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 John Swinney John Swinney Scottish National Party

That is a reasonable point for us to consider, because there is a fine balance to be struck. Although there is a need for organisations to be held accountable for abuse that has taken place in the past, I do not think that anybody wants that to happen at the expense of the survivability of an organisation that is delivering vital services today to protect the wellbeing of children and young people in our society. A careful balance has to be struck. As we work our way through the detailed text of the bill, I am sure that, as a Parliament, we can come to a conclusion about that issue.

The quality of redress for many survivors comes, at least in part, in seeing their provider make a fair and meaningful contribution. That is the point that I was making to Mr Greene. I commit to continuing to work with organisations to ensure that a fair contribution is deliverable in a way that is not detrimental to vulnerable service users today.

I have listened to the concerns regarding what is in the bill about the use of charities’ restricted funds—some of that relates to Mr Johnson’s point. Although the provision was intended to empower organisations and to remove barriers, I accept that that has not been welcomed by organisations and I agree to remove section 15.

There is no doubt that the proposed waiver in the bill has been contentious, and I welcome the committee’s consideration of that important issue. I have wrestled with how to fairly encourage contributions and to recognise the organisations that have made them while maintaining the integrity of the scheme for survivors. A scheme without contributions from other organisations would mean that survivors who sought acknowledgement and financial redress from those other than the Government would need to take civil action, and we know that there are many reasons why some survivors are unable or would choose not to pursue that route.

The committee highlighted the evidence that it heard about offsetting being a preferable way to encourage contributions. My concern is that offsetting may provide only nominal contributions to the scheme. Organisations would still require to plan for the high costs of future litigation. If offsetting led to only nominal contributions, the onus would remain on individual survivors to pursue court actions in order to compel those responsible for their care to make adequate reparation. That would exclude pre-1964 survivors, survivors who do not feel that they have the evidence to go to court, survivors who do not want to go to court and survivors who are elderly or unwell and might not live long enough for a court action to conclude.

We have looked at other redress schemes, but we do not know of any that secure contributions by using an offsetting model, nor of any scheme in which providers make contributions but receive no waiver. I have, however, listened to the concerns that have been raised about the waiver, and I will continue to listen today and beyond in order to reflect on whether that remains the right path for the proposed legislation.

To put those two points simply and in summary, I am keen to develop a scheme that secures contributions from providers and meets the needs of survivors. After careful and exhaustive consideration, I came to the conclusion that the waiver was the reliable way to do that. I recognise that that view is not shared across the board in Parliament, or even among survivors, but I am keen to air the issues in order to take an approach that means that we can secure the outcome that I have highlighted. I will engage constructively with members of Parliament in order to do that.

I appreciate the significance of the choice that the waiver asks survivors to make. I have heard the evidence on the importance of survivors making that choice only once they know the full redress payment that they would receive from the scheme, are able to access appropriate advice and know who is making a fair contribution to their payment. I will lodge an amendment to ensure that the decision has to be made only at that point.

I recognise that, for many survivors, the decision will not be easy. I have considered the evidence that the committee has heard and I commit to lodging amendments at stage 2 to increase the 12-week acceptance period to six months and the four-week review request period to eight weeks.

I also listened to the evidence that the committee heard on payment levels. I want to provide fair payments according to a fair structure, and I will revisit the level of the increase between the different payment levels. The redress scheme is an alternative remedy for survivors. It does not follow the same rules and procedures as a court and it is not designed to achieve the same outcome. Redress payments may be lower for some than would have been awarded by the courts; for others, the opposite may be true. However, I listened to the evidence and will reflect on the maximum payment level that is available.

I understand the need for clarity and transparency in the assessment and decision-making processes, and I will reflect on calls from survivors, organisations and insurers for greater clarity as to the standard of proof that will apply in determining redress applications. It is vital that everyone has confidence in the decisions that are taken by redress Scotland and that survivors and organisations know that applications are considered carefully and supported with the right information. I am aware that, should the integrity of the scheme be called into question, the impact that that would have on survivors cannot be overstated.

Survivors have given powerful evidence on the purpose of the scheme. The scheme looks to address the widespread and systemic failures in our historical care system that led to children being abused. Those who were abused in care prior to 2004 were abused at a time when their welfare was not prioritised as it should have been and when any complaints that were made were less likely to be believed or to result in any action. Survivors from that time period have also faced a series of obstacles to accessing justice through the civil or criminal courts.

The scheme is about a particular part of our history and the particular circumstances of children in care at that time, when we collectively failed them. Now, we must collectively respond. An important part of that response is in recognising the survivors who did not live long enough to access redress. The committee heard moving evidence about the importance of recognising those deceased survivors. Today, I commit to amending the bill to change the eligibility criteria for next-of-kin payments, to extend those to the next of kin of survivors who died on or after 1 December 2004.

I welcome the committee’s recognition of the importance of support, both practical and emotional, for those who apply to the scheme. I am committed to designing and delivering a trauma-informed service, working with survivors to ensure that their needs are met. A survivor forum will be in place so that continuous monitoring and feedback can lead to on-going improvements in the scheme.

We know that, on its own, a monetary payment will not deliver the redress that survivors need. For too long, survivors were not believed. As part of our collective endeavour, we must now right that additional wrong and apologise both for the abuse and for the length of time that it has taken for it to be fully recognised and acknowledged. The redress scheme will offer individual applicants the opportunity for support and apology as well as a financial payment. On behalf of the Scottish Government, I reiterate the apology that I made in the chamber in 2018 and I say to survivors, “We believe you and we are sorry.”

I hope that what I have just said demonstrates the care and compassion that have been invested in the development of the bill. Our approach represents a thoughtful and authentic desire to do the right thing, to provide survivors with the collective response that they deserve and to provide those who are facing up to the harms of the past with a fair way to do so.

The scheme is not for lawyers, insurers, providers or the Government; it is for survivors, whose interests must dictate its design and determine its delivery. We must balance the various interests to the best of our ability, and we must do so with integrity and compassion, for that collective expression of our humanity will be the measure of our nation in its response to one of the darkest chapters in our history. We owe it to the children whom we failed—and to the adults that they have become—to deliver the best possible scheme. I look forward to working with members across the chamber to make that a reality.

I move,

That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.