The next item of business is stage 3 proceedings on the
Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that I will sound the division bell and suspend the meeting for five minutes when we have the first vote. All votes will last for one minute. Any members who wish to speak in the debate on a group of amendments should press their request-to-speak buttons as soon as I call that group.
The first group consists of minor and technical amendments in relation to various provisions of the bill. Amendments 1 to 4 and amendment 33 are minor amendments to ensure that the overview section of the bill and the long title properly reflect the substantive content of the bill following amendment at stage 2.
Amendment 6 expands the categories of people who are to be treated with dignity, respect and compassion to align those provisions with changes that were made to section 85 of the bill at stage 2. The categories include people with on-going applications, people who have made applications in the past, people who have decided to make an application and people who are, or may be, considering making an application.
Amendment 11 updates the list of conditions that have to be met under section 22 of the bill for a person to be eligible to apply for a next of kin payment, where the survivor died after making an application for a redress payment. That is simply to reflect the changes that were made at stage 2, which mean that initial determinations will no longer be made. Therefore, subsection (3)(b)(iii), which the amendment will remove from section 22, is redundant.
Finally, amendment 13 ensures that, for consistency, references to what may accompany an application for redress are to “information or evidence”.
I move amendment 1.
Amendment 1 agreed to.
Amendments 2 to 4 moved—[John Swinney]—and agreed to.
This is the first amendment that we will debate, and I want to thank the cabinet secretary and his bill team for assisting my office, and other members from across Parliament, in the preparation and development of many of the amendments. Many of us have been on a difficult but sensitive journey through the passage of the bill. It is an important bill to be working on in our final weeks in Parliament. I thank everyone involved, including members of the Education and Skills Committee, the clerks and our adviser, who have done an excellent job.
I tried to improve the bill at stage 2 and I am trying to do so at stage 3 so that we reach a place where it commands cross-party support and consent. That is important, given the gravity of the bill’s subject matter and approach. There might be issues that we will disagree on this afternoon, but I hope that we can disagree respectfully and debate the issues accordingly.
What I have tried to do with my set of amendments in group 2 is to respond to some of the concerns that I have raised throughout the process around what information will be available to survivors as they go through the journey. The new scheme will be starting from scratch and it will inevitably have teething problems. We should ensure that the bill addresses and pre-empts as many of those as possible.
For example, I have raised concerns about the risk of applicants for redress payments entering fee-paying arrangements with legal advisers that will be neither covered nor funded by the scheme and having to pay the resulting legal fees from any redress payments. Some of those issues have been addressed but, in my view, applicants should be encouraged to make informed decisions and to get independent legal advice on their decision making.
That is important because it will give them the autonomy that they need to make decisions for themselves on all aspects of the redress scheme as they go through the journey. Whether that is achieved through people choosing their own solicitor or through people accepting an offer of assistance from the Government, there is a balance to be struck between wanting and encouraging applicants to make use of the support of independent advice that is available under the scheme and helping people to make informed choices that are best for them.
I respect the fact that, ultimately, those choices are for individuals to make, but many of them will be in vulnerable situations, with traumatic experiences to recount and recall. The very experience of going through the scheme might be difficult for many.
My amendments in group 2 will place a duty on the Scottish ministers to use their best endeavours to ensure that all individuals who are applying to the scheme or are considering doing so will make informed choices with regard to their applications.
Amendment 5, which is the principal amendment, is fairly lengthy, but it is self-explanatory. It will require ministers to prepare and publish a “summary of options”, or statement, that sets out information on which options are available to individuals in connection with their specific applications; the support and assistance that is available to them, including the funding for legal advice that is available under the scheme; and any alternative routes that are available to them outside the scheme. That approach is similar to the approach in the “Victims’ code for Scotland”, which has proved to be very helpful in our criminal justice system. Further amendments in the group will ensure that the information is available to applicants at each step of the process.
The statement must detail the options and the support and assistance that are available to people, and it must give guidance and advice on making, pausing and withdrawing an application; on accepting an offer of a redress payment, including the timescales for doing so; importantly, on the effect of signing a waiver, which we will come to later; and on requesting a review of a determination by redress Scotland in the event that someone is unhappy with the offer that is made. The statement must go on to state the importance of obtaining independent legal advice, specifically before the applicant accepts the offer of a redress payment or signs a waiver.
I hope that my amendments in the group will improve the information on the choices and support that will be available to applicants.
Amendment 31 will place a duty on the new organisation that will be set up—redress Scotland—to include in its annual report an assessment of whether it believes that applicants have had ample opportunities to make informed choices.
Amendment 32 will create a power for redress Scotland to make specific recommendations in that regard that future Governments must have regard to. The Scottish ministers will be under a duty, when reviewing the summary of options, to have regard to recommendations that redress Scotland has made in its annual report.
Amendment 28 will require the Scottish ministers to have regard to such recommendations when updating or amending the scheme. Amendments that we will discuss later address how we will review the scheme and tidy up as we go.
Taken together, my amendments in group 2 should reduce the risk that applicants will make decisions without obtaining proper independent advice and support that is provided either by the scheme or elsewhere.
I move amendment 5.
I associate myself with many of the things that Jamie Greene said. The bill is inherently complex and the subject matter has been difficult for many of us to deal with, but it is hugely important.
It has been remarkable that we have had robust and thorough examination and, indeed, criticism of elements of the bill. However, throughout the process, the approach taken by all members and, in particular, the Government has been constructive. That has been welcome, and I have no doubt that the bill is better for it.
Jamie Greene’s amendments are very important. Given that the waiver is likely to stay in place, it is critical that, in seeking compensation through the scheme, individuals are fully informed. Jamie Greene’s amendments are important for establishing that that will be the case for all applicants.
Likewise, at the bill’s various stages, I had concerns about two key aspects. First, many survivors have been through the ordeal of telling their story many, many times. It has been a long and arduous journey for them, and, wherever possible, we should seek to avoid retraumatising those individuals. My amendment 5A seeks to ensure that individuals who have already provided evidence do not have to do so again. Similarly, it is important that there is clarity regarding the length of time
for consideration of applications, which is dealt with by my amendment 48. Lastly, amendment 51 would require redress Scotland to take account of and make clear the accessibility of evidence that individuals might have.
Overall, one of the key important elements of those amendments is that they provide clarity about the information that individuals will need in order to make an application. In its stage 1 report, the committee raised the issue of evidential requirements and burdens of proof. In many ways, I would have preferred provisions on those matters to have been set out clearly in the bill. However, the improved detail—on the requirements for the guidance and information that redress Scotland will have to provide and on the reporting on those matters—provides the required clarity and represents an important addition to the bill.
I move amendment 5A.
I am not a member of the Education and Skills Committee, but I thank committee members and the clerks for speaking to me when I was pursuing an issue.
I will speak to amendments 5 and 5A. Daniel Johnson referred to the need for clarification, and I am pleased that Jamie Greene has addressed that by lodging amendment 5, which is really important. I seek clarification. Both amendments refer to evidence, informed choices and options. I will give an example: the case of an older constituent who is in the process of making an application to the advance payments scheme has come to a standstill. He cannot provide the evidence, because the children’s home and the health board records no longer exist. Would those amendments cover the case of my constituent and older people generally who are affected in that way when their records are not available?
I thank Mr Greene for lodging his amendments in group 2 to support informed decision making. I am happy to support them. I share Mr Greene’s concerns about survivors having to use their redress payments for legal fees that will not be funded by the scheme. It has always been the intention that survivors should receive and retain the entirety of their redress payments without having to use any of them to cover any costs related to their applications.
Although we cannot take away a survivor’s choice to enter any such agreements, we can ensure that survivors have all the information available to them to help them to make informed choices about that and other decisions to be taken in connection with an application to the scheme. That is the fundamental point that Mr Johnson has made in his comments and throughout our debates on the issue. It is crucial that we make survivors aware of their options under the scheme and of all the support and assistance that the scheme has to offer them, which includes funding for legal advice.
I am grateful to Mr Greene for lodging his amendments, which take all of that into account. Signposting applicants in a tangible way to all the available options in connection with their applications will help survivors to make informed choices without depriving them of the right to make those choices.
Placing a duty on the Scottish ministers to produce and provide that information to applicants, as well as placing a duty on redress Scotland to assess the practical effects of that, will ensure that the information is routinely given at material points in the application process and that the information provided is both relevant and helpful. Moreover, the Scottish ministers will be able to take on board any recommendations that redress Scotland has made when they review the scheme guidance.
The amendments are a practical solution to an important issue. The operation of the scheme will include further means by which we can reinforce those messages to applicants and start conversations where there are concerns. I know that Mr Greene has already spoken to Scottish Government officials to start a discussion on what mechanisms might be appropriate and could be taken forward in the scheme design. I fully support Mr Greene’s amendments in the group.
I also thank Mr Johnson for lodging his amendments on guidance for survivors on the types of evidence that might be provided with an application for redress and on assistance with how to obtain that. As I said at stage 2, I want to ensure that the design of the redress scheme incorporates practical measures that will support survivors by helping them to access, as far as is possible, any and all available information and evidence to support their applications.
I am happy to support Mr Johnson’s amendments, which will ensure that the guidance on evidential requirements is fully accessible to applicants. The reporting requirement on redress Scotland will help to ensure that it is both relevant and helpful. I am also grateful to Mr Johnson for lodging his amendment 48, on the issuing of guidance that sets out timescales for determinations on redress applications. That will contribute to transparency in the scheme and I am happy to support it.
In relation to the point that Sandra White made, I note that redress Scotland will have the discretion that it needs to account for a challenging evidential landscape. That is one of the issues that the advance payments scheme has wrestled with. We appreciate that there is most definitely not a perfect evidential context for all of these decisions to be made.
The reassurance that I can give Sandra White is that, to date, the advance payments scheme has not turned down a single application due to a lack of evidence. I hope that that provides assurance that a significant approach of the benefit of the doubt has been taken in relation to applications so far in the advance payments scheme. My expectation is that that flexibility will also exist as redress Scotland pursues applications to the main scheme, assuming that Parliament legislates for it this afternoon.
I hope that that provides the reassurance that Sandra White was looking for. If she wishes to write to me with particular concerns about her constituent’s circumstances, I will ensure that the issue is addressed expeditiously.
I thank members for their kind comments on my amendments and I thank the cabinet secretary for his clarification. I should have said earlier that we will support Daniel Johnson’s amendments 5A and 51.
One of the comments that the cabinet secretary made goes to the heart of the amendments in the group. The applicant should make informed choices at every stage of an iterative process, but that could be difficult when they are faced with the situation that they are in. No one should be in a position where they feel forced or obliged to accept an offer of payment in a certain band or level, or indeed be unhappy with the result and feel that there is no recourse for them, given what has been offered by the scheme.
Everyone should be guided through the process, irrespective of the band that they are in or the level of payment. When they get to the final point, they should be confident that the Government and the scheme have helped them to make informed choices, whether that help has come from advocacy groups, third sector organisations, family, friends, partners, next of kin or indeed third-party solicitors and external legal counsel.
I do not have a problem in principle with solicitors or legal advisers helping people throughout the process. However, a genuine worry arose during the bill’s passage that third parties would approach vulnerable people or encourage them to come forward, and then accept legal fees from their payments. No one should lose any of their payment. The Government has come a long way in the interest of securing that, and I appreciate that it has been technically difficult.
Sandra White shared a valid anecdote. Elderly people will come forward who have no records, no access to records and no idea of where to get information to support their case. However, what lies at the heart of the scheme—we have been keen to stress this as a committee—is the fact that there is no test of the balance of doubt. The concept of putting the victim first must lie at the heart of the redress panel and the awards, so the threshold of evidence that is required throughout the scheme is much lower than many would face in civil litigation proceedings.
That is important, because the scheme is designed to provide redress—financial or otherwise—for those who need it, and to do so in the simplest and least traumatic way. Because that lies at the heart of the scheme, people such as Sandra White’s constituent will be met with a sympathetic ear. We have changed the bill to include at section 11A the principles of dignity, respect and compassion, which must lie at the heart of the scheme.
I thank members for supporting my amendments.
I should probably have said in my comments on previous amendments that I am grateful to the Scottish Government and the bill team, in particular, for their constructive engagement and assistance in drafting a number of my amendments, particularly the two in this group.
It is clear that implicit throughout the scheme is acknowledgment of the real and devastating harm that has been done to individuals in the name of the state and by organisations. That is, fundamentally, what the bill seeks to redress. It seeks to correct or, at the very least, to acknowledge and compensate for those historical wrongs. However, it is not a court process and the scheme will not find strict legal liability or legal fault with organisations relating to such individuals.
Although I have no doubt that the overwhelming majority of contributors will take part in good faith and will acknowledge the role that they played in historical wrongs, I am concerned about the theoretical possibility of contributors taking part in the scheme and making payments but, because it does not include strict liability, being able to turn around and say that they did nothing wrong.
Amendment 7 seeks to provide a general acknowledgment of the historical wrongs and an acknowledgment that all of us must make of what happened, so that it cannot happen again. I lodged amendments to that effect at stage 2; I recognise that there were difficulties with them, so I am grateful that we have been able to come up with a form of words that will have the effect that I have just set out, which is to acknowledge historical wrongs and make sure that organisations that contribute make that acknowledgment.
I move amendment 7.
I commend Mr Johnson for the approach that he has taken.
I have sympathy with amendment 8 specifically. It would help to clarify ambiguity in amendment 7, but I still believe that amendment 7, in its own right, might inadvertently attribute liability to a contributing organisation.
By default, organisations that choose to contribute financially to the scheme—it should be borne in mind that the scheme is not mandatory—will be invited to take responsibility for their historical actions. We will discuss the matter later. We hope that many organisations will do so, but there are no guarantees that they will. We must therefore make it as easy as we can for them to do so without introducing an element of accepting liability outwith the scheme. Participation in it is clear acceptance of wrongdoing in the past.
I therefore worry about the wording of amendment 7, but would be happy to support amendment 8. I am keen to hear what the cabinet secretary has to say on the matter.
I am grateful to Mr Johnson for lodging amendments 7 and 8 on acknowledgement of harm. Participation in the redress scheme must be about more than money. It is right that those who contribute to the scheme acknowledge the harms of the past, so I am happy to support amendments 7 and 8 today.
During the stage 2 debate, Mr Johnson agreed not to press his amendment on the topic and, instead, to work with the Government to develop amendments at stage 3 that will provide the appropriate acknowledgement of harm that we seek from contributors, while avoiding the unintended consequence that, in making a contribution to redress, the organisation has, in some way, accepted legal liability. That explanation, which is at the heart of our assessment of amendment 7, addresses the point that Mr Greene raised. He quite rightly wants to avoid the construction of an additional obstacle to participation by a contributor. That is an objective that I share; such an obstacle is not in any way enabled by the terms of amendment 7.
I whole-heartedly accept the need to acknowledge, and to provide tangible recognition of, the significant and enduring harm that was caused to children who were abused in care, and it is only right that that recognition be reinforced at the point at which the contribution or agreement to contribute is made. The scheme offers contributors the opportunity to be part of a national collective endeavour that is built on compassion, integrity, fairness, and respect.
Amendments 7 and 8 complement the wider approach to redress. Section 91 of the bill, for example, requires contributors to the scheme to report on the action that they are taking to redress the historical abuse of children, which will further demonstrate the organisation’s commitment to the national collective endeavour of redress.
I am pleased to support the amendments that have been lodged by Mr Johnson, which will, along with other provisions of the bill, help to deliver a redress scheme that provides survivors with the acknowledgement that they have fought tirelessly to attain.
I have lodged amendments 9 and 10 to the bill to ensure that the sustainability of services that are provided by organisations that are hoping to participate in the redress scheme will be a factor that is taken into consideration when ministers are assessing what amounts to a fair and meaningful contribution from those organisations.
At stage 2, I lodged an amendment that stated that the making of a financial contribution must not jeopardise the current services of a charity, but I did not press that amendment, and I am grateful to the cabinet secretary for his continued engagement on finding something that will achieve a similar effect. I hope that the amendments that I have lodged today effectively address that issue, with which various different types of potential scheme contributors are grappling.
Amendment 10 seeks to allay a concern that has been raised by potential contributors and by some survivors. The concern is that organisations that want to do the right thing, by participating in the redress scheme, will have to make a choice between contributing to the scheme and being able to continue to deliver the services that they currently provide. There are fears that organisations that make contributions to the scheme might not be able to continue because of the financial implications of that fair and meaningful contribution. Some survivors echoed that view in their evidence at stage 1.
As we will hear later, when we discuss and debate the waiver, securing contributions is crucial in ensuring that the scheme functions as a collective response to the wrongs of the past, but that should not be to the detriment of services that are delivered to children and vulnerable people in society today. Organisations will be more likely to contribute to the scheme if they know that that factor will be taken into consideration by ministers. Amendment 10 requires that the Scottish ministers must take into consideration the “sustainability” of services.
It is important to say that I do not see my amendments as a way of giving organisations a discount on their contribution simply because they deliver services today; rather, the amendments seek to ensure that the payment of contributions is fair, manageable and sustainable. In turn, that will allow organisations that are covered by the circumstances that are set out in the bill’s principles to maintain their current services. That is a proportionate approach.
Amendment 9 is simply consequential to the more important amendment 10.
I ask members to support my amendments.
I move amendment 9.
I thank Mr Gray for lodging his amendments. The substantive issue that he pursued at stage 2 and which he has raised in today’s debate is very important. I am grateful to him for highlighting the issue, which very much aligns with Mr Greene’s stage 2 amendment on consideration of the affordability of contributions.
Today, as he did at stage 2, Mr Gray has made the point that there must be an assessment of an organisation’s ability to contribute to the scheme while maintaining its current services. That is an important element that should be weighed up by ministers, so I am very happy to support his amendments. The formulation that Mr Gray has advanced through his amendments to section 13 strikes the correct balance in how ministers should make that assessment.
Amendment 10 will require ministers to consider the “sustainability” of an organisation’s services. Ultimately, the Scottish ministers must decide whether a financial contribution is to be considered fair and meaningful.
I have spoken often about the need for a collective national endeavour—indeed, I did so in the debate on the previous group. Amendment 10 supports a collective approach to provision of redress. We have listened to providers’ concerns, and the amendment will help to create the conditions that will allow them to participate in the scheme and to demonstrate their integrity and commitment to survivors. However, it will also add another consideration for ministers so that the correct balance is struck. I agree with Mr Gray that the amendment makes it more likely that organisations will contribute to that collective national endeavour, which is the objective that we are all pursuing.
For those reasons, I support the amendments that have been advanced by Mr Gray.
Amendment 9 agreed to.
Amendment 10 moved—[Iain Gray]—and agreed to.
I should say at the outset that I am inclined to treat amendment 34 and my amendments in the next group as probing amendments. I will listen carefully to what the Government says in response to them, given that I understand the issues that might be involved.
Throughout the passage of the bill, there has been concern about the rights that might be set aside through the waiver and the interactions that there may be between accepting compensation through that scheme and a person’s ability to take a case to court.
What I am keen to make explicit—I believe that it is implied—is that, if an individual has previously taken matters through the civil courts but failed, that would not render them ineligible for an application or, indeed, compensation through the scheme. Amendment 34 simply seeks to make that clear and explicit in the bill. I recognise the legal technicalities, and I therefore feel that a clear statement to that effect in Parliament would most likely satisfy the requirements, given the legal implications that such statements in Parliament have.
I move amendment 34.
Before I speak about amendments 14 to 16, I will talk about the issues with Mr Johnson’s amendment 34. I am grateful to Mr Johnson for lodging it, as it provides me with the opportunity to address any concerns regarding the ability of those who have previously tried to hold organisations responsible for their abuse to account in the civil courts to apply to the redress scheme.
Let me stress—and, indeed, state on the record—that survivors who have previously brought a relevant court action in respect of their abuse and who have been unsuccessful in that litigation will be able to apply for redress through this scheme under the bill as it stands, including when the litigation was brought against the Scottish ministers or any scheme contributor.
We recognise that success in a court of law is dependent on a number of factors, many of which are outwith a survivor’s control, such as establishing liability, meeting evidential standards and withstanding challenge and cross-examination of their account. The approach of the redress scheme will be entirely different. It will be more compassionate and trauma informed, and it will support survivors to obtain evidence. It therefore does not follow that failure at court should prohibit an application for redress or provide an indication that such an application would be unsuccessful. There is nothing in the bill as it currently stands to suggest that that should be the case.
Although I unreservedly support the principle of amendment 34, as I outlined, I think that it is unnecessary. There are also some technical issues that mean it could be problematic and not actually provide the assurance that is intended. I therefore ask Mr Johnson not to press the amendment on the basis that he and the other members present are, I hope, reassured by the remarks I have made in the chamber today. I place them on the record as a source of reference at any stage in the future.
I commit to ensuring that that principle is reflected in other material, such as the explanatory notes that will be published to accompany the act, so that there can be absolutely no doubt about the issues that have been raised. We will also ensure that it is reflected in any statutory guidance that will be produced for applicants.
For the purposes of clarity, if somebody is made an offer under the scheme and chooses not to accept it—specifically in relation to my amendment 5—then pursues a case outside the scheme and fails in that case, will they be eligible to come back to the scheme and benefit from it at a future date if the scheme is still running?
If they are still within the timescale, then yes, they will be able to do so. In the scenario that Mr Greene has painted, there will be no impediment to an individual taking that course of action. They will be free to exercise that judgment about an offer that has been made to them and to pursue a court action, and, if that fails, to come back to the redress scheme—provided that the scheme is still in operation. There are issues and timescales that we will come to.
Let me turn to the amendments in my name. Amendments 14 to 16 add to the list of circumstances in which more than one redress application may be made. The bill already provides that new evidence might allow redress Scotland to permit a second application. The amendments address the scenario of individuals who have either previously had their redress application rejected or who received a more limited redress payment because a particular institution was not covered at the time of their first application. When, after an individual’s original application has been dealt with, regulations are then made under section 18 to bring that institution within the relevant care settings covered by the scheme, a further action may be permitted by virtue of amendments 14 to 16. That is part of my commitment to ensuring that we take account of any relevant changes that might allow an applicant to receive a higher award. I ask members to support the amendments in my name.
I thank the cabinet secretary for his remarks, which clarified the situation on which I sought clarification. More important, his comments regarding the nature of the scheme meaning that it will have compassion at its heart and be a much more straightforward and easy process for survivors to navigate were very welcome. On that basis, and given that those remarks are on the record, I seek agreement to withdraw amendment 34.
Amendment 34, by agreement, withdrawn.
My amendments in the group arise from an interaction that I had with the cabinet secretary at stage 2 regarding the duration of the scheme and the reasons why it should be curtailed on any basis. I accept that, for practical reasons, that must be the case. However, the issues that we are dealing with are complex. It takes many people decades to come to terms with the experiences that happened to them, albeit many years ago, and some people never come to terms with it. Therefore, given that the scheme is of a strictly limited nature, I have concerns that it might close before many people have had the opportunity and found the personal ability to deal with the issues.
I acknowledge that the bill has been improved by the amendments that were lodged by the Government at stage 2 and the fact that the scheme will now remain open for five years, or for two years after the closure of the inquiry. That is an important improvement.
However, my amendments seek to turn the situation by which the scheme is brought to a close on its head. At the moment, by default, the scheme will close unless the Government brings forward statutory instruments that will prolong the scheme for a further two years. My amendments seek to put that around the other way so that, by default, the scheme would continue, unless instruments are brought forward that would bring it to a conclusion.
I recognise that the situation is complex, so I will listen carefully to what the cabinet secretary says. In particular, I am keen to understand the steps that the Government will take to establish whether survivors have come forward in sufficient number and as expected.
I am also keen to understand what assessment the Government will make in relation to the scheme and how it will establish that it is satisfied that the scheme will not close prematurely. Moreover, I seek assurance that the Government will have a low threshold for continuing the scheme, if it deems that to be necessary, so that the overwhelming majority of survivors who should be using the scheme for seeking compensation do so.
I move amendment 35.
I thank Daniel Johnson for lodging the amendments in this group. I am hugely sympathetic to what he is trying to achieve. The very idea that someone arriving late to the scheme would be unable to participate in it for various reasons is wrong, particularly given the complexity of some of the cases that might come forward, especially those relating to the higher payment band. However, although I know what the amendments seek to do, the question is whether they achieve that, and I am keen to listen to the cabinet secretary’s view on that.
We definitely support the concept behind the amendments, but, as drafted, we are probably minded not to support them. However, like Daniel Johnson, I am looking for reassurance from the Government that it has a solution to his valid conundrum.
I thank Mr Johnson for lodging these amendments relating to the duration of the scheme. I agree with him that the duration of the scheme should not be a barrier to survivors accessing redress. However, I believe that the issue was examined comprehensively and addressed by the committee in the amendments that were passed at stage 2.
That said, I want to put more remarks on the record, which I hope can address some of the points of significance that Mr Johnson and Mr Greene have raised.
It is vital that there is sufficient time for survivors to explore fully the options that are available to them. In that respect, Mr Johnson raises a valid point, which will have a bearing on ministers’ decisions in due course. None of us can fully understand at what moment an individual finds it in themselves to address the abuse that they have suffered and then do something about it. From my experience of discussions with survivors, many people have harboured the issues that have arisen from that abuse for many years and have been unable to confront them. Therefore, I understand Mr Johnson’s substantive point.
Following the committee’s recommendation at stage 1, we amended the bill at stage 2 to ensure that the scheme would remain open to applications for five years, or a period of two years after the Scottish child abuse inquiry has concluded and produced its final report, if that is longer. An application does not have to be concluded during that time; it simply must be submitted in that window.
I think that Mr Whittle’s example highlights the point that I was trying to make in addressing Mr Johnson’s remarks. There are individuals in our society who have harboured an experience personally and privately for a very long time. As a society, we are now confronting all of that more openly. Mr Whittle’s constituent was not living in an environment in which such issues were openly addressed and confronted.
The Scottish child abuse inquiry is shining a very bright spotlight into areas of the country’s past. I hope that the transparent process that Lady Smith is leading will assist individuals in seeing that the country—the state—is facing up to the failures of the past, which might prompt individuals to have greater confidence in and assurance about coming forward to address their own experience.
The formulation in the bill has the application process open for a five-year period, or two years after the Scottish child abuse inquiry has concluded its hearings. I will not prescribe when that will be, because I want Lady Smith to properly conduct the investigation that we have asked her to do for as long as it takes to do so. It is important that it is done once and properly. I hope that that will create a sufficient opportunity for individuals to come forward and be able to make their applications.
That still creates a question in my mind. I totally accept that the cabinet secretary is saying that we are trying to create an environment in which those who suffered this kind of trauma are confident in their ability to come forward, because they will be given a fair hearing and have a decent chance of redress. However, that still does not answer the question of what we do with those who have carried that trauma for the length of time that my constituent has. How do we help them?
W e help them in one way, which is by openly confronting all those issues and by having the inquiry, which in my view is operating very effectively and is operating on the principle of the experience of survivors. If members look at the case studies that have been published by the Scottish child abuse inquiry, which I know Mr Whittle will have done, they will see the formulation of language in those thorough and detailed papers that, in essence, comes to the conclusion that it is more likely than not that certain abuse has taken place. The inquiry is, in essence, saying to individuals in our society “We believe you.” I hope that that is a significant factor in persuading individuals to be able to come forward—the window has been created for that to happen.
However, I suppose that the alternative to that is that we have to have a scheme that is open forever. I think that Mr Whittle would understand that the Government feels that we have to put some parameters around the application process so that we can try to resolve the issues that are coming forward.
In relation to the committee evidence at stage 1, we introduced amendments at stage 2 to place a statutory duty in the bill requiring the Scottish Government to review whether it should exercise its power to extend the application period unless it had already taken steps to do so, because there is provision in the bill for extensions to be undertaken. Those amendments imposed a requirement to lay the findings of the review before Parliament for its consideration. The 15-month time period for the review is long enough to ensure that the review can be thorough and that regulations can be passed by the Parliament that can take account of the specific outcome of the review.
In my view, what the bill currently provides for is right and will give people sufficient time to explore which option they wish to pursue. It ensures that the scheme will remain open long enough for survivors to pursue a civil action in the first instance, if that is their preference. It also ensures that those who may be encouraged to come forward by the inquiry’s findings will have the opportunity to do so; and it guarantees that there will be a thorough consideration of whether the application period should be extended, with appropriate transparency around that process.
In relation to the point raised by Mr Johnson, I also want to be clear that the intention is to set a very low bar when reaching a decision about whether there are—I use this word with care—enough potential applications still to come, so that it is right to extend the application period further. Of course, Parliament will have the final say in approving any proposed exercise of that power. We want to ensure that those entitled to redress have an opportunity to apply, so ministers must take account of that factor in determining what is the right thing to do in relation to potential extensions to the scheme beyond what is already provided for in the arrangements in statute.
I hope that those assurances will address the points that have been raised by Mr Johnson. I ask members to accept that, as amended at stage 2, the bill achieves what is necessary in this area. On that basis, I invite Mr Johnson not to press his amendments in this group.
I will be brief. I thank the cabinet secretary for setting that out so clearly. His clarification, both on what is in the bill, as amended at stage 2, regarding the winding up of the scheme and, more important, on the context within which that should be viewed and carried out by ministers at the appropriate time, is helpful and certainly satisfies me at this point.
On that basis, I will withdraw amendment 35.
Amendment 35, by agreement, withdrawn.
Amendments 36 to 38 not moved.
I will address only the amendments in my name in this group, which are amendments 39 to 41 and 45.
I was approached by constituents and campaigners who explained to me their frustrations about the situation with the waiver and sought that I should lodge the amendments.
Over many years, and on an entirely cross-party basis, the Parliament has taken very brave and positive steps to support and protect survivors of historical abuse and to provide a means of securing justice for them—most notably through the Limitation (Childhood Abuse) (Scotland) Act 2017. In doing so, it has built up a degree of trust among the survivor community. The general principle and intention behind the redress scheme represent another positive step forward. We have heard that in the debate from members who have been involved in every stage of the bill’s progress, which I have not. It has been reassuring to listen to their contributions.
However, people feel that the bill is undermined by the insistence that the redress scheme should include a waiver that requires a survivor to make an invidious choice between accepting a redress payment and leaving open the option of pursuing a civil damages claim. I do not think that there should be any waiver at all, and nor do they.
I understand that in its stage 1 report, the committee unanimously asked the Scottish Government to consider alternatives, but there was no movement on that. I also understand that the Government is supported by the Conservatives in its application of the waiver. It is sad to note that, for the first time, the Parliament’s approach to supporting survivors might divide members down party lines. That is very regrettable.
The only option left to members is to lodge amendments to ameliorate the worst effects of the waiver, which is the purpose of the amendments that I have lodged. I hope that members will view them for what they are: an attempt to do the right thing by survivors.
If the waiver in its current form remains in the bill, the cross-party work that has been done will be somewhat undermined. The waiver is viewed by a large number of survivors—who, we should never forget, have experienced some of the most heinous abuse—as a form of high-pressure sales tactic, which serves only to save the Government money in the long term. In the eyes of some, it is seen as collusion with the institutions where abuse happened in the first place, to save those institutions and organisations money.
The provisions on the waiver—and others, too—have caused distress to survivors. I have to ask what legacy the Parliament aims and aspires to deliver in relation to survivors of historical abuse in care. If the waiver remains unchanged, its legacy will be that of a Parliament that built up a lot of trust and hope among the survivor community only for that to be dashed at the final step. If the bill is amended, the legacy can be one of progress, empathy and compassion.
The amendments in my name seek to treat the two types of payments differently. The fixed payment is designed to provide the survivor with a quick, simple and efficient way of receiving what is a very modest payment of just £10,000. It should be recognised that that is very different to the process involved in obtaining an individually assessed payment, which could be as much as £100,000. There is no need for a waiver to be signed to receive the fixed payment, given the sums involved. The amendments will allow the survivor to receive a fixed payment and then take the time that they need to fully consider their options in respect of seeking an individually assessed payment or pursuing civil damages. It effectively converts the fixed payment into an interim payment, which I believe is a fair and reasonable approach.
Amendments 40 and 41 seek to introduce a redress payment as an alternative to a blanket waiver. The policy objective is to provide an applicant with greater flexibility in respect of the choice that they currently require to make between a redress payment or civil damages. The amendments aim to vary the waiver so that the applicant has three choices if they accept a redress payment: abandon an on-going civil damages claim, confirm that they will not bring a civil damages claim in future, or continue with or bring civil proceedings. In the latter circumstances, the applicant would repay the redress payment if the civil damages claim was successful.
That will prevent the survivor being forced to make an invidious choice. It will also allow the Scottish Government, if it approaches the matter fairly, to achieve the purpose that it says that the waiver is there to serve. I think that these are sensible amendments that give victims choice and, most importantly, the respect that they deserve, without undermining trust.
I move amendment 39.
I will make quite a substantial contribution, due to the number of amendments that I have in this group and the substantial change that they would represent. I do not intend on making as lengthy a contribution at any other stage in proceedings.
There is no element of the bill and the redress scheme more controversial than the waiver. It has been thoroughly considered at stage 1 and debated at stage 2, so I will not rehearse those fundamental arguments now. I accept, with regret, that the majority of the committee did not support Iain Gray’s efforts to remove the waiver entirely. However, it is clear that everyone was concerned—that was the motivation behind the unanimous stage 1 recommendation to remove the waiver that Neil Findlay just mentioned. There was—and I hope that there still is—a clear desire across Parliament, and certainly from survivors, to limit the scope of the waiver to the greatest extent possible. It is with that in mind that I will move amendment 42.
Amendment 42 would remove the waiver requirement for those seeking redress from the state, specifically from either the Scottish ministers or local authorities. Legitimate concerns have been raised by the Scottish Human Rights Commission about the waiver’s compatibility with rights of survivors in the European convention on human rights, given that the state is essentially awarding itself immunity.
However, my primary motivation in lodging amendment 42 is that it reduces the scope of a waiver provision that we are all uncomfortable with while preserving it for the purposes outlined by the Deputy First Minister and SNP and Conservative colleagues at stage 2: namely, to ensure that organisations that are expected to contribute will in fact do so. We have been told that the waiver provision is essential to secure the contribution of private organisations. That is not an argument that I agreed with, but I accept that it is supported by the majority—that debate has been had. Therefore, I make this constructive proposal, which would maintain the waiver for that purpose but remove it as a requirement when the survivor is seeking redress from ministers or local authorities—that is, from the state.
Given the state’s ultimate responsibility to protect children, which it has historically failed to fulfil—that is why we are here—a number of survivors have communicated to me that a proposal such as mine would not only increase the likelihood of their engaging with the scheme but send a powerful signal that Government is not trying to avoid its responsibilities. We are all profoundly uncomfortable with the waiver, but if we are to compromise and accept that it will play a part in the scheme, we should look to ensure that it applies only when it is fulfilling a clear purpose. Amendment 42 is by far the most significant of my amendments and I hope that members will be able to support it.
Amendment 49 is consequential to amendment 42. It provides that the negative procedure should apply to the power to introduce a list of state bodies by statutory instrument. It is not my intention to make the process onerous for the Government.
Amendment 43 adds an additional condition to the waiver: that the survivor must have taken advice from a solicitor. The amendment is designed to ensure that applicants have taken legal advice, enabling them to make an informed decision. Waiving the right to take future legal action is a significant and potentially lifelong decision. It is paramount that survivors are well informed. The key factors that survivors must take into account when weighing up whether to take a redress payment with a waiver or to take civil action is how likely any civil action is to succeed, how much they might be entitled to and how long or difficult the process might be. Those are complex questions that clearly require the advice of a legal professional.
By comparison, under employment law, a settlement agreement that is agreed between an employee and employer that involves a payment and includes the employee signing away their right to take future action is binding on the employee only if they take legal advice on it and it is countersigned by a solicitor. A lower threshold than that for abuse survivors seems hardly justifiable.
My amendments set out that the Government must, by regulation, specify the information that the solicitor must provide. That is designed to ensure that any legal advice is high quality, as the waiver would not apply if those conditions are not met. Amendment 50 specifies that the regulations would be subject to the negative procedure. It is not my intention to make this process onerous for the Government; I am simply trying to narrow the scope and to strengthen the rights of survivors.
Amendment 19 does not seek any immediate changes to the operation of the scheme. However, I believe that it is critical if we are to reflect as best we can the serious concerns that have been raised about the waiver’s effect on survivor participation. Remember that at stage 2, the representatives of the former boys and girls who were abused at Quarriers homes told Parliament that if the waiver remains, they would urge Quarriers not to contribute to the scheme and instead to put its money to other worthy causes. In common with other survivor groups that we heard from, they made it clear that they did so because many of their members simply will not engage with a scheme that requires them to sign such a waiver.
However, as I said, we are where we are with the waiver. Therefore, in amendment 19, I have proposed a review mechanism whereby the Government must assess the impact that the waiver has had on survivor engagement with redress Scotland and present to Parliament any actions that it intends to take as a result of that review’s findings. I dearly hope that our concerns are unfounded and that the waiver does not have a significant negative effect on survivors accessing redress payments. However, given what we have been told by survivors, it is the responsibility of Parliament and the Government to, at the very least, check whether that turns out to be the case.
Amendment 19C, which is also in my name, adds that the report should cover instances in which an applicant, had they taken civil action, might have received a higher payment than the redress payment. That reflects concerns that have been raised by Daniel Johnson and others at previous stages of the bill.
Amendments 19A and 19B, from the cabinet secretary, and amendment 20, from Brian Whittle, seek to do the same thing: to mandate an assessment of the waiver’s impact on encouraging organisations to become scheme contributors. That is absolutely the right thing to do, given that the likelihood of organisations contributing is the key argument for the inclusion of waivers in the bill at all. Given that those amendments seek the same outcome, we will be supporting amendments 19A and 19B, from the cabinet secretary. Should they be agreed to, I presume that Mr Whittle will withdraw amendment 20. Otherwise, we will end up with a rather comedy requirement to conduct, essentially, the same review twice, but on different and slightly overlapping timescales. If, for whatever reason, amendments 19A and 19B are not agreed to, I would encourage Mr Whittle to press amendment 20.
Returning to my amendments, amendment 44 amends section 47, on the period for which an offer of redress payment is valid. It does so to add that the redress will remain valid for the duration of any civil proceedings that are brought by an applicant. That will ensure that applicants are not timed out of receiving a redress payment due to having launched civil actions. The amendment is designed to ensure that applicants are not put under time pressure to accept a redress payment while a civil claim is on-going. It addresses situations in which survivors have launched civil action and made an application for redress payment. Without the amendment, an organisation that is defending a civil claim could be incentivised to drag out and delay a civil case, knowing that a survivor has a finite period of time in which to accept an alternative redress payment.
I welcome the other amendments in the group. For reasons of time, I will not go through them all in great detail. Amendment 18, in the name of Alex Neil, is particularly important in addressing the concerns that were raised by me, Oliver Mundell and others at stage 1. In many cases of institutional child abuse, evidence, witnesses or other survivors might only be identified long after the abuse has taken place. It would be deeply wrong for a survivor to sign a waiver on the basis that they did not have a strong enough case for civil action at the time of their redress Scotland application, only for such evidence to later emerge, leaving them in a situation in which civil action would likely succeed were they not prevented from undertaking it by the waiver. If we are to accommodate the waiver, such a provision is essential. It would address the core ethical concern that we have had throughout the process.
I will not take too long. The committee was determined to do two things. First, along with the cabinet secretary, we were determined to get to a stage to allow the legislation to pass before we finish up for the election. The survivors have waited long enough for the legislation, and we did not want to do anything that would hamper the timetable for getting the bill through before 25 March.
Secondly, there has been very broad consensus in the committee on a whole range of issues. There has also been broad consensus between the committee and the Government, in particular the cabinet secretary. The one issue of contention, almost from day 1, has been the waiver. Ross Greer has already made some of the points, but I want to emphasise them. It is fair to say that the majority of the committee were extremely concerned about the principle of the waiver. We would be asking survivors, in return for participating in the redress scheme, to give up their right to civil litigation. That is of concern in principle, and it is of even more concern because the committee got evidence that the waiver provision could contravene human rights legislation. However, that is a matter for the courts to decide at a later date.
The other issue is that the evidence that the committee got was overwhelmingly against the waiver. We got very little evidence that the waiver would incentivise contributors. Even the Government’s evidence on the matter was more assertion than hard evidence. That led the committee to its conclusion in the stage 1 report that the Government should consider getting rid of the waiver. For reasons that the cabinet secretary has outlined, the Government was resistant to doing that. Although I do not agree with the Government, I accept its position, and I understand where it is coming from. Therefore, at stage 2, we did our best to accommodate the Government’s position by mitigating potential ill effects or unintended consequences of applying the waiver. Much to his credit, the cabinet secretary lodged substantial amendments at stage 2 that mitigated a number of impacts of the waiver. The amendments were very welcome, and they were all passed easily by the committee.
The purpose of amendment 18 is to further mitigate the potential impact of the waiver, particularly for people who sign the waiver in good faith but who at a later date—sometimes years later—get hold of or become aware of evidence and proof of their abuse that is strong enough for them to undertake civil litigation and win damages that are much greater than even the maximum award under the redress scheme. We had witnesses from other jurisdictions who said that that has happened in other countries.
I am not claiming for a minute that there would be many such cases—the evidence showed that those occurrences were rare. However, it is the duty of the Parliament to accommodate rare occurrences, particularly with something as fundamental as compensation for abuse. There is never compensation for abuse in that sense, but where financial compensation at least might be available, I believe that we owe it to the survivors to include a provision in the bill under which they can go to court and argue their case in those rare circumstances. If they win, the court can then decide whether to offset the redress amount or whatever—it does not need to be laid down in law. The key point is that, in those circumstances, the survivor would have the right to go to court.
To take away that right is a mistake. Finding new evidence is a very particular but very important circumstance. Given the evidence that the committee got and given that we have compromised with the Government in retaining the principle of the waiver in the bill, I believe that we should accommodate that point and ensure that the impact of the waiver is mitigated in such circumstances. That is what amendment 18 does. The other amendments in my name are all entirely consequential and would come into play only if the chamber passed amendment 18.
I thank the other members of the committee, the cabinet secretary and everybody who has co-operated on the bill. It is not an easy subject to deal with and nobody has a silver bullet for getting everything right but, in this case, we should try to ensure as far as we can that the people who find themselves in these terrible circumstances have an opportunity for a successful civil litigation, should they have the ability to pursue it.
Forgive me, Presiding Officer—I suspect that you probably know what is coming. I will have a lot to say on this section, and I would be grateful if I could be given the appropriate opportunity to do so.
I acknowledge at the outset of this group that the issue of the waiver is by a great distance the most sensitive one in the bill. It is the issue on which I have spent the largest amount of time as I have tried to address the points that the committee has raised at different stages and to get to the best possible position. I know that all members, regardless of their politics, share a desire to get the bill, and the scheme that it will deliver, correct for survivors.
The waiver issue is central to the bill and it is right that Parliament debates it today. Unfortunately, different views exist around the question of the waiver. I have tried to navigate a course that puts in place a scheme that will be fundamentally correct for survivors. One of the points that survivors have made to me, which is fundamental to the nature and composition of any redress scheme, is that organisations that have been responsible for the unacceptable behaviour and conduct that survivors experienced must make a contribution. I want to ensure that we deliver the contributions that survivors seek, and that the nature of those contributions holds organisations accountable to address the failures of the past. Those that are responsible must contribute fairly and at scale. As I have tried to address this issue, which is at the heart of the bill, I have concluded that waiver is the only way in which that approach can happen.
The scheme is designed to secure collective participation and to say to survivors that a range of organisations are facing up to the past. Although I acknowledge the seriousness of the issues that have motivated members to submit them, all the amendments in this group, which come from a number of different perspectives, would—in my view—dilute the collective endeavour that is being put together to secure contributions at a meaningful scale from organisations to address the suffering that has been experienced by survivors. My concern is that a number of the different propositions that have come forward, which I will go through in detail, could lead to a situation that would disadvantage survivors by discouraging the contributions from organisations.
Waiver encourages those that are responsible for the past to actively play their part now for all survivors who apply to the redress scheme. Diminishing the value of the waiver removes that encouragement and might return us to a place where those who are responsible for care in the past fold their arms, sit back and wait to see how many survivors take them to court.
I know that it has been a difficult topic for everyone to deal with, but if we are to gather contributions now, at the level that survivors rightly seek and deserve, in order to deliver a national collective redress scheme, my view is that the waiver needs to be part of that scheme.
A number of key amendments in the group fundamentally undermine the waiver provision, and I will deal with them in turn, but my principal objection is that, if one or all amendments are successful today, it means that redress is not an alternative to court; that endangers contributions and profoundly changes the nature of the redress scheme. That point is crucial because, in the way in which it is designed, redress is an alternative to court. If we make these changes to the waiver, I believe that it is undermined. We are trying to provide a scheme that is relevant to all survivors, and they are free to exercise a judgment about whether it works for them or whether they wish to pursue court action.
First, I address Mr Findlay’s amendments. Amendment 39 would mean that the waiver applies only to individually assessed redress payments and, under amendments 40, 41 and 45, only where a survivor chooses for it to apply. Doing even one of those things would severely restrict the level of contributions that we can secure, because providers would continue to face litigation and would need to keep reserves to pay for it.
Amendments 40, 41 and 45 amount to the same as having no waiver in the scheme at all, because providers will have no way of knowing how many survivors will choose waiver rather than repayment. Those amendments create a complex hybrid model that, while potentially offering more choice to those who are already able and willing to go to civil court, does nothing for survivors who are unwilling or unable to pursue that path. I consider that it diminishes the effectiveness of the only option that is available to them.
Waiver maximises contributions from organisations, charities, trusts and local government, because it allows them to plan their financial affairs and contribute to payments for survivors now rather than waiting for litigation.
The point that I make to Mr Findlay, which is a point of reflection on the debate, is that different views about that are held within the survivor community. Mr Findlay properly started his contribution by saying that he has had representations from constituents who are survivors and who act on behalf of survivors. I acknowledge that but, equally, Mr Findlay will appreciate that there are different views on those questions within the survivor community. Some of the survivor community have taken a pragmatic view of the waiver. I do not think that any survivor is saying that it is their first and greatest choice to see in a bill, but they accept the pragmatic argument for it being there in order to elicit contributions from organisations. That is the best way I can respond to the point that Mr Findlay fairly makes to me.
As we have heard, the decision-making bodies of organisations have duties to consider on the responsible use of their funds and the protection of their current services, which is the point that Iain Gray has fairly made. What I am trying to say is that the waiver plays a part in providing some quantification of the degree of financial risk to which organisations are exposed and, therefore, provides greater certainty while enabling those organisations to acknowledge the failures of the past. It may be almost impossible for those bodies to responsibly use charitable or public funds to make a contribution to redress when they have no duty to do so without the assurance that doing so would reduce their risk of future litigation. Our model of waiver, which extends to all payments that will be made under the scheme and which makes the scheme an automatic alternative to litigation, provides that reassurance.
Introducing an option to forgo the waiver in favour of a commitment from a survivor to make a repayment to the redress scheme offers no protection from litigation nor indeed from the costs that come with that. Providers would be more inclined to pay nothing now and wait until they were compelled to pay by a court. For survivors, that would mean that only those who had successful outcomes in court would be able to receive a financial contribution from those organisations that were responsible for them at the time of the abuse. I do not believe that that is fair or is what a redress scheme should seek to do.
As with all the key amendments in group 7, the loss of contributions would unquestionably impact most significantly on those who cannot—for example the pre-1964 cases—or those who do not want to go to court.
I move on to the amendments that Ross Greer has lodged, beginning with amendment 42, which seeks to remove the effect of the waiver for the Scottish Government and local government. The Scottish Government and our colleagues in local government recognise the need to contribute to the scheme. The Scottish Government has committed to funding all set-up and running costs of the scheme. That includes establishing and staffing redress Scotland—the division of the Government that is required to support the scheme—fees for applicants to obtain independent legal advice, and the cost of practical, emotional and therapeutic support to survivors. We will also pay a contribution to every redress payment and, where the relevant provider has not contributed, we will pay the costs of the redress payments in full. That is a significant financial commitment from the Government on behalf of the people of Scotland. Sadly, it reflects the nature and the scale of the abuse that has taken place.
As with third-party organisations, it is appropriate that the waiver applies to the Scottish Government, in order to provide assurance on the financial probity of and accountability for, in this case, public finances. Waiver is the mechanism that delivers the responsible use of public money, allowing for recognition and acknowledgement of the harms of the past while appropriately reducing the risk of future litigation against the Government.
Local government has been a major provider of care for children in Scotland, whether through the direct provision of care or through a role in the placing and safeguarding of children. In the interests of transparency, Presiding Officer, I advise members that the Convention of Scottish Local Authorities has written to me to make an offer on behalf of Scotland’s local authorities of a collective contribution of £100 million to the redress scheme. However, it has been clear that that offer is made on the basis of the proposals that are contained in the bill, which include the waiver. Naturally, any change to the waiver would therefore necessitate a review of that offer, with the implication that that would involve a substantial reduction in the commitment that is made. The removal of the waiver for local government would directly jeopardise that substantial offer, which I unreservedly welcome, from local government.
Finally on this point, I remind members of the other steps that the Government has taken to respond to survivors of historical abuse. Those include the establishment of the Scottish child abuse inquiry, the passing of the Limitation (Childhood Abuse) (Scotland) Act 2017, and the setting up of Future Pathways. We are absolutely confronting our responsibilities to survivors. The redress scheme is an example of that commitment.
Moving on to amendment 43, on legal advice, I appreciate what I believe may be the intention behind the amendment, which is to encourage applicants to obtain independent legal advice before signing the waiver. Indeed, in developing the bill, we considered whether we should make it mandatory for survivors to do so. Ultimately, however, we were not persuaded that compelling survivors in that way was appropriate or trauma informed. Survivor choice must be empowered and respected, and we cannot force survivors to engage and disclose deeply personal and sensitive matters to a solicitor as a prerequisite for redress.
In practice, amendment 43 would mean that a waiver signed by a survivor would have no effect if legal advice had not been taken by that survivor. Far from ensuring that survivors have had meaningful legal advice before signing the waiver and accepting payment, the amendment provides a strong disincentive to their doing so. Survivors may decide that it is in their best interests not to seek legal advice, so as to keep the option of civil litigation open, and those who do not obtain advice might end up receiving less from the redress scheme than they ought to because they have not had the benefit of legal advice throughout the process.
Who will be the ultimate arbiter of whether consideration has been given to whether a survivor has had sufficient independent advice or is in the best position to make an informed choice and decision at the time? Will it be the panel that makes the award, or will there be some other process? Ultimately, that protection must lie somewhere, otherwise there might be individuals who feel they have done the right thing but who have not.
The best way that I can answer that question is by saying that, ultimately, the decision must rest with the individuals themselves as to the course of action that they take, because they must satisfy themselves either that pursuing a redress claim and exercising the waiver is the right thing for them or, alternatively, that they should pursue a civil action. The Government will undertake to ensure that every option is available for those individuals to take the necessary advice or to have access to the support that enables them to take the necessary advice, to ensure that they are making the wisest decision in their circumstances. We would, of course, encourage people to take legal advice, because that would help them to formulate a judgment about whether whatever course of action they were proposing to take was, in fact, the right course.
Amendment 43 would create an inequality between those who took legal advice—as they would be bound by the waiver and unable to pursue legal damages—and those who did not. Ross Greer’s amendments might also risk survivors being encouraged by others not to seek legal advice. Instead, they could make an application for a redress payment as an initial step before seeking damages in a civil court. That raises the possibility of creating an industry of people without legal training offering to assist survivors with their applications in return for a percentage of their redress payment. The amendments and the uncertainty that they would bring over which waivers could be relied on would significantly undermine the effectiveness of the waiver for organisations that were considering making a contribution. I therefore cannot support those amendments.
I believe whole-heartedly in the importance of funded legal advice for applicants. Indeed, the amendments that Jamie Greene has lodged, which set out a requirement for the scheme to provide accessible information on that to applicants at material points, provide the correct approach, in my view.
I move on to the amendments concerning reporting on the effectiveness of the waiver, including the amendments lodged by Brian Whittle. I have lodged my own amendments to Ross Greer’s amendment 19, to incorporate the crucial element of Brian Whittle’s important proposal, so that we can create one consolidated reporting requirement. I am grateful to Mr Whittle for the points that he has made, but I want to create a consolidated provision that enables us to strengthen the reporting requirements.
It is important that we consider the effectiveness of the waiver in relation to the impact that it has had on securing contributions from organisations, as that is the key driver for including the waiver as an element of the scheme. I am very appreciative of Mr Whittle’s consideration of the issue, and it is fundamental that his proposal is included in any report on the effect of the waiver. However, it makes sense for there to be one report rather than two, considering the factors that have been advanced in amendments 19 and 20, and I feel that the shorter timescale in amendment 19 might be preferred by Parliament. As I have sought to incorporate that aspect of Mr Whittle’s amendment into Ross Greer’s amendment 19, I ask Mr Whittle not to press his amendment, but instead to support amendments 19A and 19B.
I support Mr Greer’s amendment 19, but I do not support amendment 19C, which seeks to include in the report whether there is evidence to suggest that applicants would have been awarded a higher amount of damages or compensation by a court had they pursued relevant civil proceedings, as that could not reasonably be accomplished. We cannot make assumptions about damages that might have been awarded. Such assumptions would always be inaccurate due to the individual consideration of the facts and circumstances in a court process, as well as the fact that many cases are settled out of court, and the information would be subject to non-disclosure agreements. We have said many times that we know that the payments that are offered under the redress scheme might, in some cases, be lower than some of those that are offered in successful civil court cases. As I have said, the redress scheme seeks to offer a distinct non-adversarial and trauma-informed alternative to the court process, as well as offering funded legal advice and access to non-financial redress. Therefore, it is not necessary, appropriate or workable to include that requirement in amendment 19.
Amendment 44, which was also lodged by Ross Greer, seeks to ensure that, when an applicant has commenced civil proceedings, offers of redress should remain open until those proceedings have concluded. Following stage 1 recommendations, at stage 2, I lodged amendments to increase the standard period of acceptance from 12 weeks to six months, and I stress that the decision-making panel already has the power under section 47(3)(b) to extend that standard period of six months when it considers that there is good reason to do so. That power could be used in circumstances in which there was an on-going court action. I therefore regret that I cannot support amendment 44.
Although I whole-heartedly agree that applicants should have the time that they need to decide whether to accept an offer, I believe that section 47 combined with the duration of the scheme already achieves that. Further, amendment 44 could create several difficulties for the scheme. Court proceedings are not clearly defined in the amendment, so it could potentially apply to matters wholly irrelevant to redress. Moreover, proceedings can last for long periods, especially if they are sisted. If offers had to remain open throughout, it could make it impossible to wind up redress Scotland at the end of its natural life. In addition, contributors might not know for many years whether an offer was going to be accepted and what the extent of their liability would be under the commitment to pay a fair and meaningful contribution to the redress scheme. There is no similar extension offered to those who have had their offer reviewed, in which case it is section 56 rather than section 47 that determines for how long the offer is open. I would not wish to do anything to deter applicants from seeking a review. For those reasons, I cannot support amendment 44.
I turn to the amendments lodged by Alex Neil. Amendment 18 seeks to provide that, when there has been a change in circumstances or when new information has been obtained, an applicant may apply to have the waiver that they signed disapplied. The issue was raised at stage 2 by Mr Neil, and the Government has considered it very carefully. I have met Mr Neil to discuss the issue. I have looked at it in great detail and I am not without sympathy for the position that Mr Neil takes. However, the thorough exploration of the issues that I have undertaken has led me to the conclusion that there is no way to introduce the amendment as lodged by Mr Neil without acutely jeopardising the financial contributions to the scheme that survivors want. Although I understand Mr Neil’s intention in lodging the amendments, there is no doubt that being able to seek to set aside the waiver in such a way would significantly undermine its effectiveness.
Amendment 18 is drawn very widely and would apply such subjective grounds that it would generate significant uncertainty and would likely be unworkable. It would also fundamentally alter the functions of redress Scotland, which is intended to focus primarily on the determination of applications in a non-adversarial way, in contrast to alternative civil remedies that might be open to applicants outwith the scheme. The introduction of a new process, which could lead to the reopening of civil remedies, could impact on organisations that, in good faith, have agreed, made and continue to make fair and meaningful contributions to the scheme in reliance on the waiver.
We want survivors to choose redress only if they are satisfied that they have fully explored the option of civil court actions and have decided that redress is right for them.
I am grateful to the cabinet secretary for his explanations. However, he said at the beginning of his remarks that some of the amendments in the group would fundamentally undermine the waiver provision. Will he clarify on what basis that is? Is it a legal basis, or has he had direct communication with potential participants who have said that, if the provisions were to be included in the bill, they would not or could not take part? Or is that a speculative conclusion at which the Government has arrived? On what basis does the cabinet secretary think that the amendments will undermine the waiver more generally? When new evidence comes to light that was not available to an individual at the time, I think that we should be open to reopening the process, because, intuitively, that seems to be the fair thing to do.
I will make two points in response to Mr Johnson’s fair question. The first is on the general design and purpose of the waiver, which is to provide certainty to providers and contributors. In making a contribution on the basis of a waiver having been signed—I rehearsed all the arguments around that earlier in my contribution—a provider organisation has financial certainty of the exposure to risk that it faces. That is one point in the assessment.
The second point relates to the scope of Mr Neil’s amendment 18, which casts the net rather widely regarding the circumstances that might change. The wording of the amendment is subjective and broad, and I do not think it would provide the narrowness that would result in even a small number of cases presenting in that fashion. As a consequence of that, the financial certainty that comes with the waiver—which was my first consideration—would be undermined.
Mr Johnson asks on what basis I make those observations. My team of officials is doing good work in dialogue with contributors. I have been very open with the Education and Skills Committee about that dialogue, and it is after listening to that dialogue that I have formed my judgment. Can I say to Mr Johnson that I have absolute certainty on that point? In the interests of the transparency of this debate, I cannot say that. It is my judgment, and it is based on the dialogue that we have had with the contributors.
The scheme is designed to ensure that, when a survivor signs a waiver, they have been supported to obtain evidence and legal advice, they are clear on the consequences and they are content with their decision to pursue redress rather than litigation. Therefore, we do not expect circumstances to change often in a way that requires matters to be revisited. The bill was amended at stage 2 to ensure that, if new material evidence is found, any applicant who has received a redress payment below the maximum can apply to have it reconsidered and a higher amount awarded if appropriate.
On balance, my view is that, in trying to find a solution to a problem that might affect only a small number of survivors, Alex Neil’s amendments could mean the loss of financial contributions from organisations, which would be to the detriment of all survivors.
I cannot be certain that only a small number of cases would be affected, so it would undermine the certainty of the entire scheme. That is the point that I am making.
I have detained Parliament for a long time on this group, for which I apologise.
The Presiding Officer:
Cabinet secretary, I am going to interrupt you for a second. Members will not like this, but I am afraid that the BlueJeans connection has been lost in the past few minutes. We are sitting in a hybrid meeting, so, in essence, we have lost half the chamber. We are making an effort to restore the connection. We can see all the members, but they cannot see or hear us. I will therefore suspend the meeting for a few moments. I am sorry to prolong matters, but I hope that the suspension will be for only five minutes.
Parliament will be encouraged to hear that the next words that I will utter are to conclude on this group.
Although I understand the concerns that have been raised, I believe that the waiver is an essential provision at the heart of the bill. I believe that it is the only means of securing contribution at scale, while providing a credible alternative to court that is non-adversarial and is trauma informed.
The design of the scheme will ensure that survivors will have all the information and advice that they need to make an informed choice between the redress scheme and civil court. Those decisions can and should be respected and upheld once they have been made.
Parliament, and the Education and Skills Committee in particular, has contributed a great deal to the bill, not least a number of survivor-focused amendments that strengthen safeguards and improve the waiver for survivors.
I ask that members support amendments 19, 19A and 19B on reporting on the waiver to ensure that its effectiveness is monitored once the scheme is open but to resist the amendments that seek to alter the basic function of the waiver.
The redress scheme is designed as an alternative to justice and accountability for survivors. We must deliver for those who cannot and do not want the ordeal of a court case. They must not feel that their provider has escaped facing up to their responsibilities.
As we have recognised over the past 45 minutes to an hour, the Government’s insistence, throughout the bill’s passage, to retain the waiver has caused much debate and concern, not least among some of the survivor communities.
We know that the waiver is included to try to assure public authorities, voluntary organisations and other persons who might contribute to the redress scheme that a victim will not be able to take their case against them to the civil court should they accept a redress payment.
However, the current system allows for a payment to be made by the Criminal Injuries Compensation Authority under a situation similar to the redress scheme, but the law allows the victim to take their case to the civil court at a later date should they so wish, with any compensation awarded in civil court requiring the CICA compensation to be deducted.
Having listened to Alex Neil, I want to be able to support his amendment, and, having listened to Neil Findlay, I want to be able to speak up against the waiver. However, given that I and other members have been unsuccessful in persuading the Scottish Government to remove the waiver, my amendment would require it to assess whether the bill has had the intended result of getting a voluntary contribution from those organisations and individuals who it wants to encourage to participate, which I think is entirely reasonable.
I think that the next Parliament will have to look again at the bill and amend it accordingly. Therefore, it is reasonable to allow for an evaluation of a contentious part of it, which would allow the Parliament to consider amending it accordingly, should that be required.
I do not think that that ask should be contentious. I hope that members will consider that and accept the opportunity for a future Parliament to scrutinise the effectiveness of the bill.
I will stop there, Presiding Officer, given the length of time that the discussion on this group is taking.
I start by agreeing with the cabinet secretary; it is certainly true that survivors want contributions to be made to the scheme by the organisations that are responsible for the abuse that they suffered. That was very clear in the evidence that the committee took.
The problem is that the method of doing that—the waiver—is seen by many survivors as an abrogation of their rights, because they are required to give up their right to civil justice in order to benefit from the redress scheme. Therefore, the danger is that in trying to achieve one thing that survivors want, the cabinet secretary undermines their trust in the scheme itself. That has always been the core of the problem.
The cabinet secretary’s argument—which he has marshalled again today—is that potential contributions will not be made by those providers unless the waiver is in place. The problem is that during the whole course of consideration of the bill he has been unable to provide evidence from potential contributors, with the exception of COSLA, which I will come to, who are willing to say that that is the red line—the critical factor in whether they will be willing to make a contribution. Indeed, they have said—
I understand the point that Mr Gray makes, but I invite him to reflect on all the evidence that the committee heard. In written evidence, a number of organisations made the point, which I have made during the debate, that the waiver gives them financial certainty about the risk that they have to manage.
That is true of the written evidence that was given to the committee. However, when a number of those organisations gave oral evidence to the committee they said that if the waiver was there they were happy to have it, but that it was not the thing that they needed to ensure that they made a contribution.
That is why I lodged amendments to remove the waiver at stage 2. Those amendments were not supported by the committee; that is certainly the case. As Ross Greer said, we are where we are, and where we are is with a group of amendments, all of which, in different ways, mitigate the effect of the waiver. For that reason, they are all supportable and would improve the bill.
The cabinet secretary made the fair point that by providing an additional choice to those accessing the redress scheme, Neil Findlay’s amendments essentially remove the waiver. They would also ensure that if a person were successful in a civil case they would have to pay back what they had received from the redress scheme. Therefore, although we will support Neil Findlay’s amendments for the sake of consistency, I have to accept that, given what happened at stage 2, those are not likely to succeed.
Ross Greer’s amendments remove the waiver in the particular circumstance when the claim is against the state—either the Scottish Government or local government. It seems that if anybody should be persuaded by the moral imperative to participate in this contribution scheme in response to their responsibility for what happened to survivors, without the financial incentive of the waiver, surely it is the state. The state should not need a financial incentive to see out its obligation to contribute to the scheme.
I say to the cabinet secretary that if I were a survivor watching this debate and I heard him say that COSLA has offered £100 million but that it is contingent on the waiver, I would hear an argument that the waiver is required to save money and reduce the cost of the contribution of the public purse. I have to tell him that if I were a survivor, I would be very angry.
Ross Greer’s amendments would remove the injustice of the waiver in respect of a provider that should not need that financial incentive to participate in the scheme. In my view, where it is the public purse that is going to pay redress, survivors do not mind which bit of the public purse—whether it is local authorities or the Scottish Government—it comes from. They want other providers to make a contribution—that is absolutely true.
Ross Greer’s amendments would accept the cabinet secretary’s core argument with regard to non-state providers, but they would remove the waiver for state providers. That would be an improvement to the bill.
However, if the waiver remains, that brings us to Alex Neil’s amendments, the key one being amendment 18. We started our consideration of the bill today by all agreeing with each other—in relation to Jamie Greene’s amendment, I think—that those who are accessing the redress scheme must be able to take decisions with all the important and relevant information available to them. However, under the scheme, where they make a decision with all the information available to them and then, at a later date, new information, which they could not have known would appear, appears, they will be stuck with the decision that they took in the first instance. That is simply unfair.
As the cabinet secretary said, there will not be numerous cases in which new information comes forward that casts doubt on the decision to sign the waiver in the first instance. The argument that the amendments would somehow fundamentally undermine the waiver does not, therefore, hold much water.
The truth is that, with regard to the bill, the most important thing is that we sustain the trust and support of survivors in the scheme that we are setting up. We have in the bill a measure that threatens to jeopardise that, and we have before us a series of amendments that would mitigate that circumstance and rebuild the trust of survivors in what we are trying to do, which would be to the benefit of all. For those reasons, I argue that we should support the amendments in the names of Neil Findlay, Ross Greer and Alex Neil.
I will cover much of what I want to say on this topic in the debate on the bill, after we have finished our consideration of amendments, but I feel that it is important to talk about the matter in the context of the debate that we are having now. I hope that members will forgive me for that.
I commend all members—including Neil Findlay, Ross Greer and, from the Government side of the chamber, Alex Neil—who have lodged amendments in group 7. From the outset of the bill process—to go back to a point that was made earlier—although we may sometimes have disagreed along party-political lines, none of the positions that anyone has taken have been political decisions. That is important. The committee approached the bill collectively and respectfully, and there was no politics in it whatsoever.
Members have lodged the amendments in group 7—rightly—in response to the many valid concerns that have been raised. I am no flag waver for the waiver. I have no ideological attachment or opposition to it, and I have approached the bill, and the amendments today, on the basis of the scheme’s merits, the technical application of it as drafted and, accordingly, the amendments themselves.
However, the concept of the waiver remains in the scheme as it is presented to us in the bill at stage 3. Disaggregating the moral and ethical arguments around the waiver—which are valid—from the technical aspects is a challenge that the committee faced. I feel that the cabinet secretary has given technical responses to an emotional issue
I am sympathetic to some of the amendments in the group, but I want to make a few important points. The amendments that have been lodged by Brian Whittle and Ross Greer would introduce provision for an important review of the efficacy of the waiver. That is a new concept that we have come up with, as a Parliament, at stage 3, and I am glad that the Government has taken that on board. That is important because, if the proposed waiver, which the Government has argued is needed, is not working, we will see and know that very quickly.
I have also had conversations with COSLA, with individual local authorities and with potential contributors, directly about the waiver. They have not all said that their contribution is entirely dependent on there being a waiver. In fact, many have been forthcoming in saying that, if the waiver were to be removed, they would still participate, so it is not a given that removal of the waiver would detract from contributions. However, they are sure that none of their insurers would cover the cost of participation in the scheme, and they were all concerned about potential liability in relation to their sustainability as organisations.
The argument that organisations’ insurance companies would not cover the contribution to the scheme and that, therefore, the waiver is required, does not really make sense, because if their insurance companies would cover liability in civil actions, that is an argument for not participating and for waiting to see survivors in court.
As I said, I am not defending the concept of the waiver. I agree. I can say only what I have heard from my conversations. The insurers have been clear that there is a risk of liability in any civil proceedings. That risk will not go away even if organisations participate in the scheme. Participation in the scheme will not provide immediate protection against civil litigation. Many organisations will still be sued by individuals. Blanket protection will not be afforded by contributing to the scheme, because those who choose not to go down the redress-scheme route will, of course, have the option of pursuing a civil case anyway.
I am making the point that people to whom I have spoken have said that there is a perception that insurers will cover their backs financially, but that that is not the reality. That is an important point.
Another important point is that, as I said earlier, participation in the scheme is not mandatory. I want the scheme to work and to go ahead. I do not want us to pass a bill that is full of legal holes. I want contributors to participate in the scheme. I fear that if they do not, we will lose not only their financial contributions, but that symbolic participation. The reality is that, even if not one local authority, faith organisation, charity or care home contributes a single penny to the scheme, three things will still be true. First, the scheme will still be launched. Secondly, it will still make awards. Thirdly, the amount that is paid through the awards will not be altered, differ or disappear in any way depending on the contributions that are made and who makes them.
I want to make another point about some of the amendments that are before us. With respect, I say to the cabinet secretary that, if they had been lodged at stage 2, I would probably have supported them. I would have created an almighty headache for him and his team, because the members who have lodged them make valid points.
If the waiver remains part of the scheme in a bill that the Government has created, disapplication of the waiver is a completely valid concept. Again, I say that I would have preferred to have had that debate at stage 2. There are scenarios that are not covered by the bill, but which would lead to the very scenario that Alex Neil talked about. I have no answer to the question what would happen if someone signed a waiver, but substantial evidence was brought forward down the line that made them feel that they had made the wrong decision. I do not know what the cabinet secretary or redress Scotland would say to those people. I do not know how to fix that conundrum, but nor do I think that the approach that Alex Neil proposes, through the specific technical wording of his amendments, would enable the problem to be resolved. Those who are most at risk of falling into that category are perhaps those who should not be signing a waiver or, indeed, accepting payment at all. That underlines the importance of my amendments, which will ensure that we maximise choice and options, and that people can take informed decisions.
I have never thought that the waiver is in the bill for the fun of it. The good people in the bill team who have designed the scheme have nothing to gain from keeping the waiver without good reason, so it is with huge reluctance that I accept their informed judgment on the matter. However, if we are happy to remove the waiver and to have no contributions from anywhere other than the public purse, I am fine with that, too, but that also goes against the grain of the scheme.
I regret that I will not support a number of amendments in the group.
Like Iain Gray, I completely agree with the cabinet secretary that we have to maximise participation of contributors to the scheme, because it is not simply a case of financial contribution or imperative. It is about moral imperative, because, frankly, in order for the scheme to be successful, it has to maximise inclusion of the people who are ultimately responsible for perpetrating abuse of the individuals who will be seeking redress through it. Without that participation, and regardless of what financial compensation individuals manage to obtain from it, if those organisations do not participate, there will be many applicants who, despite being given compensation, will feel that justice has not been done because of lack of acknowledgment and participation by those organisations.
I understand that and it is hugely important. Everything that we do must ensure that we maximise that participation. That is why I understand why the waiver is in place. I have never misunderstood why it is there. I have simply questioned two keys things: whether in practical terms it will deliver what has been claimed—that is an argument and a discussion for another time—and, critically, whether the balance is right in terms of securing that moral requirement of maximising participation, as set against people having to give up their rights.
This is fundamentally about a balance between those two moral considerations and it is a point of principle. That is where I have to disagree with Mr Greene—it is not an emotional point, although emotional things connect to it and there are undoubtedly emotional consequences. It is a point of principle—a series of principles that are quite easy to understand.
Let us be clear: this is about maximising access to justice. Again, we can agree on that point and with the cabinet secretary. The scheme will provide a route to justice for many people who have no other route, because it is difficult for those people to obtain evidence and it is traumatic for them to relive their circumstances. Those two points alone will, for many people, mean that the civil courts are unavailable to them.
What happens if those things change? What happens if the circumstances arise in which the person can face court and face those issues? What happens if the evidence is available and could be pursued but the person has already taken payment and has therefore set aside those rights and so is unable to pursue things?
There is not simply that point of principle in relation to changes of circumstances, because this is a scheme that is limited in scope in two fundamental and very important ways: first, in terms of what the compensation payments will compensate for, because it is not all about aspects of injury and it is not all about aspects that might be covered in a civil court. The scheme will compensate only for the seriousness of the actions that were perpetrated on the individual and will not take account of their impact or consequences. Critically, it will not compensate people for loss of earnings, as they would be if they pursued a case through the civil courts. Compensation is therefore limited to £100,000—that is the maximum payment that can be obtained.
It stands to reason that there will be circumstances in which an individual will discover new evidence—an archive box is discovered or a book is found on a bookshelf that establishes beyond doubt that something happened that somebody would have struggled to establish in a court of law previously.
There can be circumstances that will affect an individual for the rest of their life, impacting on their earnings and harming them to a far greater degree than £100,000 of compensation could acknowledge or make up for.
It is not hard to imagine that a person might have close family members who believe so strongly in the institution that perpetrated the harm upon them that they would feel unable to pursue a claim against that organisation through redress Scotland. When that person’s relatives have passed away, their circumstances would change and they might feel able to pursue a claim. Their injuries might be such that they could gain far more than £100,000.
A person’s trauma might be such that its full consequences might become clear only later in life, after they had obtained compensation through redress Scotland, at a time when they were unaware of what that later impact would be and did not know they would have received far more than £100,000 if they had pursued their claim through the civil courts.
Those reasons about changes of circumstance, or new evidence or a person’s ability to take their claim through the civil courts, mean that the scheme, as it is currently constituted with the waiver in place, threatens not to provide easier access to justice. It is not a scheme by which someone can more easily obtain compensation. Instead, it might perpetrate further injustice against individuals who have already been badly harmed by the institutions that were meant to look after them.
Alex Neil’s proposal is not unrealistic; it is not outrageous or too broadly framed. It is a modest proposal that simply seeks, when someone’s situation changes, to allow them to apply, through ministers, to have the waiver disapplied. It is important to note that that is what his amendment requires. It is not a random process. People would have to apply through ministers and the course of action would have to be approved by redress Scotland. As the cabinet secretary has already acknowledged, there will be limited number of people who go through such changes in circumstances.
I understand the cabinet secretary’s point about certainty. It is important that, if we are to seek contributions, we provide contributors with as much certainty as possible. However, that certainty will never be cast iron or absolute. Even within the terms of the scheme, it is not possible to predict the level of individually assessed payment that an applicant will get. We do not know how many people will apply or how many of them might be able to reapply. That certainty is not there; it does not exist in the way that the cabinet secretary asserts it exists.
At the moment, the bill has the potential to seriously disadvantage a person when new circumstances or new information come to light. In so doing, it runs the risk of meting out new harm upon that individual, which is the last thing any of us would want. That is my real concern.
Brian Whittle alluded to this. If such circumstances do obtain, and if even a handful of people find themselves with new evidence or information and know that they would have made a different decision if their circumstances had been different, Parliament will have to revisit its decision. It will have to pass new legislation to remove that waiver for those individuals. That is why I think that we should pass amendment 18 today. We should be improving access to justice, not meting out new injustices to people who have already been so badly harmed.
I would have intervened on two earlier speakers instead of making a speech, but it was not possible to intervene as those were remote contributions.
I apologise to Ross Greer if I misheard him, but I think that he said that the committee was unanimous at stage 1 in asking for the waiver be removed. I want to clarify that. We had a lot of discussion about the waiver, but at no point did the committee in its stage 1 report recommend that it be removed. We sought further clarification from the cabinet secretary as to how the mechanism was intended to work.
The extensive work that has been done on the waiver at stage 2 and now at stage 3 is very important. It comes down to the principle of whether the waiver should be there. I look to the international comparators and see that, with one exception, in Western Australia, every other redress system that has been put in place by a legislature has had a waiver.
In relation to the point at which someone makes the informed decision whether to take the redress payment that is on offer or to pursue the issue in the civil courts, and in relation to the duty on providers and the state to help people to find the evidence that they need for their case at that point, I believe that the work that has been done and the amendments that have been made today will absolutely make the choice an informed one for survivors.
It should not be me who is winding up on this group, Presiding Officer, because I have not been invested in the issue in the same way as other members have, so it would be more appropriate if they wound up. However, I understand the protocol.
There have been excellent contributions on the issue—those from Daniel Johnson and Iain Gray were outstanding. They completely understand the impact of the waiver on people who are the victims of historical abuse.
I listened to the contributions from Brian Whittle and Jamie Greene, and they sounded remorseful. I think that they do not believe the position that their party has taken. If they were true to themselves, they would vote for all the amendments in the group—I hope that they will consider that when we come to vote on them.
If the waiver is to remain, we have to ensure that it works in the interests of victims and not the institutional abusers. To me, the waiver looks as though it puts the corporate or institutional entity at the centre, rather than the abused.
In debates, we all sometimes argue that those on our side of the debate who agree with us are the people who speak for everyone involved—in this case, the victims—and that everyone who does not agree with our case is on the other side of the argument and is wrong. That is what the cabinet secretary has done. However, if we asked those who have been victims, “Do you want a waiver to be in place?” my perception is that, overwhelmingly, they would say no and that we should take it away. That would put the victims at the centre. It would put them in control. It would give them options as to what they do next.
In my response to Mr Findlay’s intervention earlier, I was not in any way casting aspersions or doubting points of view that are different from mine; I was simply saying that there is a diversity of opinion.
The point that I want to make in this intervention—forgive me for advancing this detail—is the fundamental one that this is an incredibly difficult part of the bill. I acknowledge that. It is about trying to create the right balances that address the interests of survivors in as wide a respect as we can.
A lot of survivors—and definitely those where the abuse took place pre 1964—have no court option available to them, and the redress scheme opens up a route for them to get redress. For others, evidential requirements, other barriers and the fact that they would find it difficult to confront the issues make it impossible for them to go to court. Therefore, we are providing a route for them. For those who have the evidence and the ability and capacity to face a court action, that option is still available. We are also trying to address the fact that we want a contribution from providers. Survivors tell us that they want providers to be in the frame to make a contribution.
What I am trying to say in this rather lengthy intervention on Mr Findlay—as he correctly says, he is closing on this group, but I am trying to respond to some of the issues that have been raised—is that there is an agonised balance to be struck to try to create a route for as many survivors as possible.
Is it perfect? I am not going to suggest that it is; nothing in all of this is perfect. This is about trying to create as reliable a route for as many people, who currently do not have that route, as possible. However, it is also about leaving open the choice for those who wish to pursue civil action, having been properly informed with advice about what the scheme can offer. I hope that that helps to capture some of the dilemmas.
That was a lengthy intervention, and I think that it was helpful.
However, the amendments in the group that have been lodged by various people from different parties seek to make the scheme even better. That is the intention: no one put forward any of those amendments to make the situation for victims worse. They were all lodged with the absolute best of motivations and intentions and in consultation with those who have been wronged, with the aim of making the situation better for them.
I am grateful once again to Mr Findlay for giving way. I unreservedly accept the point that he has just made—that members have lodged amendments in a difficult area to try to, as they see it, enhance the scheme. Equally, the Government is trying—as it tried at stage 2—to do exactly the same thing, but in different ways to those put forward by those members.
This is an unbelievably difficult concept to get around, in a bill that is unbelievably difficult to understand. We are talking about a redress scheme for financial compensation in which there is a waiver that would prevent people from pursuing a civil action. We are talking about that in terms of finance, but I wonder whether Neil Findlay agrees that it is not just about financial compensation. For the person who suffered the abuse, receiving financial compensation might not satisfy the emotional redress that is required and, to do that, they might, at a later date, need to seek some sort of civil court case, so it is not just about finance.
Absolutely. Much of my time in the Parliament has been spent dealing with campaigners who seek justice in different campaigns. Money has no relevance to them. For the overwhelming majority, it is about getting recognition for their lives being wronged, wasted and destroyed, whether by corporations, Government or other institutions. It is first about justice; financial elements come much later.
To the cabinet secretary, I say lightly that he was in his weakest territory when he started to talk about the Government having to be careful with public money—particularly today, when we have just poured another £4.5 million down the drain on further delays to the ferries contract. I make that only as a small barb, because we look at the amount of public money that is being wasted on a whole range of policy areas, whether on delayed discharge in hospitals—
The Presiding Officer:
There will be a division. We will suspend for five minutes to allow members to be called to the chamber or to access the voting app.
17:54 Meeting suspended.
18:02 On resuming—
We go straight to the vote on amendment 39.
Th e vote is now closed. Please let me know if you were not able to vote.
I will attempt to be brief, which I am sure will be welcomed by members. The amendments in this group relate to a simple and understandable idea, which is that many survivors simply do not know what happened to them, why it happened or even by whom it happened. My amendments seek to ensure that, where information is obtained by redress Scotland, it is made available to applicants so that they know as much as they can and no information is held by redress Scotland that is not available to the individual applicant. That has come from situations that survivors have reported to me in which useful information has been obtained by the inquiry. My amendments seek to ensure that any such information that is obtained by redress Scotland is provided to survivors. That will obviously be subject to the information laws that exist; none of what is proposed will supersede any of that pre-existing legislation. However, what is proposed is a simple but important idea. I thank the Government and the bill team for their co-operation and help in drafting the amendments.
I move amendment 21.
I thank Mr Johnson for lodging these amendments and for his constructive engagement with the Government, following stage 2, in connection with this issue. The amendments will enhance the survivor focus of the scheme by providing proactive reassurance that those who apply to the scheme will have the right to access information and evidence that is held by redress Scotland or the Scottish ministers as part of that person’s application. The amendments reinforce transparency, which is such a critical aspect of the scheme, in order to command the trust and confidence of survivors. I echo Mr Johnson’s comments and I ask members to support the amendments in this group.
Amendment 21 agreed to.
Again, I will attempt to be brief. It is important that redress Scotland does its work in conjunction with survivors, mindful of their perspective and experience, and that it does so in a trauma-informed way. The survivor forum will provide important insight to redress Scotland. It will provide survivors with the ability to oversee, comment on and provide input into the working of redress Scotland. It is important that that is placed in the bill; I note that it was always the Government’s intention to establish a forum, but giving it the strength of statute will strengthen its work and underline its importance.
I add an important note that that oversight and assistance is very much in general terms. There is a specific exception in the bill that the survivor forum will not oversee individual cases; it will involve the broad and general working of redress Scotland. Again, I thank the Scottish Government bill team and the cabinet secretary for their co-operation and assistance in drafting amendments 26, 29 and 30.
I move amendment 26.
Briefly, I welcome Daniel Johnson’s amendments 26, 29 and 30. I am very pleased that he has lodged them and, more so, that the Government will support them.
Many elements of the bill have been contentious and we have had quite a robust debate. The creation of a survivor forum is, I think, a fundamental part of redress Scotland as it launches and starts to accept applications, and it is important that the voices of survivors lie at the heart of any future changes and alterations that the next Parliament has to make to the scheme, if required. In conjunction with some of the review clauses that have been added, the amendments are welcome. Those are important reviews of the scheme and I thank Daniel Johnson for putting them into the bill rather than relying on their taking place down the line. I will be pleased to support them.
I thank Daniel Johnson for lodging his further amendments on the survivor forum, and I am happy to support them. I share his intention that survivors should play a key role in improving and enhancing the delivery of the scheme throughout its lifetime.
We have long been committed to the establishment of the forum but had chosen not to provide for it in legislation, so as to ensure maximum flexibility as to its functions and how it would operate.
A fundamental principle of the forum is that it will be survivor led, and we wish to give survivors as much choice as possible in what the forum does and how it does it. We have begun a process of engagement on the forum with survivors and others. What we provide for in the bill needs to be capable of adapting in the light of that on-going engagement. I am satisfied that the revised version of section 93A will allow for that development.
There are issues around the confidentiality of information that is supplied by applicants, which should not be passed to the forum. I am confident that the provision that is already in the bill at section 83 provides adequate protection and reassurance to survivors. I will, however, make sure that that point is reflected in the explanatory notes that will be produced.
I am pleased to support amendments 26, 29 and 30.
Amendment 26 agreed to.
The Presiding Officer:
That concludes the consideration of amendments.
As members might be aware, at this point in the proceedings, I am required under the standing orders to decide whether, in my view, any provision in the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill relates to a protected subject matter—that is, whether the bill modifies the franchise or electoral system for Scottish Parliament elections. In my view, the bill does not, and therefore it does not require a supermajority to be passed at stage 3.