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Chamber and committees

Meeting date: Thursday, November 17, 2016

Meeting of the Parliament 17 November 2016

Agenda: General Question Time, First Minister’s Question Time, Flexible Working Practices, Scottish Child Abuse Inquiry, Innovation, Parliamentary Bureau Motions, Decision Time


Scottish Child Abuse Inquiry

The Presiding Officer (Ken Macintosh)

Good afternoon. The next item of business this afternoon is a statement by John Swinney updating us on issues relating to the Scottish child abuse inquiry. The Deputy First Minister will take questions at the end of his statement, so there should be no interventions or interruptions.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

I wish to provide Parliament with an update on a number of points within my responsibilities in connection with the Scottish child abuse inquiry and other questions on addressing the consequences of historical abuse.

First, I wish to set these decisions in context. In 2004, the then First Minister, Jack McConnell, officially apologised to victims of child abuse in residential care homes. What Mr McConnell said then was a first and very important step on behalf of us all. However, survivors made it clear that it was, in and of itself, insufficient to address the scale and nature of the issue.

In 2010, the Scottish Government invited the Scottish Human Rights Commission to work with survivors on a framework for justice and remedies for historical abuse of children in care. Based on that work, and at the further request of the Scottish Government, the Scottish Human Rights Commission and the centre for excellence for looked after children in Scotland—CELCIS—established an interaction group to work with in-care survivors to make recommendations on how they could best be supported.

In the two years since the interaction group reported in 2014, the Government has taken unprecedented steps to begin to address the wrongs perpetrated by the individuals and institutions who should have cared the most for some of our most vulnerable children. Those steps included establishing one of Scotland’s most wide-ranging public inquiries into the abuse of children in care, establishing a national in-care survivor support fund, supporting an apology law and legislating to create a national confidential forum for in-care survivors.

As Parliament knows, the previous chair of the inquiry and one of her panel members resigned from their posts in the summer, citing accusations of Government interference in the inquiry’s work. I did not then, and do not now, accept the complaint made. The Government established an independent inquiry, and I am determined that that is what should be delivered.

In my discussions with survivors since those events, they have raised with me issues in connection with the replacement of a panel member, the remit of the inquiry and redress for survivors. I want to update Parliament about all those issues today.

On panel membership, I listened to a range of views from survivors when I met them in July, and I appointed Lady Smith, who is an experienced judge in the inner house of the Court of Session, to lead the inquiry. Lady Smith joins Mr Glenn Houston, who continues his membership of the panel. There may be the need in time for further specialist knowledge to add to that of Lady Smith and Mr Houston, and the Inquiries Act 2005 permits Lady Smith to appoint assessors if need be. On that basis, I do not intend to appoint a replacement panel member. I am not required to consult Lady Smith on that issue, but I considered it appropriate to do so, and she is content with my decision.

The current remit of the Scottish child abuse inquiry was arrived at following extensive consultation and engagement with survivors and other interested parties. As a result, we broadened the definition of in-care settings within the remit to include, for example, foster care, and we ensured that the inquiry was able to consider not only sexual abuse but physical abuse, emotional abuse and neglect.

A timescale for concluding the inquiry was set, reflecting the views expressed by some survivors, particularly older survivors, about it being sufficiently focused to produce meaningful recommendations within a reasonable timescale. Since the summer, some survivors have told me that they want to see the current remit extended to include abuse that took place in non-residential settings such as local parishes, day schools and youth organisations. Other survivors pointed out that, if read narrowly, the current remit might not allow the inquiry to pursue evidence of abuse when children were outside the care home, for example when they were attending recreational activities or summer camps. Other survivor groups told me that they were content with the remit of the inquiry and did not wish there to be an extension that could prolong the timescale. It is clear that there is not unanimity on the issue among survivors. Some are strongly in favour of no change and others are strongly in favour of extensive change.

It has always been the Government’s intention that the abuse of children and young people in care is to be taken into account wherever it occurred, and I want to put that matter beyond doubt. As the Inquiries Act 2005 requires of me, I have consulted Lady Smith and I have amended the terms of reference to clarify that point.

That is the only change that I intend to make to the inquiry’s remit. I have to ensure a remit that is deliverable within a reasonable timescale. I have concluded that there is a clear distinction between in-care settings and non-in-care settings. In-care settings are those where institutions and bodies had legal responsibility for the long-term care of children in the place of the parent, with all the legal and moral obligations that that status carries. That is different from the position in non-in-care settings, such as day schools and youth groups, where others had a duty of care on a short-term basis but, crucially, did not replace the role of parents. In too many cases, terrible crimes were committed in those settings, too. Criminal behaviour should be referred to the police and I hope that, where the evidence exists, it will be energetically pursued through the criminal courts.

If we set a remit that, in practice, would take many more years to conclude, we fail to respond to the survivors of in-care abuse who have taken us at our word, in Government and in Parliament, that we will learn from their experience and, by addressing the systematic failures that existed, ensure that it can never happen again.

Yesterday, we introduced to Parliament the Limitation (Childhood Abuse) (Scotland) Bill—the first bill of this parliamentary session. The bill will fulfil another recommendation from the Scottish Human Rights Commission's report, and we are grateful to survivors who have long campaigned for the change. It will remove the three-year limitation period for cases of child abuse, which is a barrier that has prevented survivors from accessing justice.

The bill goes further than other jurisdictions have done by including sexual, physical and emotional abuse, whereas other similar legislation has been limited to sexual abuse or has included only emotional abuse that is connected to other forms of abuse. It also goes further by allowing cases that have been raised previously but were unsuccessful because of the limitation period to be relitigated, regardless of whether they were determined by the court or settled between the parties without damages being paid, subject to appropriate safeguards where that would be incompatible with the rights of the defender under the European convention on human rights.

However, the removal of the limitation period will not assist survivors whose right to claim compensation has been extinguished through the law of prescription, which is relevant to abuse that took place before September 1964. That is because the significant legal issues and the human rights legislation made it impossible to establish a sustainable way forward. I regret that no legislative solution can be found for pre-1964 survivors.

I have been giving the complex issue of redress serious consideration. By redress in this context I mean monetary payment to provide tangible recognition of the harm done as part of a wider package of reparations that the Government is already delivering. As part of that package or reparations, survivors of in-care abuse already have access to the new £13.5 million in-care survivor support fund. That innovative fund is highly tailored and personalised and focuses on helping individuals to achieve their own personal outcomes, whatever those may be. I am confident that it is already making a difference to the lives of many survivors.

I have examined very carefully the issues around the provision of redress. I am grateful to INCAS and FBGA for making proposals as to how that might be pursued. I have looked into how some other countries have approached it in relation to past abuse in residential institutions. I am conscious of the connection with the Limitation (Childhood Abuse) (Scotland) Bill and the position of pre-1964 survivors. There is also the question of how it would be funded and the role of other organisations alongside Government.

I am, therefore, committing to a formal process of consultation and engagement on that specific issue with survivors and other relevant parties to fully explore the issues and gather a wider range of views. Discussions have already begun about that engagement process and its timing. I will be in a position to provide details in the coming weeks and assure Parliament that I will take the issue forward with the urgency that it deserves.

I thank survivors for their continued input and engagement. I recognise the importance of building their trust and confidence while being honest with them about what I am able to deliver. The Government remains committed to addressing the issues that were identified in the SHRC “Action Plan on Justice for Victims of Historic Abuse of Children in Care”. We have made real progress in delivering its recommendations. The decisions that I outlined are another important step towards realising our collective goal of addressing the systemic failings that existed. They are part of our collective determination that children in care must be better supported and protected than ever before.

The Presiding Officer

I thank the minister for his statement. I will allow about 20 minutes for questions.

Liz Smith (Mid Scotland and Fife) (Con)

I am grateful to the cabinet secretary for prior sight of his statement, and also for the reassurances that he has provided to Parliament and the wider public regarding his confidence in the chairmanship of Lady Smith—an appointment that has been very well received.

I want to ask two very specific questions of the cabinet secretary. First—and most important, from the angle of complete transparency and public confidence in the future of the inquiry—the cabinet secretary has given a very clear indication this afternoon, and also at the Education and Skills Committee, that he is wholly satisfied that there has been no inappropriate intervention in the inquiry by the Scottish Government. Does the cabinet secretary now believe that that statement and its supporting evidence have been accepted by the survivors groups, who were—quite naturally—very concerned when the previous chair and one other member of the panel accused the Scottish Government of interference in the inquiry’s work?

Secondly, in relation to the decision not to replace the third panel member, on which the cabinet secretary has clearly consulted Lady Smith, will he advise us of the possible circumstances in which Lady Smith and Mr Houston might require the additional specialist knowledge to be provided to the panel, which he mentioned in his statement?

John Swinney

I echo Liz Smith’s remarks about Lady Smith, who is an immensely strong chair of the inquiry and who, in her own approach and record, personifies the fact that it will be an independent inquiry.

On the two specific questions that Liz Smith raised, she will understand that I do not think that it is up to me to comment on behalf of survivors on their views about the actions of the Government. I reiterate on the record my confidence that the steps that have been taken by the Government in the past have been entirely appropriate within our responsibilities under the Inquiries Act 2005 in relation to the work of the inquiry. I reiterate my very clear determination that it should be an independent inquiry: my appointment of Lady Smith was designed to give public confidence that that would be the case. I believe that it should be the case.

On Liz Smith’s second question, on the appointment of assessors, the skills and perspective of Lady Smith and Glenn Houston are well understood by Parliament, but issues may emerge that require more specialist interrogation. That will be an issue for Lady Smith to determine. She has the power, within the organisation of the inquiry, to appoint assessors if she believes that their skills are required. That will be for Lady Smith to take forward in order to ensure that the inquiry is able to address fully the issues that are within its remit.

Iain Gray (East Lothian) (Lab)

I, too, thank the cabinet secretary for early sight of his statement.

The cabinet secretary is right to describe the inquiry as a step to right the “wrongs perpetrated” against

“some of our most vulnerable children.”

He knows well my view that, to do that, it must command the confidence and support of most, if not all, survivors. That confidence has been tested by what they see as faltering steps and delay. What assurances can the cabinet secretary give us that his decision to continue with two panellists instead of three will not cause further delay or slow the work of the inquiry?

Secondly, as the cabinet secretary acknowledged, many survivors have pursued the inquiry’s being given a wider remit, because they believe that it is unjust that most survivors of abuse will not be caught by the scope of the inquiry. The cabinet secretary has clarified the remit today, but will he confirm that he has not extended it and that he has not brought into its ambit any survivors who were not, in his view, already included?

John Swinney

Iain Gray asked about the implications of not appointing a third panel member. I am confident that that factor alone will not extend the timescale of the inquiry. Throughout the summer, the inquiry has consistently undertaken the necessary contacts with members of the public to engage them in the process, and I do not believe that not appointing a third panel member will contribute to extension of the timescale of the inquiry.

On Mr Gray’s second point, I have clarified the inquiry’s remit to make absolutely certain that, where abuse took place outside a residential care setting but involved a child who was in care, that abuse can be taken into account by the inquiry. In my dialogue with survivors, I was concerned that a narrow reading of the remit might have suggested that that was not the case. Therefore, I have clarified the matter to put it beyond doubt.

Nevertheless, I confirm that I have addressed whether the inquiry’s remit should be broadened from its original scope, which focuses on in-care settings, and I have decided against broadening it. I appreciate that that decision will not please everybody, but my judgment has rested on the fact that, had I done that, I would inevitably have lengthened the timescale of the inquiry, which would have been damaging to the interests of the survivors who have pressed the Government to make early progress on the matter.

James Dornan (Glasgow Cathcart) (SNP)

I assure the cabinet secretary that the Education and Skills Committee continues to have a great deal of interest in the issue and will play its part in supporting the inquiry. We will also seek to provide appropriate scrutiny as and when we can, particularly to ensure that survivors’ interests are properly reflected.

I was pleased to hear that the cabinet secretary intends to look more carefully at the issue of redress, and I expect the committee also to explore that key issue further. In the meantime, can he provide more detail on what he found when he looked into how other countries have approached redress?

John Swinney

I welcome Mr Dornan’s comments and make it absolutely clear—as I have to the committee—my willingness to address any issues that the committee wishes to draw to my attention or to question me about in relation to the Government’s involvement in the inquiry. There will, of course, be areas of the inquiry on which I will not be able to give evidence to the committee because I will not have that knowledge, due to the independence of the inquiry. I am sure that the committee will understand that.

Redress schemes in other jurisdictions take a number of different forms. Some require that detailed evidence be provided to substantiate claims made by individual survivors. That information has been gathered by the Government and considered carefully, and it will be looked at as part of the interaction process that we pursue.

I point out to Mr Dornan, however, that the in-care survivor support fund is open and available to support individuals in Scotland. I encourage individuals who believe that they would be eligible for support to pursue that option in order to obtain the support to which they may be entitled.

Ross Thomson (North East Scotland) (Con)

I thank the cabinet secretary for early sight of his statement. In his statement, the cabinet secretary drew a distinction between an in-care setting and a non-in-care setting, and provided a defined legal position. The examples of non-in-care settings that have been provided are day schools and youth groups. I am seeking absolute clarity, so can the cabinet secretary provide any further examples of what would be considered non-in-care settings?

John Swinney

It would probably be safer for me to refer Ross Thomson to the original remit of the inquiry, which provides—on the second page of the terms of reference—a series of definitions that give sharp clarity as to what is included in the scope of the inquiry. I hope that that is of assistance to him.

When I looked at the issues that survivors raised with me, particularly the issue to which I referred in my answer to Iain Gray, I was concerned that there was the potential for dubiety about abuse that may have taken place outwith the boundaries of a residential care setting. The Government was clear that we did not envisage that there should be any such artificial boundary for the inquiry. I have taken the opportunity today to address that issue and to put the matter beyond doubt, which I hope is helpful and provides clarity.

Ross Thomson will find that the definitions that are attached to the terms of reference answer his question.

Jackie Baillie (Dumbarton) (Lab)

I am sure that the cabinet secretary will acknowledge that the in-care survivor support fund is completely different from compensation for the injustice that survivors have experienced. He will be equally aware that we could be talking about a long time indeed, given the length of the inquiry and the fact that survivors are having to wait years for justice through the courts. Survivors are getting older; some are dying. Will the cabinet secretary consider making interim payments, as were made in Ireland, so that survivors are not made to wait any longer?

John Swinney

I completely accept the distinction that Jackie Baillie makes between the in-care survivor support fund and a redress scheme. My intention in pointing to the scheme in my answer to James Dornan was to make it clear that there is support available that can assist people in addressing difficulties that they may face as a consequence of their experience of abuse. However, I am happy to confirm that a redress scheme would address a different question.

One way that we could have dealt with the question of redress would have been to have left it for the inquiry to determine. Of course, I have not done that: I have established a separate process that will enable us to consider the issues and make progress on the question. I understand entirely the context that Jackie Baillie described of experiences and the length of time that it is taking for the issue to be addressed for survivors. However, as I explore the issue, I see that there are many complexities that are not easy to resolve, which is why we need a process of this type. I advised survivors when I saw them last week that I was likely to take this approach, and today in Parliament I have committed to engaging in that exercise to ensure that we make progress on the issues that Jackie Baillie has raised on a number of occasions.

Clare Haughey (Rutherglen) (SNP)

I am aware that the Scottish Government has consulted widely with survivors and survivor groups, and I welcome the steps that have been taken so far. Will the cabinet secretary confirm that he will continue to listen throughout the process, to ensure that we have in place the right arrangements and supports and that we take full account of the impact of abuse on survivors?

John Swinney

Extensive consultation work was undertaken to design the survivors Scotland fund, which is just one example. Throughout all the steps that have been taken in the interaction process over a number of years, there has been wide and substantive dialogue with survivors. I am very happy to confirm to Clare Haughey that the Government will continue to approach these questions on that basis.

One obvious conclusion is that sometimes we cannot do everything that survivors would like us to do, and I have been very clear with Parliament today about the things that I am unable to do to address issues that survivors have raised. That is not because the Government has not listened, but because, quite simply, we must make a judgment about what we consider to be the right steps to take and what steps will deliver outcomes as swiftly and effectively as possible, to address the wrongs that have been done to individuals and provide those individuals with some means of coming to terms with the terrible experiences that they have had.

John Finnie (Highlands and Islands) (Green)

I thank the cabinet secretary for the early sight of his statement. I commend much of the work that has happened so far, including the cabinet secretary’s announcement yesterday of the introduction of the limitation bill. My question is in relation to the bill and the comment about relitigation. Has any assessment been made of the number of people who are likely to come forward? As other members have said, not all the survivors may have been engaged with and others may be emboldened and come forward as a result of the legislation. Has there been any assessment of that?

John Swinney

In the financial memorandum that is associated with the limitation bill, we estimate that the range could be between 400 and 4,000 survivors coming forward, with a mid-point of 2,200 cases being most likely.

I would be the first to say to Mr Finnie—and this rather prejudges the Finance and Constitution Committee’s scrutiny of the financial memorandum, which I know from my long experience is very thorough—that we will only know the answer to that question when we see it. Those are the best estimates of Government. We will engage with Parliament in the scrutiny of those provisions to make sure that such steps can be taken as effectively as possible.

Tavish Scott (Shetland Islands) (LD)

I thank the cabinet secretary for sight of his statement in advance. The second of the terms of reference that he mentioned this afternoon begins:

“To consider the extent to which institutions and bodies with legal responsibility for the care of children failed in their duty to protect children”.

Would he have regard to the evidence that presumably sits within Government and that will have come, over the years and under different administrations, from elected members and from other organisations and bodies, all of whom will have given a view to the Government of the day about things that they knew were going wrong at a particular time? Would he be prepared to look at that and consider whether it is appropriate to lay that evidence in front of the inquiry as well?

John Swinney

I have to set out the terms of reference in a clear fashion and I have taken steps today to take that to a point where it cannot be doubted, in relation to the extension that I have made to the very paragraph that Mr Scott raises with me. The inquiry will take the evidence that it takes; it will be for the inquiry to determine the relevant evidence that emerges.

What I can put on the record, which will not in any way be a surprise to Mr Scott, is that the Government will cooperate fully with any request for information that the inquiry makes of us. I know that the Lord Advocate has made that commitment clear from the Crown as well. That is the approach that we will take, to make sure that the inquiry has access to all the evidence that it wishes to have.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I was glad to see the Scottish Government show how important this issue is by making the bill the first to be introduced to the Parliament in this session. I look forward to scrutinising it through the Justice Committee, to make sure that we get this right.

In the gallery today, we have Sandra Brown OBE, founder of the Moira Anderson foundation. Today, Sandra described the trauma of Moira’s disappearance 60 years ago as a stain on the Coatbridge community. Can the cabinet secretary provide any reassurances to survivors that the bill will at least begin to address some of the horror and trauma that they have been through?

John Swinney

First, let me pay tribute to the work of Sandra Brown of the Moira Anderson foundation, who has made a very strong and distinguished contribution to this entire area of policy.

Second, the significance of the limitation bill should not in any way be underestimated. This is an enormous departure from legal tradition within Scotland. It has been undertaken to make sure that we have the greatest level of scrutiny and interrogation of this part of our country’s past. For the reasons that I set out in my statement and that ministers have gone through before, the limitation bill cannot go back further than September 1964. I hope, however, that the extensive change to provisions to enable that to be the case is recognised as an indication of the determination of the Government—and, I am pretty sure, of all of Parliament—to make sure that we do all that we can to redress the wrongs that were committed against individuals in our society.

Claire Baker (Mid Scotland and Fife) (Lab)

I, too, welcome the publication of the limitation bill. We all recognise the need to enable survivors to have access to justice as soon as possible.

The bill is very short. The Government has previously introduced legislation and treated it as an emergency. Given the age of some of the survivors, for them this is an emergency. Can the cabinet secretary give an assurance that the bill will be treated with the highest priority and level of urgency, in terms of how the Parliament deals with it?

John Swinney

I can assure Claire Baker that the Government will co-operate entirely with the parliamentary timetable for the bill. A lot of preparatory work has been undertaken and a draft bill was published earlier in the year, which was informed by the fruits of consultation and dialogue. I am intruding on territory that is not mine to determine but, hopefully, committees can take that into account when they set out their timetable for the bill. The Government will do everything that it can to ensure that the timescale is as swift as possible so that the legislation, which I know will be widely supported in Parliament, is able to reach the statute book as quickly as possible.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I welcome the clarification of the terms of reference. It is important that we continue to make it as clear as we can that the abuse of children in care will be taken into account regardless of where that abuse occurred.

I appreciate the difficult balancing act for the cabinet secretary in finding unanimity on the terms of reference and timescale, but will he outline how he will support and continue to engage with those who were in favour of extensive change?

John Swinney

There is willingness on the part of the Government to continue our dialogue with survivors and we must ensure that we are open to that information. Obviously, there are specific questions on which we will take the discussion forward.

It is equally important that the inquiry is able to address its terms of reference as expeditiously as possible. That is the focus of the inquiry, and I hope that the clarity that I have given today enables the inquiry to do exactly that.

Gil Paterson (Clydebank and Milngavie) (SNP)

The Scottish Human Rights Commission established the interaction process and has said:

“The justice system has not and is not working for survivors”.

Is the cabinet secretary confident that the bill will fix that? Will he outline what discussions he has had with the SHRC?

John Swinney

As I explained to Mr MacGregor, the limitation bill is an enormous step by the Government to open up legal redress for individuals who have been the victims of childhood sexual abuse. The bill is a direct response to the quote from the Scottish Human Rights Commission that Mr Paterson shared with Parliament.

We have benefited enormously from the process that has been led by the SHRC and the centre for excellence for looked after children in Scotland. We will continue that dialogue to ensure that we learn all that we need to learn about how we can address those issues properly and effectively on behalf of the survivors of abuse.

The Presiding Officer

I thank the cabinet secretary and members for their contributions.