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

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

Alert me about debates like this

Photo of Oliver Mundell Oliver Mundell Conservative

I am pleased to follow a number of thoughtful speeches.

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

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

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

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

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

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

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

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

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

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

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