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 Alex Neil Alex Neil Scottish National Party

I very much welcome the bill. As other members have said—in particular, p eople such as Jackie Baillie and I, who have been in the Parliament since day 1— we have lessons to learn for the future

. The bill should have come to the Parliament many years ago—probably 20 years ago—rather than now.

However, we now have the bill at long last. As a Parliament, we have two duties to survivors. The first is to make sure that the bill is enacted as legislation and gets royal assent before the election next year. We cannot afford to delay any longer and we need to do all that we can to get it right. This is not a party-political issue. We all accept that it is a good bill, but we—and that includes John Swinney—also accept that there are one or two areas where we can improve it to make it an even better bill, which we should do over the next couple of months.

Like others, I will start with the waiver. The first thing to understand is that the waiver is the totemic issue for survivors. Survivors are not happy with it, because whether the law says so or not, they are of the view that it undermines their human rights. With the horrendous experiences that those people have already been through—and I commend the cabinet secretary for listening to what survivors have been saying—we have to listen to what survivors are saying about the waiver.

Survivors have two fundamental concerns. I have already referred to the first, which is that they believe that it is a waiver of their human rights and that they should have the right to go to court if they feel that they should, even if they have been paid the maximum amount, or indeed any amount, under the redress scheme.

Secondly, and this has been mentioned briefly in passing by a previous speaker in the debate, the waiver could be a disincentive to some survivors to apply for the redress scheme. That is absolutely not what any of us wants. We have to take the survivor community’s views seriously about the waiver. I welcome John Swinney’s open response to the committee’s recommendations on that issue.

On the other side, as it were, providers are not happy with the waiver either. They indicated that had they been consulted a bit more—and they believe that they were not consulted enough pre-legislatively—they would have pointed out that the waiver as it is currently constituted will not act as an incentive. The incentives will come from handling the contribution scheme in a different way. Neither the survivors nor the providers are happy with the waiver scheme.

In the committee’s evidence, we heard about an issue with the legal enforceability of the waiver in Ireland, which has not been mentioned in the debate so far. The Irish had a waiver that was subject to legal challenge under the United Nations convention against torture. The legal point that was made in that challenge was that, despite the fact that the waiver—the Ireland residential institutions redress board scheme—had been legislated for and established in Irish statute, it was still open to challenge by international law on the basis of rights that are given to and exercised by people under the convention against torture. There is still a big question mark over the enforceability and legality of the waiver from a human rights point of view, which is a point that was also expressed by the Scottish Human Rights Commission.

I do not think that it is black and white, but there are serious question marks. Looking at the Irish experience also suggests that the offset route, whereby courts are directed to take any settlement in any court action into account, might be a better way to do it. Other halfway measures may be possible and, obviously, the Government will be looking at that. I welcome the fact that the Government is looking at that issue again.

I come to the contribution scheme. Most of the providers whose organisations have been responsible for historical abuse want, in principle, to contribute to the scheme. Anybody with any feeling of moral responsibility who is running those organisations would, obviously and correctly, feel that they should contribute. However, there are a number of issues that could incentivise and facilitate contributions from the providers, if they were added to the bill.

At the moment, the bill establishes, rightly, the principle that those organisations’ contributions should be fair and meaningful, and there is a clear message from Parliament about the moral obligation on all those providers to participate in the contributory element of the legislation. However, there are three areas of concern.

The first is that levels of compensation should not be such that they undermine the financial viability of the organisations. That point was supported by the survivors in their evidence to the committee. They do not want to ruin the providers financially, because, although they are critical of the providers’ history, they are often very supportive of the work that the providers are doing now. The second issue is that survivors do not want levels of compensation to be so high that they could endanger the quality or level of services provided by organisations to the people who need those services today.

I absolutely support John Swinney’s point about not putting a cap on contributions—that would send out completely the wrong message—so the way to handle those concerns is to add to the bill the principles that, as well as being fair and meaningful, compensation levels must not in any way be threatening to the financial viability of the providers or threaten the services that are provided by them. Including those principles would help us to incentivise people to contribute. Organisations are worried about what they perceive to be the open-ended nature of the commitment that they might be signing up to, but if those principles are established in the bill, those worries should disappear.

Let us not forget that many of the organisations are charities. Under charity law, the directors of a charity cannot sign up to any scheme that has the potential to threaten the financial viability of the organisation. Establishing those two principles, in addition to having fair and meaningful payments, would strike the right balance and allow us to ensure that we get contributions from those organisations.