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Chamber and committees

Justice Committee

Meeting date: Tuesday, March 14, 2017

Agenda: Interests, Subordinate Legislation, Limitation (Childhood Abuse) (Scotland) Bill: Stage 1, Railway Policing (Scotland) Bill: Stage 1


Contents


Limitation (Childhood Abuse) (Scotland) Bill: Stage 1

The Convener

Agenda item 6 is our final evidence session on the Limitation (Childhood Abuse) (Scotland) Bill. I refer members to paper 5, which is a note by the clerk, and paper 6, which is a Scottish Parliament information centre briefing. I welcome back the minister. She is accompanied by Elinor Owe, who is a policy manager, and Scott Matheson, who is a senior principal legal officer, both with the Scottish Government. Minister, do you want to make an opening statement?

Annabelle Ewing

Yes. Thank you, convener.

As the committee will be aware, over the past few years, awareness has been increasing of the blight of historical childhood abuse and the fundamental challenges that survivors have faced in getting recognition and support, including access to justice. Members will also be aware that many survivors have campaigned long and hard for reform to the current limitation regime. The difficulties that survivors face in accessing the civil justice system were clearly highlighted by the Scottish Human Rights Commission in its interaction process. Survivors have, I would say, been let down repeatedly: they have been severely and fundamentally let down by their abusers and by the adults who were meant to protect them at the time, but they have also been let down again by a justice system that has, in effect, denied them access to a remedy.

I was therefore pleased to introduce the bill, which will remove, for survivors, a barrier to their accessing justice. That barrier of the three-year limitation period has meant that survivors have had to justify to the court why they did not raise an action earlier—a process that has proved to be extremely stressful and degrading for many survivors.

I listened carefully to the committee’s previous evidence sessions. As the committee has noted, the bill is no panacea, and raising a civil action will not be the solution for all survivors. However, the bill is about widening the number of options that are available to survivors and ensuring that they are not faced with an insurmountable barrier, should they choose to raise a civil action.

The bill is very much about striking a balance, and in that I have had to grapple with a number of difficult issues, including the need to consider carefully at every step of the process the implications of the European convention on human rights, and the need to strike a balance between being inclusive and seeking to avoid unintended consequences. The measures in the bill are intended to give the much-needed “reboot” to the system that one witness who came before the committee spoke about.

I have also made every effort to ensure that the provisions in the bill are justified and proportionate. As I am sure we will discuss in more detail, care has to be taken in considering where the balance is to be struck. There is a real possibility that the aim of the bill will be undermined and the process severely frustrated, should we upset that balance.

Finally, I point out that the bill is part of a range of measures for survivors of childhood abuse that the Scottish Government is taking forward. As the committee will be aware, other measures include the Scottish child abuse inquiry, the survivor support fund and the consultation on financial redress.

Thank you for that opening statement, minister.

Stewart Stevenson

I suppose that the first and obvious question is this: why have a bill at all? I ask that in the context of the approach that was chosen in Jersey, which was to establish the historic abuse redress scheme, which was outside the civil and criminal justice systems. Of course, Jersey is a small jurisdiction and the problems were distinct and different there, so I do not map one to the other, but to what extent were options short of legislating considered, and why were they not seen as the way forward for dealing with this injustice, which we all recognise is validly waiting to be addressed?

Annabelle Ewing

As I said, the Scottish Government has taken and is progressing a number of actions, one of which is to improve access to justice through the civil law of our country—something that survivors themselves identified as a barrier. We are responding to survivors’ request to look specifically at limitation.

We are ensuring that there will be engagement and consultation on financial redress for in-care survivors. We expect the consultation to proceed in the months to come, and we will consider carefully any submissions to it. Work is currently under way at pace—through the centre for excellence for looked after children in Scotland and the interaction review group’s action plan on justice for victims of historical abuse of children in care—to pave the way, ensure engagement and consider what we can learn from international experience.

The bill is about the civil law of Scotland. Although there is, in principle, the possibility of raising an action for reparation, the hurdles that claimants have to overcome have proved to be insurmountable. I think that there has been one case in which the discretion of the courts under the Prescription and Limitation (Scotland) Act 1973 has been exercised. That is eminently not fair—we have to ensure that there is equal access for everyone to the remedies in our civil law system. That is, therefore, part of the suite of measures that the Scottish Government is pursuing in order to ensure that survivors of historical child abuse get the justice that they deserve.

Stewart Stevenson

In essence, the operation of the Scottish legal system requires us to legislate to deal with barriers that might not have existed in other similar jurisdictions; for example, Jersey—although I do not want to open up a big discussion on that. That is why we need primary legislation.

Annabelle Ewing

Yes. We introduced the bill to ensure that the civil law of Scotland is there for everyone and not just for some people. We are responding to survivors’ wishes and to the fact that limitation has been highlighted as a problem for some years.

Stewart Stevenson asked what alternatives the Scottish Government considered. Given issues to do with legal certainty, the finality of the law and the defender’s right to fairness in the legal system, we considered whether there might be another way to secure our objective. The various approaches that we considered are clearly set out in the policy memorandum to the bill.

For example, we considered the possibility of having no limitation period at all for any action, but I think that that approach would fall foul of the European convention on human rights. We considered an extension to the limitation period for all actions, but that suggestion met resistance from other claimants and would not solve the problem that survivors of historical childhood abuse face.

We considered window legislation, whereby a window of a year would be given in which claims could be brought forward. That approach has been taken in the United States. However, it does not help a person who is not ready to raise their action within that window, nor would it help in the future when we revert back to the limitation period. It would not help people for whom limitation has been a problem, given the nature of the heinous behaviour, abuse and harm that is caught in the definition.

We considered a number of alternatives, but for the reasons that we have set out in detail in the policy memorandum, we thought that they would not secure the objective that is sought, which is to remove an obstacle to justice for survivors of childhood abuse.

The Convener

If we have learned anything from the survivors who have given evidence, it is that they must be consulted in advance. That message came through loud and clear.

Do I take it that there was no consultation of survivors about the Jersey scheme?

Annabelle Ewing

There have been a number of strands of work, which I tried to refer to in my opening statement. In terms of the work on redress, there have been a number of conversations with survivors over a period of time, as far as I am aware. Survivors have had an opportunity to discuss the subject, and the process that is being conducted by CELCIS and the interaction action plan review group, to make the necessary arrangements to pave the way for the consultation, as well as for engagement and consideration of responses, has been put in place, further to the most recent conversations with survivors. The consultation, which we expect to see in the months to come, will provide a further opportunity to make detailed submissions.

What is survivors’ view of the Jersey redress scheme?

Annabelle Ewing

I would not want to suggest that all survivors take the same view on all subjects, because that is not the case. The Deputy First Minister and Cabinet Secretary for Education and Skills announced that financial redress is how we intend to proceed after he had had conversations with survivors. I think that he wrote to the Education and Skills Committee convener some weeks ago to confirm that. People who feel that the Jersey model is the way forward will not hesitate to make their submissions to the consultation and engagement process.

Was that model part of wider discussions, but not consulted on specifically?

Annabelle Ewing

There have been wider discussions on financial redress and the appropriate way to take it forward. There are many different approaches; those who make submissions to the consultation will promote the approach that they see as being most appropriate in the circumstances. I am sure that submissions on the Jersey model will be included.

Stewart Stevenson

I have a number of questions on proposed new section 17C, which the bill would insert into the Prescription and Limitation (Scotland) Act 1973, and which is on previous litigation. The committee has heard that there is no precedent for legislating away final determinations, which is what the bill seeks to do. Where we see a novel approach—“novel” is not always a term of praise in such matters—the committee has to look at it very carefully. How has the Government satisfied itself that allowing previous determinations to be reopened by a couple of mechanisms will not fall foul of ECHR legislation, in particular?

Annabelle Ewing

Stewart Stevenson has asked a very important question. That consideration informs our approach to the bill as a whole because—as I mentioned in my opening statement—we have had to strive to strike a balance in a very complex area—a balance that will allow us to fall on the right side of the ECHR and the article 1 of protocol 1 provisions. On previously litigated cases, we felt that not to include that as a possibility would create unfairness among different survivors.

However, we recognise that that is in contradistinction to what has been accepted as the normal rules on finality, which is why we sought to draft the relevant provision in proposed new section 17C carefully, such that it will be for the pursuer, in the first instance, to show that they have a reasonable belief that there had been a settlement that was agreed, further to the action falling on the ground of limitation. We believe that that is fair in the wider context, because those are circumstances in which there had been no substantive adjudication on the merits and the case had fallen because of application of the limitation rule. We feel that we have, through the onus being in the first instance on the pursuer to adduce the reasonable belief test, acknowledged a departure from previous practice and have introduced a safeguard in that element of the process, as far as previously litigated cases are concerned.

10:15  

Stewart Stevenson

You are talking about the pursuer having to show that a case falls within the provisions of proposed new sections 17C(4)(a) and 17C(4)(b) and, in particular, 17C(4)(b)(ii), and I think that you used the phrase “personal belief”. Is that an indication that omissions in the paper trail—which might sustain that belief—will not be a barrier to the ability to demonstrate personal belief in a civil court, in the balance of advantage? Is that what you are seeking to say by using the phrase “personal belief”?

Annabelle Ewing

I should correct the record: I meant to use the phrase “reasonable belief”. We anticipate that that could involve a personal statement by the pursuer to the effect that they held a reasonable belief that a case had not proceeded because it came up against the insurmountable hurdle of application of the limitation period. With the bill, we are changing the limitation rule as it applies to this class of cases—we are not changing the law for reparation in general. The laws of reparation, all the related court processes, and how the court balances evidence and satisfies itself about the facts and circumstances of each case that comes before it, will all pertain. There may well an issue to do with records, but there may be ways in which that can be overcome. It will depend on the facts and circumstances of each case.

Cases will vary but, in general terms, what you say appears to confirm that gaps in the paper record would not be a barrier to a case being taken, under the provisions of the bill.

Annabelle Ewing

Such a gap would not preclude a case being heard in all circumstances. The court would be able to take the statement of the pursuer that they had a reasonable belief that the case had a fallen on the ground of the limitation period. It would then be up to the court, as master of the facts, to assess the facts and circumstances of that case and the evidence that it would adduce—or not, as the case maybe—and then to take a view. Obviously, if the pursuer makes a statement based on reasonable belief, it is up to the defender to rebut that, as they would with any claim or counterclaim in court.

I am trying to explain that—to answer the question—a gap in the paper trail would not be an insurmountable barrier in all cases. It would depend on the facts and circumstances.

The final thing to reiterate is that the bill seeks to remove obstacles to justice that have been identified—in particular, those that have been identified by survivor groups. It will not change the law of reparation in Scotland in other respects. It is important to remember that the courts deal with very difficult issues of evidence. They weigh up evidence on the balance of probabilities every day of the week, and they will continue to do that with respect to the bill’s provisions.

Stewart Stevenson

I am sure that those will be helpful and useful words to have on the record.

My final question is on excluding people from access to the rights under the bill whenever even just a single pound has been paid in compensation. That strikes me—as a non-lawyer—as being rather unjust. People may have felt that they had no option other than to settle, even though a nugatory amount had been offered in compensation, because not to settle would simply mean that the case that they were engaging in would not proceed, and they would not even get the emotional justice that would come from settlement. What consideration has been given to whether limitation because of even nugatory amounts is denying people justice? I have used the example of identical twins who had cases with identical circumstances, one of whom settled for £1 and one of whom did not, who would now find themselves in a very different environment.

What are the issues around that decision, which is captured in proposed new sections 17C(4)(b) and 17C(5)?

Annabelle Ewing

That is a very difficult issue, with which I have a great deal of sympathy.

However, as I tried to emphasise in my opening statement, what we have tried to do is strike a balance between, on the one hand, proceeding with a major change in the law on removal of the limitation period for a class of claim and, on the other, the defender’s rights, the finality of the law and legal certainty. We have sought—and have striven very hard—to strike that fine balance in the bill. We feel that we have to draw a dividing line somewhere; that is where the line is drawn, as regards the provisions in the bill.

I sympathise, but what we are saying on including previously litigated cases is that the key thing is that there was no substantive consideration of the merits and, in effect, no compensation was payable. In a case in which no expenses have been found to be due to or by either party, or in one in which expenses have been paid, that is not putting the pursuer in a better position—even marginally—than they would have been in if they had not raised the proceedings. That is the fundamental difference.

We are not saying that all cases that had previously been litigated can be subject to consideration of whether or not they can be looked at again. What we are saying is that victims, who will be the pursuers, will be entitled to seek to have brought before the court cases in which there has been no substantive adjudication on the merits, and which have fallen because of the application of the limitation period. We have to draw the line somewhere.

From memory, one of the witnesses who gave evidence was a lawyer who had acted for defenders in some 400 or 500 cases. If I remember correctly, that witness made the point that they thought, from experience, that that scenario is not very likely, in that there would have been no incentive for the defender to make even a nominal payment in excess of expenses. In any event, most such cases would have been settled on the basis of no expenses being due to or by either party.

Although I accept that it is not beyond possibility that there could be some such instances, the feeling—at least of the lawyer who acted for hundreds of defenders—is that they would not, in practice, have happened as a matter of course.

Stewart Stevenson

Finally—and because the minister raised something that I had not previously thought of—is it the case that an initial action can be disposed of by the court, in accordance with a relevant settlement, but without evidence having been led? You seemed to suggest to me—as a layperson, I emphasise once again—that a settlement would have been reached only where a determination on the evidence had been reached.

Annabelle Ewing

No. I am trying to explain that the only previously litigated cases that would potentially fall within the scope of the bill would be those that did not involve a substantive adjudication on their merits. That is the key point: the pursuer, who is the victim, did not have the opportunity to have their day in court—to use that cliché—because there was no substantive adjudication on the merits. They did not get to that stage, because the case fell at the hurdle of the three-year limitation period’s applicability and they were not able to persuade the court to exercise its discretion to lift that application of the three-year limitation period. In fact, I understand that there has been one instance in which the court has so proceeded in the past 40 years or so, which shows that, as a matter of practice, there has been a barrier to access to justice for those victims.

I am going to have to read the Official Report, because I am not entirely convinced by that. I reserve the right to pursue it further if I—

Of course, and if the member wishes to write to me—

Indeed, I might do that. Thank you, convener.

Liam McArthur (Orkney Islands) (LD)

I will follow on from that. We will come on to the discretion that is open to the court under section 17D, but my question is specifically on section 17C. Decree of dismissal and decree of absolvitor have been referred to in relation to cases that have been dealt with previously. A number of witnesses have expressed concern about what could be described as the innate conservatism of the judiciary in how they exercise their discretion now. Do you have confidence, borne out by the evidence that you have taken on extending the right in relation to decree of absolvitor, that the judiciary will not simply take the view that anything that falls within the category in section 17C is to be dismissed out of hand? Witnesses certainly had clearer concerns about that aspect of section 17C than about decree of dismissal.

Annabelle Ewing

I know that there have been a number of questions on that point. It is important to remember something that has been lost in the debate, which is that the decree of absolvitor is not necessarily always the appropriate decree when there has been a substantive consideration. The decree of absolvitor can also happen when there has been no substantive consideration. I think that people assume that the decree of absolvitor comes into play only when a case is disposed of further to a substantive consideration of the merits, but that is not always so.

I go back to the examination of facts and circumstances by the court before which the action would be brought for consideration. For the removal of the time bar, the court would have to look into the facts and circumstances, as I tried to make clear in response to Mr Stevenson’s questions. The key dividing line is whether there has been a substantive consideration of the merits; if so, it will not be possible to use the bill to reopen a case, because that would be an infringement of ECHR that we could not justify.

The bill applies to cases where there has been no substantive consideration of the merits, whether the cases were settled by a decree of dismissal or a decree of absolvitor. It is competent to grant a decree of absolvitor even when there has been no consideration of the merits.

Liam McArthur

That came through in the evidence, but I am thinking more about courts’ inclination in relation to a decree of absolvitor. Notwithstanding the reassurances that you have given, the decree of absolvitor seems to have a particular significance such that courts will be more reluctant to reopen cases, which will in effect be dismissed.

Perhaps Elinor Owe can explain a bit more of the background to the work that we did.

Elinor Owe (Scottish Government)

Mr McArthur makes a good point. We cannot predict how the court will react in such cases. However, the bill creates a default position, whose intention is for cases to be allowed to be reopened. Because that is the default position, the bill provides that there will be a need to point to something specific that is above and beyond the default position in order for such cases not to go ahead. The intention is for the courts to interpret matters in that way. As the committee will have seen from the bill’s drafting, the issue is not just the possibility of prejudice; evidence will have to be pointed to that shows that it would not be possible to have a fair trial.

We completely recognise that there is a danger in what is proposed, but we cannot predict that danger. The bill sets the default position, and defenders will have to show something that is above and beyond that.

The Convener

I will look at the issue a bit more, because it is probably one of the more contentious issues in the bill. We are looking at substantive consideration. In effect, section 17C will overturn the legal principle of res judicata, which concerns the legitimate expectation that cases that have been considered—even if they have not been brought to trial—will not be overturned. I appreciate what the minister says about the pursuer possibly not having had their day in court. The assumption is that a decree of absolvitor is to be overturned because it was applied for on the basis that the case was going to be time barred. Instead of getting a decree of dismissal, insurance companies sought a decree of absolvitor to ensure that a case was not raised again.

When we took evidence from representatives of insurance companies, we found that they did not recognise that view. There was concern about whether the reasonable belief test would work in practice. What discussions have there been with insurance companies? The representatives from the Association of British Insurers and the Forum of Insurance Lawyers who appeared before us did not recognise the scenario that has been outlined. However, the minister says that it has been identified by some survivors. Will she elaborate on that?

10:30  

Annabelle Ewing

Survivors have identified insurmountable obstacles to their cases going through to the next stage. As for the decree of absolvitor issue, I do not think that it would be causing such confusion if it were called something else. The confusion derives from the fact that people assume that such a decree is granted only after a substantive consideration of the merits of a case, but that is not the case—

The Convener

I have to stop you there, minister. That point was made in response to Liam McArthur’s questions, and I think that he and the committee understand it. However, I understand that the Government is legislating for a niche—for cases in which the decree of absolvitor was sought by an insurance company and agreed to by the pursuer because they did not expect any other legal redress, as a result of the case being time barred. Is that right?

Annabelle Ewing

In essence, the expectation was that the case could not proceed because of the time bar but, instead of the disposal being by decree of dismissal, it was for whatever reason by decree of absolvitor. We are therefore talking about a procedural point. As you rightly said, the underlying issue is that such a case would have been concluded in that way because it was felt that it would not go through, as a result of the time bar.

We have included such cases because this is a procedural point. To those who could not pursue their claims because of failure under the time bar and the limitation approach to such cases, and because the discretionary safeguard has not been invoked—or not more than once—for such claimants, it seems unfair for their cases not to be included in the bill, given that they fell on the same ground, which is the application of the limitation rule. If such cases were not included, there would be a perception of unfairness to that group of claimants.

That is why we have included the cases in the provisions. As I have said, the onus will be on the pursuer of a previously litigated case to show the court that their reasonable belief was that the settlement, be it by way of decree of dismissal or decree of absolvitor, was arrived at on the basis of someone saying, “Look, you might as well stop this. You’re not going to get to the next stage because the limitation rule applies.” That is the underlying and key principle.

The Convener

How can that possibly be proved? Are we turning the whole thing on its head and saying that any decree of absolvitor that was granted in respect of a case that would have been time barred is automatically assumed to come under the provisions?

Annabelle Ewing

I always go back to first principles, and the underlying purpose is to ask people who have not had access to justice because of the applicability of the limitation period—it has a discretionary lift, but the evidence that we have seen shows that that has not been exercised on behalf of this group of claimants—what we can do to ensure that they have that access.

We have introduced the bill, which will apply retrospectively to cases of abuse after 26 September 1964, and we are allowing consideration of whether in all circumstances it would be equitable for previously litigated cases to be looked at again. In those circumstances, we are talking about cases that fell because there was a reasonable belief on the pursuer’s part, which could have been set out as a personal statement to the court, that the case was settled as a result of the limitation period and in which, to go back to Mr Stevenson’s earlier point, the pursuer received no financial compensation.

Those are the key principles. We felt that it would be unfair to exclude a limited set of cases that were settled through decree of absolvitor rather than decree of dismissal. That is a procedural decision—because the same set of key facts underlies the settlement, we have included such cases.

Elinor Owe

I know that, in a previous evidence session, there was discussion with insurance companies about how such cases ended up being absolved. From the point of view of policy and how we have developed the bill, it does not matter exactly how cases ended up having a decree of absolvitor.

If there were a link between a case having a decree of absolvitor and the fact that it would have failed on limitation, it does not exactly matter what the process was and who proposed what, because the point is that the case failed as a result of limitation. That is the clear link that determines which cases should be allowed to go ahead. It is not any case—it is one where the link to failing on limitation can be demonstrated.

We have had discussions with insurance companies on a range of issues, but perhaps not on that point. The key aspect is linking why the case was absolved to the fact that the case was likely to be failed on limitation. That is the policy background.

So the reasonable belief test would be satisfied by a statement from the pursuer to the effect that that was their belief.

Annabelle Ewing

Yes—it could be. At the end of the day, it will be for the court—the master of the facts—to decide on the facts and the circumstances of the case and the evidence that is adduced before it what view it takes on the issue.

Douglas Ross (Highlands and Islands) (Con)

I have been trying to get in since the start. I will go back to the minister’s choice of language in her opening remarks. She said that survivors have been let down by the justice system itself. Was that a criticism from the Scottish Government of judges for not using the discretion that is available to them?

Annabelle Ewing

It is fair to say that survivors have collectively been let down by the justice system. On the point about legislation, judges can only deal with the legislation that is before them. The applicability of the limitation period is a policy matter for the Government of the day.

The judges have the 1973 act and the policy that emanates from it, which set out the parameters within which they must proceed, and that is how they have proceeded. If there is a limitation period, that will in effect be the norm. There may be provision for an exception, but the norm will be to apply a limitation period.

Let us look at other jurisdictions. In Australia, the Royal Commission into Institutional Responses to Child Sexual Abuse, which reported in 2015, took the view that it was not appropriate for limitation periods to apply to this class of claimants. The Scottish Government and I agree with that. To do that would lead to the creation of an in-built resistance to such cases proceeding, which is what we have seen.

Judges have acted within the applicable legislation, which is the 1973 act.

Douglas Ross

Your criticism is that the survivors were let down by the justice system itself—those are the words that I wrote down. You have cited only one case where the discretion has been used. Why has it not been used? It is not as though judges have no powers at all—they have the power to use it. Why have you been forced to introduce the bill now, in 2017?

Annabelle Ewing

As I said, if a limitation period applies to a class of cases, as in this instance, that limitation period will apply. The exercise of discretion is, obviously, a matter for judges, but they have to operate within the policy provisions that emanate from the legislation that is in hand, which is the 1973 act.

The Government and I consider that such cases present a unique set of circumstances. We all agree that abuse is absolutely abhorrent. The victims were incredibly vulnerable, because they were children. Over the years, we have seen from various studies the all-encompassing effect of abuse on children. There is the silencing effect—some studies have cited the average time for victims to come forward as 22 years.

Given all the circumstances, a limitation period in and of itself is not appropriate and will cause problems for people in such circumstances in accessing justice. As I said, it creates an in-built resistance to cases proceeding, so we have introduced the bill that is before the committee.

Douglas Ross

I am not getting what I hoped to get from you on what has been done up to this point to see whether judges require further clarification of their powers or further powers. You are introducing legislation, which is an overt step to overcome the problems, but I think that we have had only one example since 1973 of the discretion being used. What action has been taken in the intervening period? What action has the Scottish Government taken while your party has been in office over the past 10 years and what action have previous Scottish Governments taken since devolution to overcome a problem that, if the discretion has been used only once in 30 years, was clearly apparent?

Annabelle Ewing

Since we took office, the Scottish National Party Government has proceeded with a number of steps to ensure that survivors get the support that they should have had years ago. That includes access to a remedy in court and many other strands that I have referred to. For example, work by the Scottish Human Rights Commission has gone on apace—I am sure that the member is aware of that and the report. The Scottish Law Commission has looked at the limitation period and it concluded that, if there were problems, one could seek to go down the discretionary guidance route. However, for the reasons that I have stated, I do not think that that would lead to a meaningful and significant solution to the problem that survivors in particular have aired. As I have said, the existence of a limitation period in and of itself creates an in-built resistance to cases proceeding. That is why we have to remove the limitation period for a unique class of claimants.

Douglas Ross

I will go back to something that you said in a previous answer. You said that the bill is important because of the victims’ vulnerability, as they would have been children at the time. Would it be right for a 19-year-old with a mental age of under 18, for example, to be exempt from limitation?

The general limitation rules do not apply and the limitation period does not run while there is a period of unsoundness of mind. That deals with that issue. However, in terms of the—

I am sorry to interrupt but, for clarity, is that for bringing forward a claim or for someone who had a lower mental age when they were abused? That is the point that I am getting at.

Annabelle Ewing

The time limit does not run during a period when a person was not aware of the harm that was suffered from industrial disease, for example, and the limitation period does not run during a period of unsoundness of mind. That is the current position.

We thought carefully about the definition of a child under the bill, but we took the view that the prevailing definition of a child—we can look at the Children (Scotland) Act 1995 and the United Nations Convention on the Rights of the Child—is that of a person who is under the age of 18. Because of the impact of abuse on a child, excluding 16 and 17-year-olds is not appropriate in the circumstances.

Douglas Ross

I am sorry, but my question was not about that. If someone is 19, 20 or 30, but they had a mental age of under 18 when they were abused, so they were, in effect, a child—that could be diagnosed and confirmed—they will not be able to use the bill to bring forward a claim. That is despite their vulnerability in having a mental age of under 18. You have said twice that vulnerability was a key driver in bringing the proposals forward, but such a person would not be able to use the bill, because their actual age was over 18, despite their mental age being below that, which meant that they were vulnerable.

Annabelle Ewing

Such a person would be deemed to be a vulnerable adult. As I have said, the limitation period does not apply during a period of unsoundness of mind. Perhaps Elinor Owe can clarify the position for any carer, guardian or whoever who can act or intervene on such a person’s behalf.

Elinor Owe

The concept of a person’s having the mental age of a child sounds similar to the concept of a person’s lacking capacity to attend to their affairs, which is the concept of unsoundness of mind. Our bill would not be relevant there, but the limitation period would not apply to such a person, under section 17(3) of the 1973 act. If a person has the mental age of a child and lacks capacity to deal with their own affairs, they are exempt from the limitation period anyway.

Douglas Ross

A person’s mental age could progress. Some people do not maintain the mental age of a child indefinitely. The point that I am getting at is that a group of people who have a mental age of under 18 and who were abused years ago because they were vulnerable might want to bring a claim, perhaps by themselves. If they did that, people would say that they were not included in the provisions, because they had the ability to bring forward a claim themselves. You are saying that, under the bill, they would not be able to bring forward a claim because their physical age when they were abused was over 18. They might now have the mental capacity to bring forward a claim but, under the bill, they would not be allowed to.

Annabelle Ewing

That is to do with vulnerable adults and unsoundness of mind. There is a legal definition of a child but, as Elinor Owe said, the limitation period does not apply during periods of unsoundness of mind. If the hypothetical person to whom you referred recovered their mental capacity, the limitation period would run from the time at which they did so.

Like Mr Stevenson, I will reserve my right to come back to the issue.

Okay.

In your opening remarks, minister, you said that the aims of the bill could be threatened if we upset the balance. Could you explain further what you were alluding to?

10:45  

Annabelle Ewing

Yes—and I have tried to come back to that fundamental principle in my answers to members’ questions. We recognise that the proposals mark a major departure from Scots law principles thus far. I have set out why I feel that, in the circumstances, that is justifiable. There is a unique set of circumstances around the class of claimants that we are discussing and I therefore feel that we are pursuing a legitimate aim, that what we are proposing is proportionate, and that although we have considered other possible routes, we have found them wanting in different regards.

We conducted in advance the European convention on human rights test to proof the bill and I feel that we have struck a balance between recognising what is a major departure from the hitherto established principles of Scots law, recognising the legitimate policy aims that underpin the bill and recognising the position of the defender. We have struck that balance through the careful drafting of the provisions and it is that important balance that will ensure the integrity of the bill, should there be any subsequent attempts to undermine it. The balance has carefully crafted, one element versus the other, the different strands of the bill. That is the point that I was trying to make.

If we can move on to some of the other evidence—

Could we leave that for now, please? I will come back to you, Douglas. There are follow-ups to the line of questioning that you have been pursuing.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

This relates to Douglas Ross’s earlier line of questioning. Would the minister agree that the Scottish Government has introduced the bill now partly because of the significant change in social attitudes towards such abuse, noting the high-profile cases that have been in the media, the work of survivors’ groups and a breakdown of the taboo and the social attitudes that have applied. Does the minister believe that the Scottish Government is responding to that? I think that we all agree that it is the right thing to do for survivors.

Annabelle Ewing

I have tried to list a number of actions that have been taken since about 2007, with the involvement of the Scottish Human Rights Commission, the very important interaction process and survivors feeling that they would get a hearing and would be listened to. I imagine that that reflects other developments in society at large, such that they now feel that this is a time when they can make some progress. I give all credit to them, because it is very difficult, as I think that we all appreciate, for survivors to make their views known and to lobby on the subject. We all wish to work with them.

There have been a number of different developments over the years, and that has led to now being absolutely the right time for us to get on and take away this obstacle to survivors accessing justice. As I have said, that is not a panacea. You have heard evidence that people still have to go through the normal court processes for reparation and all the rest of it, but the bill will remove at least one barrier and that is important to ensure that survivors who have called for this measure feel that they are being listened to.

Stewart Stevenson

I seek clarity. Section 17(3) of the 1973 act states:

“In the computation of the period ... legal disability by reason of nonage or unsoundness of mind ... shall be disregarded”.

Therefore, the category of people we have been talking about already have the rights to set the normal limitations to one side. The bill is about creating that right for a new class of people, and it is not required for people who,

“by reason of nonage or unsoundness of mind”,

already have such a right.

Annabelle Ewing

Yes. In brief—I can see that the convener is keen to keep to her schedule—that is the position. As regards the limitation period for people in those categories, the clock is stopped, and it does not start again until there is capacity or until someone is no longer in the position of nonage. With regard to survivors of historical abuse, we have seen that they simply cannot progress because of the limitation period and the in-built resistance to cases proceeding. That is what we need to tackle, which is what the bill is designed to do.

Douglas Ross wants to start another line of questioning. Mr Ross, you will be followed by Mairi Evans, Rona Mackay, Mary Fee and John Finnie, so could you be brief, please?

Douglas Ross

Minister, what is your prediction of the number of cases that will come forward? The committee has seen a variety of figures quoted, some of which are significantly lower and some of which are significantly higher, so I hope that you will give the committee your best estimate. Given that number, do you think that the court system is adequately equipped to process those claims in a timeous manner for the people who want justice as soon as possible?

Annabelle Ewing

I refer the member to the financial memorandum, which is one of the bill papers. We have tried to come up with a best estimate or indicative figure, and a methodology for that is set forth clearly in the financial memorandum. The midpoint figure that we have come up with is 2,200. Of course, nobody knows what the exact figure will be and whether it will be higher or lower than that. The evidence before the committee shows that we simply cannot scientifically determine the exact figure. It is fair to say that the route of going to court will not be right for many survivors. That is a matter of individual choice and informed choice. It would be absolutely wrong of me as minister to suggest that anybody should take a particular course of action, because that is entirely for the survivors to decide. It may well be that other people, in quoting figures, have not taken into account the fact that not every survivor will choose to go down that route. Our best estimate is the figure of 2,200 that is referred to in the financial memorandum.

On the member’s question about the court system, it is important to state that we do not expect all those cases to be raised simultaneously, to be raised in the same court or to proceed at the same rate. There will be different issues and disposals at different times. In the financial memorandum, we set out what we feel is a reasonable estimate of the impact on the Scottish Courts and Tribunals Service and its business. I again refer the member to the financial memo for the detail of that, because it sets out cost estimates for each year of a five-year period, which we felt was a reasonable period to consider.

Obviously, we will always be in touch with the Scottish Courts and Tribunals Service, and I am sure that it will not hesitate to alert us to any particular issues that might arise. Obviously, in our normal budgetary considerations, we will keep those matters under advisement.

Douglas Ross

It is useful to get that on the record. We have read the financial memorandum, which as you said gives a midpoint figure of about 2,200, yet it has been suggested to us in evidence that one Glasgow law firm alone has 1,000 survivors on its list and is ready to bring forward actions should there be a change in the law. The 2,200 figure that the Government has quoted seems slightly low, considering that one law firm has half of that number ready to go if there is a change in the law.

The minister said that she will listen to concerns coming from the Scottish Courts and Tribunals Service. Can we take it from what the minister has said that, if the bill is passed and the legislation is implemented and survivors start to come to MSPs or the committee to say that they were given reassurances and have waited a long time for the legislation but they feel that they are not being seen quickly enough or that the justice system is not treating them as a priority, the Government will look favourably on any request for increased funding to meet the needs of a court system that is more burdened because of the legislation?

Annabelle Ewing

We always keep under advisement what is going on in our courts. One direct impact on the Scottish Courts and Tribunals Service concerns the issue of fees, and we have of course moved to 100 per cent or full cost recovery. That should be borne in mind in looking at any financial impact on the Scottish Courts and Tribunals Service in terms of its resources. As I said, we expect that we will see actions raised in various sheriff courts and not just the new personal injury court. Of course, the Court of Session is an option for cases over a particular threshold. As I say, we do not anticipate that all potential victims will choose the route of going to court. It is absolutely up to them to decide what is the most appropriate way in which to proceed, and I would not prejudge that for a second. We have come up with a best-estimate figure and we will continue to monitor the situation closely.

Finally, on funding, do local authorities and third sector organisations have adequate resources to meet the burden that they will face in investigating and defending claims that are made against them?

Annabelle Ewing

I have seen representations to the committee, in particular from the Convention of Scottish Local Authorities. At this point, of course, no one can say definitively what the impact will be across the piece. As I said, we will keep such matters under advisement.

We have been discussing matters with COSLA; officials met COSLA last week or thereby, and I will shortly meet the spokesperson on children and young people. Through officials, I offered to meet COSLA last autumn, but the offer was not picked up. However, I am happy to meet COSLA and officials continue to do so. We will keep the matter under careful advisement. At this stage it is a bit premature to discuss particular figures, because no one knows what the figures will be. We must wait and see.

Can we take some comfort from the fact that the Scottish Government is addressing the issues that COSLA raised?

We are certainly in conversation with COSLA. We have to see what happens. For some councils there might not be a particular impact—

But for others there could be a significant impact—

Annabelle Ewing

There are so many variables, as was recognised in the evidence that was submitted to the committee, that we are simply not in a position today to be able to bring out a crystal ball. As a responsible Government, we will continue to engage with COSLA. Those discussions will continue during the passage of the bill and—if it passes, as we hope that it will do—thereafter.

Mary Fee (West Scotland) (Lab)

My question follows on from Douglas Ross’s question about the potential burden on local authorities. The support services that victims use might also require additional support. If people come forward after waiting for years and years they might need additional support, even if they have been receiving some support. Is there enough flexibility in that regard? Are you alive to the need to ensure that the correct support is put in place for people as their cases come to court?

Annabelle Ewing

That is an important point. Funding is available from the in-care survivor support fund—it is now called “future pathways”—for a number of activities. It is important that we ensure that the court system looks at the issue from the perspective of the survivor and considers the support that they need, for example as a vulnerable witness who is giving evidence. That must be well recognised. I understand that we have been in broad-brush discussion with the Scottish Courts and Tribunals Service on support at court. We have also discussed with the Law Society of Scotland whether it can instigate specialist training for lawyers or perhaps even set up specialist accreditation for this area of work.

We are mindful of the point that you rightly raised, because it would be an empty gesture to provide the possibility of a legal remedy while not recognising the serious practical issues involved.

Mairi Evans (Angus North and Mearns) (SNP)

You mentioned the definition of “child” in the bill; I want to ask about other key definitions. The panels that the committee heard from were in general agreement about the definition of “child”, but there has been a lot of discussion about the definition of “abuse” in the bill.

Some groups thought that the definition should be more prescriptive; others welcomed the fact that what abuse is can be interpreted more broadly. The Scottish Human Rights Commission thought that neglect should be specifically mentioned in the definition. Will you consider including neglect in the definition?

11:00  

Annabelle Ewing

I have noted the views about definitions in a number of submissions. Again, it comes back to first principles and the delicate balance that we have sought to arrive at in the legislation. Of course, some have said that the definition of abuse is too wide, while others have said that it is too narrow, and we have tried to reach a place where we can protect the bill’s integrity by not taking it too far away from the core principles that justify our taking this action in the first place.

With regard to emotional abuse, we have drafted the list in question with reference to

“sexual ... physical ... and emotional abuse”

to ensure that it is inclusive rather than definitive. That is important, because we cannot begin to imagine all the forms of abuse that these people have suffered at the hands of the perpetrators or, in trying to represent this heinous and abhorrent harm, set out all the kinds of abuse that could be involved. As a result, we need to let the courts decide; indeed, the Scottish Human Rights Commission has said:

“the Scottish courts are well placed to make”

such

“assessments”.

After all, they make these assessments every day of the week.

Coming back to emotional abuse, I also think it important to recall that existing legislation in Scotland—for example, the Matrimonial Homes (Family Protection) (Scotland) Act 1981—also covers the possibility of mental injury. Again, the courts have had a considerable period of time to get to grips with that. I therefore feel quite confident that we have struck the right balance.

Neglect was covered in the draft bill that we consulted on, and many of the comments that we received suggested that such a move could make things too wide and lead to unintended consequences. In my view, the definition as it stands does not exclude neglect per se, but it would include only neglect that was a result of abusive rather than negligent behaviour. Again, the court would make such an assessment.

As I have said, I feel that we have struck the right balance, but I have looked at the evidence that has been submitted and I will read the committee’s stage 1 report on this subject with interest.

Mairi Evans

The Scottish Human Rights Commission told the committee that there is already quite a clear definition of neglect. I understand your point about the term “emotional abuse” encapsulating many of the types of abuse that have been mentioned—indeed, that has been recognised in some of the submissions that we have received—but I note that people have also highlighted the terms “spiritual abuse” and “psychological abuse”. What do you think about that? Do you consider that such aspects fall into the “emotional abuse” bracket and that, therefore, the bill should be left as it is, or will you consider including such things?

Annabelle Ewing

In their evidence, the Law Society of Scotland and the Scottish Human Rights Commission took the view that the notion of “spiritual abuse”—which, despite being an undefined concept, raises very interesting issues—could fall within the term “emotional abuse”. I share that view, and I also feel that psychological abuse or harm would most certainly fall within it, too. Indeed, I have already cited the 1981 act and the fact that it features mental injury.

Like the Scottish Human Rights Commission, I feel that the courts are, as masters of the facts, well able to make these determinations and get to the key issue of justifying this departure from the normal law of Scotland for abuse of such a heinous nature and its being perpetrated on an incredibly vulnerable person—a child. As has been well documented, the effect of that abuse is such that for years and years the person is not necessarily in a position even to acknowledge that it has happened. That is the level of seriousness that we are trying to address here.

Again, though, we do not want to be too prescriptive, because I do not think that we can imagine all the possible kinds of harm that could have been perpetrated, including, as an example of neglect, children being told that nobody wanted them. We do not know all the kinds of heinous behaviour that could have gone on, and we need a definition that does not close off or shut down the possibility of a survivor accessing justice. I think that we have struck the right balance, but obviously I will look carefully at all the committee’s deliberations on this point.

The Convener

That is very much appreciated by the committee because, when we took evidence, there was a feeling that emotional abuse did not quite cover spiritual aspects of abuse in which there is indoctrination and that that went a little bit further, almost on to psychological abuse. Perhaps neglect could come under that, too. There might be a case for having that on the face of the bill and the committee welcomes the minister having an open mind on that particular aspect.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

The Forum of Insurance Lawyers said that the burden of proving that there is a “relevant settlement” for the purposes of section 17C would rest with the person who was raising the action, whereas the Law Society thought that it would rest with the defender. Who is right? Does that need to be clarified in the legislation?

Annabelle Ewing

As I said earlier, it is quite clear that, with the possibility for the court to look at previously litigated cases in which there was a settlement, it is for the pursuer in the first instance to show that they have reasonable belief that the previous action was settled on the basis of the applicability of the limitation period. I noted that the Law Society seemed to have a question about that, but I was curious as to why, because it seems quite clear on the face of the bill that that is where the onus would lie.

I state again for the record that a pursuer would have to show that they held a reasonable belief and they could do that by giving a personal statement, for example. It would be up to the defender to seek to rebut that, which would get us back into the normal rules of court operation in terms of balancing evidence. In the first instance, it would certainly be for the pursuer to prove. Yet again, I say that this is a major departure from the applicable civil law of Scotland and we have to be mindful of that as far as the application of the European convention rights are concerned.

Rona Mackay

As a layperson, I was confused as to why the Law Society thought that the burden of proof would rest with the defender, as that seems to turn the system on its head. Can you offer any reason why the Law Society thought that?

Annabelle Ewing

I imagine that the committee might wish to seek clarification from the Law Society on that point, and I would read that with interest. I am clear that it would rest with the pursuer in the first instance, with the explanation that it would be possible for the pursuer to make a personal statement to adduce that they had held that reasonable belief.

Mary Fee

In evidence, COSLA and other people who came to talk to the committee suggested that a specialist hub of the personal injury court might be the best place to hear these cases. I would be interested to hear your thoughts on that.

Annabelle Ewing

I noted that, and that approach could have attractions in that a specialism would be built up. On the other hand, playing devil’s advocate, one could argue that a specialism might lead to a lack of innovation and, if a case were heard before the average sheriff court, that court might bring a fresh eye to it. However, I accept that there are lots of arguments in favour of having specialisms.

As to the decision making on that issue, it would be a matter for the Lord President to designate such courts. I feel fairly confident that the Scottish Courts and Tribunals Service will look very closely at the official records of this committee to see the points made that have application to it.

I think that it was the ABI that suggested that all actions would have to be brought at the new all-Scotland personal injury court, but that is not the case. Actions can be brought at any sheriff court in Scotland, or in the Court of Session, should the quantum threshold be reached. That is important and it should be borne in mind.

On balance, specialisms are helpful rather than unhelpful, but it would be a matter for the Lord President to designate such a court.

Mary Fee

Given the comments that you made in response to my earlier question about giving additional support and training to lawyers and solicitors in court, there might be some advantages to that. I suppose that we have no idea how many cases will come forward or what the burden on courts will be, so specialist hubs might be beneficial in dealing with cases as we go forward.

Annabelle Ewing

They might be. As I have said, I am fairly confident that the Scottish Courts and Tribunals Service will look closely at the committee’s work on the bill and will reflect on any suggestions. I would not like to abrogate the rights of the Lord President to decide what happens in the court system, because I might get into trouble if I did. It is important to point out that it would be for the Lord President to decide, but I note what the member has said.

Thank you.

Liam McArthur

I want to go back to the issue of the court’s discretion, which we touched on in relation to section 17C. Under section 17D, the court will have the discretion to reject a case when the prospect of a fair hearing is not likely or the retrospective application of the law could result in substantial prejudice. You will have seen from the evidence that we have received that a number of witnesses have expressed concern that, if there is no guidance or clarity about how that discretion might be exercised, the judiciary could in effect, if they take a more conservative approach, use that discretionary power to apply the time bar by other means. Do you recognise that concern? Has it come through in the discussions that you and your officials have had with witnesses? What consideration was given to whether more guidance on how such a discretionary power might be applied could be beneficial in allaying those fears?

Annabelle Ewing

The substantial prejudice test under section 17D brings us back to the onus falling on the defender to show that proceeding would be of substantial prejudice. It would not just be theoretical prejudice, and it would not just be that it might be likely, as Elinor Owe pointed out; it would be substantial prejudice. Furthermore, in consideration of that test, the court must balance it with the pursuer’s interest in proceeding. It is only after that further balancing consideration is made, presumably in terms of the gravity of the substantial prejudice, that the court would find in favour of the defender and find that the action should not proceed.

After careful consideration, we have included this mechanism to reflect the delicate balance that we need to strike in the drafting of the legislation to ensure that we have the best possible chance of defending the integrity of the bill should there be any subsequent attempt to undermine it. By including the fair hearing test—which applies anyway—and the substantial prejudice test, we have reflected the balance needed, whereby we need to recognise the defender’s interest in legal certainty and finality of the law. We have recognised that through putting the mechanism into the bill and we would have the courts so proceed.

The test would be in the bill and the courts would not be able to ignore it. Setting such a mechanism is helpful for the integrity of the bill and for the courts and the defender.

Liam McArthur

You quoted the Faculty of Advocates earlier in suggesting that the bill provides a reboot, and the faculty certainly expects that there will be a change in approach because of the switch to where the balance lies. Nevertheless, should that not be the case or should future case law suggest that access to justice is still being denied because of the way in which the discretionary power has been applied, is there then an opportunity to provide further guidance to reinforce the central message of the legislation?

Annabelle Ewing

There are different views about whether we should amplify that in the bill. One view is that it might provide further clarity, while another is that it could cause confusion. What is the guidance to be? There are so many possibilities of substantial prejudice that, if we set forth only some of those, even if the list is not exhaustive, it might nonetheless set off red herrings that might distract the court, possibly to the exclusion of the consideration of other matters. I am not convinced that setting forth any particular non-exhaustive list in guidance would necessarily be helpful from the perspective of the integrity of the bill and the defender’s interest.

11:15  

You raised the issue of whether the test would change the balance so much that the test would always be met, which would be to the detriment of the interest of the victim, who would have to overcome that obstacle to get their case into court. Again, the provision was crafted carefully to ensure that we demonstrated that we seek to meet the test of restrictions on rights under article 1 of the first protocol to the ECHR by looking at the legitimacy of the legislation’s aim and the proportionate nature of what we are setting forth and whether there were any alternatives.

We feel that the mechanism that we have in the bill is proportionate in light of the considerations around the integrity of the bill. This area is full of very difficult challenges, but we feel that we have struck the right balance in the bill. At the end of the day, the court will have to make a consideration, and what is important is that the onus will be on the defender to show that there is substantial prejudice, rather than just that prejudice is likely or that there is a risk of substantial prejudice, and, even if that is proven, there will have to be further balancing of that with the pursuer’s rights to proceed with the action.

We therefore feel that, for all circumstances, we have embedded in the bill through the prejudice mechanism a balancing of the respective rights of the pursuer and the defender.

Liam McArthur

We have heard concerns from representatives of personal injury lawyers that the exercise of the judgment on prejudice and fairness will occur at the end of proceedings. There are those who believe that it should happen at the outset. One can see the benefits all round for it to happen earlier in the process, because that would reduce the impact on the individuals involved and reduce the cost of taking forward proceedings that will ultimately fall because of the exercise of discretionary judgment. What is your understanding of where the judgment on prejudice and fairness is likely to happen?

Annabelle Ewing

Consideration of the applicability of the limitation rule in any exercise of discretion does not always happen at the beginning of proceedings. That consideration is a matter for the court in the instant case, so it can happen further down the line. It would be the same for the substantial prejudice test; it would be a matter for the court to make the determination at the point at which, in the instant case, it felt that it was most appropriate to do so.

Would one expect such determinations more often to be made later in the process rather than at preliminary hearings?

That is a very difficult question to answer, unless I am missing something.

Liam McArthur

In terms of the financial memorandum, it is material that, notwithstanding your point about full cost recovery, there will be greater financial implications for the SCTS if the determination happens later in the process. Some sort of judgment must therefore be made about where it is reasonable to expect that judgment to be exercised in the majority of cases.

Elinor Owe

No. The short answer is that it would be for the court to decide. The issues around a fair trial and substantial prejudice are very difficult for the court to determine. In a particular case, it might be that, until all the evidence has been heard, it will not be known what evidence is relevant. For example, a witness could die and the defender could claim that that made the trial unfair, but the evidence could show that that witness’s evidence was not relevant and that the trial would not be unfair because of the witness’s death. There could therefore be cases where the full picture of the evidence would be needed in order to be able to determine what was fair or not, or the level of substantial prejudice. However, it would be for the court to determine.

Liam McArthur

I appreciate that, but I return to a point that Douglas Ross raised earlier about expectation management for survivors, many of whom will have gone through a tortuous process even to be at the point where they feel that they might be able to take forward a case. The longer the case proceeds before there is a ruling on whether there is substantial prejudice, the more damaging it could be if the discretion is ultimately exercised in a way that appears to them no different from the current limitation of the time bar.

Annabelle Ewing

The difficulty in providing any sort of dirigiste guidance would be that, as Elinor Owe pointed out, the decision is wrapped up in the facts and circumstances of each case. One could make a judgment call, but that might not be helpful to the pursuer in a particular case.

We must recognise that the courts are masters of the facts. We are not changing the whole law of delict or how courts go about reparation cases. We are seeking to change the applicability of the limitation period and the balancing that we feel that we have to conduct in that process.

It would be difficult to come up with a rule that would be appropriate in each case, because in each case the instant case will determine at which point the considerations are most relevant. I feel that we have to leave that in the hands of the courts, which are masters of the facts.

The Convener

In your opening statement and at various points throughout your evidence, you have made it crystal clear that court action will not be for every survivor. You listed some things that are in the policy memorandum, such as the historical child abuse inquiry, the survivor support fund and the national confidential forum. However, you did not refer to the Apologies (Scotland) Act 2016. Some survivors suggested that some people would choose the remedy of the 2016 act’s provisions, as opposed to choosing court action. As you know, the 2016 act was granted royal assent in February last year and the expectation was that commencement would be six months after that. The act was passed when your predecessor was in the post. Will you tell the committee where we are with the 2016 act?

Annabelle Ewing

The convener will be privy to some of this information, because we have discussed the implementation of regulations regarding the 2016 act. During the passage of the Apologies (Scotland) Bill—it was my predecessor, Paul Wheelhouse, who oversaw that—further to representations received it became clear that, for some bodies, the processes of the bill were not appropriate and that those bodies wanted to be excepted. At, I think, stage 3, Mr Wheelhouse made a commitment to proceed with that. Proceeding with that has brought up other issues, because other bodies have come forward to say that they are in the same position. We discussed that with the convener, given her direct interest in the matter. We were not able to reach an agreement on the best way forward but we feel that we have an obligation, further to Mr Wheelhouse’s commitment to Parliament and the discussions that we have had with regulatory bodies, to proceed in good faith and act on that commitment. We hope to bring forward the regulations shortly, and they will come before the committee. I am sure that there will be a full discussion on them and I am happy to come back to the committee at that time to answer any questions that you may have.

The Convener

I will press you on that. The previous minister’s commitment was to look at health regulators. Further to our discussions, I am seeking clarification from the Cabinet Secretary for Justice about the issue. I have a letter from him that says:

“I am pleased that the passing of the Act meets the recommendation by the Scottish Human Rights Commission in their ‘Action Plan on Justice for Victims of Historic Abuse of Children in Care’ to give the merits of an Apology Law full consideration.”

He goes on to say:

“a commitment was made to Parliament to ensure no unintended consequences for health regulators”

as a result of the bill being passed. Will you confirm that the other regulators that you are talking about are health regulators, which were excluded from the 2016 act’s provisions because of the duty of candour?

Annabelle Ewing

The exclusion is not based on the duty of candour. You will be aware from our discussions that other health regulators that will be in the same position as the two that were referred to at the outset, which are the General Medical Council and the Nursing and Midwifery Council, came forward. In addition, two other regulatory bodies have said that they are in the same position. We must take that in good faith and we will bring forward regulations that reflect the good-faith discussions that, as a responsible Government, we are required to have. We hope to bring forward the regulations quite soon, and the Justice Committee will want to have a discussion on them once we do.

What are the two other bodies?

As you will be aware from our discussions, they are the General Teaching Council for Scotland and the Scottish Social Services Council. They are the ones that we discussed in our meeting.

It is good to get that on the record. Perhaps we will pursue that further on another day.

John Finnie

The committee has not been party to those discussions, so we look forward to the regulations. To what extent will they impact, if at all, on the issue that we are dealing with here, which is historical abuse? We have heard that people welcome the opportunity to receive an apology and that not everyone wants to go to litigation.

Annabelle Ewing

The specifics are to deal with particular procedures of, I think, eight health professional bodies and the two additional non-health bodies, which makes 10 in total. They will not impact on the civil remedies that will be provided through the Limitation (Childhood Abuse) (Scotland) Bill. The exclusions are not related to the duty of candour.

As you said, you have not been involved in the three discussions that the convener and I have had on the subject, but you can rest assured that the issues raised in the bill are separate from the issues raised in those discussions.

The Convener

The issue is for another day. In the meantime I thank you and your officials for attending this worthwhile evidence session.

I suspend the meeting to allow the witnesses for the next item to take their seats.

11:26 Meeting suspended.  

11:31 On resuming—