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 Rona Mackay Rona Mackay Scottish National Party

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill has been shaped and is owned by the many people who suffered abuse by people who were supposed to be caring for them.

In 2004, former First Minister Jack McConnell apologised on behalf of the Scottish people, and in 2018 the Deputy First Minister, John Swinney, apologised on behalf of the Scottish Government. The bill is the next step on that journey for the many survivors who are haunted by those terrible experiences. Money alone could never erase the memories and hurt, but for some people, whose life chances have been severely affected by what happened to them, it is a tangible way for society to say that it is sorry.

I, too, thank the many survivors who bravely gave evidence to the Education and Skills Committee. It was not an easy thing for them to do, but their views have been invaluable in shaping the bill, which is their bill.

Of course, not all survivors will want to take the route that is set out in the bill. That is understandable and it is their right. However, for some survivors, it just might make a difference in helping them to get on with their lives. The organisations that failed them will be asked to make fair and meaningful contributions: to me, that seems to be entirely right.

The bill is complex and the committee struggled with many aspects during its scrutiny. As the convener outlined, we have sought to ensure that our recommendations reflect the desire that victims/survivors be treated with dignity, respect and compassion. That is the least that we can do.

The bill will allow applicants to choose whether to apply for a fixed-rate redress payment of £10,000 or an individually assessed redress payment of £20,000, £40,000 or £80,000. An independent non-departmental public body—redress Scotland—will make the decisions on applications for financial redress.

The most contested element of the bill is the waiver that would mean that a person who chooses the redress scheme would be unable also to choose civil litigation. The waiver would allow survivors to access justice without the implications of taking court action, and to receive compensation from the organisation that was responsible for the abuse. It would mean that the survivor would choose the path that they take. They would have a choice.

However, the overwhelming view that victims/survivors conveyed to the committee was that the waiver would restrict their choices, so it should be removed. The committee also spoke to many care providers at stage 1 and heard no evidence to suggest that the waiver would incentivise them to participate in the redress scheme. To be clear, I note that a survivor would not have to waive their right to pursue litigation where a provider did not contribute. The waiver would apply only where organisations made a fair and meaningful contribution. The committee has determined that the waiver provision as drafted would not function in the way that the Scottish Government hopes.

There are issues about the sustainability of charities and organisations and about restricted funds, and there is doubt about whether insurers would pay out in relation to the scheme. I am pleased that the Government has committed to considering that aspect before stage 2.

The time period around the waiver is also a problem, but the Government has listened to the evidence that was taken by the committee and will lodge amendments at stage 2 to increase the 12-week extension period to six months, and the four-week review request period to eight weeks.

There is also an issue with survivors who are more than 70 years of age whose records have been destroyed and who therefore cannot access redress. I hope that that can be considered before stage 2.

Another crucial issue is relevant care settings, and the disappointment that was expressed by some survivors that their abuse will not be recognised because they were placed in a care setting by a parent or guardian. Many children found themselves in care due to having a disability, through a scholarship or for religious reasons. Their abuse was no less than that which was suffered by children who were placed in care by the state. However, the Government believes that if the eligibility criteria are open ended, that could undermine the scheme, and it is content that there is

“an appropriate limit to set.”

I am pleased that there is, however, some flexibility in the regulation-making power, should the position change.

I turn to the definition of abuse. The Government decided that an exhaustive, rather than inclusive, definition was better for legal certainty, but it conceded that an amendment to align it with previous legislation would be considered. In addition, the ongoing drafting of the assessment framework will reflect the evidence that was heard at stage 1. In that regard, corporal punishment that was legal at the time when it took place, for example, would be considered to be abuse if it was excessive. That is the right course of action.

The issue of cross-border placements will also be addressed in an amendment at stage 2.

Qualifying dates for the scheme are contentious, so the Government has committed to considering its position on them in advance of stage 2.

Evidential thresholds and payment level thresholds are matters on which there are strong views. As others have said, this is a very sensitive area in which it is important to avoid a hierarchy of abuse. How could we say what level of cruelty traumatised one person more than it did another? It is certainly not for the committee to recommend payment bands, but we believe that the assessment framework is integral to the scheme. I am pleased the Government has committed to looking at the issue and to adopting flexibility where necessary.

The bill deals with issues that are understandably sensitive and complex; those that I have highlighted are just some of many that were considered during scrutiny. I am extremely pleased that all the issues that were highlighted by the committee are being carefully considered by the Government. I am also encouraged that every part of the process, should a survivor take the redress route, will be led by trauma-informed practitioners, and that wellbeing support will be available for survivors.

People who have not been abused as a child will never know the lifetime of trauma that it causes survivors. A meaningful apology might make a huge difference. The redress scheme is not a magic bullet, but it offers something tangible—it offers choice to survivors.

I will be pleased to agree to the bill’s general principles at decision time.