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 Kenneth Gibson Kenneth Gibson Scottish National Party

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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