Current Petition
Institutional Child Abuse (Victims’ Forum and Compensation) (PE1351)
Item 2 is an oral evidence-taking session on PE1351, on time for all to be heard. Members have received a note from the clerk, which is paper PPC/S4/11/8/1.
I welcome to the meeting our first witness, who is Duncan Wilson, head of legal and strategy at the Scottish Human Rights Commission. Mr Wilson appears in place of Professor Alan Miller, who is out of the country on business. Mr Wilson, I believe that you wish to make some introductory remarks.
Duncan Wilson (Scottish Human Rights Commission)
Thank you, convener. I thank the committee for the opportunity to speak.
Today, the Parliament can once more witness, after more than a decade of campaigning, the dignity and determination of survivors of historical child abuse. Although we as a nation have taken a number of significant steps to address the issue, more remains to be done. The Scottish Human Rights Commission encourages everyone involved, particularly Scottish ministers, to commit to a renewed impetus to securing remedies and justice for survivors of historical abuse.
It is not only time to be heard—it is also time to learn lessons. An unknown number of people in Scotland continue to be dual victims of human rights violations. They are not only victims of the initial abuse that they suffered but they continue to be denied access to justice and effective remedies. In response, the Scottish Human Rights Commission has worked independently and impartially on a human rights framework for justice and remedies that takes into account the human rights of everyone involved, including former staff in institutions as well as survivors and other former residents.
The human rights framework is based on international law, best practice, survivors’ views and the views of experts with experience of similar processes elsewhere in the world. In essence, the framework calls on the Government to ensure accountability as well as acknowledgment and to identify not only what happened but why, and how it can be avoided in the future.
We have had constructive engagement with the Government on implementing the nine recommendations that we made in February 2010. We are pleased that Scottish ministers recently agreed to meet the commission to discuss how to put those recommendations into an action plan to implement the framework that we proposed, taking into account the pragmatic constraints of Government while upholding the principle that all survivors of human rights abuses should have access to justice and effective remedies.
We hope that that process will reflect the urgency of ensuring that justice be done before more survivors die without having seen justice. I look forward to discussing the matter further with the committee.
Thank you for your introductory statement, Mr Wilson. The committee has a number of questions for you. As I understand it, the pilot forum hearings were restricted to former Quarriers residents. Would you support a wider roll-out to other potential victims?
Yes. When we published our framework, we noted that a confidential committee may be part of the overall package of remedies. Such a committee should be within the broad range of remedies, reparation and access to justice for survivors that we have highlighted.
I understand that you looked closely at the Irish experience, particularly the Irish commission. Have you picked up any lessons from Ireland that would be useful for our consideration?
We looked not only at the Irish experience but at experiences elsewhere, including Canada and Australia and more recently Northern Ireland. A number of things can be learned from the Irish experience, which Amnesty International in Ireland recently evaluated thoroughly. A feature of the process in Ireland, which I think is a lesson, is that it lasted a number of years and was very expensive. We believe that there can be smarter ways to achieve a number of the remedies and reparations steps. The fact that the process in Ireland was very expensive should not preclude our pursuing an action plan and securing investigations that get to the bottom of why the abuse happened, whether the state was responsible and how we can learn lessons for the future.
There are more recent models from Northern Ireland, which are a different way to go and which have the specific aim of being less expensive.
Good afternoon, Mr Wilson. I am pleased that you have engaged with the Government. That seems to be a step forward.
Although the pilot forum was based on the Irish model, it did not seek to hold abusers to account and did not provide compensation for victims. It has been argued quite vociferously that benefits associated with a confidential acknowledgement model—a model that avoids a more confrontational or adversarial approach—would have been lost if there had been an attempt to extend the pilot forum’s remit to issues such as accountability. Do you agree?
I do not think that one aspect precludes the other. The human rights framework that we developed had five elements to ensure best practice in remedies and reparation, which I know we would all agree is Scotland’s aspiration. The first of those elements is the participation of everyone involved in all decisions that affect them. The second is accountability, which I will come back to. Thirdly, there is non-discrimination, so that any steps apply to the broad range of survivors. The fourth element is empowerment, which involves supporting people to exercise their right to remedy and to access to justice. Finally, any process should be underpinned by legality and should uphold the human rights of everyone involved, whether that means the right to a fair hearing for former staff or the right to access to justice for survivors.
The issue to which you point is accountability and how a confidential committee may form part of that package. I will outline the elements that we proposed for a comprehensive approach to accountability.
The first element is investigations. Where there is a credible assertion and credible evidence of serious ill treatment, there should be an investigation that is at least sufficient to determine whether the state was responsible and what lessons can be learned for the future. Recently, the First Minister and the Deputy First Minister of Northern Ireland announced an inquiry and investigation with powers to compel oral and written evidence from a wide range of bodies. That could be an alternative model to the investigation committee in Ireland, which was expensive.
The second element is the right to an effective remedy, which includes access to justice and reparation. I am sure that we will discuss the barriers that survivors continue to face to exercising their right to civil justice because of the time bar. When reparation is mentioned, people often think that it is all about compensation and expense. The media sometimes help to foster that impression, but many of the steps in reparation can be almost, if not completely, cost free.
One element of reparation is satisfaction. A confidential committee where survivors can recount their experiences, be listened to, have what they say accepted to be true and have it recorded officially can be part of the realisation of satisfaction.
Another element can be an effective apology. We might think that that would be relatively straightforward, but experience suggests that institutions feel restricted in their ability to offer a full apology, perhaps because of the fear of civil litigation or of voiding insurance contracts. Apology laws have been used elsewhere in the world to address that.
Restitution can involve restoring what was lost through health or education support—a number of steps have been taken on that. It can also involve rehabilitation, mental health services and, for example, parenting skills, which survivors in Scotland have mentioned. It can involve many steps that are not necessarily expensive.
A further element of reparation is guarantees of non-repetition, which is why we need a form of investigation that can identify not only what happened—that is acknowledgement—but why it happened and which can investigate responsibilities and recommend and follow through on steps to ensure that the same thing does not happen again.
The final part of reparation is adequate compensation. All the steps should be characterised by the participation of survivors, the choice of appropriate remedies for them and proportionality. The remedies should be proportionate to the harm that each individual suffered.
That is enlightening. Would a correct summation of what you said be that the pilot programme was just the start and that what you have just explained could come from it?
That is correct. Any confidential committee—not just the pilot forum, but even a national one—can be only one part of a broad range of remedies, if we are to comply with survivors’ human rights.
You have addressed the first part of what was to be my question, which was about accountability, so I will focus instead on compensation. How should the compensation side of reparation be addressed?
I recognise that compensation is one of the more challenging elements in a broad package of justice remedies and reparation. I have already mentioned—but it is worth reiterating—that there are a number of other steps that may be almost cost free and more quickly achievable. It is important that we do not delay everything just because some elements are challenging.
Elsewhere, contributions have been made to compensation packages by the range of bodies that have shared responsibility. Scotland’s residential childcare provision has been very different from that in Ireland, for example, but all the steps—whether previous public petitions, inquiries or prosecutions—have identified instances of sexual abuse, physical abuse and serious neglect in the widest range of institutions in Scotland.
Tom Shaw’s historical abuse systemic review in 2007 comprehensively outlined the range of institutions, which include state-run bodies and religious and non-religious private bodies. There is a wide range of responsibilities, and each of those actors should be seeking to contribute to a reparations package.
14:15
Can you expand on the Scottish Human Rights Commission’s current involvement in developing proposals to secure justice for victims of institutional child abuse?
Certainly, I can. I mentioned in my opening remarks that we are pleased that Scottish ministers recently agreed to meet us to discuss how to develop an action plan to implement the broad range of recommendations that we made more than 18 months ago.
We propose—we have discussed this informally with a number of survivors’ groups—to host a human rights interaction. In essence, it will be an opportunity for everyone who has a stake in the issue to get round the table and negotiate. We recognise that there are pragmatic constraints—the economic climate is one—that preclude the fullest realisation of some of the recommendations, but that should not inhibit identification of steps that can be taken and the development of a road map for the way in which, the extent to which and the time in which all the recommendations can be realised.
We propose—we hope that ministers will be receptive—to host a negotiated agreement to develop an action plan, which would identify the facts, and the wishes and desires of survivors; the range of institutional provisions; an analysis of the human rights involved, as we have outlined in the human rights framework; and who is responsible under a shared framework of common responsibilities and how each party will contribute to remedying the wrong that has been done. We will then reconvene some time later to ensure that the recommendations have been implemented.
That is how we propose to continue our contribution to addressing the issue.
You have answered most of what I wanted to ask about. Are there any issues that you feel are not being properly addressed in the development of proposals to secure justice? Is there anything else that you want to put on the record?
We made nine recommendations that continue to be relevant today in the human rights framework. There were 14 recommendations in total, but five of those related specifically to the time to be heard pilot forum, which has concluded. From the remaining nine, there is currently a proposal on the table to develop a national confidential committee model, but that is just one part of a broad package. We are hopeful that the next step will involve a commitment from all sides to develop a road map for realising a range of other steps.
I will highlight one example of an important concrete and achievable step in securing justice for survivors: the issue of apology. As I mentioned in passing, an effective apology—an apology that says, “We are sorry that that happened to you and we take responsibility for it.”—can be an important part of remedies and reparations. An ineffective apology—“We are sorry if that happened to you.”—can have the opposite effect, and can reinforce what happened, retraumatise and further degrade survivors.
Whether there is at present a real or an imagined legal impediment to effective apologies, the fact is that many institutions report that they feel that they are unable to make full and effective apologies, either because of fear of civil litigation or because of insurance companies.
There is an opportunity for Parliament to pass legislation like that in British Columbia that could be as short as three sections—literally less than a page on the statute book—and which would be a legal remedy for the real or imagined fear about making a full and effective apology. Perhaps in a few months or less, the Parliament could pass a straightforward law that would enable institutions to make full and effective apologies that would be the starting point for the broader range of remedies for survivors.
Thank you. I am glad that you brought up the subject of apology, because I have always felt that if someone is ordered or feels compelled to make an apology, it is not really an apology. How can we ensure that people do not feel obliged to make apologies that they do not mean, and that the apologies that we hope will be made are, in fact, heartfelt and accompanied by a sensation of severe regret for what has been done?
The experience from British Columbia and New South Wales and other places that have introduced such legislation is already pointing to the impact that it can have in practice. Where institutions may feel impeded in apologising at present, there would be, and would be seen to be, no impediment to an effective apology. So, in essence, the onus would be on institutions to make an apology and show a good-faith commitment to addressing past wrongs.
On compelling contributions to a process like that, I go back to the earlier example from Northern Ireland that is very contemporary, whereby the Office of the First Minister and the Deputy First Minister have publicly committed to holding an investigations or inquiry process that would have powers to compel witnesses to attend and to compel the production of records—documentary evidence—including, for example, care records. There can therefore be both a carrot and a stick, if you like. However, it is important that we remove impediments as well as provide encouragement.
Thank you.
Many of the issues regarding compensation have been covered in previous questions. However, as I understand it, there are difficulties in getting compensation, if that is what individuals are looking for, for any institutional abuse that occurred prior to 1964, because such claims cannot proceed under current legislation. However, just for the record, I do not think that everybody who suffered institutional abuse seeks financial compensation; as Bill Walker said earlier, genuine apologies from the organisations involved may suffice. However, for people who are looking for financial compensation, what are the issues about and the barriers to their getting it?
First, none of us would want to speak on behalf of survivors, who speak very eloquently individually and collectively about their wishes, desires and needs for justice, which are varied. To be blunt, we simply do not know what those are for the so-called silent majority of survivors, who have yet to speak about the harm that they suffered, let alone about how they would wish to see it remedied.
On compensation, there are a number of issues that could be addressed in different ways. The first is the time-bar limitation for civil suits. I am sure that the ministers and officials who are here after me will speak to this point, but we are still waiting for publication of the consultation document. When Mr Ewing appeared before this committee almost a year ago, he indicated that there would imminently be a consultation and that the Government was keen to pursue the opportunities to expand beyond the Scottish Law Commission’s recommendations in 2007 to see whether there were options to secure access to civil justice for survivors.
There might be opportunities through the review of the prescription and limitation legislation, and we will certainly take advantage of the consultation to explore whether opportunities exist within a human rights framework to expand to that extent. Of course, this Parliament has legislated specifically for victims of other forms of abuse to receive access to compensation for historic harms. As members will be well aware, that law was recently upheld by the UK Supreme Court, which reinforced the power of this Parliament to make such legislation, should it so desire.
The SHRC report states, on page 9, that
“prior to the announcement that a Pilot Forum would take place, the Commission was not asked for its view on the proposal to carry out a pilot or on any model chosen by the Government.”
What would you have done differently, had you been given the opportunity to express your views?
When the announcement was made, we took stock and considered how best to react to it. You will see from the framework that we recognised that a confidential committee could be one part of a broader package of reparations and access to justice. We made a number of recommendations on adjustments to the way in which the pilot forum was being designed at the time, including adjustments to its independence. That led quickly to changes in the way in which officials and members of the forum were seeking to establish it. Throughout the process, we continued to have a dialogue with members of the time to be heard forum on, for example, the limits of confidentiality and on when there would be a duty to report allegations of serious harm to the prosecutorial authorities or the police.
We are recommending that a number of elements should be carefully considered by any confidential committee, but I reinforce our main point that while we recognise that such a committee could be one part of a package of remedies and reparations, we also recognise that it is only one part. We believe that it should exist alongside the broader range of recommendations that we have made.
Are you aware of the historical abuse systemic review report that was published in 2007? Page 130 states:
“An archivist was instructed to destroy all senior management team records in 2004.”
What knowledge did the SHRC have of that, and of any other on-going investigations regarding that line?
We were, of course, aware of the historical abuse systemic review. A review of its findings was part of the preparation of the framework. We did not specifically investigate that issue, but I think that it reinforces the value of looking beyond simply having a confidential committee whose role, valuable though it would be, would be to listen to and record the experiences of survivors. That is not even sufficient to identify the truth, let alone to compel the production of evidence.
We would certainly recommend that the human rights framework require an investigation component. I know that everyone often thinks of the Irish investigation committee, but this one could be as simple as an inquiry with the kind of legislative powers that inquiries generally have; it should be able to require the production of oral or written evidence. I am sure that we are all watching the Leveson inquiry at the moment. We have seen how quickly an inquiry can be established when the political will exists to do so, even in the current economic climate.
14:30
The 2007 review report also states:
“Many children died while living in children’s residential establishments. Some organisations have identified the children in graveyards. But in other cases searches have yielded few records identifying children or information about why they died. The lack of information suggests that little importance was placed on the children’s identity and their value to their extended families.”
Does that point need to be addressed by an investigation?
Yes. One of the elements that contributed to the human rights framework was a 108-page legal paper that we published. It looked at the evidence that is out there and the incidents that are likely to be reported or to arise as a result of an inquiry or investigation, and it examined how those would be understood through the lens of human rights and whether they would be considered to be human rights violations.
The incidents that were reported in the historical abuse systemic review include not only the ones that you have outlined, but denial of contact with family, denial of correspondence, forced movement out of Scotland to Australia, Canada or elsewhere and being told that family members were dead when they were still alive. There is a wide range of issues, which could and should be seen, through the lens of human rights, as human rights abuses.
An important distinction that we draw is that it is important not to look at conduct in the past through the lens of today’s standards, and that a number of issues that were identified in the Shaw report and that are likely to arise in future investigations would, nonetheless, have been human rights violations at the time.
There is a dual standard as well as the dual violation that we talked about. The assessment of whether conduct is a human rights violation should be based on standards at the time, as it would not be appropriate to apply today’s standards to historic conduct. For example, our understanding of corporal punishment as a human rights abuse has evolved over time. However, the standard for access to justice and remedies should be the right as it is applied today, for people who continue to be denied that right.
You referred to the Shaw report that was produced earlier this year. Can you indicate how valuable or otherwise the Shaw report was to the Scottish Human Rights Commission in coming to its recommendations? Do you envisage a marrying of the two sets of recommendations—the recommendations of the Shaw report and the SHRC’s recommendations to the Scottish Government?
The time to be heard forum report was published almost a year after our report, so in that sense its conclusions did not inform our framework, but its existence did. It is appropriate that both sets of recommendations be looked at together.
The time to be heard forum had a restricted mandate, which was to listen to survivors’ experiences and report on them. It did not, for example, hear from survivors about the barriers that they have faced in trying to get justice, but it nonetheless recorded the experiences of survivors and, as such, produced important lessons. We are pleased that Scottish ministers endorsed the majority of its recommendations and we hope that those recommendations will be taken alongside ours.
I have a couple of brief questions. You indicated the difference between the Irish Government’s decision on how it took forward institutionalised abuse cases and the recent decision by the Northern Ireland Assembly—in particular, the Office of the First Minister and the Deputy First Minister—on how it intends to take forward inquiries in Northern Ireland. What lessons have been learned? Can we learn some of those lessons?
It is premature to look to Northern Ireland as an example of good practice, because there is too little information about what will happen there. A recent statement by Amnesty International Northern Ireland outlined a range of concerns that it continues to have about that process; for example, it appears that the inquiry and investigation in Northern Ireland will last no more than two and a half years, but that the powers of compulsion that I mentioned will be introduced through legislation, the passage of which is programmed to last about two years. Therefore, there is a risk that the inquiry will have its powers of compulsion only as it is coming to a conclusion, which might seriously imperil its utility.
I would not necessarily look to any of those experiences as being good practice that could be directly replicated in Scotland, not least because the pattern of institutional childcare in Scotland has been so different from that elsewhere. However, we can and should see what we can learn from the good and bad in all experiences around the world. An important evaluation of one process in Canada—the Kaufman report—outlines exactly why that process was wrong for everyone who was involved. Lessons can be learned from processes that go wrong as well as from those that have been successful.
From evidence on the Shaw inquiry, our predecessor committee identified issues to do with the level of support that is required for victims to give evidence. One issue was about follow-up support. The process involves people giving evidence about traumatic periods of their lives. That goes back to your comments about serious-harm reporting methods. When there is institutionalised behaviour, reporting serious harm becomes less important for the people who are surrounded by an institution that is carrying that out as practice. That was the experience of many individuals who suffered abuse in institutions where abuse was the norm and not the exception. What is the Scottish Human Rights Commission’s view on provision of on-going support, where it is required, for victims who would give evidence?
As I said, one element of the human rights framework is empowerment, which is about enabling people to take part in processes, such as the options that we are discussing, by providing the support that they require. That could be in the form of security to ensure that there are no reprisals but, equally, it could be mental health support that individuals need before, during and after such a process.
Another important element is ensuring that what is reported is acted on. Even though the officials, the Government and anyone else who is involved in a confidential committee process might feel that there has been clarity on the limitations of the approach, people can, nonetheless, have expectations that something will happen in their case as a result. There must be absolute clarity throughout as to the likely outcomes. None of us wants to raise expectations that simply cannot be met, because that can be more harmful than anything.
My final question is on the compensation scheme that has been referred to. How would the scheme work and who would contribute to it? Some of the issues that we are dealing with are historical, and not only in relation to the institutions that were involved. For example, local authorities have changed shape since some of the historical institutional abuse cases that have been identified took place, and we have had a change of Government jurisdictions. The UK Government was responsible for childcare, but that responsibility was transferred to the Scottish Government in 1999. How does the Scottish Human Rights Commission envisage a compensation scheme, if one is established, being funded?
The question is broader, because the issue is not limited to compensation. It involves how a scheme for securing access to effective remedies should work. You are correct to outline that there is a range of parties who are responsible and that there are complications, in that the majority of the cases that will be reported will pre-date devolution. That stresses the importance of the kind of process that I outlined before, which involves getting together all those who share responsibility—the UK Government, the Scottish Government, local authorities and individual institutions—so that they can contribute to and agree a broad package of remedies and reparation. The majority of the steps that I outline will require the good faith and involvement of a wide range of parties.
International human rights law is clear that the ultimate responsibility lies with the state, so it is for the state to demonstrate leadership by committing to a process like that and by not only contributing in kind but by taking steps to address the barriers to justice that continue to exist.
You mentioned a reparation package in the framework. Do you think that that should include compensation, as well? Do you have in mind a particular compensation scheme? Should the package involve the things that you have just mentioned, rather than being just a financial package?
The commission is proposing that the next step should involve all the parties getting together to agree an action plan to address each of the elements of the framework that we propose, rather than breaking off individual pieces, so that we develop collectively a plan that will enable us to do whatever we can now, and to address some of the more challenging issues over time. There should be a process in which survivors, the state and others who have responsibility are sitting around the same table to negotiate next steps.
Who is underwriting funding of the scheme in Northern Ireland?
Another element of the limitations that Amnesty International Northern Ireland noted in the announcement of the Office of the First Minister and Deputy First Minister was the fact that it is not minded to introduce a compensation element at present and looks to the inquiry to recommend how institutions could contribute to a reparations package. Amnesty correctly points to a failing of responsibility on the part of the state to take leadership in that element of the process.
Your evidence has been comprehensive and enlightening, Mr Wilson. We will now take evidence from ministers. You are welcome to stay and watch.
We will suspend for two minutes to allow our other witnesses to take their places.
14:43
Meeting suspended.
14:45
On resuming—
I welcome our next set of witnesses to the meeting. First, I appreciate the fact that we have been joined by two ministers: Michael Matheson, Minister for Public Health, and Roseanna Cunningham, Minister for Community Safety and Legal Affairs. I also welcome two Scottish Government officials: Jean Maclellan, head of adult care, and Paul Allen, head of damages and succession branch.
I will begin and then my colleagues will ask questions of their own. Either minister should feel free to answer my question, although I suspect that Michael Matheson will respond. What progress has been made in establishing a national confidential forum for all victims of institutional child abuse and when will the necessary legislation be introduced in Parliament?
You are correct, convener; I will answer that question.
Since the publication earlier this year of the Shaw report, which followed last year’s time to be heard pilot, we have been looking at how we can take forward our commitment to establishing a national confidential forum in Scotland. Of course, that will require primary legislation but we have also been looking at where we might place that forum in the Scottish public sector and how we can ensure that it will continue to operate independently. As a result, we have been discussing with a range of organisations and bodies how we can take that forward.
We have also been looking at some of the issues that were highlighted in the Scottish Human Rights Commission’s framework, how they sit alongside the Shaw report recommendations and how we might bring both together to shape the confidential forum that we intend to establish in Scotland. As a result of our discussions with a number of stakeholders, including survivors organisations and the Scottish Human Rights Commission, we have agreed to hold before the end of the year an interaction that will be hosted by the commission and which will be attended by me and—we expect—stakeholders from local authorities and other organisations, stakeholder representative groups and other individuals. We will discuss drafting an action plan to look at what we need in order to frame the terms of the national confidential forum, and that work will allow us to look at conducting a consultation exercise to allow people to give their views on the forum’s final form. We can then consider how we take forward legislation.
That was very useful, minister. If all that goes to plan, when might legislation appear before the Parliament?
First, we need to secure as much agreement as possible on the action plan but I hope that we will be in a position to carry out a public consultation on a draft piece of legislation at some point next year. Once that consultation has been completed and we have gone through the responses that we receive, we will have to draft the legislation. I cannot give you a definitive timetable in that respect, largely because it all depends on what goes into the legislation. After all, the more legally complex that it is, the more time we might need to draft it and then we will have to look for an appropriate slot in the legislative timetable. I am keen for this to move as quickly as possible and the sooner that we get things moving towards legislation, the better. However, until the consultation is compete, it is difficult to set out a definitive timeframe, except to say that we will try to do things as quickly as we can following the results of the consultation exercise.
Good afternoon, minister. Thank you very much for coming to answer our questions. I, too, had a question about timescales, but you have answered it. We look forward to legislation being introduced in 2012—and sooner rather than later, I hope.
You mentioned stakeholders. Who would be eligible to participate? The question is who would be eligible, not necessarily who you would ask to attend.
You said that you were looking to public consultation for the forum and you mentioned local authorities, the Scottish Human Rights Commission, survivors and stakeholders. Can you be more specific? When we took evidence from the Scottish Human Rights Commission, we asked whether, given that a number of institutions and local authorities have changed since this terrible incident, Quarriers or others would be part of the stakeholder groups. Can you be more specific about how you will consult and who will sit on the forum? More prescriptively, perhaps, who will be invited to come along to the consultation?
The interaction is the Scottish Human Rights Commission’s event. The commission has invited us to attend and as ministers we have agreed to attend. It will be for the commission to determine which other organisations and individuals it wishes to attend the event. However, it is important that other parties that have a role to play—whether they be local authorities, service providers or private organisations—have an opportunity to participate in the interaction and to discuss some of the issues that we need to examine in order to formulate an action plan. I am open-minded on who should attend, but ultimately it is for the commission to invite whoever it wishes to attend. Scottish ministers have given a commitment that we will attend in order to explore the Government side of things.
That would be a follow-up from the evidence that we received from the Scottish Human Rights Commission in its opening statement. It is very pleasing that you will take part. For clarification, the Scottish Human Rights Commission will lead the interaction, it will organise the forum and the Government will participate. Is that correct?
Yes. We have been in discussions with the Scottish Human Rights Commission about its suggestion of an interaction with different individuals and organisations, and we have agreed to participate in that. Whom it invites to attend will be a matter for the commission, rather than the Government. We hope to have the interaction before the end of the year, if possible.
The pilot forum did not seek to hold abusers to account or to provide compensation for victims of abuse. What plans does the Government have to deal with such issues? Will they be addressed as part of the forum or dealt with separately?
I will deal with the forum and my colleague, Roseanna Cunningham, will deal with the issue of future compensation.
The forum was a pilot. It was a model that was proposed in order for us to explore what would be an effective mechanism and forum to allow survivors of abuse to give their testimony in a confidential setting. Those who participated in the pilot found the process valuable, and their feedback was very positive. It also flagged up some issues that we may want to consider in developing any national confidential forum that we establish through primary legislation, but it was designed to be informal and to provide people with that opportunity in a non-confrontational way.
If any forum was to have a more investigatory role—almost a judicial role—the nature of the process would change. Someone might present evidence, someone might wish to challenge that evidence, and lawyers would have to be involved in that process, so the nature of the forum would change quite markedly. The model that we piloted last year allowed us to avoid that unnecessary legal process, but allowed people to give testimony in a confidential setting and allowed restorative justice issues to be considered if that was appropriate in certain circumstances.
It is probably appropriate to remember that there are quite different ways in which compensation can be awarded. There can be a compensation order if there is a successful criminal prosecution; there can be an award of damages if there is a successful civil action; and there can be an award under a criminal injuries compensation scheme, which is not dependent on court proceedings. Those three are distinct ways of achieving a monetary outcome in relation to this issue.
Obviously, for a compensation order to arise out of a criminal prosecution a successful prosecution is needed. We know that big evidential issues can surround that. Again, for an award of damages to be made in a civil action, a successful court action is needed. A great many questions underlie that, which survivors may wish to raise. Finally, there is the non-court-related criminal injuries compensation scheme. The United Kingdom Ministry of Justice is looking at the criminal injuries compensation scheme and we are awaiting the outcome of that before deciding whether changes should be made to the situation in Scotland.
That probably begs more questions, but it is fair to say that there are three different kinds of compensation.
If the national confidential forum is not to be the formal confrontational body that Michael Matheson indicated, how would the people responsible be held to account?
I return to my earlier answer. We have to discuss what will be contained in the forum. That is not set in stone, which is why we will have discussions with the Scottish Human Rights Commission and look at formulating an action plan that will allow us to consider the content of any consultation. There are no hard and fast rules about what will be in the forum, but the experience from the pilot that we ran last year provides a good grounding to build upon. We will have discussions with other stakeholders and draft an action plan on any further consultation on a national confidential forum.
If the Scottish Human Rights Commission and stakeholders suggest that there should be thorough investigation of specific areas, will that form part of the national confidential forum?
We must wait and see what comes out of the discussion. I do not want to pre-empt those discussions, because people would say that it was clear that the Government had already taken a view on what any legislation should be.
I am mindful that we have to look at the experience of the time to be heard pilot forum last year and consider how we can build upon that, given the positive feedback that we received from those who participated. However, we must have those discussions with stakeholders before we formulate any action plan. I do not want to give the impression that we have come to a position on matters until we have explored those issues.
Duncan Wilson from the Scottish Human Rights Commission, who was here earlier, spoke about the human rights framework that the SHRC has drafted and the nine points that are contained within it. Without wishing to ask you to pre-empt anything, does the Government have a view on those nine points or are you keeping an open mind until you have had discussions with the SHRC and other stakeholders?
15:00
We formulated our response to the human rights framework earlier this year, following the final report from the time to be heard forum, which was published in March. We have responded to some of the points that the SHRC highlighted, such as the issue of reparation, to which it has taken what I would describe as a holistic approach. We as a Government think that it is worth exploring that area further and progressing it with any national confidential forums.
Certain aspects of the framework can help us to ensure that we frame any new national confidential forum in as effective a way as possible. We have commissioned some additional work around reparation, which is being progressed by the centre for excellence for looked-after children, and we hope to have its report by the end of this year. That will help to inform some of our thinking around that particular area, which comes off the back of some of the work that the commission has carried out.
It is important that any national confidential forum is separate from Government, to ensure that it carries confidence and is not run by the Government; that is how the Government intends that it should operate.
The SHRC mentioned examples of how similar issues have been dealt with in other places—for example, the approach that is being taken in Northern Ireland. What work is the Government doing on looking at examples of how such processes have been attempted in other places, with regard to lessons that can be learned to inform discussions further?
Two examples that have been cited recently are the experiences in the Republic of Ireland and Northern Ireland. Some of our thinking on and work with the pilot forum that we ran last year was informed by elements of the Irish experience, but Northern Ireland currently has only a draft set of proposals for its inquiry. Until we have further detail on exactly how it intends to conduct its inquiry, it is difficult for us to draw too much from that experience.
We are always open to opportunities that may arise from the experiences of other jurisdictions in the world if there are lessons that can be learned. Inevitably, however, each jurisdiction will reach a decision on what operates best in its own area.
I want to return to the compensation issue, which Nanette Newman—[Laughter.] I beg your pardon; I mean which Nanette Milne was talking about.
I guess that my question is for the Minister for Community Safety and Legal Affairs. You have touched on this issue already, but does the Government have any plans to extend the availability of criminal injuries compensation to more victims, beyond the scope that already exists in England, Scotland and Wales?
It would be helpful if members would remember that the criminal injuries compensation scheme is reserved, and we therefore do not have any immediate and direct input to it. That is why I mentioned that the UK Ministry of Justice is reviewing the scheme at present. We will have to examine options in Scotland once we get an understanding of what the ministry is proposing.
Most people are probably familiar with the compensation scheme. It provides a financial acknowledgement and redress for victims of violent crime—it is not confined to the type of crime that we are talking about this afternoon, but goes right across the board. It provides a service on behalf of the Scottish Government, but it is reserved, so we are in a slightly difficult position until we understand exactly what the Ministry of Justice is considering.
The scheme has been criticised in terms of eligibility and what we call quantum, which is the term for the global amounts of money that are being discussed, but I cannot say whether the ministry will come back to us with anything substantial on those issues. Until we know what its position is, it is difficult for us to make any great response. Once we understand what it is discussing, we will undoubtedly want to respond, and I can ensure that the committee is copied into that response.
Good, thank you.
Neil Bibby has a question on time limits for civil claims.
What plans does the Government have to take forward the work that the Scottish Law Commission published in 2007 on prescription and limitation in relation to personal injury claims?
There has been considerable discussion about the law of damages for personal injury. It is the case that we had intended to issue an integrated consultation paper earlier this year in respect of the three separate Scottish Law Commission reports. That plan had to be changed in the light of Bill Butler’s Damages (Scotland) Bill, as we had to focus on it, but we are determined to issue a consultation paper.
The Scottish Law Commission’s proposals were not welcomed in all quarters, because it was felt that they might not go far enough. We want to consult as widely as possible, not only in terms of the individuals who contribute to the consultation but in terms of the options that are open to us.
The biggest problem is the time bar in civil law. The time bar applies across all personal injury cases. It means that, with some exceptions, people are pretty much tied to raising a case within three years of the damage or injury taking place—an exception would be a situation in which the injury was not known about for considerably longer. The bar is, however, part of Scots law. We are open to changing some of the time-bar rules but, if that is the suggestion, account will have to be taken of the fact that that might have an impact across a much wider legal area than the narrow one that we are talking about today.
The consultation paper will carefully consider the Scottish Law Commission recommendations, which included, for example, extending the time limit from three to five years. With regard to the issue of clarifying the circumstances in which courts could make exceptions, there is a perception that courts have taken a strict and hard-line approach to the application of the time-bar rules. We will consider those issues carefully and will look at what is happening with regard to cases in Ireland, where the point at which the time-bar clock starts ticking has been changed.
The danger is that the suggested approach could be seen as a panacea. It does not remove the requirement still to prove the case in a court. The civil court’s standard of proof involves a balance of probabilities—it is not as high a standard of proof as that of the criminal courts—but people still have to be able to prove the case, which still means having evidence that can be tested. That can be a problem with very old cases, which is one reason why the time bar exists: the more time has gone by, the harder it is to get the evidence together in a way that will overcome the evidential barriers.
I welcome the fact that you are committed to consulting on the time bar. Can you give us an indication of the timescale that you are working to? Last year, the committee heard evidence on the consultation from the then Minister for Community Safety. When do you expect the consultation to be carried out and when do you expect to have the results?
As I indicated, it did not happen this year because we had to focus on one specific bill that concerned the general issue of damages. The intention at the moment is to consult through January and February, so the consultation is imminent. I hope that the committee is able to keep an eye on the publication of the consultation paper.
I was interested in what you said about the time bar and what happens if an illness manifests itself in later years. Would the case related to asbestosis, which the Parliament supported, be used as a stepping point towards achieving compensation? It has been proven that the illness manifests itself in later years.
Since the Scottish Law Commission published its report, there have been a number of high-profile cases in and around the issue, and the asbestosis case is one of them. It would be wrong for us not to take on board some of the implications of such cases, and we will do that.
I understand exactly what you mean by the requirement to prove the case in court. I am not a lawyer, but I assume that compensation would be easier to obtain in cases in which somebody has been found guilty and jailed than in cases in which no one has been proven guilty. Is that a difficult area?
It is difficult. That is why I indicated that there are three different compensation schemes, if we want to call the civil law of damages a compensation scheme, which is perhaps a bit of a misnomer.
If an identified person has been through a criminal trial and found guilty, one might expect that it would be relatively easy to prove an action for damages against them, given that the standard of proof is lower in a civil case. The difficulty arises when there has not been a criminal court case or a conviction, in which case there may be bigger issues.
The civil standard of proof is not as high. A criminal case has to be proven beyond reasonable doubt but, in a civil case, the standard is the balance of probabilities. That standard is considerably lower, so the likelihood of success is higher. I suppose that that can be regarded as a potential positive.
In a civil court case, any criminal injuries compensation scheme award that had been made might be taken into account in any decision on damages. However, I would not like to say absolutely that that is the case and would need to double-check for the committee.
John Wilson mentioned evidence that your predecessor, Fergus Ewing, gave last year. It is always dangerous to quote a predecessor’s evidence at the current minister, but Mr Ewing said that the Scottish Government hoped to go beyond the Scottish Law Commission’s recommendations. Do you agree with that?
I certainly think that the Scottish Law Commission recommendations were conservative and I can understand that Fergus Ewing may have felt that we could explore much more widely than them. I confirm that the consultation will do that. It will not be limited to the Scottish Law Commission recommendations; we will explore much more widely and will take evidence on much wider recommendations.
You have pre-empted my final question. Would the Scottish Law Commission recommendations help the majority of the survivors of abuse? If not, what other suggestions will you come up with to help survivors?
I cannot answer that, because I would need to know the potential or likely outcome of each individual case. I have no way of knowing that and whether the commission’s recommendations would materially change it.
As I said, the Scottish Law Commission’s recommendations were fairly conservative, so I would not be going far outwith the bounds of reality by saying that—narrowly construed—they would probably not make an enormous difference.
I cannot possibly say whether any changes, to the time bar for example, would make a huge material difference. I need to remind people that the issue is not just about the time bar; it is also about proving the case in a court. That is probably an even bigger hurdle, given the timescales that we are talking about. The removal of the time bar is seen as a straightforward way of solving the issues, but I am not sure that it would always do so. There is a danger that it would be seen as some kind of quick fix, which it is not.
15:15
Thank you for that. We have a couple of minutes left for any final points.
I have a question for the Minister for Public Health. I welcomed his earlier statement that the Scottish Government had commissioned a report on reparations, and I look forward to reading it when it comes out.
The Scottish Human Rights Commission and others have talked about the establishment of a national confidential forum, and the minister said that he was engaging in discussions with stakeholders about its establishment. Will he tell us when he expects it to be established? It is okay to talk about consultations and speaking to stakeholders but, given the time that the committee and this Parliament have taken to deal with the issue, people are now looking for decisive action and timetables so that we can tell them when we expect the forum to be established.
Are you referring to the national confidential forum being established?
Yes.
It depends on how quickly we can do things. I want to explain why I cannot give you a definite timeframe. It is not because I do not want to; it is because a number of interlinked factors will determine it.
It will depend on how quickly we can establish the action plan through the interaction that the Scottish Human Rights Commission is conducting. Once that action plan is complete and agreed, we will be in a position to publish a consultation document on what the confidential forum might look like. Consultation normally takes three months and, once it has been completed, the Government will consider what has been submitted and respond to those submissions. We will draft a piece of legislation on the back of that, and we will then be in the hands of Parliament to identify a slot in which we can bring the legislation forward.
The reason that I am hesitating in giving you a definite date is that a number of factors are interlinked, and they are not necessarily within my control. I do not know what might come out of parts of the process. I imagine that we will have a better idea of the timeframe once we have completed the interaction and agreed on an action plan. That will give us a better idea of when we can go out to consultation and what might be contained in the national confidential forum. If it helps the committee, I will be more than happy to keep it informed of our progress on each of those stages, so that it can be aware of what stage we are at, at any given time.
Looking at the history of the petitions on the issue, we can see that it was one of the early subjects to have been raised following the establishment of the Scottish Parliament. I do not want to set out a timeframe today only to have to come back and say that it cannot work. I cannot be specific for a number of reasons. I can assure the committee that there is a desire on the part of the Government to set up a forum sooner rather than later but, as I have said, some of the timeframe is outwith our control.
I welcome the minister’s response to that question. That helps to explain the journey that we still have to make before we can establish the forum. Yes, some people might want us to get things done tomorrow, but the reality is that the Government’s hands are tied in taking the issue forward in a meaningful way.
I hope that, at the end of the day, we will be able to establish a meaningful forum to examine the issues that the petitioners have identified and to take forward the issue so that everyone concerned feels that they have received the justice that they rightly deserve.
If members have no further questions, I ask the ministers whether they have any final comments to make.
If members find it helpful, I am more than happy to keep them informed of and up to date on our progress and to explain any changes that might be made to the timeframe for certain stages.
Thank you for that.
On behalf of the committee, I thank the ministers and their officials for their attendance and their very helpful evidence, which we will consider in private in item 5. We will return to the petition at a future meeting.
I suspend the meeting for two minutes to allow the witnesses to leave.
15:20
Meeting suspended.
15:23
On resuming—