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

Overview

The Bill as introduced sets up a scheme to make financial payments ("redress payments") to survivors of historical child abuse in care in Scotland. In some circumstances where the survivor has died, these can be paid to their partner or children. The Bill sets up a new independent public body, Redress Scotland, to make decisions about payments. The scheme replaces an interim scheme called the advance payment scheme.

The Bill allows organisations involved with residential care of children in the past to pay financial contributions to the scheme. In return, survivors who accept a redress payment will have to agree not to take legal action against these organisations or the Scottish Government.

The Bill also provides survivors of abuse with other practical and emotional support.

 

You can find out more in the Explanatory Notes that explains the Bill.

Why the Bill was created

Many children in care in Scotland in the past were not treated with love or with respect. They were abused by those responsible for their care.

Survivors of historical abuse in care have campaigned for redress. They want, and deserve, to be listened to, heard and believed. Making redress payments is an important part of dealing with the wrongs of the past.

The Bill aims to provide practical recognition of the harm caused by historical child abuse in care in Scotland. The Bill aims to treat survivors with dignity and respect. It is part of facing up to the wrongs of the past with compassion.

As well as the Bill, other actions are being taken to support survivors of historical child abuse. These include apologies and other forms of support.

Organisations which were responsible for the care of children at the time of the abuse are being asked to contribute to the scheme. This is what survivors have said that they want. It also allows those organisations to help deal with the wrongs of the past.

You can find out more in the Policy Memorandum document that explains the Bill.

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently at Stage 1

Introduced

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

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

Scottish Parliament research on the Bill 

Stage 1 - General principles

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

Stage 1 timetable

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

Have your say

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

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Our second agenda item is two evidence sessions on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome from the Scottish Government’s redress, relations and response division Donald Henderson, who is the deputy director, Paul Beaton, who is the unit head, and Lisa McCloy, who is the bill team leader; and from the Government’s legal directorate Barry McCaffrey, who is a lawyer.

There will be no opening statement, so we will move directly to questions.

Daniel Johnson (Edinburgh Southern) (Lab)

I am sure that the bill team will agree that, for the legislation to be ultimately successful, we need to ensure that the right decisions are made for the right reasons in the right way. As it stands, it is difficult to have confidence that that will be the case, because the bill does not set out the criteria or the process—it leaves that to guidance. What are your reflections on that? What should we expect to come forward on those matters?

Donald Henderson (Scottish Government)

As you know, the bill sets out at a high level the factors that need to be taken into account by redress Scotland in making awards. More detail needs to be fleshed out. We would expect to provide materials to you before the end of the stage 1 proceedings, to allow the Parliament to step beyond the high-level principles.

It is vital that this work is done correctly. In addition to making redress payments, we are trying to address not only the failures that were made over many decades in allowing the abuse to happen and persist, but the treatment of too many survivors afterwards, who have felt ignored and belittled by society. If we do not have a scheme that addresses their needs, including an assessment framework, we will not have achieved our aim. More detail is undoubtedly needed, and we aim to have it with the committee before the end of stage 1.

Daniel Johnson

The only criterion that I understand is currently in the bill is that the decisions

“must have regard to the nature, severity, frequency and duration of the abuse”.

There is no mention of the consequences, the costs or the wider social impact, nor is there any requirement to have regard to whether those incidents could or should have been avoided. Those are clearly things that, at the very least, require clarification. Why are those high-level principles not in the bill?

Donald Henderson

The bill is intended to pick up activity—crimes—that should not have been going on in the first place. We are not trying to deal with activity that was perfectly legal and acceptable at the time, and we are not designing a scheme that is intended to replace the civil courts, which have a place in assessing the on-going impact on loss of earnings, for instance. That is not part of the redress scheme.

We will look at the nature and frequency of the abuse that took place, as you mentioned. The guidance that we produce, which we will discuss with survivors, and the work that we are doing with psychologists who are advising us will flesh out those high-level principles as we build the approach that redress Scotland will take in looking at individual applications and the circumstances behind those in order to settle on an award level.

Daniel Johnson

Given the broad scope that redress Scotland will have to develop assessment processes and criteria, even given the guidance that you have set out, would it not be a good idea to have an independent chair who is separate from the chief executive? I understand that the bill combines those two roles. Is good governance not absolutely critical, given the scope that redress Scotland will have?

Donald Henderson

I certainly agree that good governance will be critical. Alongside that, independence from the Government is also critical, which is why we have protected redress Scotland from ministers having any involvement in decisions on individual applications.

In order to set up the scheme quickly, we propose that the administration be done by the Scottish Government and that that arm of the Scottish Government be instructed by redress Scotland. That means that redress Scotland will be very small and the bulk of the work will continue to be done by staff in the Scottish Government.

We can continue to talk about that. Our conclusion was that, because redress Scotland will be so small, having a separate chief executive and chair was not the right approach. However, there will be other views on that and we will listen to them and learn.

Daniel Johnson

I am not sure that I understand why scale alters the requirement for good governance, but I will leave it there.

Beatrice Wishart (Shetland Islands) (LD)

Good morning, panel. My connection dropped out briefly, so I hope that I will not be repeating the questions that Daniel Johnson asked—I do not think that I will.

My questions are about applicants who have convictions for serious criminal offences. There are differing views about the proposal that compensation should not be awarded to a survivor who has a criminal record for a significant offence. We now know that unresolved childhood trauma can lead to offending behaviour, so what account was taken of that understanding in the decision not to offer redress payment where it would be

“contrary to the public interest”

due to the applicant having been convicted of a serious criminal offence and

“sentenced to imprisonment for a term of 5 years or more”?

Lisa McCloy (Scottish Government)

That is a good question. We recognise that that is a difficult and sensitive aspect of the bill, and we know that there are varied but strongly held and opposing views on it. We have listened to those views throughout the consultation, and we will continue to listen to the evidence that the committee hears on that aspect of the bill.

In the bill, we have set out what we think is a proportionate response to an incredibly complex issue. It is important to note that there is no blanket presumption or exclusion in the bill to prevent redress payments being made to people with criminal convictions, including serious criminal convictions. However, there is an acknowledgment of some people’s concern about redress payments, which are obviously to be made in relation to abuse, going to those who have gone on to commit very serious crimes—particularly crimes of abuse.

The bill takes the position that the independent decision makers of redress Scotland will have an opportunity to look at cases on an individual basis to see whether there is a public interest argument not to make a redress payment in such cases. The bar is deliberately set high, and that power will be triggered only when applicants have convictions for murder, rape or serious sexual or violent offences for which they received a sentence of imprisonment of five years or more. I emphasise that there is no presumption to use that power and no blanket exclusion of those applicants. They would also have a right to review decisions that were made by the independent decision-making body, redress Scotland.

The other point to note is that applicants with very serious previous convictions would still be eligible for the elements of non-financial redress that will be offered by the scheme.

Beatrice Wishart

Thank you for that. Let us turn to support for legal advice. How will support for legal fees and costs that applicants might incur in trying to find evidence work in practice?

Lisa McCloy

We recognise that support is an important aspect of any redress scheme and that some applicants will want it. The support that will be available will vary according to what the applicant needs or wants assistance with. We recognise that there is an obligation to ensure that the scheme is as accessible as possible, and we are working with partners to make sure that information on the scheme is in accessible formats and so on.

We also recognise that applicants might require practical support to apply for redress, such as support to access records. Another important aspect of the scheme is that we recognise that survivors might require emotional support to apply, because, for some, applying for redress could re-trigger difficult aspects of a survivor’s past. There will be emotional support to assist survivors who are confronting that.

In terms of support for legal aspects, we understand that some applicants will want legal advice from the outset, but it is important to note that we are trying to design a scheme in which that will not be necessary. There will be a point in the survivor’s application at which we will strongly advise that advice is given before acceptance of a payment—that relates to the signing of a waiver, which we may come on to discuss separately.

10:30  



To focus on the provision and funding of legal advice for the moment, we have looked at what happened in other redress schemes, and we are aware that legal fees can escalate in some of them. That is not something that we want for this scheme—we want the majority of the money to go to survivors, although we do respect that there is a need for independent legal advice. We are therefore proposing that ceiling limits or caps are placed on the legal advice, to try to control the legal expenses of the scheme. However, we recognise that there will be cases that are more complex than the fee will allow for, so there is a mechanism in the bill for solicitors to apply to exceed the ceiling and a mechanism to review decisions on whether to allow someone to exceed the fees.

Iain Gray (East Lothian) (Lab)

I will ask about the waiver. The bill means that those survivors who avail themselves of the redress scheme will have to sign a waiver giving up their rights to pursue compensation in the civil courts. When the cabinet secretary introduced the bill in Parliament, he made it clear that the reason was to use that incentive to encourage the institutions that were responsible for historical abuse to contribute to the fund from which redress payments would be made. Can the bill team see that, from the point of view of survivors, it would appear that the interests of the institutions that were responsible for their abuse have been put ahead of their interests?

Paul Beaton (Scottish Government)

It might be helpful if I set out a little about what the waiver is designed to offer for survivors, as well as for providers. The scheme that is proposed in the bill looks to create a national collective endeavour, which, as you say, encourages those who may be responsible for abuse in the past to step forward and to acknowledge and respond to survivors in a way that does not require them to go to court. It is designed to give survivors a choice as to whether they would prefer to pursue litigation or proceed through redress. It is not a choice that is available to all, but it would be for the majority.

Through previous consultation and work with survivors, it has been made very clear that contributions from organisations are an important part of the scheme’s acting in that collective way. The waiver is the most effective way of achieving that. It has been used in the majority of redress schemes worldwide, particularly where contributions are in play. There should be no suggestion that the operation of the waiver can silence survivors—those who prefer their day in court can absolutely proceed on that basis. There is no sense that participation in the redress scheme involves anything like a non-disclosure agreement, and participation does not prevent survivors from discussing their experience privately or publicly.

We have just touched on the issue of independent legal advice regarding the decision on whether to accept a redress payment. The waiver will be signed only at the end of the process, once the survivor is clear about what redress Scotland’s proposal is and the organisations to which the waiver will apply.

As part of that national collective endeavour, it is fair to acknowledge those organisations that find a way to play their part in this. In encouraging them to do so, it is appropriate that they have the opportunity to fund payments to survivors, to offer that sense of acceptance and participation and, as I say, to face up to their historical legacy as part of that national endeavour rather than requiring survivors to receive it through another mechanism. Absolutely, we know that there are different views on that, and the matter has been given careful consideration as we have developed the bill. We will continue to listen closely to the evidence as it comes forward in the coming weeks.

I am happy to take any follow-up questions on that, as it is a crucial matter.

Iain Gray

We all understand that survivors wish to see these institutions playing their part in contributing to the redress fund, but they would want them to do that because of their historic guilt rather than as a good financial option on their part, which is really the argument that is being made here.

You said that survivors will be able to pursue the redress scheme and will only have to decide once they know what the outcome of that process is whether they accept that and, at that point, whether they sign their waiver. That will put survivors in an almost impossible position, will it not? In a hypothetical case in which a survivor has been told that the redress scheme will award them the maximum of £80,000, they will then have to decide whether to accept that as redress and give up their right to civil justice or reject it and go to the civil courts where, of course, they will not know what the outcome would be. They might feel that they have strong evidence and will receive a greater level of redress from the civil court, but they will not know that until they have gone through the process. Can you see that we are potentially putting survivors in a difficult, perhaps impossible, situation by asking them to make that decision at that point?

Paul Beaton

You are absolutely right to highlight the uncertainty of the civil court process. The redress scheme is designed very much for the majority of survivors, but we completely accept that there will be survivors whose experience, evidence or preference might be to pursue their position in court, but that might not be the case for all. The redress scheme is designed to offer something different and to allow people to exercise that choice.

However, you are right that there will be a choice to make at the end of the redress process and there is no certainty about what might emerge from the court at that stage.

Iain Gray

Surely, the way out of that dilemma is to allow survivors to pursue both routes. That is in the interests of the survivors, is it not?

Paul Beaton

It would be possible to have a redress scheme that proceeds on that basis. We have provision for legal advice, as we have discussed. There is also the point about contributions. If we are looking for organisations to step forward and seek to play an active part in this, the existence and operation of the waiver within the scheme as designed is a critical factor.

It is not for me to speak on behalf of any organisations, but it is clear that their considerations about whether to participate and, if so, to what extent, are on-going and are based on the scheme as it is designed. It will be a really interesting area of evidence as we go through the following weeks. There is, however, no question but that the waiver is right at the top of the list of issues that organisations are looking at when they consider whether to be part of this.

I absolutely share the wish that organisations would want to play their part and make contributions on the basis of the historical legacy alone. That may prove to be the case with some, but I would not be as optimistic across the range of organisations that we are looking at, representing 70 years of operation of the care system in Scotland.

Iain Gray

Have those institutions—

The Convener

Sorry, Mr Gray—Mr Henderson wants to come in, and we then need to move on to questions from Jamie Greene, followed by Alex Neil.

Donald Henderson

I emphasise that, in the Government’s estimation, it is not possible to produce a redress scheme that will cater equally for the very small number of potential £1 million civil law cases and for the enormous bulk of survivors who, if they were able to take a case at all, would end up with far lower settlement levels.

There will be people who, on the basis of legal advice and their own judgment, decide that they will get more in the civil courts. We want to leave that choice for survivors as late in the process as we possibly can, and we want to allow them to lead and conclude civil cases before they find out whether they are successful under the scheme. We are giving as much choice as we can to survivors who already have choice, by introducing a mechanism for survivors who cannot bring civil litigation at all because they are—[Inaudible.]—and for those who know that they have no evidence, as it is sometimes difficult to gather evidence from past decades, or who have evidence but are certain that the last thing that they want to do is go through the type of disclosure processes that are necessary in a civil case.

Some will be involved but in quite small numbers, and we are leaving the choice for them as late in the process as we possibly can.

Jamie Greene (West Scotland) (Con)

Good morning, panel. I will focus on the financial aspects. For the benefit of those people watching the session, who will not have reviewed all the documents to which we, as MSPs, have access, can somebody outline the estimated cost of setting up and operating the scheme?

What will be the on-going cost per annum of running it, aside from the compensation money? Can the panel indicate how they arrived at the projected forecast for the levels of compensation that will be paid out? What assumptions and estimates were made, and how will those translate into reality when people start to apply for the scheme?

I appreciate that we do not know how many people will apply, but surely some thought has gone into the potential cost of pay-outs once the scheme opens.

Donald Henderson

My colleague Paul Beaton can go into some of the detail on that. Our overall estimate is £400 million for the scheme as a whole, but—as you recognise in your question—this is intensely difficult territory in which to estimate the final number of applicants and the average award that would be made.

In the considerable research that we have conducted into other schemes running internationally, we have not found a single case in which the initial estimates were correct. We have spoken to people in Ireland who are capable, accomplished civil servants, but their original estimates were out by multiples. We benefit from their experience and from the experience of colleagues in other countries. Our central estimate is £400 million, but there is inevitably wide uncertainty in that.

Paul Beaton

The uncertainties that Donald Henderson mentioned are live. We have tried to look as carefully as we can to see how many survivors might come forward to the scheme. You will see from the documentation that our central estimate is for 11,000 potential applicants. However, we accept that that will be inaccurate to one degree or another and that we will have to keep a close watch on it. We have made our estimate by considering the totality of those who have been in care over the period covered by the scheme, which, as things stand in the bill, goes up to 2004. Within living memory, that is perhaps 70 years of a care landscape, which changed fundamentally several different times over those years.

10:45  



We have worked with Scottish Government analytical colleagues and with the Government Actuary’s Department in London to try to understand what those numbers could mean historically in respect of the different sectors and institutions that were providing care over that time. There is some really good research on the numbers of children in care. Interestingly, the number of children in care is fairly consistent, but they were in very different places by the end of the period covered by the scheme. It is incredibly complicated.

The work that we were able to do with the Government Actuary’s Department, looking at schemes elsewhere and the experience of our own advance payment scheme—500 applications or so—has given us some really good information, particularly around the earlier part of the scheme. We have also looked at the experience of schemes elsewhere in relation to their distribution of payment levels. We have done that without any sense of an objective or target. We are fortunate that we have a clear commitment that redress Scotland will take independent decisions and that survivors will receive payments decided upon through that process, rather than be subject to a more normal sense of financial drive. That is a very positive position to be in. However, it exacerbates the uncertainty.

Jamie Greene

I am sorry to interject, but that is rather a lengthy answer and I have some supplementary questions.

The Convener

Only one supplementary question, please, Jamie—perhaps you can wrap them together.

Jamie Greene

I will try, convener. However, they are important issues and unfortunately my initial question was not really answered. I want to press the point, although I am happy to receive an answer in writing if that would be easier, because I appreciate that there is a lot of detail. My first question was this: what will be the set-up and running costs? Those are fixed costs, which you must be able to estimate now, notwithstanding the levels of compensation.

I am concerned by the suggestion that you do not really know the compensation costs, given that other schemes have been massively out of kilter in their estimates. Could the £400 million easily become £800 million if 20,000 applications are made? What percentage of the compensation paid out will be paid out by the Government as opposed to the institutions that will contribute to the scheme? Has there been any indication of the levels or any caps on moneys available from the institutions that will participate in the scheme? How much will those institutions make available to pay compensation?

Paul Beaton

I can answer that element briefly, and then Donald Henderson and Lisa McCloy can answer on other matters.

The set-up and on-going programme costs are set out in the financial memorandum. As discussed in the earlier answer, the intention has been to provide a good balance of independence and efficiency in the set-up, to ensure that redress Scotland has the right structure and decision-making powers without taking anything away from the primacy of payments to survivors.

Discussions on contributions are on-going. The point about having a waiver bears repetition, because it is about organisations finding ways to participate in the scheme. Mr Greene is right. The issue of affordability is being raised, particularly in respect of the protection of current services. As you will know from the bill, we are working on a set of principles around fair and meaningful contributions to the scheme that will take into account those aspects, and we are looking at issues of transparency as well. We want to get that right because we do not want to do anything that unreasonably jeopardises an organisation’s existence and we certainly would not wish the scheme to have an adverse effect on any vulnerable person today. However, we clearly need to encourage significant contributions from organisations in the most effective way that we can. Again, that is where the waiver and the package as a whole comes in.

I am conscious of the time, so I will give way to colleagues to respond to other matters in your question.

Lisa McCloy

I will briefly answer the questions about the set-up and the on-going costs of implementation and delivery. As Paul Beaton said, we set those out as best we could in the financial memorandum and we have kept a keen eye on them in designing the delivery vehicle of redress Scotland, which is why we have gone for a small, independent decision-making body supported by the Government administrating the scheme. In that way, we can keep costs down and there is access to shared resources and services.

The financial memorandum indicates some of the different issues that we have thought about in terms of the programme costs, including recruitment and staffing, the digital and information and communications technology estate, other services and communications and engagement, because it will be important that we reach the survivors that we need to in order to be inclusive about those who can apply to the scheme. We estimate in the financial memorandum that the costs could be up to £34 million across the four years for implementation and delivery, which would not include money for legal fees or non-financial redress.

I do not know whether that is helpful, but we can follow up later on anything else.

Donald Henderson

I am grateful to Lisa McCloy for those details. That £34 million figure is the answer to Mr Greene’s question—[Inaudible.] A lot is dependent on volume, however, because the actual set-up costs are pretty marginal. The real costs are in relation to the numbers of people who will need to be appointed through the public appointment process to make the decisions, and to the scale of the back-office activity in the Scottish Government. If we are wildly overestimating and there are only 2,000 applicants, we will clearly need to employ a lot fewer people; if there are 20,000 applicants, we will need to employ more people. However, there would be proportionate increases or reductions accordingly.

Alex Neil (Airdrie and Shotts) (SNP)

As I understand it, the total costs have four elements: a £400 million estimate for compensation; £34 million in basic administration of the scheme; legal fees, which are indeterminate at present; and non-financial support. Adding all that up, what percentage of those costs do you anticipate being funded by the offending institution and what level of commitment can be got on that at the moment?

Donald Henderson

Others can come in with more detail if time allows, but I can say that it is too early in the process for us to have those numbers. Understandably, the conversations that we are having with organisations are dependent in turn on the shape of the bill that Parliament passes next March. Will it be passed as introduced or will there have been amendments to it? The reality is that we will not have signatures on bits of paper before organisations know the bill’s final shape. A number of promising conversations are going on with providers, many of whom we know are keen to find a way to contribute, but the outcome depends on the work that we and they have embarked on for the parliamentary process.

Alex Neil

So, basically, we are being asked to pass a bill with a waiver provision that is supposed to incentivise the offending organisations, many of which are very rich and which I assume—given what Donald Henderson has said—have still not made any commitment in principle to significantly or even partially fund the costs. Even though those organisations have not made even a ballpark commitment, we are saying to survivors, “Take the money, but on condition that you don’t pursue these organisations for civil action.” Why should we pass a bill that is based on a wing-and-a-prayer hope that those institutions will live up to their responsibilities when, to date, many of them have quite blatantly not done so?

Donald Henderson

I am not sure whether it constitutes agreement in principle, but, as I mentioned, there are organisations that are very keen to find a way to join the scheme.

When it comes to a survivor’s application, it would be at the very end of that process that the applicant would be invited to sign a waiver. At that point, they would know exactly who had contributed to—

Alex Neil

I am sorry, Donald, but once the bill has been passed, what leverage will you have over those organisations? We are being asked to decide whether to recommend to the Parliament that it should support all the principles in the bill. One of the key principles is the concept of giving people a choice, whereby if they take the money, they will waive their right to civil action. Why should we vote for that at stage 1 when there is no guarantee even in principle that the organisations in question would live up to their responsibility? We are not talking about giving those organisations an incentive; we are talking about letting them away with what they have done for all those years. Surely, we are entitled to have some kind of commitment before we can be expected to agree to the general principles of the bill.

Donald Henderson

If an organisation fails to make a fair and meaningful contribution in the first place, or if it fails to make a fair and meaningful contribution that it has agreed, it will not be subject to the waiver and the question will not come up. It will have made the decision that it would prefer to have cases go through the civil courts.

Alex Neil

But the fundamental point is that, as a legislator, I do not want to know only that the organisations will make some kind of contribution; I want to know that they will make proportionate contributions, because they are the source of the problem. Their failure to protect the children concerned is the source of the problem—that is why we are here today. Quite frankly, a wing and a prayer does not do it.

Donald Henderson

I think that, sadly, we are here today because of wider societal and regulatory failures. There was not an understanding among regulators, which is why the Scottish Government has its responsibilities. There was not adequate scrutiny or adequate inspection and follow-up. By and large, it was other people, such as people in Government or our predecessors in Government, who were—

Alex Neil

That is like saying that we should help—

The Convener

I am sorry, Mr Neil. I understand that you want to pursue your questioning, but Paul Beaton and Lisa McCloy have both indicated that they want to answer. I will let them to do so, after which I will move on to Ms Mackay and Mr Gibson. I will come back to you at the end if there is time.

Paul Beaton

I hope that it is helpful if I emphasise that the protection of waiver will be in place only if the organisation concerned is making fair and meaningful contributions to the scheme. As I said, we are working on the principles of that at the moment. I hope that it will be reassuring for the committee to hear that one of the core elements that we are proceeding with is that we are looking to organisations to pay the equivalent of the individually assessed payments for survivors who come forward to the scheme, over and above a starting contribution from the Government to reflect the wide systemic concern that Donald Henderson referred to.

Therefore, the contribution that is made will be proportionate. It will relate directly to survivors and to the decisions that are taken by redress Scotland as to what is appropriate for survivors. If that is not forthcoming, and if the delivery does not begin in advance of redress decisions being determined, the protection—the waiver—does not apply, and survivors can continue to raise legal action in addition to receiving the redress payment. No survivor will be disadvantaged by not receiving a redress payment at any stage.

11:00  



Lisa McCloy

As Paul Beaton said, the waiver extends only to those who have agreed to make fair and meaningful contributions; it is not a blanket prohibition on all who accept redress payments against any action in relation to the abuse that they suffered. Where there is a party to that abuse who has not made a contribution, a survivor will still be able to raise a civil action against them, regardless of their having received a redress payment.

That is not how all redress schemes operate—some schemes have a blanket prohibition on civil action should someone choose to receive a redress payment rather than going to court. However, we have gone for a model that means that survivors would be unable to raise actions only against those who make fair and meaningful contributions to the scheme. We understand the need for transparency around what makes up a fair and meaningful contribution. Donald Henderson may have something to add on that.

The Convener

We will move to a question from Rona Mackay, but if Donald Henderson wants to comment on that point in his answer, that would be fine.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

To follow on from Alex Neil’s line of questioning regarding contributions, this is a historical redress scheme, and it strikes me that a lot of the care organisations and charities that would have been involved or culpable at that time will no longer exist. Has an assessment been done of how many of those organisations are no longer in operation and what financial impact that will have on the compensation scheme?

Paul Beaton

That process is on-going and is not yet final. As I said earlier, we are looking at a relentlessly complex picture of multiple responsibilities held by different actors and agents in different sectors over different periods of time. Some of the organisations from which contributions are being sought continue to provide vital services for vulnerable people today, some are reconstituted in a different form, some are no longer operating in Scotland and, as you said, some no longer exist. We will have to make sure that survivors continue to receive the redress payments to which they are entitled, irrespective of the status of an organisation.

We have had discussions with a broad range of organisations thus far, including a number of trusts and other similar bodies that hold legacy responsibility for organisations that no longer exist. However, the conclusion to those discussions, and the ultimate financial impact, will depend on the survivors who come forward to the scheme and the organisations that are named in the applications.

As we move forward, we are looking to have discussions with and seek contributions from any organisation that is facing up to a historical legacy in this space, but the process is very much on-going.

Rona Mackay

Do you have a sense of how many of those organisations no longer exist?

Paul Beaton

To be honest, I do not. We have a number of different databases, as you would expect, and there are literally hundreds of names of organisations that may have had a role in the care system over the post-war period, by and large. We have made contact with all organisations that are subject to the Scottish child abuse inquiry, and we are now reaching out to others that may, although we cannot definitively say, have an interest in the process. Regrettably, therefore, I do not know how many organisations no longer exist, but we will continue to look into that.

Kenneth Gibson (Cunninghame North) (SNP)

Good morning, panel. I notice that up to 11,000 people could apply for the payments. However, in the Republic of Ireland, which has a smaller population than Scotland, there were more than 15,000 applicants. What is the difference between Scotland and Ireland in terms of the pool of people who could apply? In other words, how many people were in care for the time period that we are looking at and what proportion of them does the panel believe were abused?

Donald Henderson

I do not know whether one of my colleagues has detailed figures on the number of people in care in Scotland to hand. If we do not have that, we will write to the committee. As Mr Beaton said, the number is relatively stable across the years—surprisingly so—but the distribution between foster care, residential care and other settings varies significantly.

Each country that has established a redress scheme has been dealing with its own circumstances. You are right that Ireland’s population is about 4 million as against our 5 or 5.5 million, but the circumstances there were quite different from ours. Although the regulatory procedures in Scotland did not work as well in past decades as we would now wish that they had, by and large we did have them. In Ireland, there was a different set-up for the provision and inspection of education. For instance, Ireland lost a case in the European Court of Human Rights in 2014 that related to historical abuse—the O’Keeffe case—largely on the basis that the state just did not have the instruments that it should have had, rather than that they did not work. That is but an illustration of the fact that each country needs to look at its own circumstances, because those inevitably vary from one to another. We have learned a huge amount from colleagues in Ireland, but the historical situation in Scotland was not the same and therefore our answers differ.

Kenneth Gibson

The answer seems to be that we do not know what proportion of the people who were in care in Scotland were subject to abuse, as I am not getting a specific answer. I would like that information, if you can provide it.

Other members have asked about organisations whose lack of care contributed to the problem that we are trying to address, but what is happening about foster parents who may have abused people who were in their care? Will they be expected to make any payments through this legislation?

Donald Henderson

No. Children who were in foster care are eligible to make applications, but we are not even attempting to have conversations with individual foster carers. If survivors want to take civil action, that route is open to them, but we are not including foster carers in any potential contribution to the scheme. We are, of course, talking to the Convention of Scottish Local Authorities and through it to local authorities in relation to the wide variety of responsibilities that they had over the seven or eight decades that we are looking at. One of those responsibilities was for the foster care network.

Kenneth Gibson

Is that not a flaw in the bill? You are talking about institutions being responsible but, surely, if someone is personally and directly responsible for abusing an individual, they should not be allowed to get off scot free. That seems to me to be a weakness in the bill.

Donald Henderson

Any allegations of criminal offences or criminal cases can, of course, continue to be brought.

Kenneth Gibson

I appreciate that.

Donald Henderson

Cases can continue, if the survivor wants them to, and those can include individual foster carers. We have made a judgment on the basis of diminishing returns that, given the historical period that we are looking at, we would spend more on finding people in order to have a financial conversation with them than we would get from them, so there would be no value to doing that.

Kenneth Gibson

On the evidential threshold, there is a real difference between those who are looking for the higher payments, who have to present documentary evidence, and those who accept the minimum £10,000 payment and who make, in effect, an oral declaration for that. If someone has suffered the more serious type of abuse, they have to come up with much more detailed evidence.

Is there not a huge gulf between the £10,000 award and the awards of £20,000, £40,000 and £80,000 when it comes to the proof that individuals are expected to provide—for what are often fairly modest amounts, given that they have suffered a lifetime of trauma as a result of what happened to them in care?

Donald Henderson

The structure of fixed-rate payments and individually assessed payments comes through work that we have done with survivors through the interaction action plan review group. Again, that was as part of trying to give survivors choice.

For an individually assessed payment application, redress Scotland will look at everything that the survivor is able to bring. That will certainly have to include a personal statement, but it can also include health records, complaints to police and wider environmental information about the children’s home that they were in and any convictions relating to it—the wide totality of evidence that redress Scotland can find or which the survivor can bring to bear. All of that will be looked at and assessed.

When we have walked survivors through the advance payment scheme, which is very much simpler and has the equivalent of the fixed-rate payment, we have worked with them on proving that they were in care. Survivors have come to us thinking that they did not have evidence and we have helped them to find it. We have not rejected a single case because somebody could not establish that they were in care—sometimes very many decades ago. We have always found a way. That would be our intent for redress Scotland as well.

The Convener

I think that Ms McCloy wants to come in on that point as well.

Will you clarify that what was said in answer to Kenneth Gibson’s question about foster care would apply to an informal foster carer arrangement, but if somebody was placed in foster care by a local authority, or a social work department, that would be covered by the bill?

Lisa McCloy

Yes, that is right; I give that clarification. Private fostering arrangements are not covered by the bill, but local authority arrangements, as you have described, would be covered by the eligibility criteria.

I add to what Donald Henderson has said about evidence requirements. Evidence will be required for both fixed-rate and individually assessed payments. It is absolutely right to say that more evidence will be required for the individually assessed payments, given the type of assessment that will be carried out for those cases.

As Donald Henderson has mentioned, we want redress Scotland to be well informed in making its decisions, so it will be able to consider the information that is provided by the survivor. However, if the survivor wishes assistance to obtain information, there are powers in the bill to offer that assistance. That may include getting information from third parties. There is also a power to commission reports to assist the survivor in the process, whether that is through a psychological assessment or a medical report.

We have an understanding of the historical nature of the abuse that we are talking about, and of the difficulties over the adequacy of record keeping and in evidencing abuse of that sort. We will therefore be taking a flexible approach, so as to make sure that the scheme is robust and credible but does not set unduly onerous burdens on survivors in their access to redress.

11:15  



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

We have heard the phrase “fair and meaningful” a few times in the conversation about the contribution that might be made by organisations that had responsibility for children in the past, but I am not much clearer about what “fair and meaningful” means. Will you explain that?

You mentioned some of the reasons that organisations could give for not paying, one of which would be that the organisation was currently providing services that were useful. I do not dispute that that might be the case, but I am not sure why, morally, it gets the organisation round the issue of liability.

Will you also say more about how we get round the problem of an organisation arguing that although it has lots of resources they are all subject to restrictions that are contained in various bequests?

Paul Beaton

Discussions about what is fair and meaningful have been at the core of our work with organisations. I might ask Barry McCaffrey to talk about the law in respect of charity reform and restricted funds. We want to ensure that, if organisations are looking to play their part and make contributions, there are no barriers to their doing so—but Barry can speak a little about that, if time allows.

On the point about services, affordability and so on, I agree that the issue does not bypass responsibility or liability, as you said. There is absolutely no intention to dilute the sense of “fair” that we are looking for in this context.

The word “meaningful” is about trying to offer survivors choices, as we said. It has something to do with that collective national endeavour, whereby everyone has a role to play in the effort to face up to the past. In doing that, we are looking for people to contribute without there being formal findings of liability or a scheme that proceeds on that basis and without requiring people to go through litigation in a way that builds as much of that collective effort as it can do.

The word “fair” is really tightly tied to survivors who come forward to the scheme. The Government accepts that there is a need to demonstrate commitment to and acceptance of the broader responsibility—others have mentioned the local government complexity in that regard over the period that the scheme will cover. We are proceeding on the basis that, above and beyond the initial commitment and contribution, “fair” is about the organisation delivering the remainder of the individually assessed payments for survivors—that is a contribution for the benefit of survivors across the scheme, which is why the waiver is designed in the way that it is designed rather than more narrowly.

The point that you raise is also ripe for discussion as we go through the bill process. Although the phrase “fair and meaningful” is in the bill, transparency is key in that space, too. We need to reassure survivors about the basis on which contributions are made and about the certainty that they will be delivered.

Also, in respect of organisational matters, we want to encourage organisations to play their part and to be willing to participate and deliver contributions, rather than shying away from doing so, for other reasons. I hope that that will prove to be the case.

Barry McCaffrey (Scottish Government)

Dr Allan asked about bequests. We have engaged with the charity sector and the regulator; I suppose that the issues that we have been trying to address operate at two levels. In the context of general charity law, there are potential barriers to contributions that might be contrary to an organisation’s constitution or that do not meet the charity test; we have tried to address that in section 14, by removing any doubt about contributions from charitable bodies contravening charity law in any way.

The issue of bequests is slightly trickier. In section 15, we have taken an enabling power to explore that further. A lot of contributions to charities may be tied up in what are called restricted funds, which are for a specific purpose. We continue to engage with the charity sector and the charity regulator on that, but our idea is to bring forward regulations that, in a similar way to section 14, try to remove barriers that would otherwise be in the way of contributions to the fund from charitable bequests that are tied up in restricted funds.

Dr Allan

I have a related question about the other side of the equation. Keep me right, but my understanding is that the £10,000 payment option involves a simpler process and there is less need to explain things than with higher sums. How do we avoid a situation in which the people who find it most difficult to talk about what has happened to them feel that their only option, or the simplest option, is to go for the £10,000, regardless of the severity of the offences against them? How do we balance that? I appreciate that it is a difficult balancing act, but how do we avoid situations where the people who find it most difficult to talk about this stuff go for the simplest option?

Donald Henderson

That is a very important point. We have some advisers to the Government on advance payment for whom the first person that they have told about the abuse is one of my colleagues who supports that work. There is no easy answer to that question, but the provision of support is part of the answer to it. We have been careful to design the scheme so that an application, and a settled application, for a fixed-rate payment will not preclude the survivor coming back later in the lifetime of the scheme to open an individually assessed application if that is what they decide to do.

Because of the delicacy and sensitivity and the difficulties that survivors have faced, I am afraid that that still does not wholly answer the question, but we are always trying to find ways to give choice and maintain that choice for as long as we can in the process.

Lisa McCloy

I was going to make the same points as Donald Henderson. We are ensuring that we have provision to support applicants through the process, and we will learn from our experience with advance payments. Donald Henderson makes the important point that those who receive a fixed payment will later be able to apply for an individually assessed payment. We know that survivors sometimes have staged disclosure and that they sometimes want to test services to see how those services will meet their needs and how sensitive services can be to them. We hope that that approach will provide more choice.

Ross Greer (West Scotland) (Green)

Construction work has just begun immediately outside my office, so I apologise if my microphone picks up the jackhammer that has just started up.

I have questions on the next of kin payments. If a cohabitant is to be eligible ahead of a spouse through marriage or civil partnership, they need to have lived with the deceased survivor for at least six months. That seems like a proportionate way of indicating that the person was the deceased survivor’s partner at the point that the survivor passed. However, I seek clarification on whether there is a similar provision for the length of time that the cohabitant needs to have lived with the survivor for them to be eligible ahead of the survivor’s children.

Barry McCaffrey

We have taken a proportionate approach on cohabitants, and we have looked at other legislative frameworks. There is similar provision in the Burial and Cremation (Scotland) Act 2016 as to who can make arrangements on the death of a person.

On the more general point, in every case, the next of kin has to be the spouse, civil partner or cohabitant. They rank ahead of surviving children because it was felt that the partner of the deceased survivor should have first call on whether to make a next of kin application. The surviving children would come into play only if there was no one in that category.

Ross Greer

To clarify that, Mr McCaffrey, does the cohabitant need to have lived with the survivor for a minimum period for them to be ahead of the children? The scenario that I am thinking of is that they need to have lived with the survivor for at least six months to be ahead of that survivor’s spouse. If someone has lived with a survivor for a matter of weeks before they passed away, are they eligible ahead of that survivor’s children? Do they become a cohabitant and rank above the child, without a requirement for a minimum period of residency, as is required to come ahead of a spouse?

Barry McCaffrey

I will double-check, but I think that the answer is that they do not.

The Convener

Will you come back to us on that? Thank you.

Ross Greer

I have a brief technical question. The next of kin payment is a fixed payment of £10,000. Will the next of kin simply need to present evidence in exactly the same way as the survivor would have done, showing that their deceased partner was at whatever the setting was and when they were there and simply state that they were abused? They will not be required to provide any more information than a survivor would have had to, were they still alive.

Lisa McCloy

We recognise that the evidence that next of kin have access to can be a challenging area. However, your general understanding of the bill is correct. They would not have to produce anything over and above what a survivor would have to produce. We will have to look carefully at the requirements for evidence for next of kin. We expect that we will need more than simply hearsay evidence from next of kin applicants that the survivor experienced abuse. They may need to access a previous statement or account by the deceased survivor. It is important to note that the next of kin provision entitlement relates to the deceased survivor’s inability to access the redress scheme.

The Convener

Thank you, Ms McCloy. We have almost run out of time. I have a couple of final points, before we finish the evidence session. First, in relation to the definition of abuse, the bill refers to the time at which corporal punishment was administered. However, we would consider that to be abuse by today’s standards. How can survivors have confidence that abuse will be recognised and dealt with? Secondly, I would like to understand a bit more about what non-financial redress will look like. Mr Henderson wants to come in.

Donald Henderson

I will come in on those questions. On corporal punishment and the definition of abuse, our aim is not to criminalise behaviour that was perfectly legal and accepted at the time, bearing in mind that we are going back to activities that took place after the second world war and even before the second world war in some cases. Our aim is not to penalise what was perfectly normal in Scottish schooling, including in my own school, where one could get the belt, for instance. If it was the normal experience of schoolchildren in Scotland, corporal punishment does not, of itself, constitute abuse.

However, it is possible that corporal punishment could constitute abuse if there are extreme patterns. We are looking hard at the various regulations that were in place as regards what was acceptable in residential care, because the rules and regulations were often different there as compared with normal day schooling.

The principal point is that we are aiming to address behaviour that was illegal and unacceptable at the time, but was ignored, and was ignored for too long. The ignoring for too long becomes a part of the injury. That is what we are trying to address.

The Convener

Who would like to comment on non-financial redress?

Donald Henderson

I will start, and then others may be able to comment.

That links to the support element, because we know from survivors that for somebody to just sign a cheque, regardless of how efficiently that is done, is not the answer that they are looking for. They are looking for acknowledgement and an apology. I refer again to our experience from the advance payment scheme. I or one of my senior colleagues have written out a personal letter of apology to each survivor, because we know that that makes a difference. We have had stories come back about survivors reading that letter each night before they go to bed. It helps them to sleep because it is the first time that somebody in authority has listened to them and acknowledged that what went on should not have gone on and that public services need to respond to that. Acknowledgement and an apology are vital aspects alongside the financial redress, and link closely to the support element.

A great deal of this will be for redress Scotland, but our aim is to understand what each survivor wants, and the process should do as much as it can to deliver that, because the package that will help each survivor may be different. We need to listen to their voices.

The Convener

I am afraid that we have run out of time, as we have another panel coming in this morning. I thank everyone for their attendance.

I know that Mr McCaffrey wants to come back to us with an answer. I apologise to Mr Gray, Mr Greene and Mr Neil, all of whom wanted to continue a line of questioning. I am sure that the committee will follow that up by letter, and we look forward to receiving your responses.

I will suspend the meeting for five minutes to allow the panels to change over.

11:32 Meeting suspended.  



11:40 On resuming—  



The Convener

We move to our second evidence session on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome Dr Maeve O’Rourke, who is a lecturer in human rights law and director of the bachelor of civil law, law and human rights programme at the National University of Ireland Galway.

We move straight to questions. What were the major lessons that were learned from the redress system in Ireland? What might you have done differently?

Dr Maeve O’Rourke (National University of Ireland Galway)

Thank you so much for having me. It is a real privilege and no small responsibility to be here—I take it extremely seriously.

It is worth stating that I consider the survivors of abuse to be the absolute experts. I will offer what I can from my limited experience of working for more than a decade in the area. Alongside being a barrister in child law, doing a PhD on the rights of older people to freedom from torture and ill treatment and on redress for such harms, and now being a lecturer, I have worked voluntarily between 10 and 20 hours a week for the past 10 years on issues relating to so-called historical abuse in Ireland.

In relation to what we can learn, I will speak to the two themes that were mentioned in the briefing papers. I have great knowledge of one theme and less, but still a considerable amount, on the other.

The first theme relates to the Irish Residential Institutions Redress Board, which was established in 2002, two years after the Commission to Inquire into Child Abuse began its proceedings. The two measures—the inquiry and the redress board—were prompted by an apology, in 1999, by former Taoiseach Bertie Ahern to survivors of child abuse in industrial and reformatory schools. In the previous evidence session, the Scottish Government officials talked a little bit about Ireland’s set up. In essence, those were state-funded and statutorily based institutions, but they were left to their own devices in terms of how they were run. Ultimately, the Commission to Inquire into Child Abuse’s report in 2009 found that abuse had been “endemic”. The board was set up following the Residential Institutions Redress Act 2002.

I have less knowledge in that area, but a lot of the Magdalen laundry survivors are also survivors of industrial schools, because teenage girls were transferred from them to Magdalen laundries, which is where most of my knowledge comes from.

A very positive aspect of the RIRB was that, at the outset, there was the promise to provide compensation that was commensurate with legal proceedings. As the committee will know, the compensation was going to be up to—and, in some cases, beyond—€300,000. As the briefing notes say, as it transpired, the average award was in the region of €62,000, so although it had been promised at the outset that there would be commensurate compensation, that did not end up being the case.

Some survivors have stated that the redress board’s procedures were deeply traumatising. It is very difficult to understand how exactly the redress board affected survivors, because there is what is known colloquially as the gagging clause—section 28(6)—of the 2002 act, which underpins the redress board. That section prohibits everybody, including survivors, from discussing an application to, or an award from, the redress board in any way that could possibly lead to the identification of an individual or institution involved in a complaint. It has operated as a massive chilling factor. The only voices that we hear are well supported by, for example, our national broadcaster, Raidió Teilifís Éireann, when it reports. However, such reporting is minimal.

11:45  



It is worth noting that the section 28(6) gagging order has never been legally acted on by the state. As I said, it has a massive chilling effect and it seems to be understood by the state to be not effective and, possibly, not constitutional. Unfortunately, that hampers our understanding of the impact of the procedures.

I made notes on the positive and negative aspects. When it comes to the redress board, I have to move on pretty quickly to the negatives, unfortunately. I will talk about the procedures, and then we can compare them to what I see in the Scottish bill.

The redress scheme was an ex gratia scheme and the underpinning legislation stated explicitly that an award could not be construed as a fault having been found against an institution or individual. Nonetheless, under the legislation and the guidelines, every person or institution that a survivor named in their application was entitled to a full right of reply. They were entitled to receive copies of all the survivor’s documentation and were entitled to respond to the board in writing with any evidence concerning the application that the relevant person considered appropriate. They were entitled to request the opportunity to cross-examine the survivor themselves, or through a legal representative, for one of three purposes, which were

“(i) correcting any mistake of fact or misstatement relating to or affecting the relevant person made in the application,

(ii) defending the relevant person in relation to any allegation or defamatory or untrue statement, made in the application, or

(iii) protecting and vindicating the personal and other rights of the relevant person”—

the “relevant person” being a person or a representative of an individual named. The only reference to rights in the entire act is in relation to the rights of the alleged wrongdoers.

As I said, it was more or less an ex gratia scheme and the legislation said that none of the documents that were provided to the redress board could ever be used in future criminal or civil proceedings. We have extremely strong defamation law in Ireland so, in my academic view, the procedures were wholly unnecessary and, as we can tell from the survivors who have spoken out and taken the risk of breaking the gagging order, they have had a massively traumatising impact. It is welcome to see that there does not seem to be anything comparable in the Scottish bill.

Another downside of the fact that, under the 2002 redress act, awards were accompanied by the gagging order was that—even though, strictly, it should not have had this effect—many survivors felt that they could not even go to the police. There have been no prosecutions to speak of in relation to the industrial and reformatory schools, and access to the records relating to those schools is problematic.

Last year, the Department of Education and Skills introduced the Retention of Records Bill 2019, which sought to seal entirely for at least the next 75 years—even from survivors—every single document that was gathered and held by the Commission to Inquire into Child Abuse and by the Residential Institutions Redress Board. I accept that arguments for publication of some records are stronger in relation to the commission’s state and other administrative documents, but when it comes to the redress board’s records, survivors have an entitlement, under the general data protection regulation, to their personal data, which does not seem to be recognised in the Retention of Records Bill.

I would like to discuss interpretation of the GDPR. I do not know to what extent, if any, this is a problem in Scotland, but there is certainly no understanding in Ireland of the concept of mixed personal data and a survivor having an equal right of access to data that belongs to somebody else if it is also the survivor’s data—that is, information about what somebody did to them. For example, you and I have a right to know who our doctors are and what they have done to us—our medical records are as much our data as they are theirs. Another example is the European Court of Justice case of Nowak v Data Protection Commissioner. Unfortunately, the concept has not been properly understood in Ireland.

Following the establishment of the redress board, there was also provision of non-financial support in relation to industrial and reformatory schools. That came partly from the controversy over the very small compensation contribution that the religious orders had given to the redress board. They were called on to give more; that went into a separate statutory fund that then began to administer other payments to survivors—and, to some extent, to second-generation survivors—for education. That turned into a fund called Caranua, which is Irish for “new friend”. Unfortunately, that fund is now being wound up. Survivors have the sense that the fact that their needs continue for as long as they live is not understood.

The Caranua fund provides things such as help with house renovations and educational support. If we have time, I would like to talk about the very real need for survivors of childhood institutional abuse not to be re-institutionalised. Home care and home renovations are massive issues. The fund provided some help for those, but it is being wound up now.

The last thing that I would like to mention about the industrial and reformatory schools is that there was, in July 2019, a pre-consultation report, done through consultation of 100 industrial school and reformatory school survivors. That was to find out what the method for fuller consultation of industrial and reformatory survivors should be. It was funded by our Department of Education and the report was written by Barbara Walshe and Catherine O’Connell. I would be happy to send the committee any documents relating to that. The 100 survivors spoke about their on-going needs. I would be happy to come back to that.

The Convener

Thank you. We have 10 committee members who all want to come in. If we can be succinct in both questions and answers, that would be helpful.

Daniel Johnson

I was interested by what you said about the controversial nature of the procedures for making determinations. You might have heard during the previous panel’s evidence that I have some concerns about how that will be defined in the guidance that accompanies the bill.

What are your reflections on the safeguards? Given your experience as a barrister, what would you think about putting those safeguards and high-level principles in the bill itself? What we would have here would be a panel making determinations in private and then reporting them, whereas in Ireland you had public hearings. Can you compare and contrast the approaches?

Dr O’Rourke

The redress board was private, even though there was cross-examination as if it was a court.

That is an important question. Fair procedures must still apply, even if the panel does not in any way operate like a court. To give credit to the ministers who established the second scheme that we had more recently in Ireland, I point out that they wanted to avoid the traumatising effect of the previous industrial schools redress scheme.

The Magdalen scheme was established in 2013. The first problem was that there were no lawyers to help the women through the scheme. Secondly, the officials who administered it did not publish any guidance on what the criteria were or what the decision-making process was. They also did not seem to understand that it was an administrative scheme affecting rights, and that therefore the ordinary fair procedures should still have applied. I was ultimately involved in High Court judicial reviews of what was found and in a larger investigation by the Office of the Ombudsman into maladministration and denial of fair procedures. The women were dealing with something that was totally opaque and they were doing so alone.

It was said that all that they needed to show about their time in the Magdalen laundries was the duration of their detention. However, as is the case in the Scottish bill, there was an absolute requirement for records. As a result of the inquiries into the Magdalen laundries, it was known that the nuns did not have records for all the women. In fact it seemed that there were insufficient records, even back in 2013, for more than half of the women.

However, because the women had no lawyers, they were not able to swear a witness statement to an affidavit and there was no one to receive their evidence. Therefore, they were caught in constant phone calls, on their own, without even independent advocates to help them. I should say that there should be independent advocates as well as lawyers, because some things that need done for which lawyers might be too expensive, or might not be well equipped to do.

The women were caught in a horrible situation in which they were told that they had to get records, and they had no way of proving their duration of stay. The ombudsman ultimately found that their own testimony and that of relatives and friends was not given any evidentiary value by the officials in the scheme. I would say that, even when you are engaged in something that is non-adversarial, there is a real need to be extremely strict with yourselves about ensuring that fair procedures are followed, because it benefits everyone, at the end of the day.

I noted that the briefings on the bill suggest that the Residential Institutions Redress Board’s matrix might have been a problem; I am not sure that it was a massive one. I think that the procedures, which involved a full right of reply and the ability of the church to cross-examine the women, were a massive problem. However, having boxes that set out what kind of points are used to decide whether someone meets the criteria is not problematic, because there is a need for transparency.

The Convener

I do not know whether Dr O’Rourke is aware of it, but there is a lot of sound interference going on, so I think we should switch off as many microphones as possible.

Daniel Johnson has a brief question.

Daniel Johnson

Section 34(3) states:

“When determining an application, the panel must not consider or make a determination on any issue of fault or negligence arising from any matter to which the application relates.”

Is it important that the process deals with fault, or should it be more about acknowledging the issue and putting the matter on the record for the survivors?

Dr O’Rourke

My feeling is that there should not be a waiver, so my view is connected to that. The measure that we are discussing should be an interim one to provide people with the beginnings of rehabilitation. Accountability is a different issue—perhaps we can speak about it afterwards.

If you accept that you are still willing to allow people to seek legal accountability, there is no problem with having something that is ex gratia in the meantime. Bringing in fault brings in causation, which was a massive issue in the work of the redress board for industrial schools and reformatory schools, because people had to be examined by psychiatrists, which led to the survivors feeling that it was they who were on trial rather than the wrongdoers.

I see that there is a massive relaxation in the bill of the notions that applied in our board, which required people to prove that the injury related directly to the abuse. That meant that, in cross-examination, people were asked questions such as, “Is it not because you were abused before you went into care that you are now the way you are?” That is not an acceptable position to put people in. In my view, the waiver is an issue, and I would say that there are other ways to do it.

12:00  



Beatrice Wishart

Good morning, Dr O’Rourke. Your evidence thus far has been informative and helpful. On the basis of your experience of the Irish redress scheme, do you see anything specific that is missing in the bill and that should be included?

Dr O’Rourke

The first point that I noted was that, even though a non-adversarial procedure is proposed, there is a real need to ensure that there are still fair procedures, that people know what documentation they are supposed to be providing and that, if someone else is providing it, survivors get to see it.

I understand that, in the previous question session, one of the officials mentioned that a next of kin’s sworn statement of what they know their spouse to have experienced, based on however many decades they lived together, would be classed as hearsay. There is a need to think through what a survivor-focused process entails and what we know about the abuse that has happened.

The bill contains some really good things that we have not seen in Ireland. For example, there is no ceiling on the information and no gagging of survivors. It is also positive that an initial decision cannot be reduced on appeal. That was a real issue with the redress board in Ireland. Survivors said that lawyers would go into a room without them, have a discussion with the board and come out with an offer, and the survivors would be told, “If you don’t take this, you may well not get as much as you might get if you went through the whole process of being challenged and so on.” It is also good that legal assistance will be provided during the course of making an application rather than just at the end, in relation to a waiver, which was the case with regard to the more recent Magdalen scheme in Ireland—no lawyers were involved, because the Government said that it wanted a non-adversarial approach. However, of course, lawyers were still involved at the end to help you sign away all your rights against the state.

I see some issues with the bill, though. I think that the time limit of five years is a problem. The redress board had a time limit of less than five years, I think, and I have come across many women, in particular, who did not realise that that procedure applied to the kind of abuse that they had suffered. Further, there were people, particularly in the diaspora, who did not find out about the procedure, and there are people who cannot come forward. One of the positive things about the Magdalen redress scheme was that there was no time limit. That was an explicit recommendation of Mr Justice John Quirke.

Another thing that concerns me, as a human rights lawyer, is the exclusion of corporal punishment that might have been allowed under domestic law. Of course, the fact that it was allowed under domestic law does not necessarily mean that it was compliant with the European convention on human rights or other international human rights instruments. To the extent that corporal punishment was allowed under legislation, I wonder how that relates to the particular circumstances that someone who was a child in care is in, and I wonder whether there should be an approach to understanding corporal punishment within the context of the broader abuse that that person suffered.

Lastly, I come to the issue of the waiver. I have six points to make about it—I really appreciate your patience. I recommend serious consideration of this issue. It would be possible to legislate so that, in any future court action, any damages could be reduced by what someone had already received in the scheme. Of course, the scheme is doing that in relation to previous awards that survivors might have received from other places.

I see two main arguments in the briefing for the waiver. One, which makes sense, is that it is seen as a way of coaxing the private institutions to contribute. However, the other is that it would provide a swifter, non-adversarial and more trauma-informed response to historical child abuse. I think that that confuses the waiver with the scheme. I do not see any benefit of the waiver, other than to the taxpayer. Of course, that benefit to the taxpayer needs to be considered, but it must be weighed up against the harm that a waiver can cause not only to the survivors individually but to society, because accountability is about ensuring a restructuring in the interests of future child protection as much as it is about ensuring that there is an accounting to the individual.

The first thing that I would say about the waiver is that the abuses that are involved here are torture and other forms of cruel, inhuman and degrading treatment, which has already been recognised by the Scottish Human Rights Commission. As is well known, the right to be free from torture and ill treatment is absolute, and that includes the right to access justice as a survivor of torture and ill treatment.

On my second point, I note that I am a lawyer in the case of Elizabeth Coppin v Ireland, which has recently received an admissibility decision from the United Nations committee against torture—the judgment was published on 20 January and, although it is not yet on the committee’s website, it is available online and I am happy to forward it to you. Elizabeth Coppin signed up to the Residential Institutions Redress Board and the Magdalen scheme, and she signed waivers signing away her rights against the state and, in the case of the redress board, religious institutions. For reasons that relate to Ireland and our particular procedures around secrecy of evidence, the state still says that there is no evidence that systematic abuse of a criminal nature or under the convention against torture occurred in the Magdalen laundries.

Elizabeth Coppin is claiming that the state has failed to investigate and has failed to provide her with full redress, which includes satisfaction guarantees of non-recurrence. The UN committee against torture had to issue an admissibility decision on the situation, because the Irish Government said that she signed waivers that mean that she cannot take legal action against it. In January, the UN committee, referring to its own general comment on article 14 of the UN convention against torture found in Elizabeth Coppin’s favour, saying that the waivers do not prevent her coming to the UN committee against torture, because the right to accountability that she has under the convention remains. You cannot sign away your right to not be subjected to torture and ill treatment, and nor can you sign away your right to accountability. General comment number 3 mentions that judicial remedies must always remain in place.

What the waiver says is just as important as what it does. We have already heard evidence that there are many barriers to litigation, and many people will not take that arduous route. However, ultimately, survivors are being placed in a position in which they have to choose between accountability and money. From our experience in Ireland, I can say that what that says to the public is that survivors chose money, and that that was what they were concerned about. However, most survivors cannot afford not to take the money that is available from the scheme, at least as an initial way of achieving some kind of rehabilitation. That issue must be considered.

We must also consider that court cases are not just about money—indeed, for many survivors of abuse, they are primarily not about money. They are actually about having legal findings about what abuse means and who is responsible, and, in that way, they have an impact on the whole of society.

I think that I have said enough on that, although I am happy to go into more detail if you would like. I feel strongly that Scotland could take a different approach to the waiver issue and could be world leading in that regard. That would be worth doing, because we are dealing with torture and other forms of ill treatment.

Jamie Greene

Good afternoon. I appreciate those fulsome answers, as these are complex matters. However, in the interests of time—we have only 10 minutes left and a number of members still have questions—I would be happy if you could respond to my question in writing.

If the bill, as it is currently drafted, were presented to TDs in the Dáil and you were reading and reviewing it and advising those members on anything that jumped out at you as being of concern, what would be the main thing that you would raise? What should we be looking at, as the people who will inevitably be amending and scrutinising the bill?

You said that around six points of interests jumped out at you in the Scottish bill. Can you put those in writing to the committee so that we can review your independent expertise? I have found what you have said so far extremely helpful and useful.

Dr O’Rourke

I would be delighted to do so. I will put that in writing.

Rona Mackay

I agree with Jamie Greene that what you have said has been very useful.

I want to ask about charities. The policy memorandum says that some charities might have a constitution that does not allow them to make redress contributions, so they do not have the power to do that. Also, a lot of charities’ funds are tied up in restricted ways, such as in donations that have been given for a particular purpose. There is a fear that knowing that their funds will be used for redress contributions will stop people donating to charities.

The policy memorandum says that utilising restricted funds would be “a proportionate intervention”. However, that power is not included in the bill. Do you foresee any problems with that, and should it be tightened up?

Dr O’Rourke

I do not have expertise in charity law. I can see that it would make it easier for private institutions to make contributions, and I cannot see a massive problem with that. The Parliament’s powers in areas of very sensitive social policy such as this, and also in extremely strong public interest factors, are very broad. However, I could not say, because I do not know about charity law and I certainly do not know about Scottish charity law.

Kenneth Gibson

I was fascinated by the conversation about the Magdalen laundries. We had them in Scotland, and the last one closed in 1958. Therefore, I hope that, if there are any—albeit elderly—survivors from that time, they will be included in our legislation—indeed, along with those from the the Glasgow Lock hospital, which was an institution for women with venereal diseases that closed in 1950.

When speaking about Ireland, you talked about the “diaspora”. Has there been any attempt to reach out to the diaspora, and do you feel that it is important that we do that in Scotland?

Dr O’Rourke

Yes, it is extremely important. My colleagues in the justice for Magdalenes research group and I have constantly brought the attention of ministers to the Magdalen scheme. They sent circulars, and I think that they have re-sent additional ones over time, to every consulate and embassy. We also recommended advertising in magazines such as Ireland’s Own or online and in places where we know the Irish diaspora are easily reached.

I have to say that I do not know whether the Government reached out to emigrant support groups beyond the UK. They reached out to UK-based organisations, but we found that survivors live all around the world, so my colleagues and I made great efforts to send out notices beyond the UK.

It is absolutely vital, and it goes back to the time limit. I do not think that a time limit is justifiable when you weigh up the importance of this to survivors.

Kenneth Gibson

The issue of the time limit is really important. What kind of response did you get to your work to bring in people from the diaspora who had suffered in Ireland when they were younger?

Dr O’Rourke

In summer 2018, along with colleagues, I organised a gathering of more than 200 Magdalen laundry survivors. One of the aspects of the Magdalen scheme that had not been implemented was that the women had told Mr Justice John Quirke that they wanted to meet each other.

They also wanted to be consulted on and oversee memorialisation. I do not know to what extent this applies in Scotland, but in Magdalen laundries in Ireland, women’s names were changed when they were in there. If they escaped, it was without warning and they never met anybody again. Therefore, bringing them together was hugely important for them. For the women from Australia, Canada and many countries in Europe, it was absolutely crucial to meet and connect with other survivors with whom they would otherwise have had no contact in their individual circumstances halfway across the world.

12:15  



Kenneth Gibson

A lot of them would probably have felt a sense of betrayal by the country that they grew up in, and that might have been a way of Ireland providing restoration for that and saying that the country has not forgotten about them but that it feels their pain, albeit belatedly.

Dr O’Rourke

Yes, it is extremely meaningful. In Ireland, we often have those big initiatives for our diaspora. There was a year of welcoming people back to Ireland, and we would have heard from a lot of survivors around that time. The fact that the women were excluded from that did not sit well.

There is a mixed bag of effects from having left Ireland. We have found that it enabled some women to live in a different way from how they would have lived if they had still been in the same place. Because of the effects of post-traumatic stress disorder, people often feel that they could be picked up off the street at any time or they feel a sense of still being in the centre of the abuse that they suffered.

Kenneth Gibson

I have one more question on a different topic. We are talking about organisations that presided over that wrongdoing and the fact that they need to make a contribution to the fund. In Ireland’s experience, given that nearly €1 billion was paid out, some of which would have come from those organisations, was a limitation imposed, so that, if an organisation was going to go bankrupt because of the amount of money that it was supposed to pay, the Irish Government would step in? We have a lot of organisations and charities that might cease to exist if they had to pay significant contributions. Their wrongdoing might have been long ago and they might have got their act together since then. Was any action taken in Ireland to ensure that the organisations paid without killing the goose that laid the golden egg?

Dr O’Rourke

It is worth speaking to your parliamentary colleagues in Ireland about that, because there is a huge controversy around that issue. Before the scheme was established, the minister for education gave an indemnity to a group of religious orders that had come together and promised to contribute. However, it was a fight to get them actually to contribute, and my understanding is that they never contributed everything that they promised. I do not have the figures, but the indemnity was for €120 million; the scheme progressed and ultimately cost almost €1.5 billion. There was no way of going back, because the religious orders had already been indemnified. It is worth looking into what happened in Ireland, because the general public feel that the institutions got away almost scot free. That is also why access to the courts, legal accountability—and what that brings in terms of establishing legal standards—and lines of responsibility for things that happened are important. Those institutions often still operate, exercise control and provide services in that space.

Kenneth Gibson

Thank you, Dr O’Rourke. That is much appreciated.

Dr Allan

In our earlier evidence session, we talked a lot about financial redress, but I am keen to get your views on non-financial redress, such as apologies. What can Scotland learn from the Irish experience? How should apologies be made? How should we ensure that they are not half-hearted and that they meet survivors’ needs? Was it the experience in Ireland that any institution or individual refused to apologise?

Dr O’Rourke

There have not been proper apologies from the four religious orders that ran Magdalen laundries, and they never contributed to the Magdalen scheme. The waiver that applies therefore applies only to the state. Part of the reason that they did not contribute is because it is not at all easy to sue them, and so they did not necessarily feel any particular need to safeguard themselves from being sued. We have a very strict statute of limitations. Unlike your changes, the costs regime allows the religious orders to pursue their costs if someone sues and loses, and they always do pursue their costs, saying from day one that they will do so.

The way that the inquiry has gone in Scotland is—to an extent—different, in that it is not wholly in private. In Ireland, all the evidence that was gathered by the state on the Magdalen laundries is, unfortunately, being held secret. It is being held in the Department of the Taoiseach for safekeeping and not for the purposes of the Freedom of Information Act 2014. There is therefore no way of people getting into court, so the religious orders did not join the scheme.

Interestingly, in relation to whether people feel that an apology means something or not, because the state has safeguarded itself from being sued and I have not found a single Magdalen laundries survivor who was able to not go into that scheme because of her current living situation, despite the political apology in 2013 and because there has been no court action, the officials still maintain that there is no evidence of legal wrongdoing.

Over the past seven years, the schemes on the Magdalen laundries have progressed and there have been judicial review challenges in relation to lack of fair procedures. The ombudsman got involved to try to ensure that the scheme was administered in, as he put it, “the spirit” of the apology that was given. He also mentioned “forced labour” at one point in his report. The Department of Justice and Equality responded to the ombudsman’s report to say that, with some very limited exceptions, there has never been any statutory basis for committing a person to a Magdalen institution or any lawful basis for keeping a person there against their will. It is therefore relying on something that would be, in itself, evidence of arbitrary detention, but no court has ever been able to find that. It also said that there had been no court ruling that the state has any liability for women who entered such institutions, that it had never seen any legal advice or factual evidence that would give rise to the belief that the state has any legal liability and that it was also not aware of any successful legal action taken against the religious order concerned.

In response to that, the ombudsman said that, in his 10 years of being an ombudsman in Ireland and elsewhere, he had never come across such a refusal to co-operate with his recommendations. We can therefore see that the political apology is at major risk of becoming hollow if there is not proper accountability to go along with the financial payments. People have used the words “crocodile tears”, which does no justice to the intention of the apology from back in 2013.

One of the big things that never transpired in the Magdalen scheme was proper healthcare, which elicits words such as “crocodile tears” from some of the women. For example, when they start to need homecare, they are told that the card that they were given is nothing better than an ordinary medical card, when it was supposed to be something different. However, when they signed away all their rights against the state and got their money, the healthcare was something that they thought would come down the road, but it never materialised. That demonstrates that, even though there can be great intention in an apology, it absolutely needs to be followed through.

To be helpful, I could briefly mention the on-going needs that—in a consultation—100 survivors of industrial and reformatory schools said were required separately to financial payments.

The Convener

I have one final question before you go, Dr O’Rourke. On the issue of the issuing of an apology, the scheme that is suggested in Scotland is for those who experienced abuse up to the date of the apology. Did a similar restriction exist in either of the Irish schemes? What are your general comments on that issue?

Dr O’Rourke

That is a good question. Our schemes were for institutions that had closed by the time that the apologies happened, so that did not apply.

I would like to check whether, if there is time, you would like me to mention the key non-financial forms of redress? It is up to you whether there is time; otherwise, I can forward them.

The Convener

If you have time, I am sure that we can give you a few more minutes. If you can cover them in that time, that would be great.

Dr O’Rourke

This concerns industrial and reformatory school survivors now, in 2020—some 20 years on from the state apology. The redress scheme has come and gone, and Caranua has come and gone. The survivors are saying that they need enhanced medical and health care, in particular home care. I cannot stress that enough. We are starting to see survivors with dementia, who may well just be put into nursing homes. Reinstitutionalisation is a huge issue for survivors of institutional abuse.

Other measures include prioritisation for housing, a contributory pension, a designated drop-in centre and a confidential space where survivors can meet. The covering of funeral expenses comes up a lot, and the survivors mentioned it in the consultation. Free unlimited counselling is also mentioned.

It is important to mention second-generation survivors—the children of survivors. I would advise you to consider that, as the scheme’s payment terms will not always apply to a child, even if their parent is deceased. There is a real need to consider the needs of the second generation. In the consultation, survivors said that there was a need for counselling and psychiatric services for children and grandchildren. Information is very important for both survivors and their family members. Education is highlighted, too.

It is important to remember survivors by way of memorials. In the context of national education, more than 200 women came together as Magdalen survivors in the summer of 2018 and spoke to us about memorialisation. It has to be not just about plaques or statues; it should be about ensuring that such abuse does not happen again. Many of those women have gone on to work in the care system or the care sector. We are so lucky that they wish to speak to us about what they see today that needs to be different and that is reminiscent of their experiences. They want children and young people to learn in schools about what happened and for us to know about it. I am involved with colleagues in Ireland, seeking a national archival and educational centre by way of memorialisation, where archives can be made available, where the gagging clauses are got rid of and where survivors can volunteer if they wish. Oral history projects are important, as is information tracing for family members.

A further issue came up in relation to the Scottish bill, which seems to need to be caught before it happens. In Ireland, the non-financial measures were attached to the person already having gone to the redress board. There was a short deadline for going to the redress board, so many people did not manage to get in. If they did not get an award from the redress board, they were also barred from everything that might come along in the future. There will also be people who simply do not want money, for their principled reasons. For whatever reasons they have, they do not want to go to the redress board, but they should still be entitled to the non-financial measures.

The Convener

Thank you so much for your time this morning, Dr O’Rourke—that evidence was exceptionally helpful to the committee. I think you have agreed to have an exchange with us regarding some questions, and we look forward to that.

12:29 Meeting continued in private until 13:01.  



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Second meeting transcript

The Convener

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

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

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

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

I move to questions from members.

Iain Gray (East Lothian) (Lab)

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

Kim Leslie (Association of Personal Injury Lawyers)

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

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

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

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

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

Iain Nicol (Law Society of Scotland)

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

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

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

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

Una Doherty QC (Faculty of Advocates)

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

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

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

Iain Gray

Thank you. Those answers were very clear.

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

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

Kim Leslie

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

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

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

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

09:00  



Iain Nicol

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

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

Other than that, I echo what Kim Leslie said.

Una Doherty

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

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

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

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

Alex Neil (Airdrie and Shotts) (SNP)

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

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

The Convener

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

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

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

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

Kim Leslie

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

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

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

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

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

Iain Nicol

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

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

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

Una Doherty

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

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

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

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

09:15  



Jamie Greene (West Scotland) (Con)

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

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

The Convener

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

Kim Leslie

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

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

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

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

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

Iain Nicol

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

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

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

The Convener

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

Una Doherty

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

Daniel Johnson (Edinburgh Southern) (Lab)

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

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

Kim Leslie

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

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

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

Daniel Johnson

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

The Convener

Mr Nicol has indicated that he wants to come in.

Iain Nicol

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

09:30  



Una Doherty

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

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

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

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

“offer of a redress payment”

should not

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

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

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

Daniel Johnson

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

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

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

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

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

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

Una Doherty

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

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

has to be taken into account and that the panel

“may have regard to any other matter”,

so it provides discretion.

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

Daniel Johnson

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

Una Doherty

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

Iain Nicol

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

Rona Mackay (Strathkelvin and Bearsden) (SNP)

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

Una Doherty

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

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

Kim Leslie

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

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

Iain Nicol

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

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

The Convener

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

Ross Greer (West Scotland) (Green)

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

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

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

09:45  



Una Doherty

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

“there is no qualifying period”

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

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

That is our view on the matter.

Ross Greer

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

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

Iain Nicol

[Inaudible.]

Ross Greer

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

Iain Nicol

The bill states:

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

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

The Convener

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

Kenneth Gibson (Cunninghame North) (SNP)

[Inaudible.]

The Convener

Mr Gibson, your microphone is still off.

Kenneth Gibson

Okay, convener—that is broadcasting, not me.

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

“died on or after 17 November 2016”.

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

Iain Nicol

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

Kim Leslie

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

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

Kenneth Gibson

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

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

Kim Leslie

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

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

Kenneth Gibson

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

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

Una Doherty

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

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

Kenneth Gibson

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

Una Doherty

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

Kenneth Gibson

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

Iain Nicol

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

What will have to be produced is evidence of

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

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

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

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

Kenneth Gibson

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

Iain Nicol

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

Kenneth Gibson

Thank you.

10:00  



Beatrice Wishart (Shetland Islands) (LD)

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

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

Kim Leslie

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

Iain Nicol

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

Una Doherty

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

“provide acknowledgement and tangible recognition”

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

The Convener

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

Beatrice Wishart

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

The Convener

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

Jamie Greene

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

The Convener

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

Daniel Johnson

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

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

Kim Leslie

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

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

Forgive me, what was the second question?

Daniel Johnson

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

Kim Leslie

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

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

Una Doherty

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

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

Iain Nicol

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

The Convener

The final question is from Dr Allan.

Dr Allan

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

Kim Leslie

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

Iain Nicol

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

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

10:15  



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

The Convener

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

10:16 Meeting suspended.  



10:18 On resuming—  



The Convener

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

Joanne McMeeking (CELCIS)

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

Judith Robertson (Scottish Human Rights Commission)

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

Gaynor Clarke (Social Work Scotland)

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

Janine Rennie (Wellbeing Scotland)

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

The Convener

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

Iain Gray

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

Joanne McMeeking

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

Judith Robertson

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

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

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

Gaynor Clarke

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

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

Janine Rennie

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

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

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

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

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

Iain Gray

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

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

Joanne McMeeking

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

10:30  



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

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

Alex Neil

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

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

Judith Robertson

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

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

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

Alex Neil

Yes.

Judith Robertson

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

Alex Neil

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

Judith Robertson

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

Alex Neil

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

Joanne McMeeking

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

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

Alex Neil

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

Joanne McMeeking

Yes—

Alex Neil

Thank you.

Joanne McMeeking

Is it possible for me to finish, Mr Neil?

Alex Neil

Yes.

Joanne McMeeking

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

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

Alex Neil

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

Joanne McMeeking

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

The Convener

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

Judith Robertson

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

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

in respect of

“that ... contributor.”

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

“make a fair and meaningful contribution”,

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

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

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

The Convener

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

Jamie Greene

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

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

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

The Convener

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

Dr Allan

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

The Convener

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

Judith Robertson

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

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

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

The Convener

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

10:45  



Joanne McMeeking

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

Janine Rennie

[Inaudible.]

The Convener

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

Please start again, Ms Rennie.

Janine Rennie

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

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

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

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

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

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

The Convener

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

Daniel Johnson

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

Janine Rennie

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

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

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

Gaynor Clarke

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

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

Judith Robertson

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

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

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

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

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

Joanne McMeeking

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

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

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

Daniel Johnson

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

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

11:00  



Judith Robertson

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

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

Daniel Johnson

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

Judith Robertson

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

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

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

Jamie Greene

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

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

Janine Rennie

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

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

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

Judith Robertson

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

Jamie Greene

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

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

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

Janine Rennie

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

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

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

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

Jamie Greene

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

Beatrice Wishart

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

Janine Rennie

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

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

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

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

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

11:15  



Beatrice Wishart

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

Joanne McMeeking

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

Gaynor Clarke

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

Rona Mackay

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

“abuse which takes the form of neglect.”

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

The Convener

We will go to Joanne McMeeking first.

Joanne McMeeking

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

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

Judith Robertson

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

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

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

Janine Rennie

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

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

Ross Greer

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

Joanne McMeeking

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

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

Judith Robertson

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

Janine Rennie

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

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

Ross Greer

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

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

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

Judith Robertson

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

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

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

We also have concerns about the timescales that have been

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

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

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

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

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

11:30  



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

The Convener

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

Gaynor Clarke

No, thank you.

The Convener

Do other panel members?

Joanne McMeeking

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

The Convener

Do you have another question, Mr Greer?

Ross Greer

That is all from me, thank you, convener.

Iain Gray

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

Judith Robertson

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

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

Iain Gray

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

Janine Rennie

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

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

The Convener

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

Gaynor Clarke

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

Judith Robertson

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

Jamie Halcro Johnston (Highlands and Islands) (Con)

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

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

Judith Robertson

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

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

Joanne McMeeking

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

Janine Rennie

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

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

Gaynor Clarke

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

The Convener

Jamie, did you have another question?

Jamie Halcro Johnston

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

The Convener

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

Janine Rennie

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

Judith Robertson

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

Joanne McMeeking

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

The Convener

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

Judith Robertson

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

The Convener

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

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

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

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

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



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7 October 2020

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

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