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 Brian Whittle Brian Whittle Conservative

I am pleased to speak in the stage 1 debate on what is a very important bill. I commend the Education and Skills Committee for its in-depth and comprehensive report and John Swinney and the Scottish Government for their swift response to that report. In the limited time that I have, I will cover some specific points where I think that the bill needs strengthening.

As I said in last week’s debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, this type of bill demonstrates that Parliament is prepared to tackle a difficult topic and to bring the issues out of the shadows and into the light. Sexual abuse—specifically, child sexual abuse—has been swept under the carpet for far too long, with victims left without the support that they so desperately need.

As many of my colleagues will be aware, I have been working on such an issue on behalf of a constituent. It is fair to say that, over the prolonged period of time during which she has been seeking justice and redress, as my understanding of the trauma that she has suffered has increased, so have my discomfort and disquiet about how the ways in which victims are retraumatised and left open to suffering secondary abuse have continued to rise. The organisations that have been brought into question in my constituent’s case include local government bodies, an education authority, the police, the church, support services and the Scottish Government. We should not shy away from scrutinising the actions of any such organisations that might be involved in such cases.

The redress scheme is designed so that it is easier to access it than it is to take a case through the civil courts. However, the Criminal Injuries Compensation Authority already has a similar scheme in which decisions are based on the balance of probabilities. That is a different standard from that which is employed by a criminal court, which decides whether a case has been proved beyond reasonable doubt. The victim does not need to wait for the outcome of any criminal trial if enough information is already available for a decision to be made on their case.

Crucially, though—and contrary to the bill’s intention that the victim should waive their right to future civil action—should any subsequent payment be made arising from a civil action on a CICA compensation payment, the CICA payment should be reimbursed, which other members have said should be an option. I contend that, in that respect, the bill is flawed. It should not impose a ban on future civil action, otherwise why would a victim not just approach the CICA instead?

Furthermore, I contend that many of the support organisations for survivors are too close to the Government and receive funding directly from central Government, which potentially impacts their ability to act autonomously.

Another issue that has been raised in the debate is record keeping, which is currently woefully inadequate. As I said in last week’s debate, that is especially the case among local authorities, where there does not seem to be any requirement that they record potential cases of abuse within facilities that are run by them. Oliver Mundell also made that point.

Most importantly, the bill is currently designed specifically to provide financial redress for survivors of historical sexual abuse in care in Scotland. Of course, that is welcome, but in my view that aim is too narrow in scope. When I questioned the cabinet secretary on the eligibility criteria and urged that victims of sexual abuse in school settings should also be included, he responded that the scheme was designed to compensate those in relation to whom the state had undertaken parental responsibilities, by which he meant those in care homes. However, the bill that led to the Education (Scotland) Act 1980 used the term “in loco parentis”, which has the effect of transferring parental responsibilities to schools temporarily. That would also be true in other instances. That being the case, the bill as it is currently drafted could leave the Government open to potential challenge in the European Court of Human Rights or by the Equality and Human Rights Commission because of the inequality in its approach to victims of crime, and especially such a heinous crime. Alex Neil was hinting at that in his contribution.

The cabinet secretary may be aware of a related case in which a judge found that the Irish Government had misrepresented a ruling by the European Court of Human Rights by excluding from its redress scheme children who had been abused in Irish schools. I accept that the issues that were dealt with in that ruling were not exactly the same as those that we are debating, but that situation suggests that the bill that is before us could be open to a similar legal challenge.

As is the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which was passed last week, the bill that is before us is very welcome and long overdue. In developing it, though, it will be incumbent on us all to ensure that it is the very best that it can be for all those who have been victims of such horrendous crimes and who have to carry that burden throughout their lives. Financial redress will never heal their wounds, but it might at least give them comfort that their voices have been heard and there is an acceptance that they have been victims.

However, so much can be and needs to be done. Understanding the journeys of victims—both those who speak out and those who initially cannot—and the repeated trauma caused by having to retell their stories to multiple agencies, and tackling the lack of accessible, adequate support must all become part of the jigsaw. I have absolutely no doubt about Mr Swinney’s commitment to those who have suffered such crimes. However, I ask him to be a bit braver—to look beyond the limitations created by the way in which the bill is currently drafted and towards those who have suffered in similar ways but who are currently excluded. If we do not do so, it will only require more legislation further down the line. I urge him to make the bill everything that it can be.