Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 17th December 2020.

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Photo of Iain Gray Iain Gray Labour

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

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

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

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

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

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

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

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

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

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

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

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

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

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