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 Ross Greer Ross Greer Green

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

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

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

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

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

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

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

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

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

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

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

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

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