be no impact on the redress payment, which I believe is what Jamie Greene and Daniel Johnson are most concerned about.

John Swinney

I am grateful to colleagues for their comments on this group of amendments. In response to Mr Greene’s point, there is no opportunity in the redress scheme for a solicitor to secure payment beyond the legal fees that are envisaged from the sum awarded to a survivor. A survivor could conceivably make a private arrangement with a solicitor, but that would be outwith the scheme. Within the scheme’s provision, the point that Mr Greene raised is assured. However, as he has raised it, I will undertake further scrutiny of the issue before we get to stage 3.

I think that Mr Greene wants to make an intervention. I would be happy to accept it.

Jamie Greene

Thank you, cabinet secretary. That is the power of the chat box.

I want to probe the cabinet secretary on the issue ahead of stage 3. If there is any benign loophole in the system, it is that the people who might apply for assistance are perhaps those who are most likely to be vulnerable. I think that the cabinet secretary knows where I am going with this. Private arrangements might well be legal and bona fide, but that does not necessarily make them morally right. Will the cabinet secretary work with members on the issue?

John Swinney

I take that point on board. Although I am giving what I hope is a reassuring response to Mr Greene, I want to take the issue away once we have settled stage 2 and consider, in the cold light of day, whether there are any other such loopholes. If necessary, we will take steps to address them, and I will happily discuss that with Mr Greene and colleagues in advance of stage 3.

In relation to Daniel Johnson’s point, there is flexibility for solicitors to seek sanction to increase the fixed fee, so cases and survivors would not be prejudiced in that process. A rigid shape is in place to enable survivors to access independent legal advice in connection with the scheme, and those who are providing that advice know what arrangements for fees will apply. The provisions provide certainty to everybody involved—survivors and providers of legal advice—and we acknowledge in the bill the importance of individuals having access to independent legal advice to enable them to make appropriate decisions for their circumstances.

I invite members to support the amendments in this group.

Amendment 114 agreed to.

Amendment 11 not moved.

Section 69, as amended, agreed to.

10:30  



Section 70—Nominated beneficiary’s death etc

Amendments 115 and 95 moved—[John Swinney]—and agreed to.

Section 70, as amended, agreed to.

Section 71—Liability for payment made in error

The Convener

We move to the group on error. Amendment 116, in the name of the cabinet secretary, is grouped with amendments 118, 127, 128 and 134.

John Swinney

This group of amendments is concerned with the approach that is set out in the bill to payments that are made as a result of an error. By that, I mean both when an administrative error has occurred in the making of the payment—such as payment of an incorrect amount or payment to the wrong person—and when an error has led to the decision to make the payment having being made incorrectly, or its having being made correctly but on the basis of incorrect or misleading information that materially affected the decision to make the payment. That covers fraudulent information, for example. The bill as introduced contained provisions to allow for the recovery of redress payments in those circumstances. That is an appropriate financial control and ensures that the scheme has the powers that it needs to deter fraud or to effectively deal with the consequences of fraud, should it arise.

Amendment 127 is the main amendment in the group. It ensures that errors can be addressed properly in all aspects of the redress scheme while allowing for the recovery of other payments that are made in connection with applications for redress payments. As I mentioned, the recovery of redress payments is already covered by sections 71 to 75 of the bill. The payments that are covered by amendment 127 are all other payments under the bill: payments to people providing support to survivors before and after they apply; payments for professional reports; fees for legal work; and other costs and expenses that an applicant for a redress payment might have incurred.

A person who has been paid for any of that work, either directly or indirectly, might have to pay the money back if there has been an error in the making of a payment. The error must relate to the payment that has been made and not, for instance, to any redress payment with which it is connected. For example, if a redress payment was initially made due to fraud, the provisions would not allow for the recovery of the legal fees connected with that application if the solicitor was unaware of their client’s behaviour.

However, I want to be clear that amendment 127 would not allow for the recovery of a payment made due to error from a survivor. Instead, the amendment allows for the recovery of payments made due to error to be recovered from those who benefit from the error—that is, from the professional who was, for example, overpaid for support services or legal work, or from the expert who fraudulently invoiced for assessments that were not carried out or reports that were not submitted.

Amendment 128 would insert a regulation-making power into the bill so that further detail about how recovery of payments made due to error can be set out. Section 75 contains a similar provision in relation to the recovery of redress payments.

Amendment 134 is consequential to amendment 128. Amendments 116 and 118 make minor technical changes to the sections on the recovery of redress payments that have been made as a result of error.

I hope that committee members agree that it is essential that the scheme has the power that it needs to ensure that any error in payment can be effectively dealt with separately and in addition to any criminal or professional sanctions.

I move amendment 116.

Amendment 116 agreed to.

Section 71, as amended, agreed to.

Section 72—Reconsideration of determination where possible material error

Amendments 96 and 97 moved—[John Swinney]—and agreed to.

Section 72, as amended, agreed to.

Section 73—Review of reconsidered determination

Amendment 98 moved—[John Swinney]—and agreed to.

Section 73, as amended, agreed to.

Section 74 agreed to.

Section 75—Power to make further provision about reconsiderations

Amendments 117 and 118 moved—[John Swinney]—and agreed to.

Amendment 12 not moved.

Section 75, as amended, agreed to.

Sections 76 to 78 agreed to.

After section 78

The Convener

The next group of amendments is on “Information: access by applicant”. Amendment 32, in the name of Daniel Johnson, is grouped with amendment 33.

Daniel Johnson

The amendments relate to an issue that I raised at last month’s additional evidence session. It is the very sad situation that many survivors simply do not know precisely what happened to them. They did not necessarily know where they were, who placed them there or the reasons and rationales for that—or about other such circumstances relating to their time in care.

Amendments 32 and 33 seek to establish the survivors’ right to gain information that might be in the possession of redress Scotland. It is very likely—it is certainly possible—that redress Scotland, during its activities, will gain access to evidence to which the survivors have not previously had access. The amendments seek to establish their right to have access to that information through the course of their application. That right cannot contravene any pre-existing data protection legislation, as amendment 32 seeks to clarify. Amendment 32, which is straightforward, is important to a number of survivors who are keen to establish that right.

I move amendment 32.

John Swinney

I thank Mr Johnson for lodging amendments 32 and 33. I agree that we should do all that we can to maximise survivors’ access to their records and ensure—as far as is possible within existing legislation—that applicants are aware of the form and contents of evidence relating to their application that is submitted by others to redress Scotland.

Amendments 32 and 33 represent a positive addition to the scheme, but there are some points of detail that require to be looked at further and that will need adjustment at stage 3. On that basis, I am pleased to support the amendments today. I will work with Mr Johnson to make the necessary technical proposals for Parliament to consider at stage 3.

Daniel Johnson

I am keen to work with the cabinet secretary to make any corrections or adjustments to the amendments at stage 3. I press amendment 32.

Amendment 32 agreed to.

Sections 79 to 82 agreed to.

Section 83—Confidentiality of information

Amendment 33—[Daniel Johnson]—moved and agreed to.

Section 83, as amended, agreed to.

Section 84—Power to share information with third parties

Amendments 13 to 15 not moved.

Section 84 agreed to.

Section 85—Provision of support to persons in connection with an application

Amendment 119 moved—[John Swinney]—and agreed to.

Section 85, as amended, agreed to.

Section 86—Provision of support to certain persons eligible for a payment etc

Amendment 99 moved—[John Swinney]—and agreed to.

Amendment 16 not moved.

Section 86, as amended, agreed to.

Section 87 agreed to.

Section 88—Duty on Scottish Ministers to pay certain legal fees in connection with applications

Amendment 120 moved—[John Swinney]—and agreed to.

Section 88, as amended, agreed to.

After section 88

Amendments 121 to 123 moved—[John Swinney]—and agreed to.

Amendment 124 moved—[Kenneth Gibson]—and agreed to.

Section 89—Assessment of amount of payment

Amendment 17 not moved.

Amendment 125 moved—[John Swinney]—and agreed to.

Section 90—Notification and review of payment

Amendment 126 moved—[John Swinney]—and agreed to.

After section 90

10:45  



Amendments 127 and 128 moved—[John Swinney]—and agreed to.

Before section 91

The Convener

The next group of amendments is on “Advance payment scheme: report”. Amendment 18, in the name of Iain Gray, is grouped with amendment 19.

Iain Gray

These amendments are designed to reflect evidence that the committee heard not about the redress scheme but about the advance payment scheme. The point was made quite strongly to us that, in the circumstances of the pandemic, there is a case—I think that a case was made—for reducing the qualifying age for applying to the advance payment scheme. Currently, that age is 70; the suggestion was that it should be reduced to the normal retirement age, which is now 66.

The evidence that the committee heard on the advance payment scheme, particularly on the way in which it had dealt with the evidence and testimonies of survivors, was almost entirely very positive. The proposals are in no way a criticism of the advance payment scheme. We are in a very particular circumstance, and they would be a way of recognising that in line with the fundamental purpose of the scheme, which is to allow redress for those who may not have a great deal of time to wait for it.

The advance payment scheme was set up by separate legislation, so it is quite difficult to amend it in the bill that we are considering. I also recognise the fact that the redress scheme that we are legislating for is to replace the advance payment scheme. We are therefore really talking about the potential for a change in the window between now and when the new redress scheme comes into play, which I hope will be very soon.

The amendments are designed to allow for some consideration of that circumstance. It is suggested that, immediately after the bill receives royal assent, ministers should lay before the Parliament a report that sets out the timetable for the introduction of the new scheme, which would give members the opportunity to state whether any changes should be made in the admittedly brief period up to the introduction of the advance payment scheme and, in particular, whether any changes should be made in response to the pandemic.

I move amendment 18.

John Swinney

I am grateful to Mr Gray for lodging these amendments.

I understand the need for clarity and transparency in relation to when survivors can expect redress Scotland to be established and, more important, when they can make an application to the scheme and receive their redress. I am determined to deliver redress to survivors as soon as possible following parliamentary consideration of the bill, and I am grateful to members from all parties who have made clear their commitment to redress. Survivors have waited long enough. We have all put that point on the record.

It would be unusual to enshrine in parliamentary legislation such a short-term commitment as is proposed. That said, I understand the importance of survivors and others having an early update on implementation.

An election is scheduled. We obviously do not know what the outcome will be, but, should the Government be re-elected, I am happy to commit to updating the Parliament before the summer recess on the matters that are set out in amendment 18. I will do that by laying a report, if that is the preference. Indeed, I fully expect to provide more of an update to Parliament at stage 3 on the scheme’s implementation. I therefore ask Mr Gray to accept the commitment that I have given and not to press amendment 18.

It is important to bear in mind that the advance payment scheme was set up on the grounds of urgency, using exceptional common law powers. I can confirm that the current minimum age for the advance payment scheme is 68—we reduced it from 70 in the original scheme—and that any changes to the scheme will have to be consistent with the legal powers underpinning it. The advance payment scheme was always intended to be a precursor to the main statutory scheme. Our priority now is to ensure that the development and implementation of the statutory redress scheme continues at pace and that redress Scotland is established and begins to assess redress applications from survivors as quickly as possible.

We regularly monitor the effectiveness of the advance payment scheme, and, where minor changes to improve the scheme can be made in a way that respects the legal basis an