Justice Committee

Meeting date: Tuesday, May 23, 2017

Official Report 535KB pdf

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Limitation (Childhood Abuse) (Scotland) Bill: Stage 2

Agenda item 2 is consideration of the Limitation (Childhood Abuse) (Scotland) Bill at stage 2. I ask members to refer to their copy of the bill and to the marshalled list of amendments.

I welcome the Minister for Community Safety and Legal Affairs and her officials, and I apologise for the short delay.

Section 1—Removal of 3 year limitation period in certain actions

Amendment 1, in the name of the minister, is in a group on its own.

Good morning, deputy convener. Amendment 1 will ensure that there is no doubt that abuse in the form of neglect is covered by the definition of abuse in the bill. The existing definition did not exclude forms of abuse such as neglect, but the amendment will put matters beyond doubt.

I am grateful to the committee for its scrutiny of the issue and to those who gave evidence. I agree with the witnesses about the importance of being as clear as possible, and of making every effort to ensure that no survivors for whom the bill is intended are excluded from its benefits.

It is clear from the evidence that abuse in the form of childhood neglect can cause serious long-term damage and give rise to the sort of difficulties that prevent survivors of other forms of childhood abuse from coming forward to raise civil actions. At the consultation stage, concerns were raised about whether there was potential ambiguity in including neglect, and about the potential for a wider interpretation that would include negligent acts that would not necessarily constitute abuse. However, under amendment 1, only neglect will be included as a form of abuse, which makes it clear that the bill does not deal with cases in which a person has simply omitted or neglected to do a thing. At the same time, the amendment will remove doubt as to whether actions arising from childhood abuse that takes the form of neglect could benefit from removal of the limitation period in the bill.

I move amendment 1.

Very simply, I welcome amendment 1, which has been lodged in response to observations from the committee. For my part, I find it very easy to support.

The minister is right that an argument could be mounted to say that neglect is covered in the existing wording, but as we have discussed and as we have heard in evidence, the bill’s giving clarity to survivors is absolutely crucial, and amendment 1 will deliver that. We heard that pretty strongly in the evidence—in particular, in evidence from the Scottish Human Rights Commission. I record our gratitude to the commission for that.

Like Stewart Stevenson, I will have no difficulty in supporting amendment 1.

I echo those remarks.

Amendment 1 agreed to.

Section 1, as amended, agreed to.

Section 2—Commencement

Amendment 2, in the name of Douglas Ross, is in a group on its own.

Amendment 2 aims to ensure that the bill is properly resourced. The committee’s report on the bill contains at paragraph 245 a recommendation that was unanimously agreed by all members of the committee. It says:

“It is important that the Bill is properly resourced to ensure both that its policy intent is achieved and to prevent any negative impact on the provision of current services by local authorities.”

By agreeing to amendment 2, we will ensure that that is in the legislation.

I move amendment 2.

During the stage 1 debate on the bill, Mr Ross supported the aims of the bill. He said:

“It is paramount that survivors who have previously been unable to raise a civil action due to the time bar are not ... left frustrated and disappointed with the legislation because the Scottish Government has not ... put in place the necessary resources to support that possible increase in actions.”—[Official Report, 27 April 2017; c 64.]

He has properly highlighted the committee’s conclusion about preventing a negative impact on current services. However, amendment 2, if it were agreed to, would lay on the Government conditions that would mean that the legislation could not be commenced by regulation, because the tests in the amendment could not be met.

The first test in the amendment requires that, before commencement,

“sufficient financial and other resources have been made available to ... meet any obligations”.

The effect of the bill, if passed by Parliament, will be to create an enduring right for individuals to act without limit of time. To give an unlikely but legally possible example, a person who was born in 2000 could take action under the bill in 2100. It is simply not possible to provide now the resources to support an action nearly a century hence.

The second test in the amendment is more general. It refers to

“any obligations arising from this Act”.

Unhelpfully, that captures obligations that might fall on all public bodies and all obligations, even where those arise solely from the actions or inactions of a public body that it is responsible for providing financial recompense to victims. I do not think that that is what Mr Ross seeks to do, but that would be the effect—as I read it, at least—of the words in amendment 2.

11:30  

Without engaging the policy issue—I do not believe that there is any difference between Mr Ross and myself on that—I say that amendment 2 goes much further, which de facto makes it impossible to support it in its present form. It touches on the more general issue that arose in the stage 1 debate. Mr Ross said:

“The Government must put in place the necessary resources to support that possible increase in actions.”—[Official Report, 27 April 2017; c 64.]

The difficulty with a “possible increase in actions” is that the number could be almost anything. The minister herself pointed out that the 2,200 figure is the mid-point of a range of estimates between 400 and 4,000. It was generally accepted that we could look at the issue for as long as we like without coming up with a number that would be anything other than an estimate in an estimated range. On that basis, I find myself unable to support amendment 2 in the form in which it has been lodged.

Stewart Stevenson has pointed out that there is policy agreement about the concerns and that the only way in which we will provide certainty is to ensure that the financial wherewithal exists for when individuals choose to bring cases. As I would have expected, Stewart Stevenson has done his due diligence with regard to what he sees as the precise impact of amendment 2. What he suggests might well be the case. Nevertheless, the amendment highlights an area in which the bill probably needs clarification, and in which reassurance is needed for those who might be minded to bring cases. Therefore, I hope that the minister will reflect on the intention behind amendment 2 and, while not using the same wording, possibly lodge at stage 3 an amendment of her own that Parliament as a whole can consider.

I align myself with a lot of the comments that Stewart Stevenson made and I certainly do not want to go into detail. It is entirely right that the legislation that is passed should be adequately resourced, but the essence of the bill is that the numbers are unknown. The bill is intended to give a signal of support to survivors in that it shows that there is an opportunity. It is an evolving situation and I am concerned about anything that could frustrate the progress of the bill, so I will certainly not support amendment 2.

I understand the technical points that have been raised by my colleague, but given the policy agreement, it would be advisable to include amendment 2 for the moment and allow it to be refined at stage 3 when the bill returns. I will support the amendment.

I will not support amendment 2. We cannot do anything that might delay commencement of the act—survivors have waited long enough. As has been said throughout our evidence taking, it is impossible for us or for anybody to estimate what it will cost, so amendment 2 is unworkable and I will not support it.

The Scottish Government strongly opposes amendment 2. What is proposed in the amendment is completely unworkable and could end up defeating the bill. It is clear to me that we should not do anything that might delay the bill’s coming into force: as Rona Mackay just said, survivors have waited long enough for a change in the law.

Witnesses to the Justice Committee have accepted that it is not possible to estimate with any certainty the bill’s impact; and we will not know the impact of the bill until after it has come into force. Therefore, it would be premature to draw conclusions about resources. Indeed, amendment 2 would put us in a catch-22 position: the impact will not be known until after commencement, but the amendment would not allow us to commence the act until the impact was known, or perhaps until a blank cheque had been written. The conclusion must be drawn that the act might then never be commenced.

It should be remembered that the bill’s proposals would not change the law of delict and the duty of care. On top of that, as the committee will appreciate, the current law allows new claims to proceed where the court considers that to be equitable. That must be viewed, at least, as a potential liability for local authorities that already exists, even aside from the bill.

The bill is about access to justice for survivors. Although we recognise that there will be financial implications for public bodies, which is the nature of civil litigation, we should not lose sight of the importance of the basic principle of removing an unfair barrier for survivors. Parliament has unanimously supported the general principles of the bill; amendment 2 runs the risk of derailing the whole aim of the bill. We need to respect the outcome of the interaction process and, most important, to respect survivors who have campaigned for decades for the proposed change.

Our public bodies, including local authorities, provide valued public services; I share Douglas Ross’s view about the importance of maintaining those at the highest standard. Of course, we are in regular dialogue with the Convention of Scottish Local Authorities and local government on a range of issues, so it will be open to local authorities to raise, in the normal way of things, concerns about any new and unplanned financial pressures that they face that might impact on service delivery, so that we can consider together how those might be addressed.

However, the impact will not be the same in all local authorities in terms of, for example, the number of cases and the availability of insurance cover in a case. We therefore do not yet know what the impact will be—we cannot know that in advance of implementation of the bill.

I recently met the former children and young people’s spokesperson for COSLA, Stephanie Primrose; it is clear that COSLA is not looking for a blank cheque. Rather, we agreed to continue the dialogue and to keep the situation under review. After a new COSLA spokesperson is elected on 30 June, I will seek a further meeting with them to discuss the issue.

Amendment 2 will not provide a constructive solution, but would end up holding the bill hostage and could potentially derail the aim of the bill, which is to remove the insurmountable barrier to access to justice for survivors of childhood abuse that the three-year limitation period embodies. I urge members to reject amendment 2.

I think that all the speakers, with the exception of the minister, accepted that the policy intent behind amendment 2 is not to derail things. It is unfortunate that the minister spent most of her remarks looking at that aspect; I think Stewart Stevenson and others accepted that amendment 2 has been lodged because there is a deficiency in the bill. Every member, from all the parties that are represented on the committee, accepted that there is a deficiency when we—

Will the member take an intervention?

No. I am sorry—I will not on that point.

We agreed at paragraph 245 of our report, as I said in my opening remarks, that it is important that the legislation is properly resourced. It is quite clear that it is not properly resourced and that the biggest barrier to ensuring—

Will the member take an intervention?

I am sorry. I will not, on that point. If I can, I will continue.

The most important point in ensuring that we get it right for victims is to ensure that the legislation is properly resourced. The Scottish Government has the opportunity to do some scoping on the issue, and the Scottish Government must also take responsibility. We heard from a number of witnesses, when we met representatives from COSLA and local authorities, that there are concerns about other services being cut to pay for the impacts of the bill.

With respect to amendment 2, it is important that we highlight the deficiency in the bill. I accept the points that Stewart Stevenson and others have made, but if my amendment is agreed to today, it will become part of the bill that can then be further amended at stage 3. For that reason, I will press amendment 2.

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)
Stewart, Alexander (Mid Scotland and fife) (Con)

Against

Evans, Mairi (Angus North and Mearns) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green))
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Abstentions

McArthur, Liam (Orkney Islands) (LD)

The result of the division is: For 3, Against 7, Abstentions 1.

Amendment 2 disagreed to.

Section 2 agreed to.

Section 3 agreed to.

Long title agreed to.

That ends stage 2 consideration of the bill. I thank the minister and her officials for attending.