Meeting of the Parliament

Meeting date: Tuesday, October 23, 2018

Official Report 1165KB pdf

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Survivors of Child Abuse in Care (Response to Recommendations on Financial Redress)

We turn to the next item of business, which is a statement by John Swinney on the response to recommendations on financial redress for survivors of child abuse in care. The cabinet secretary will take questions at the end of the statement.

14:21  

Today, I will set out the Government’s response to the recommendations that I received from the interaction action plan review group on the provision of financial redress for victims and survivors of abuse in care.

I am pleased to see many of the review group’s members in the public gallery today. The First Minister and I met the group before we came to the chamber today, and we thanked them personally for their commitment, time and collaborative approach to that work. I recognise that, for many survivors, their campaign for justice began a long time ago, which has added to their suffering. I am keenly aware that some who began that process are sadly no longer with us. We remember them today, in this statement.

In November 2016, I made a commitment to a formal process of consultation and engagement on the matter of financial redress. I asked the review group to take that forward, in partnership with the centre for excellence for looked after children in Scotland—CELCIS. The review group oversees the implementation of the “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, which was published in 2014. Members of the group include survivors—some of whom represent groups, and others who are independent—a care provider representative, Social Work Scotland, the Scottish Human Rights Commission, CELCIS and the Scottish Government.

The review group reported to me on 5 September 2018. I commend it for the substantial work that it has carried out in arriving at its recommendations. Together, its members have designed and carried out a national consultation with survivors, researched redress schemes in other countries, and had engagement with providers of care services to gather their initial high-level views. The group has drawn on the findings of each of those to agree recommendations, taking the time to work through difficult issues in a collaborative and constructive way. There has been a strong survivor voice and presence throughout the process.

In addressing the group’s recommendations, the Scottish Government whole-heartedly accepts the need to acknowledge and provide tangible recognition of the terrible harm that was done to children who were abused in care by those who were entrusted to look after them. The group’s main recommendation is to establish a financial redress scheme, and to pass legislation before the end of this parliamentary session. The Scottish Government accepts that recommendation and commits to doing so, subject to parliamentary approval.

The review group also recommends that advance payments are made, as soon as possible, to survivors who may not live long enough to apply to a statutory scheme due to either ill health or age. Further information from the review group indicates that, in the case of ill health, a definition of “approaching end of life” that is based on advice from medical professionals should be used. In the case of age, it is recommended that the threshold be set at age 70 and over, and be subject to review. The Scottish Government accepts those recommendations for an advance payments scheme.

The other recommendations are about important aspects of the design of the statutory redress scheme that the review group has asked to be considered in the next steps. Those aspects are important to the survivors who took part in the consultation, and we agree that they will be given further consideration in the detailed and complex work that lies ahead.

As part of that work, and with advice from the SHRC, the review group has given careful and specific consideration to the position of survivors whose abuse occurred before 26 September 1964. Despite the introduction of the Limitation (Childhood Abuse) (Scotland) Act 2017, survivors whose rights to compensation were extinguished through the law of prescription are unable to pursue their case through the civil courts.

The review group’s letter states that the recommendation to establish a financial redress scheme would provide an alternative compensation mechanism to the civil courts. The letter also states that it is important that a redress compensation mechanism is open to all survivors of in-care abuse, as there are many reasons that a survivor may not be able to access civil justice.

The letter recognises that the implementation of a statutory redress scheme will take some time. In that context, the review group recommends advance payments for survivors who may not live long enough to apply to a statutory scheme, many of whom will be pre-1964 survivors.

Scotland will establish a financial redress scheme for survivors of in-care abuse, and it will be open to all in-care survivors, regardless of when that abuse took place. We will progress, without delay, to detailed design of a redress scheme, ensuring that we learn lessons from other countries. The legislation, subject to parliamentary approval, will be passed by the end of this parliamentary session.

We will also begin discussions with providers of care services to consider ways in which we can respect the recommendation that all those responsible should contribute to a redress scheme. We will move to make advance payments as soon as we possibly can. It will take some months to develop and set up the scheme, but we will do so with urgency. I will update Parliament on progress on our implementation of the review group’s recommendations in January.

We set up the Scottish child abuse inquiry in 2015 to investigate the nature and extent of the abuse of children while in care in Scotland, and the failures that allowed it to happen. The inquiry is making significant progress: it has published its first findings, and opening statements for its third case study began this morning. We have heard harrowing evidence of the appalling mistreatment and abuse of children in care settings all across Scotland. In due course, the inquiry will publish its final report and will make recommendations to improve legislation, policy and practice, but we do not need to wait until then to recognise that we failed victims and survivors—it is clear that we did. We must acknowledge that and respond with compassion and humility.

In 2004, the then First Minister, Jack McConnell, offered a sincere apology on behalf of the people of Scotland to those who were subjected to abuse and neglect while in care in Scotland. Today, on behalf of the Scottish Government, I offer an unreserved and heartfelt apology to everyone who suffered abuse in care in Scotland. We are deeply ashamed of what happened.

I know that nothing can ever make up for the suffering that survivors have endured. Nonetheless, they have told us that redress is an important element of justice and that it would provide some degree of recognition and acknowledgement. That is why we will have a redress scheme in Scotland, which will treat survivors with sensitivity and respect.

As the inquiry progresses, the detailed nature of failings on the part of public and private institutions will become clearer. We as a Government—indeed, we as a Parliament—will be listening and learning. We will want to apologise again to survivors and their families when the full extent and nature of those failings are known, as the Australian Prime Minister did so powerfully yesterday. The courage and determination of survivors to speak out for justice, and to protect children today and in the future from experiencing the abuse that they suffered, are inspiring and have been unwavering.

Presiding Officer, I want to address survivors directly and to say to them today: we believe you, and we are sorry. [Applause.]

I thank the cabinet secretary for giving me prior sight of his statement, and I restate the Scottish Conservatives’ whole-hearted commitment to ensuring that we are fully supportive of all the victims who suffered appalling abuse while in care and supportive of the Scottish Government as it seeks ways to find appropriate financial redress.

I wonder if I may ask for clarification on three points. First, in establishing the financial redress scheme for survivors of abuse in care, will the cabinet secretary confirm exactly who will decide on the amount of compensation that will be paid to the victims? Secondly, will families of deceased victims be able to apply for support? Finally, in the context of his comment that there has been a strong survivor voice and presence throughout the process, the cabinet secretary will be aware that there remain some victims who feel that they have hitherto been excluded from the consultation process. Will he update Parliament on what measures he is taking to address those concerns?

I thank Liz Smith for her expression of the Conservative Party’s support for the direction that the Government has chosen to take on the issue. In relation to her three questions, I respond as follows. First of all, in relation to the redress scheme, Parliament will decide the level of compensation that is paid. We will take forward dialogue in relation to the advance payments scheme, which will be underpinned by provisions in the Budget (Scotland) Act for 2019-20, and the legislative detail of the statutory scheme will be determined in full by parliamentary scrutiny and consent.

Secondly, the families of deceased victims will be able to apply for provision from the scheme, and the detail of the scheme will set out provisions on that.

Thirdly, on the question of survivor voice, one of my absolute priorities since taking office has been to ensure that survivors have been at the heart of the discussions on how to take this forward. Of course, there are a range of different views within the survivor community on these questions, and I want to be as inclusive as I possibly can. The action plan review group undertook a very comprehensive and engaged process of survivor dialogue, and I was deeply grateful to members of that group for doing so. One of the reasons why they were so effective in doing that was that the group involves survivors directly in the work that it undertakes.

I and the First Minister have given the survivors we met today the clear assurance that we want to ensure their continued participation and dialogue in how we take the next steps. As I told them today, they have produced a very clear piece of policy advice to the Government, which is well considered and well researched, and we want to build on that in the stages to come.

I, too, thank the cabinet secretary for giving me early sight of his statement. I begin by simply and sincerely associating members on these benches with the cabinet secretary’s apology to everyone who suffered abuse and neglect while in care in Scotland. We all share the shame of which he spoke. However, we cannot hide from the fact that an apology was first made in 2004, 14 years ago. Important though the inquiry is, it took us too long to initiate it, and welcome though the promise of redress is—welcome indeed—it has taken us too long to get to that commitment too.

Given that fact, even in the knowledge of the complexity of legislation, is not the end of the current session of Parliament—two and a half years away—still too far away for all those who have waited so long already? As well as introducing the advance payments scheme, will the cabinet secretary bring forward the deadline for the full redress scheme? We will do all that we can to help him accelerate the legislation through the Parliament.

I thank Iain Gray for associating the Labour Party with my remarks and the direction of travel.

In looking at the time period since the public apology was given by Jack McConnell in 2004, I note that a range of different steps have been taken to advance the agenda, which culminated—certainly for me—with the establishment of the abuse inquiry. As I said in my statement, we do not need to wait until the conclusion of the inquiry to realise the gravity of the findings that are going to emerge from the evidence that is being considered forensically by Lady Smith; I think that they will cause the country to have to face up to some very difficult parts of our past. It is right that we do so, and that we do so properly and comprehensively.

On the timescale for legislation, I assure Parliament that the Government will move as quickly as we possibly can. My commitment is that it will be completed during the current session of Parliament. That is what the review group asked me to commit to, and that is what I commit to. We will act swiftly to introduce the legislation as quickly as we possibly can. We have to ensure that we get it right and that we take survivors with us in the process.

On the period taken since November 2016, when I commissioned the review group to undertake the work that I am now, almost two years later, formally responding to in Parliament, I think that the review group itself would accept that, given the complexity of the matter and the detail that it had to look at, it was essential to use that amount of time.

I hope that we can move as swiftly as possible. The advance payments provision will be in place in the financial year 2019-20, so it will be available from next April, and I want to make sure that we move to a statutory basis as quickly as we can. Obviously, the co-operation of Opposition parties in making sure that effective scrutiny is undertaken in a timeous fashion will be advantageous in that process.

I thank the cabinet secretary for early sight of his statement and, indeed, its content. I offer the Scottish Green Party’s support on progressing these very important matters. I also thank the review group and the survivors.

With regard to the portion of the cabinet secretary’s statement where he talked about beginning

“discussions with providers of care services to consider ways in which we can respect the recommendation that all those responsible should contribute to a redress scheme”,

I note that those discussions could be very sensitive. Will the cabinet secretary assure the Parliament that if they are required to be robust—I hope that they will not—they will be, to ensure that the necessary justice is delivered?

I am grateful to Mr Finnie for his expression of the Green Party’s support for our approach. I intend to pursue discussions carefully with providers of care where there is responsibility. The review group makes a very fair recommendation that those organisations should contribute to a financial compensation and redress scheme, and the Government will pursue that with vigour to make sure that we are able to be true to the recommendation that the review group has put before us.

I, too, want to reflect the Deputy First Minister’s tone and the substance of his remarks and I associate my party with the recognition of the factors that led to where we are today and the shame that we all feel, as Iain Gray rightly recognised. The Deputy First Minister’s remarks are ones that I entirely hold to.

I have two brief questions. The first relates to John Finnie’s question about all those responsible contributing. Does the Deputy First Minister envisage that the Government will play an intermediary role in brokering how that structure will work, given the range of parties involved? Secondly, in his opening remarks, he may not have touched on the recommendation that any potential negative consequences be considered during the scheme design. How does he plan to best oversee that so as to ensure that what we achieve out of this set of circumstances achieves the right tone and understanding of the concerns expressed?

I am grateful to Mr Scott for the expressed support of the Scottish Liberal Democrats for our position as we take it forward.

On his first point, the Government will be actively involved in those discussions and in pursuing all the dialogue that is required to advance matters. I am sure that that will involve discussion with the providers of care that carry responsibility.

The best way for me to address Mr Scott’s second question is to say that we will keep survivors closely involved in the dialogue on our next steps. Such close survivor involvement has helped enormously in getting us to where we are today and I want to make sure that we maintain that involvement for the foreseeable future.

I will follow on from the two earlier questions. Does the cabinet secretary agree that it is only right that religious bodies and institutions, and other organisations that were meant to be providing care, also take the opportunity to step forward, work constructively with the Government and contribute to a Government-led scheme not to replace but to enhance our overall collective effort?

When, does the cabinet secretary think, will survivors be able to apply to a statutory redress scheme?

First, I pay tribute to Angela Constance for the work that she undertook, as my predecessor, in establishing the abuse inquiry. She ensured that the inquiry can perform the important role that it has in our society. I know that the country is profoundly grateful to her for that.

On the first of Ms Constance’s two questions, I expect that there will be timeous dialogue with care providers as we develop the detailed design of our approaches.

Secondly, the timescale for individuals being able to apply to a statutory scheme will depend on the passage of the legislation through Parliament. As I said in my earlier answer to Iain Gray, I want to do that as quickly but as robustly as possible. I am partly in Parliament’s hands on that. I will also have to undertake extensive dialogue to make sure that we get the details correct.

I would like clarification. Will the Scottish Government adopt a dual payment system that includes a flat-rate standard payment to all survivors and another payment that is based on individual experiences?

I have not set out any detail on that. That is a material issue for further consideration. The review group did not make recommendations of that nature, although it established some criteria for advance payments, for which I am grateful. The review group wrote to me in early September on the general details of its recommendations and it made more specific points in its letter of 2 October, which suggested eligibility criteria for the advance payments scheme. However, the detail that Alison Harris has asked about is detail that we will have to work our way through and agree, in due course.

The cabinet secretary will be aware that a small number of other countries are facing up to failings that have meant that children were abused while they were in care, and that some of those countries have established redress schemes. Will the Scottish Government learn from such schemes?

The review group has already undertaken a lot of work and looked at schemes in other jurisdictions. We will, of course, have the advantage of learning from that work and ensuring that we take the correct and effective approach in order to ensure that our financial redress scheme addresses our circumstances and, where possible, the experiences of the individuals who were abused while they were in care.

I acknowledge the work of survivors who have fought long and hard for recognition, often at huge personal cost.

In recent times, Parliament has proved itself to be fleet of foot in progressing legislation when necessary, and I am sure that Parliament will want to do whatever it can to make sure that the legislation gets on to the statute book as soon as possible.

I will ask the cabinet secretary specifically about the scheme for advance payments, which currently focuses on the needs of older people and those who are, sadly, terminally ill. Will the cabinet secretary acknowledge that many survivors who fall into neither of those categories have lived for a very long time with their suffering, and that there are people whose need is such that their lives might be tragically cut short? Will the cabinet secretary commit to an advance payments scheme that addresses the needs of all those who are suffering right now as a consequence of the abuse that was perpetrated on them?

On the timescale for legislation, I reiterate that I want to move as quickly as possible, but we must go through the necessary dialogue with survivors in order to make sure that we get the details correct. We have built up a very strong and positive relationship with survivors in advancing many of the issues: I am profoundly grateful to them for their contributions to that discussion. As I said in my response to Iain Gray, I am in the hands of Parliament. If Parliament is willing to move in an expedited fashion in relation to legislation, the Government will be happy to co-operate with that aspiration.

In relation to the payment timescale for survivors, the review group wrote to me on 2 October, as I said in my answer to Alison Harris, setting out the criteria that it considered to be relevant in relation to people who are approaching the end of their life, and made a recommendation of an age of 70. The group asked me to keep that under review, which I will do as we design the advance payments scheme.

I also point out to Johann Lamont that other forms of support are currently available to individuals and can be accessed. They are not in the form of financial redress, but of support to assist people in trying to deal with the circumstances that they face. I encourage any survivor who feels the need to access a degree of support to take steps to do so, because that support—from what I have heard from individual survivors about their experiences—has proved to be very beneficial.

The cabinet secretary confirmed earlier that there will be an option for the next of kin of deceased victims and survivors to make applications for redress. Can the cabinet secretary advise how the Scottish Government will make those applications available?

That is one of the points that we will discuss in the detailed design that we will develop. Given the length of time that some survivors have waited, and given that some may not have seen any form of redress because they did not live long enough, it is important that we support families who will have endured a great deal of pain and suffering, along with their loved ones.

Survivors have been waiting decades for compensation. The cabinet secretary will be aware that many of the victims who have been waiting for compensation are elderly. When can they expect to receive a first payment—and not just “as soon as possible”?

I encourage Mr Corry to reflect on the fact that if the Government is going to make ex gratia payments of this type, we must have parliamentary authority that will enable us to do so, which has to have some form of underpinning. The earliest time when I can possibly do that will be in the budget act for 2019-20, which is where provision for the advance payments scheme will come from. Detailed work will then be undertaken to ensure that we put in place the statutory underpinning for a financial redress scheme.

As I have said in answer to a number of questions, we will do that as quickly as consultation of survivors and the development work being undertaken, and as quickly as Parliament’s passing the legislation, will enable us to do it.

I will follow on from the questions about contributions that are to be made by responsible third-party organisations. Can the cabinet secretary confirm that compensation payments will not be contingent on the contributions that will be made by those organisations? Will there be consideration of a mechanism to compel those organisations to contribute, especially in the light of international experience?

No payment will be contingent on contributions from third parties. We will design and deliver a scheme that will, ideally, benefit from contributions that are made by other organisations that have responsibility.

The question of compulsion could, of course, be considered in the legislative process. I do not want to commit to anything beyond that. We will take forward discussions directly with individual care providers that we believe to be relevant. Obviously, Parliament could consider the issue of compulsion as part of the legislative process.

Most of the questions on the statement have been on financial redress. Can the cabinet secretary say whether other kinds of support that might be available, including emotional support, will be included in the legislation?

I made relevant points in my response to Johann Lamont, which I will draw on in answering Mr Mason.

The Government has put in place financial support through the future pathways fund, which is for people who were abused in care in Scotland. Its purpose is not to provide financial redress; it is to provide support to affected individuals. We want to ensure that that support meets individuals’ needs and that they are accessing emotional or physical support that is beneficial for them. I encourage individuals who feel that they would benefit from such interventions to contact future pathways, which is an important source of support, in advance of our detailed consideration of the wider question of financial redress.