Education and Skills Committee

Meeting date: Wednesday, January 27, 2021

Official Report 681KB pdf

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Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill: Stage 2

Item 7 is an evidence session on the bill. I welcome our witnesses. I have a note from the clerks that says that David Whelan from Former Boys and Girls Abused in Quarriers Homes is in attendance but that we are still waiting for confirmation of Mr Aitken’s attendance—we will bring him on board if he manages to join the meeting. We also have Helen Holland and Simon Collins from In Care Abuse Survivors and Janine Rennie, the chief executive of Wellbeing Scotland.

I ask members to indicate that they wish to ask a question by putting an R in the chat box.

The witnesses will know, because they were there, that the evidence that they gave at stage 1 led in particular to the recommendation in the committee’s report that the waiver whereby survivors who are to benefit from the redress scheme must waive their right to seek justice in the civil courts should be removed from the bill. The witnesses will have seen from the correspondence with the Deputy First Minister that he is going some way to mitigate some of the waiver’s effects. For example, he has listened to the evidence that more time is needed to allow survivors to decide whether to accept a redress payment and sign the waiver or to refuse the payment and keep their right to civil justice.

My question to the witnesses is simple: in your view, and in the view of the survivors whom you represent, is that enough of a change, or do survivors still feel that the principle of the waiver undermines their confidence in the bill?

09:00  

If any panel member wishes to come in, they should indicate that by putting an R in the chat function. As I cannot see everybody on the screen, I am afraid that raising a hand will not help very much.

We had a meeting with a large team of survivors yesterday. We also have a team of survivors who have introduced a petition about the waiver. Survivors are not satisfied at all by the changes that have been proposed. They still feel that the waiver is a betrayal of everything that they have been through over the years and a large number of survivors have said that they would fight it all the way if they felt that a waiver was still going to be in place in the bill.

They come back to the same argument, which is that a lot of survivors would sign the waiver but, years later, circumstances might change. For example, there might be a case that was not able to succeed; however, more survivors could come forward and then it would be able to succeed. Survivors feel that, when they signed the waiver, they would not know all the possible ramifications, which might be two or three years down the line. Things are changing all the time, with more survivors coming forward and more ability to seek civil redress.

Survivors want the choice to seek that, and a number of them have told me that they feel that the waiver is a betrayal. The meeting yesterday was very angry; every meeting that we have had has been the same, and nothing that has been produced has changed that. They feel that it is an absolute betrayal and that their choice should absolutely be respected.

Although I understand that there has been a waiver in a lot of other countries, survivors feel that the situation in Scotland is unique and should not be considered along with evidence from other areas.

In relation to INCAS and the many survivors who engaged with the consultation, I agree that there was an element of misunderstanding—that is probably the right word—across the board. The biggest issue with the waiver is that it is linked to contributions. It is all well and good to say that Scotland is unique, but it is not unique in the sense that we are talking about redress, and there has been redress in many countries.

Even if I went down the civil court route, for example, the reality is that I would probably need to sign a full and final settlement agreement or some kind of financial agreement at the end of that process; if I was doing an out of court settlement, I would probably have to do the same thing.

The survivors have the right to go down the civil court route. In relation to the bill, we are now talking about a prolonged period of time of six months for the survivor to get independent legal advice. Within that legal advice, the survivors would be able to make a choice. What is coming across from our members is that, although everybody is talking about rights, they have not heard people talking about choice.

Survivors have waited a long time for this coming and—quite frankly—many have already made that choice for themselves. We have members who are going down the civil court route; equally, we have members who are patiently waiting for the redress scheme to open. It will never suit everybody; I do not dispute that at all.

There appears to be a lot of confusion, which for me is the biggest difficulty. People do not fully understand that there would be an agreement at the end of any financial settlement. The reality is that it has happened in every other country in the world. My concern is that, if it does not happen here, care providers will simply stand back and do nothing. They will not engage unless there is a waiver and, if there is no waiver, who will pay the redress? It would have to be the taxpayers of Scotland, and how is that justice for the survivors? It would mean that, at the end of the process, the care providers would walk away without acknowledgement of the fact that the people who allowed the abuse, or the organisations where the abuse took place, had not been held to account. I do not know any survivor who would find that to be justice.

I am not saying that there is an easy answer; it is extremely difficult. It is not for us to decide—it is for the committee to decide. That is the predicament.

Thank you very much. I will bring in Simon Collins.

It was helpful for Helen Holland to speak before me, because she has explained the views of INCAS members. I am aware that there are different views and legal opinions on the waiver. Now that the committee has heard the INCAS view in general on the waiver, I return to the question that was asked, which was whether we are satisfied with the steps that are proposed as the bill goes from stage 1 to stage 2. There are a couple of things to say. First, the increased length of time to consult is essential—that is recognised and welcomed.

Secondly, if there is to be a waiver, which is still a big issue that others will engage with, it is also essential that consideration is given to making the waiver capable of revocation. Survivors do not believe that every organisation that undertakes to contribute will follow through. That doubt is based on what has happened in the past; it is not wild supposition, because it is based on examples. Survivors want to know that, if they sign a waiver and waive their rights, conditions have to be met, and that, if those conditions are not met, they have the right to put the waiver aside and pursue an action.

The issue that remains is the provision of proper advice. From our written submission, members can see that I am still concerned about the interpretation of sections 89(2)(d) and 89(3) of the bill. Section 89(2)(d) says that a survivor will be given cover for legal advice on

“whether to accept an offer of a redress payment and sign a waiver”,

but section 89(3) suggests that that will not include

“legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment.”

That reads as meaning that people will not be able to seek legal advice before they engage in a process and before they make an application—that is how I understand it. However, if it is intended to be at the point when the waiver is signed, it is totally unacceptable. You cannot waive a right without full understanding of what the right is.

That part of the bill must be made clear, because my reading of it is not clear. It must be made clear that, at the time that a survivor has to sign a waiver—if they are to sign a waiver—they will be given proper advice. I suggest that that should mean counsel’s opinion on the prospects for and likely outcome of civil litigation. That is the only way that someone can make an informed decision.

Mr Whelan has been able to join us. I will bring him in shortly, after quickly going back to Janine Rennie.

I have a clarification to make. Helen Holland alluded to survivors not understanding, but it has been clear to me throughout that survivors have a really clear understanding of the process. When survivors receive legal advice at the beginning of the process, they do not know the future and what the prospects are for a civil action three years hence. A lot of survivors have expressed that concern to me.

I forgot to mention that the insurers have not been at all clear about whether they will contribute to a redress scheme. Although for, say, Quarriers homes, some survivors might sign a waiver, there might be a large cohort—we have worked with 135 survivors from Quarriers homes—that will not sign. An organisation contributing to the waiver scheme will not mean that there will not be litigation against it because, although one survivor might waive their rights, another 100 survivors might not. I do not see that there is an incentive for insurance companies to contribute to the waiver scheme.

The survivors do not see a connection between the contribution of organisations and whether they have accepted the waiver scheme. They are not really interested in whether organisations have signed up to that. They are more interested in receiving maximum compensation and justice for what they have endured.

David Whelan, would you like to come in on that? I appreciate that you were not with us when the question was asked.

Good morning. Can you hear me?

Yes, we can.

Sorry about that. There was an issue in logging on.

I picked up some of the last part of the conversation. I understand that it was about the waiver and contributions. For us, the issue is about those two things being linked. There was no suggestion of that in the consultation; I agree with Janine Rennie, who said in her submission that no linkage was made.

When it comes to the waiver, I find it extraordinary that—[Inaudible.]—may want to contribute, such as Quarriers. Those residents will have to sign a waiver, if the scheme comes into place. If other institutions do not contribute, their former residents will not have to sign a waiver. Whoever thought that up has created a system that discriminates completely against various residents, at a basic level.

We have been told that the waiver is based on contributions that will come from the insurers. FBGA has worked out the liability for the current Quarriers cases. It is significantly lower than what the Scottish Government is asking the organisation to contribute. Insurance companies are commercial private companies and therefore have a financial interest whenever they do business. Why does anybody think that insurance companies would contribute to a scheme far more money than is their current liability, as they are being asked to do? I do not understand the rationale behind that plan.

If I missed part of the question, convener, you can give it to me and I will be happy to answer.

We will keep the debate going, Mr Whelan, and if you want to come back in we will bring you back in. I will bring in Helen Holland briefly, before we go back to Iain Gray.

I have a very brief response to what Janine Rennie said. What I meant by survivors being confused was to do with the consultation paper and process in that the link between the waiver and the contributions was not clear.

Thank you. I will bring Iain Gray back in.

I am happy for colleagues to come in.

To move on a wee bit, what are the witnesses’ views on the variations between payment levels and the maximum level of payment? Do they think that higher payment levels might make survivors more amenable to the waiver? If there was less of a difference between the different levels of redress scheme payment and civil court awards, would that make a difference to witnesses’ views on the waiver?

I think that it would—absolutely. In comparing the redress scheme with civil court action, we must consider the reality that many survivors are over 65. For them, and especially for the pre-1964 survivors, who, let us remember, have no choice about the court option, if the settlement figures were more in line with civil court action—again, with the correct legal advice—yes, absolutely, that would be deemed fairer for the survivors who engaged with the redress scheme.

09:15  

If a survivor comes to the redress scheme and, within that period their legal advice is, “Actually, with the evidence that you’ve got, you would be better taking civil court action”, it will be for the survivor to make the choice. If a survivor says to their lawyer, “I know I could probably get more from civil court action, but, for me, it’s about more than finance,” that needs to be respected as well. It is unique to the individual, but my understanding from the consultation process is that the majority of survivors who have been waiting 20 years just want it to be done and dusted. They want to be able to move on with their lives and put all this behind them, because the longer it goes on, the longer they have to engage with those thoughts and memories. Therefore, just on the basis of what has been said, it probably would make a difference to the survivors.

Helen Holland mentioned that a higher level of payment would assist. I want to make two points, one of which is about the difference between the proposed levels of payment and the payments that were made in Ireland. Looking at the responses to level 1 payments, reference is made regularly to the intention to set up a non-adversarial system. I cannot understand why, from a legal perspective, that is linked to the level of payment. The benefit of the non-adversarial system is the ease of access for those who apply and the reduced legal costs. As a lawyer, suggesting that legal costs should be reduced could get me turned out of my private clubs, but there we are. Reducing legal costs is the advantage of the scheme, but that should not affect the level of payment, because the abuse that has been suffered is what triggers a level of payment. The fact that we have made it easier to access that should not justify a lower level of payment.

Helen Holland mentioned the pre-1964 survivors. When consideration of redress was first raised along the lines that we are talking about today—it has been discussed for many years—one of the significant moments was Angela Constance announcing that there would be a bill to remove the time bar. David Whelan, Helen Holland and others were in the room at the time. The promise that was made was that those pre-1964 survivors, who cannot have their time bar removed, will be treated equitably, in a way that is comparable to the position of post-1964 survivors. The only way that that can be achieved is by the pre-1964 survivors being able to achieve through this scheme what they would have achieved through the courts. Unfortunately, for obvious reasons, there is a reducing number of pre-1964 survivors, but if we are to deliver on the promise that was made back then, and which has continued to be made, pre-1964 survivors must be eligible to be assessed for the payment that they would have achieved in court, because they do not have the option of going to court. There should not be an upper cap on that.

On the banding of payments, there are huge jumps, from £20,000 to £40,000 to £80,000. In paragraph 80 of its response to the committee’s stage 1 report, the Scottish Government states:

“We remain concerned that a wider range of payment levels may result in different payments being offered for similar experiences.”

Wherever you draw a line and people on one side of the line receive one payment and people on the other side of the line receive another, there will be people who fall either side of that line whose experiences might be similar. When there is such wide banding, the difference is double the payment—it jumps from £20,000 to £40,000 to £80,000. That is much starker than if the difference were less, so a greater number of bands and more assessment are needed.

Mr Aitken has managed to join the meeting, so I welcome him.

I thank the clinical professionals whom we commissioned to write a response to the Government’s draft assessment framework on behalf of Former Boys and Girls Abused. It is clear that many elements were missing from the Government assessment paper.

Based on the consultation, it became very clear that survivors wanted their individual experience recognised in any process, and that they wanted further assessment of testimony that would recognise the whole experience of the survivor—not only the abuse experienced but the life circumstances. Aggravated circumstances are not currently recognised in the assessment framework. Experience of sexual incidents, disability and racial discrimination—a number of children suffered abuse in Quarriers homes because of their colour—are a significant handicap to survivors as they enter the labour market, because of what occurred. There is a loss of opportunity, which is not addressed.

That goes to the heart of what the payment system actually is. It should be there to address the whole-life experience of the survivor. Currently, the figures go from £40,000 to £80,000. The financial memorandum makes clear that the Scottish Government based its calculations on the fact that everyone will be pushed down into a calculated sum and the majority of payments will be around £32,000.

First, I do not know how the Government arrived at that calculation, without seeing the detail. Secondly, the payment levels can certainly be expanded and improved; we only need to consider other schemes. If what we and our clinical professionals have said is missing from the assessment framework is addressed, those gaps will also be addressed. The payment level should go all the way up—beyond £80,000 to £100,000 and £125,000 for the most extreme and exceptional circumstances.

I ask the committee to have a good look at the Lambeth children’s homes redress scheme and its modelling approach, which identified levels on a scale and matched them with people’s experiences. The Lambeth model is excellent. Eighty-three per cent of applicants to the Lambeth model received payment, council legal fees were 7 per cent and applicants’ legal fees were 10 per cent.

We want a survivor-centred, trauma-informed process that—as the convener has said—puts the survivor at the centre of the process. It is difficult to see how the Government’s figure was arrived at. We are working with the model that came out of the consultation, but, from my recollection, there were no other models on the table. We have considered Janine Rennie’s model, and there is merit in some of that. However, we are working with the Government’s model, and there was no choice of others, based on my recollection.

We have tried to improve the bill as best we can and to help the Government. I want to thank the Scottish Government, particularly John Swinney and his officials Claire Soper and Donald Henderson. We recognise that there has been significant progress in latter years, which has happened under Mr Swinney’s brief. We thank him for that and for engagement with Scottish Government officials. The conversations are difficult but that can be overcome and we are committed to working with the Government to overcome those difficulties.

Thank you, Mr Whelan. I am going to bring in Ms Rennie.

[Inaudible.]

Ms Rennie, we missed the start of that.

Can you hear me now?

Yes, we can.

On the question of whether survivors would accept the waiver if there was a higher level of payment, the survivors have been very clear that they would not. They still feel that they should have the choice. They know that there are plenty opportunities where, if there has been double counting of money then, as with the criminal injuries cases, there could be other ways of reclaiming any money that has been paid out. The survivors are very clear about that.

It is not about the amount of money. The survivors have been very clear that it has nothing to do with the money; it is about the betrayal that they feel. They are clear that they would never agree to the waiver. They feel very strongly about that, and they wanted me to stress it.

I welcome David Whelan’s paper. That is the first time that we have ever really talked about the impact on survivors. When I was reading through it, everything that was said about the long-term impact on survivors of abuse resonated with me. I do not think that the levels of redress are adequate. We have been delivering the In Care Survivors Service Scotland since 2008—for 12 years—and I have worked personally with survivors on a therapeutic basis. The level of physical, emotional and all other forms of distress that we have seen in everybody that we work with is significant. Essentially, £80,000 is two years’ salary for a lot of people, whereas we have worked with people who have never been able to work because of the severe distress that they have faced. How do you compensate them for that? I feel really strongly about that.

I should also say that the clients do not want a panel; they are very unhappy about the idea of a panel. They do not want to have to speak about their experiences to anybody else, because they have done it so many times.

Since we started, 12 years ago, we have worked with thousands of survivors in a clinical way and we have a huge number of incredibly thick clinical files. Survivors have said to us that they are quite happy to access their files and then present them as evidence. That shows the significant levels of physical and emotional distress that survivors have faced. In some ways, survivors feel that those files are their evidence.

Some of those survivors have worked with us for the whole 12 years, and one of them gave me a letter to bring to the committee. He feels really strongly that nobody represents him and that he has to speak for himself. He knows that there are other survivor organisations but he feels that nobody represents him and that he has been betrayed for the whole of his life. That particular survivor has not worked for the past 20 years because of the level of abuse that he received, and he lives in poverty. He said that he might feel compelled to take the money but that he might want to kill himself a year later because he had felt compelled to take it.

That is what we need to consider. As David Whelan’s paper shows, we are dealing with human beings who have been through distress that nobody should ever have to experience in their lives. They were betrayed and let down.

I find it really uncomfortable that we are arguing over a waiver, because it should not exist. It should absolutely be the case that the survivors get the choice that was taken away from them as children. They did not have a choice then. They were placed into a care setting against their will and their lives were essentially destroyed.

09:30  

We cannot take the choice away from them. It is what we have all been fighting for for years, and the survivor who I referred to has been fighting for it for his entire life. We should not take away the choice for those survivors as to how they receive their redress and whether they go to a civil court or to the redress scheme. No amount of legal advice will be able to make them understand what it will mean to them when they make that decision. That is what is important to me, because I know survivors who settled but then felt horrible about that. We need to think about what the impact of suicidal ideation will be down the line, as I do not think that that has been considered.

Thank you. I see that both Mr Whelan and Ms Holland have indicated that they want to come back in on that point. However, I note for the record that I am bringing Ms Mackay back in and that Ms Wishart, Mr Johnson, Mr Greer and Mr Greene all want to ask questions as well, so if the survivors do not mind, I will not come back to you this time. You may address previous points when you answer the questions going forward, if you want to do so. I want everyone to have the opportunity to say their piece and to ask their questions, if that is okay with everyone. I will go back to Ms Mackay just now. [Interruption.] I think that Ms Mackay has finished her questions. I will move now to Ms Wishart.

What are the witnesses’ views on the composition of the redress panel? I would like an understanding of where they are on that at the moment.

The redress panel should have a wide range of skills. Clearly, it is basic that it should be trauma informed. We suggested in our first submission what the skill set might be. The important thing for us is that the panel is independent and impartial and has lawful discretion to make independent and impartial decisions. We believe that the words “lawful discretion” in relation to the panel should be included in the bill.

I want to go back to a couple of previous points. We have had legal advice from international lawyers that, in the Scottish circumstances, the waiver will be unlawful, even if the Government tries to argue that there were different circumstances in the Irish case. We had that confirmed last night by the international lawyers who worked on the Irish case. I am saddened that we have got to this point and that, as Janine Rennie said, we are arguing over a waiver that has many strands to it but is supposed to make the scheme successful. It is just incredible.

I am also astonished by the deafening silence from the Catholic church and the Catholic establishment. We have not heard anything. I do not represent the children who were in those institutions, but I think that the Parliament has a clear duty with regard to the voluntary contributions. Quarriers, CrossReach and Aberlour have committed to trying to find a way to make contributions if the conditions are right. We believe that, if the waiver is not there, people will be able to make those voluntary contributions. People are looking at Aberlour, Quarriers and CrossReach, but they have already committed to the voluntary contributions. I think that we should be looking the other way, at all the organisations that have not committed to the voluntary contributions.

The other point that I want to make is about eligibility. The Government must understand that we are really struggling with the fact that the Scottish child abuse inquiry has investigated all these institutions but it is not legitimate for former residents in half of them to access the redress scheme. How can you have a system, on which there has been an inquiry, that denies those former residents access to a redress scheme?

We are saying to the Government that it has a once-in-a-lifetime chance to redress all the issues. Ireland has done that. It is now setting up its third redress scheme, which will take about three months—it is due to start in April.

The Irish route is addressing all the issues of all the survivors from every institution. The Scottish Government needs to consider doing that, too. The Government will have to revisit the issue. We are telling it that it has an opportunity to address the issue and make the scheme one of the best in the world. We, in Scotland, are the last to do anything—let us stop pretending that that is not the case.

I will bring in Ms Holland at this point.

We seem to be having a wee bit of trouble with the connection.

Can you hear me now?

We can hear you, but we cannot see you.

We can see you now.

I am sorry about that. I got logged out of the system.

The consultation papers mentioned the redress panel, but, to be honest, there has not yet been a great deal of discussion around who would be on the panel, and so on. That has still to be covered. We ask that the panel members be qualified with trauma-informed and financial qualifications—whatever the situation requires—but those conversations have not taken place yet.

On the issue of who is engaging with whom on redress, we are not privy to the conversations that are taking place between the Government and care provider bodies. That might be right, in a way, because the burden of responsibility of deciding who is paying what should not lie on the shoulders of the survivors. They are already carrying so many burdens, and that would be yet another one.

As I said, the conversations have not taken place yet, so it is difficult to answer the question.

Okay. I have not seen any indications from Ms Rennie or the other witnesses that they want to come in on that question, so I will go back to Ms Wishart.

Ms Wishart has indicated that her question has been answered, so I will move to questions from Mr Johnson, please.

I have two related questions on the evidential requirements for redress, so I will wrap them into one. There was a lot of detail on that topic in the written submissions, and we have examined the matter quite a lot. My questions follow on from Janine Rennie’s comments.

My first question is: what should the evidential requirements be for making an application? Do the witnesses agree with Janine Rennie’s points? How should the requirements be formulated, so that it is clear and easy for survivors to present that evidence?

Regarding my second question, I received a direct communication from a survivor who is keen that any information or evidence that is obtained by redress Scotland be provided to survivors. Many survivors do not necessarily know everything that happened to them, including where they were, or why. It is therefore possible that redress Scotland could obtain information that survivors simply do not have. That is not a matter on which we took evidence, so I am interested in hearing from witnesses about the possibility of requiring redress Scotland to hand back any information that it holds, subject to the protection of other individuals’ privacy.

My two questions are on evidential requirements and the requirement to hand back any information to survivors at the end of the process.

At INCAS, we have a lot of experience of engaging with the child abuse inquiry. It is clear from what Janine Rennie said that there are organisations, such as hers, with which survivors engage and to which survivors spend a lot of time explaining the traumas that they have suffered, to the extent that they relive them. Whatever the basis of the evidence gathering, at all stages, it should be borne in mind that, whenever it is possible to gather evidence from a source without requiring survivors to go over very painful ground, that is the only appropriate approach.

I welcome the fact that an approach will be made to the inquiry. Many, although not all, survivors who want to come forward have engaged with the inquiry, and that is one means of gathering their evidence. Therefore, I welcome the fact that an approach has been made to Lady Smith about whether the information that is already held there can be used.

On the point about returning information, I am aware that, in the course of giving evidence to the inquiry, survivors have encountered documents relating to them that they have not seen before, including records that had been lost. Survivors might have spent many years struggling to find that information and, in some cases, put together a sense of identity from it. I cannot speak on behalf of survivors, but I have observed the distress that can be caused when such documents are locked back in a vault because they are part of confidentiality arrangements. Having observed the reaction of survivors, it seems to me that information that is obtained should be left with the survivor to use as they wish.

As Simon Collins said, we do not want the survivor to have to keep retelling their experience, as they will have repeated it many times. For us, it is important that the survivor is at the heart of the process and chooses the support mechanism that they want to take them through it.

On evidential requirements, people ask me, “David, when did this all happen?” For FBGA, it all started in 2002. I pay special tribute to two women who had the courage and tenacity to highlight the Quarriers abuses. They were in the media in 1984—one was Jan McQueenie, and the other was Doris Black. They were ostracised by the state and the Government because they had the tenacity to raise issues in the media about the abuse that they suffered in Quarriers in the 1940s, 1950s and 1960s. Unfortunately, they are now deceased, but their families will have some evidence, which is where next of kin come into it.

09:45  

I have a second point, on evidential requirements. In our submission, we talk about the standard of proof, which needs to be lawful. We keep hearing from the Government that the process is not a civil proceeding, but we want the evidential standard of proof to be robust and credible. My concern, if I have one, is that the pre-1964 records of many survivors were destroyed, which means that much of what the committee might consider to be evidence that would normally be available to meet the requirements is, unfortunately, not available to survivors. We are concerned that, if the bar is set too high, it will exclude many survivors. The committee needs to consider that when it thinks about where the threshold should be set. We have an open mind on that—we have addressed it with regard to what I have just said.

On the governance of redress Scotland, it is important to put on record that we believe that redress Scotland should be independently regulated, with independent audits and impartial surveys of its functions. It will not give survivors confidence if the whole process is embedded in the Government. If a report were to come out from the Government that said that the organisation was doing fine, it would not, unfortunately, be independent or impartial.

On the gathering of evidence, we are concerned about what happens to the evidence when it is submitted to the process. Where does it go? Where does the consent and permission of the survivor start and end? If the survivor submits a document that requires to be validated, we believe that there is a need to go back to the survivor to ask for permission. There should not be a unilateral decision to send the document to a third party without the permission and express consent of the survivor.

On sharing information and data, I agree completely with Mr Johnson. If redress Scotland has information to which a survivor has not previously had access, it needs to find a way to share that with them while abiding by the data protection legislation. Redress Scotland cannot simply take the view that it can hold everything. If it has information on people who have not been able to access that information, it should share as much of that data and information as possible with the individual.

It is important that going for redress is a survivors’ process. It should be for survivors to choose which information they provide to whatever body is set up. We have been very much involved with the advance payments scheme in respect of access to records. Since the In Care Survivors Service Scotland was established, in 2008, one of its main roles has been to access records for survivors, so we already hold substantial records that survivors have been looking for over the years. A lot of the client files will contain their access-to-records information, with evidential information on what care home they were in and so on.

As I said when I gave evidence previously, one concern is the number of fires and floods that have occurred, which means that a lot of evidence unfortunately no longer exists. We have had reports back from two of the care homes that we are currently dealing with to say that there are absolutely no records. We have tried our hardest to go through school records and all sorts of different routes to find evidence that people were in a certain care home and, from that, to provide evidence that abuse took place, but it has been really challenging.

One important point that comes across all the time from survivors is that, when clients access their records, those are their records—and they should have support to go through them. We initially developed the model of access to records through the Care Leavers Association down south, which gave us some support in setting it up, drawing on its experience. It came across clearly from the association that there would be things in files that people did not know about. For instance, siblings had no idea about all sorts of information, which was a surprise to them. For their safety and to address risk, it is really important that people are supported through the process of accessing their records. We have been encouraged by the advance payment team, who have provided support and worked responsibly with us to ensure that we can access client records. We hope that that will continue. In Care Survivors Service Scotland has 12 years’ experience of that.

The records should belong to the survivor—I have been clear about that from the beginning. Every bit of information on a survivor should belong to the survivor—and that fits with the general data protection regulation, or GDPR. If the panel manages to find any additional information, it should go to the survivor first so that they can choose what information is then shared, as somebody would if they were looking to give their general practitioner’s records to an insurance company. What information is shared should be the survivor’s choice, as there might be aspects of their past that they do not remember being discussed and they should have a chance to reflect on that.

I would ask the panel to reflect again: how would you feel if some stranger got hold of your GP records and there were things in there that you did not want anybody to know? It should be the survivor’s choice what is known. The redress scheme is the survivor’s scheme, and it should absolutely be their choice what is shared within that.

At the moment, there is an assumption that there will have to be a high level of evidence, but nothing has been said in the debate or anywhere else to suggest that. The whole point of the redress scheme is that the evidence required would be less.

I take on board exactly what is being said. For years, survivors were told that records did not exist and so on, but the child abuse inquiry has proven that to be absolutely wrong. For example, I was told that there were no procurator fiscal records, but they appeared before I was due to give evidence, so the reality is that there are records that are not being made available.

In the redress board, perhaps something could be put in place whereby the people who hold the records are compelled to provide them and the survivor—together with a support worker—is able to go through the records, not necessarily for the sake of proving that they were abused or whatever, but to find whatever it is that they wish to put before the panel.

INCAS’s position is that providing any evidence that is already out there, in order to avoid a survivor having to go through their experience over and over again, has to be a priority.

Many of our members who applied to the advance payments team thought that they did not have anything—they were told that they did not have anything—but the support people in the advance payments team or the people who were dealing with the applications were able to find that evidence. There is a lot of evidence out there that people think is missing, but it is still there. I am not, however, saying that that will be the case for everybody—some survivors will have difficulty, and I would not sit here and say otherwise.

Going back to the question about the basis of evidence, we do not know what level of evidence is being asked for at this stage. Until there is clarity on that, we are making the assumption that a high level of evidence will be required, although my understanding from the feedback both from the minister and from officials is that the level of evidence that will be required will be much lower. Given how the scheme has been set up and how things have been written, the redress is said to be more trauma informed, and there is no desire to make survivors relive all their experiences. That is my understanding, to date, of how the redress scheme is being set up. I may have picked that up wrongly, but I do not think so.

I agree completely with what Janine Rennie says and also with a number of the points that Helen Holland raised. Mr Swinney is on record as saying that the evidential requirement will be lower—that is in our submission. The committee and the Parliament will have to come to an agreement on where to set the standard of proof, so that it matches the lower evidential requirement.

We will move on to questions from Mr Greer.

Let us turn to the issue of fair and meaningful contributions from organisations, following up on something that Helen Holland said in response to the first question from Iain Gray. There is some tension around the matter of fair and meaningful contribution. If we work on the assumption that contributions will be met directly by the organisations—probably from their reserves, because it is not a scheme that the insurers will engage with—the challenge becomes how to ensure both an appropriate level of contribution from the organisation and that any survivor who comes forward is able to get financial redress, no matter what.

That takes us to the point that Helen Holland made about how much comes from the Government and is public money. Some organisations will be able to cover all that is asked of them, although whether they do so is up to them, as it is voluntary. However, given that we cannot predict how many people will come forward and how much the sums will be, it may simply not be financially possible or realistic for some organisations to cover it all themselves. Also, some organisations may wish to give a lump sum at the start of the process but, by the end of it, survivors’ demands of that organisation might outstrip that sum.

I am not asking the panel to come up with a solution, and I recognise that what survivors want, overwhelmingly, is redress from the organisations, not from the Government. However, it would be helpful to hear the witnesses’ reflections on what it would mean for survivors if we ended up in a situation in which organisations made what was broadly regarded as a fair and meaningful contribution but that did not cover the demand, so that financial redress for some survivors came overwhelmingly from the Government.

Respectfully, Mr Greer, I disagree with what you are saying about survivors expecting the institutions to carry the complete burden of redress. The ultimate responsibility lies with the state, so it should be a shared burden. The providers, as we can see, have asked that conditions be set so that contributions are fair and meaningful, affordable and sustainable, which would enable them to contribute.

We believe that that would also enable lots of other institutions that wish to contribute to do so. Some of the institutions no longer exist, so there is, again, an issue with the waiver. Some of the institutions have trust funds that are on-going and that operate slightly differently, but they may wish to contribute a sum. I think that the committee needs to take an open view of the matter, because every organisation will be different.

The expectation is that, based on numbers, one organisation could pay more than another organisation that is very rich today or that maybe does not exist but that has assets all over the place that could be accessed. The scheme has to operate in a way that makes it attractive for institutions to contribute.

10:00  

It is inevitable that some institutions are not in existence and other institutions cannot afford to contribute. It is on record that the survivors do not wish to damage the institutions. The issue with the contributions is about the waiver. I apologise for going back to that, but I will tell you what we have told Quarriers. I have been asked by survivors what I will say to Quarriers if the waiver comes in. We have told Quarriers that we recognise that it is trying to reconcile and that it has made huge steps, just as the Scottish Government has made significant steps to address the issues in the past few years, and we recognise that it wishes to contribute.

Generations of children have been failed by the organisation, and the organisation recognises that through the child abuse inquiry. We are saying, “Don’t fail the current children and current users.” If the waiver comes in, we will say to Quarriers, “We respectfully acknowledge that, but we’re asking you to keep that contribution and put it into enhancing the aftercare service and back into current services. If you put us in a position in which we have to sign something that is unlawful and that will not hold the Government to account, will not hold the abusers to account”—as Helen Holland said—“and will not hold the institution to account, we do not wish to sign that, so keep your contribution and put it into non-redress and enhance the aftercare service.”

David Whelan makes an interesting and useful point about aftercare. We have worked with and have evidence of 367 care establishments. As well as that, we have evidence of probably as many foster carers who abused children in the past. Barnardo’s, Quarriers, the Catholic church and other large institutions are a bit of a distraction from that. Although a number of survivors were abused in those settings, many of the settings have not even been investigated by the child abuse inquiry. As David Whelan said, a lot of institutions are no longer with us—they shut down years ago—and a lot of foster carers are no longer alive, so there is no way that they could contribute to the scheme.

Another thing that the survivors said to me loud and clear is that they feel that there is a focus on particular institutions and that that excludes them entirely. That is the wrong approach, because it makes survivors feel that some organisations are in the limelight as the ones that have abused children. Obviously, the child abuse inquiry has been focused on those organisations, but a whole load of survivors feel lost in among that. They are the ones who were perhaps abused by a small institution. There might be two, three or four people who were in that institution, but it is no longer there, so there is nobody to be held accountable.

A large number of survivors say that it is the absolute responsibility of the state. A number of the homes that they were in were institutions that were run by the state, perhaps through local authorities, so the survivors feel very strongly that, in a way, the issue of institutions paying into the scheme does not affect or apply to them. Even if we get what would be perceived as a reasonable contribution from an organisation that is now running as a charity that helps people, survivors will worry and have concerns about that, as David Whelan said.

It is important to see that that is in no way the answer, because it will miss out all those people. How do you answer those who will be excluded because their foster carer died 10 years ago and cannot contribute to the scheme? You need to think about what we are dealing with—it is not just what is in the public eye or in the big stories; it is every single establishment. As I said, Wellbeing Scotland and In Care Abuse Survivors have evidence of abuse in 367 establishments and by probably just as many foster carers, so it is not an easy issue to consider.

We will go back to Ms Holland and then back to Mr Greer.

Mr Greer, I appreciate the fact that you were not asking us to come up with solutions. However, I agree with Janine Rennie that many survivors were in foster care and the reality is that the foster care system is under the care of the local authority, so the Government would be responsible for covering the costs. There are also establishments that, because of the length of time that has passed, no longer exist, and the redress relating to them, unfortunately, would probably lie with the Government as well.

However, when care provider organisations could contribute to the scheme—and there are still quite a few of them—our opinion is that they should do so. Ninety per cent of survivors have said that they want contributions to come from the state, which was primarily responsible, and from the organisations, which, in many cases, were aware of the abuse but did nothing about it.

This is not an easy issue for the panel. Ross Greer made it clear, when he asked the question, that it is not for the survivors to come up with solutions to every question. Survivors have enough of a burden on their shoulders without having to come up with all the solutions for redress. Yes, we can give input, and I am grateful for being able to do that—as, I am sure, David Whelan and Janine Rennie are—but the reality is that it is not for us to come up with the solutions. Redress has taken place all over the world, and there have probably been the same difficulties. I never expected Scotland to be different; I always knew that this was going to be the most difficult part of everything that we have done over the years, and that has absolutely proven to be the case.

The answers to my question have been more than adequate, so I do not feel the need to come back in, although Mr Whelan might wish to come back in on that point.

Mr Mundell has a supplementary question in the same area—it is either on Ross Greer’s question or on the previous one—so I will go to him first, and then Mr Whelan can wrap up his responses to both questions.

My question is supplementary to the question before Mr Greer’s—I was probably slow in typing into the chat box. It follows up on the points that Daniel Johnson made and is about the burden of proof and evidential requirements.

I am not looking for the witnesses to come up with the solutions, but I am interested in their thoughts on whether survivors and victims would expect a different level of evidence to be provided for the higher award payment or whether they would expect the approach to continue to be that the same burden of proof and evidence would be required across all the payment levels.

I fully support what Helen Holland said in response to the previous question—I want to put that on the record. In fact, I would say that Helen has just answered the next question as well, because it is really not down to us what evidential levels will be required. We are being asked to come up with various solutions. Although we can help to explore those, we feel that it will be for the panel to make the ultimate decision, and it should have the power to do so independently and impartially.

If you are saying that there should be certain thresholds for certain payments, we would agree. However, I say that with caution in relation to the evidence that is available to survivors. For example, a 1964 survivor might struggle to find evidence that meets the higher threshold. The Scottish Government has already acknowledged that such a survivor will also be disadvantaged by not being able to access civil litigation. As Helen Holland said, we will continue to explore with the Government solutions for a number of the questions that have been raised, and we hope to help it to find those solutions.

The FBGA feels that, just as is the position with the Scottish child abuse inquiry, in which there will come a point at which the chair has to make decisions, there will also come a point at which the proposed independent and impartial decision-making panel will have to make decisions. I reiterate that provisions on the panel’s discretion, independence and impartiality should be in the bill. It needs to be given such powers.

The part of the question that I noted asked whether, if a standard brief were to be set, it should follow that a higher standard should be applied when higher payments were sought. The simple answer has to be no. The standard of evidence required to establish that abuse has taken place must be the same; it is the level of payment that should reflect the level of the abuse. Someone who has suffered the most horrific level of abuse as a child and throughout the rest of their life should not have to meet a higher standard of evidence to establish it than someone who suffered abuse that, although still horrible, could be considered to have been at a lower level. The standard should not change.

I want to raise a point of which the committee might already be aware. The inquiry’s experience has been that various organisations have been called upon to observe survivors’ evidence and have the opportunity to put questions to them. However, not a single survivor who has given evidence of the abuse that they have suffered at the hands of those providers has had their evidence challenged by them in any significant way. At the end of every passage of evidence, the providers have been given an opportunity to make submissions, and they have either accepted it or have stated that, although they might not know what happened, they are not saying that the survivor’s position as it was advanced is untrue.

So far, that position has been adopted by a number of organisations. Whatever else might be said about providers seeking to avoid liability, it seems that, when they are publicly faced with the situation, there is no appetite among them for suggesting that those who have been brave enough to come forward and share their childhood experiences should be disbelieved. I suggest that, if an organisation has spoken at the inquiry and has accepted, without dispute, that abuse has happened, the panel should be able to take that into account as a relevant factor for consideration when it weighs up redress claims.

[Inaudible.]—That was one of the tensions that was mentioned by most of the survivors to whom we spoke. We also did a survey that asked them about it, and around 90 per cent said that they did not want there to be a scale. They did not want survivors to have to meet different levels of evidence, because that might make one feel that their experience had been worse than someone else’s whereas the situation might just be that the other person had been unable to provide the same level of evidence.

As I have said previously, some survivors have never told anyone in their family that they were sexually abused and they will never tell anyone else about it. Yesterday, I spoke to one of the survivors whom I counsel, and he said that he will never tell anybody that he was sexually abused, even if doing so meant that he would get redress at a higher level on the scale.

It is really difficult. We need to look at the complexity of the issues and consider whether people feel comfortable about disclosing abuse.

10:15  

Many survivors were not part of the original consultation—way back, when the scale was first presented—and they felt that the scale was the only option that was being presented to them in the subsequent consultation. They say that, if they had been asked the question, they would have said, “No—there should be a reasonable level of redress for everybody,” and that everybody should be treated equally, because we cannot scale the impacts. Somebody might have had an experience of abuse that affected their entire life, whereas somebody else might have experienced abuse and managed to function in life, going on to live in a really fulfilling way. It is therefore very difficult to make such an assessment.

With all due respect, even if the decision-making panel is made up of a lot of professionals, they are not going to be able to make such an assessment without knowing the survivor, and they will not get to know the survivor during the time for which they access the panel.

Throughout my years of working in the field—I am now standing back from it a bit, because I am the chief executive of an organisation—I have seen survivors pitched against survivors, and it has been really damaging for everybody throughout the process. I am really concerned that we could have a process that would continue that.

Some of what Janine Rennie has said has merit. If we had had more time, we could have scrutinised the model that she is talking about. That would have been helpful.

On the evidential thresholds and requirements, we say in our submission:

“these Redress evidential levels are required to be robust and credible, to prevent fraud and support genuine applications.”

We are talking about the process here. There has to be a recognition that this is public money and it must be managed appropriately and properly.

In response to what Janine Rennie said, I note that our members have made it perfectly clear, as did the people who engaged with the consultation, that they do not agree with a flat-rate payment. I cannot think of anything that would be more unfair. How could that be justified? Some people went into care as toddlers, and we have a member who did not leave the care system until the age of 24. They were not signed off from the care system until then, and they suffered horrific abuse during that period.

I am not saying that abuse does not take place only for a few months, a year or whatever, but the reality is that people’s experience of the care system is unique to them and there are individual circumstances regarding the length of time they were in care, the level of abuse, and so on. In the opinion of the people of INCAS, it would be unfair to make a flat-rate payment across the board, and they would not see that as justifiable. If anything, it would probably cause even more division among survivors.

This is about justice. It is about survivors being able to walk away from redress feeling that they have achieved justice and that they can get on with their lives and start repairing the damage that has been done to them.

Mr Mundell, do you have a final question, or are you content?

I am happy with those answers, which were helpful. I clarify that I do not have a strong view one way or the other; I just wanted to highlight that it is a complicated issue.

I will go back to Mr Whelan for a final comment, because he has put an R in the chat box. I say to everyone that, if there is something that you wanted to say today but have not been able to say, you should get in touch with our clerks and we will ensure that it is shared with the committee before we start our stage 2 deliberations.

I agree with Helen Holland. As you can see from the clinical assessment paper that we provided to the committee, this is about the individual and their unique experience. That is what we are talking about. The work is survivor centred and survivor informed. It is about the individual and their lifelong experiences in relation to what may have happened to them in care.

I thank the survivor organisations that have been with us today for their willingness to engage with the committee during this process. Your evidence has been extremely helpful.

I will suspend the meeting for two minutes, to allow the minister to join us and the current witnesses to leave.

10:20 Meeting suspended.  

10:22 On resuming—