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Chamber and committees

Meeting date: Wednesday, August 19, 2020

Meeting of the Parliament (Hybrid) 19 August 2020

Agenda: Solicitors in the Supreme Courts of Scotland (Amendment) Bill: Preliminary Stage, Health, Scotland’s Redress Scheme for Survivors of Historical Child Abuse in Care, Scottish Parliamentary Corporate Body, Business Motions, Decision Time


Contents


Scotland’s Redress Scheme for Survivors of Historical Child Abuse in Care

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is a statement by John Swinney on Scotland’s redress scheme for survivors of historical child abuse in care. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

15:55  

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

On Thursday last week, the Scottish Government introduced the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill to Parliament.

The bill is a result of the brave and tireless advocacy of survivors of historical child abuse in care, and a reflection of the Government’s unrelenting commitment to properly address what they have experienced. It delivers on many of the recommendations that were previously made by the interaction action plan review group, whose continued work has helped to inform key aspects of the draft legislation. I thank the members of the review group and all the other survivors who have campaigned with such dedication and contributed in such a whole-hearted way to our approach.

The bill seeks to establish a financial redress scheme for those who were abused as children while residing in an eligible care setting in Scotland, in cases where that abuse took place before 1 December 2004.

Under our proposals, all survivors will have the opportunity to apply for a redress payment of up to £80,000. However, we recognise that survivors value having a choice, so, building on the results of previous consultation, the scheme adopts a combination payment approach. That means that survivors can choose to apply for a fixed-rate redress payment of £10,000 or an individually assessed redress payment, which involves a more detailed examination of the facts and circumstances of their experience.

The scheme is designed to be survivor focused in its processes and its outcomes. I recognise that applying for financial redress may be a daunting prospect for some, but support to apply to the scheme will be provided for those who wish it. That may involve emotional or psychological support as well as practical assistance. The bill also includes the necessary powers required to help those who need it with obtaining the supporting information and evidence that is required for an application.

In certain circumstances, the next of kin of eligible survivors may apply for a payment of £10,000. The scheme will be open for five years, although that term may be extended by ministers with the approval of Parliament. A new non-departmental public body, to be known as redress Scotland, will be established to deliver independent decision making on applications for financial redress.

We are committed to seeking fair and meaningful financial contributions from the organisations that had responsibility for the care of children at the time of the abuse. We know from survivors that such financial contributions are important, and we continue to work with a range of organisations to facilitate them. The scheme offers those organisations the opportunity to address the wrongs of the past and, in doing so, to be part of a national, collective endeavour that is built on compassion, integrity, fairness and respect.

The redress scheme is designed to be an alternative to the traditional civil justice process. In accepting a redress payment, survivors will agree not to continue or raise a civil legal action against any of the organisations that have made a fair and meaningful financial contribution to the funding of the scheme.

For some survivors, that will be irrelevant, because the operation of the law of prescription prevents those who were abused before September 1964 from pursuing personal injury actions in the civil courts. Indeed, the injustice that has been faced by those survivors is one of the reasons why the scheme is being created. For those survivors, the bill might provide the only route to financial redress and the associated acknowledgment, accountability and justice that the redress scheme provides.

For other survivors, there will be a choice. The scheme offers a non-adversarial process that is more accessible and faster than litigation. It is a process that is centred around transparent practices and payment levels and on access to support throughout the application process and beyond. For those survivors, the redress scheme will offer choice of how to pursue financial redress, where before there was none.

I want to be absolutely clear that redress payments to survivors will not be dependent on contributions being received. As a Government, we recognise that it is our moral responsibility to provide financial redress and we will not shy away from that. It is not possible to predict with accuracy the number of eligible survivors who may apply to the scheme. In that context, we estimate that the total cost of the scheme may be in the region of £400 million.

Appropriate controls are built into the design and delivery of the scheme, to ensure efficiency and robustness, while not compromising on the redress payments that will be made to survivors. For example, decisions will be made independently but, for the purposes of efficiency, administration and processing will be carried out by the Scottish Government.

We have also learned from the significant expenditure on legal costs by other redress schemes. By providing funding for independent legal advice, we enshrine a meaningful opportunity for survivors to access legal advice and assistance throughout the process. However, we will also introduce reasonable limits on the levels of that funding.

We recognise that, to respond to the needs of survivors, more is required than financial payments. The bill adds to a package of measures that is already in place, including the establishment of the Scottish child abuse inquiry, Future Pathways and the survivors of childhood abuse support fund. The bill also enables the provision of elements of non-financial redress, such as therapeutic support.

For decades, survivors of abuse were not heard and not listened to; that echoed how their voices as children were silenced. One of my priorities has always been to ensure that survivors’ views have been at the heart of measures that are introduced to support them. Again, the redress scheme embodies that approach, and I am grateful for the responses to the pre-legislative consultation, which have shaped the scheme.

Engagement with survivors will continue, including the establishment of a survivor forum, to ensure that the needs and perspectives of survivors are reflected in the implementation of the redress scheme.

When it comes to timescales, work is on-going to allow the scheme to be launched as soon as possible after Parliament passes the bill, should it be so minded.

The advance payment scheme, which was launched less than 18 months ago, has made to date more than 450 payments to older and terminally ill survivors. As I have previously informed members, the advance payment scheme will remain open until the full scheme is operational.

I acknowledge, and am grateful for, the support that Parliament has previously offered in relation to measures that have been introduced by the Government to support survivors of historical abuse. As scrutiny of the bill progresses, I look forward to continuing to build consensus, and to working with colleagues from all parties, to deliver a financial redress scheme that meets the needs of survivors.

Such abuse should never have happened. By means of the scheme, we recognise the profound and enduring impact that it has had, and continues to have, on the lives of so many. Children, many of whom were very vulnerable, who deserved love and care, suffered instead abuse and neglect, often at the hands of those who were entrusted with protecting them. There is no doubt in my mind that the bill is one of the most important pieces of legislation that the Parliament will consider in its lifetime.

The impact on survivors of the Government—indeed, of the country—facing up to its past is best described by those survivors. On receiving an advance payment, one survivor recently passed on a quote that they had carried with them throughout their life:

“From inside these walls no one outside heard our cries: when we left, no one heard our cries from within.”

Today, we hear those voices—those cries. Through the bill, we again say to survivors: that should not have happened. We are sorry for what happened and we will act, collectively, as a country, to do all that we can to address the suffering that too many of our fellow citizens endured in their childhood.

The Deputy Presiding Officer

The cabinet secretary will take questions on the issues which were raised in his statement. I intend to allow about 20 minutes for that, after which we will move to the next item of business. If members wish to ask a question, it would be helpful if they pressed their request-to-speak buttons now.

Jamie Greene (West Scotland) (Con)

I assure the cabinet secretary that Conservative members will support the efforts of the Government and the Parliament to do what it must to offer redress and to right some of the wrongs of the past. We will do so constructively and sensitively. I, personally, will do so, as a member of the parliamentary committee that will take the required legislation through.

Inevitably, not everyone will be happy with our approach, nor will every wrong be righted. We know that financial redress is not the only means by which to compensate but, for some, it will make a difference. I will approach the bill with the gravity that it merits, in the same way that I have approached others, including the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.

Conservative members will also monitor the plans and provide scrutiny or critique when it is required or, indeed, deserved. In that vein, I start by asking the following questions. The first is one that Conservative members have raised in the past and relates to the initial cost to set up and administer the scheme. Will the cabinet secretary offer some clarity on what the Government thinks will be the baseline cost of setting up and administering the scheme, irrespective of the volume of claims? A figure of £400 million was mentioned today but, given that we do not know how many people might come forward to participate, on what modelling is that figure based? Will the total compensation available be capped in any way, given that the number of people who will participate is still unknown?

Finally, can we have any indication of, or insight into, the eligibility criteria? Will there be any restrictions or obvious limitations on the scheme? Setting that out will allow the Parliament straight away to manage the expectations of those who are watching our actions with intent.

John Swinney

I thank Mr Greene for his remarks. I welcome the Conservative Party’s encouragement and support in principle for the bill. As I did in my statement, I commit to engage constructively to ensure that the bill is as robust as it can be, and that it is informed by the evidence that the Government has already taken in the pre-legislative consultation and by the evidence that the parliamentary committee will take as part of the normal legislative process.

It is notoriously difficult to predict the financial issues. I commit the Government to ensuring that the administrative process is established efficiently to ensure that payments can be made. I am satisfied with the progress that has been made in the advance payment scheme, which, in essence, has been a preliminary exercise for the bill and has been carried out with financial efficiency at its heart. That scheme is, of course, much more limited, because it conceives of only single payments of £10,000. That proposition is inherent in the bill, but there is also the possibility of a much more considered and involved process in coming to a final payment. That will be reflected in the bill.

The Government does not intend to set up the scheme with a financial cap on it. The mechanism for making the payments will be set up, and financial provision will have to be made for that. That is also underpinned by the dialogue that we are having with external organisations in order to secure their contributions to the scheme.

My final point to Mr Greene is that it is important to ensure that survivors are well supported in coming forward and making applications, but they should also be well supported in having their needs met. Those needs might not be addressed only by financial issues. In that respect, organisations such as Future Pathways have made a significant contribution to building confidence and to helping to repair and rebuild the lives of survivors. Such organisations continue to have a significant role to play.

Iain Gray (East Lothian) (Lab)

I welcome the introduction of the bill. As I have said previously, we have all let survivors down by taking too long to get to the inquiry, too long to address the time bar issue and, indeed, too long to get to a redress scheme. It is critical that we complete the legislation and do not allow Covid or the impending end of the parliamentary session to derail that. I very much welcome the Deputy First Minister’s clear intention to deliver the redress scheme, and we will certainly do all that we can to help.

However, we cannot allow survivors to feel that we are somehow giving with one hand and taking away with the other, so why are survivors expected to give up their rights to civil justice in order to access the redress scheme? Secondly, how will the bill ensure that payments that are made under the scheme do not impact on recipients’ rights to welfare benefits?

John Swinney

I welcome Mr Gray’s remarks. Like him, I feel that these issues have gone on for too long. This is the moment to address them, and I make it absolutely clear to Parliament that I will do everything that I possibly can to make sure that the bill completes its parliamentary passage before Parliament rises for the 2021 election. I have given that commitment privately to survivors and I echo it now. I have no hesitation in putting that commitment on the record publicly, in Parliament. It is my personal determination to make sure that we are able to do that.

Mr Gray puts his finger on a very sensitive issue at the heart of the bill, which is about whether survivors should be required to forfeit their right to civil action in exchange for participation in the scheme. I recognise the sensitivity of that issue.

The judgment that I have come to is that the bill provides the most reliable means by which an individual might be able to secure financial recompense for the suffering that they have endured. In its broadest sense, it will relieve them of entering a civil legal process in which they would not be guaranteed a positive outcome. Pursuing a civil legal action could involve a degree of personal and financial stress for an individual, and I consider that the approach that the bill takes is more reliable. Crucially, by providing the waiver element in the bill, we strengthen the ability to secure contributions from organisations that will be able to address the wrongs that were committed by their predecessor members.

I appreciate that that is a sensitive issue. We will discuss that openly in Parliament. The terms of the bill are there for amendment—every single word of them.

That is the argument that I would put forward. I will be very happy to engage with Parliament on it, to ensure that the legislation fully and properly addresses the issues.

John Finnie (Highlands and Islands) (Green)

I, too, thank the cabinet secretary for early sight of his statement. I commend the progress that has been made over the years, not least recently, in relation to the pre-64 survivors.

It was my intention to raise the point that Mr Gray raised about signing away rights. The cabinet secretary might be aware of the upset and concern that that proposal has caused survivors, not least because the payments are substantially lower than survivors might get from the courts.

What steps can the cabinet secretary take to allay the view that the bill could be seen as using quick and easy money to protect institutions where abuse took place from having to pay out larger sums? I would like him to pay particular regard to the term “fair and meaningful”.

John Swinney

The point that Mr Finnie makes gets to the nub of the argument that Parliament must settle when debating the legislation. In my judgment, having looked at the arrangements that we could put in place, I believe that compared to the prospect of a civil legal action, the proposal in the bill provides a more reliable and dependable opportunity for survivors to advance claims. I accept that that is a matter of judgement, but that judgment has been arrived at after extensive discussions with survivors and it is a genuine attempt to try to provide a reliable route that individual survivors can pursue.

Obviously, Parliament will be free to consider the elements of the bill, and the Government will engage constructively in that process. Fundamentally, I am interested in using the bill to create an opportunity to assist survivors to address, with the help of the state, the unacceptable experiences that they have had. The pursuit of that outcome will underpin our involvement in all aspects of the legislative process.

Clare Adamson (Motherwell and Wishaw) (SNP)

I thank the Deputy First Minister for his statement.

As convener of the Education and Skills Committee, which will take the bill through the stage 1 process, I, too, understand how vital it is. We must get it right, and that involves hearing through the bill process the voices of those who may be adversely affected. Given the interest that people will have in the bill process, what support will be available before the redress bill is—I hope—passed by the Parliament? What support is available for survivors now and during the bill process? What part will the third sector play in the process?

John Swinney

A range of organisations already act in that area. Earlier on, I mentioned Future Pathways. A variety of other organisations provide services to survivors.

For me, one of the striking features of engaging with survivors has been the value that they attach to the support that they experience from the various representatives of organisations such as Future Pathways. The individual is at the centre of the support that is available, their needs are addressed, and support is built around them. That model serves us well, and it will, of course, be available to survivors as they proceed with issues and advance their interests in relation to the bill.

Beatrice Wishart (Shetland Islands) (LD)

I associate myself and my party with the Deputy First Minister’s sentiments and the tone of the statement.

Financial redress will not make up for the injustices that were suffered, but it is an important step towards taking responsibility for the devastating impact on survivors’ lives.

The bill proposes that organisations with responsibilities will be asked to contribute financially to the scheme. I recognise that my question might have been partly addressed in answers to previous questions, but does the Deputy First Minister envisage that the Government will play an intermediary role in brokering how that will work, given the range of parties involved? How confident is he that organisations will co-operate?

John Swinney

I thank Beatrice Wishart for her support for the direction of travel in the bill.

The Government is already engaged in discussions with a range of organisations that we believe should make a contribution to the scheme. A range of organisations are constructively engaging in those discussions. Obviously, as those discussions progress, I will be in a position to advise Parliament of the commitments that have been made by organisations at different stages of the proceedings. However, it is important that organisations that have been responsible for the care of individuals and in which children were abused face up to those responsibilities and make an appropriate contribution to the scheme.

Alison Harris (Central Scotland) (Con)

I see that, in accepting a redress payment, survivors will agree not to continue to raise a civil legal action, as per the Deputy First Minister’s statement, but what about the reverse of that? If a victim has already been through a civil court action, does that prevent them from coming forward and applying for a redress payment through the bill?

John Swinney

My recollection is that it does not. Obviously, there is a choice for an individual in deciding whether to participate in the scheme that is envisaged or whether to pursue a civil legal action. That is a matter for individuals. Organisations could, of course, specify in the discussions that we have that, if they have made payments before, they do not wish those to be associated with any applications that are made in that respect. Obviously, the Government would have to consider those issues as part of the administration of the scheme.

James Dornan (Glasgow Cathcart) (SNP)

[Inaudible.]—for redress schemes for survivors. If so, how has that shaped the approach that has been taken in Scotland?

John Swinney

I am not sure that I heard all of that question, but I think that I caught the drift of it.

Through the interaction group, there has been extensive dialogue with survivors to ensure that we hear their views and hopes, and it has taken time and care to reflect those things properly and fully in the bill. Survivors have been very influential in shaping the approach that we have taken to the advanced payments scheme. I was keen for them to be engaged in that process at all stages of the discussions, and we will continue that dialogue in the period ahead.

Johann Lamont (Glasgow) (Lab)

Will the cabinet secretary point to the survivor groups that support his decision to deny survivors the choice to seek compensation from organisations for the terrible abuse that they suffered if those organisations contribute to the redress scheme? Given that the cabinet secretary said in his statement that survivors “value having a choice”, what is his response to those survivors who have told me that they are deeply offended and hurt by the decision to limit their right to seek compensation for the abuse that they have suffered in the past?

John Swinney

The point that I make to Johann Lamont is the same response that I gave to Alison Harris: a survivor can decide not to participate in the scheme and can pursue a civil legal action if they wish to. For survivors of abuse that predates 1964, I accept that the scheme is the only option. However, it is beyond my ability to legislate for that, and the Government has moved significantly to create an opportunity for individuals to pursue such action should they choose to.

Therefore, my response to Johann Lamont is that survivors have the choice of pursing civil legal action if they wish to do so. My argument is that the approach that is taken in the bill gives survivors the opportunity to pursue action with a great deal more certainty of the outcome than they would have in a civil legal process, saving themselves significant personal and, potentially, financial distress in the process.

As I have said, the bill will be the subject of dialogue and discussion in Parliament. I will engage in that discussion openly and constructively, and I encourage Johann Lamont to do likewise.

Annabelle Ewing (Cowdenbeath) (SNP)

Having had the privilege of taking the Limitation (Childhood Abuse) (Scotland) Act 2017 through Parliament, I am very pleased indeed to see that the cabinet secretary has honoured his promise to survivors with this redress bill. I commend him for that.

Taking a civil action is not an easy thing to do in general circumstances. The removal of the time bar removed one hurdle, but it did not necessarily mean that a person could raise a successful action or that a survivor would wish to go through that very difficult process.

My question to the cabinet secretary is about the key issue of financial contributions from relevant residential care providers. There is reference to certain tests that are to be met with regard to the fairness and meaningfulness of the relevant financial contribution. Will the cabinet secretary provide a bit more detail of the principles behind those tests?

John Swinney

I am grateful for the perspective that Annabelle Ewing brings to these very challenging issues, given her involvement with the Limitation (Childhood Abuse) (Scotland) Act 2017, which dealt with associated issues.

On the question of the principles that will be deployed regarding contributions, we will want to be assured that the approach is proportionate and that it takes into account the information that we have about the experiences that individuals have had and the responsibility of organisations. We must ensure that, in every respect, the scheme that we develop properly and fully takes account of the experiences that individuals have had and the responsibility of organisations into the bargain.

Brian Whittle (South Scotland) (Con)

I declare an interest in that, for the past two years, I have been working with a constituent who, after 44 years, has finally managed to get the person accused of abusing them charged and into court. Having worked on that case, I find the system that victims must navigate to be horrendous. It repeatedly retraumatises the victim and is not fit for purpose. I have written to Mr Swinney and to the Cabinet Secretary for Justice, Humza Yousaf, asking for their time to discuss the matter.

Given the Scottish Government’s commitment to getting it right for every child, why does the redress scheme cover only children who have survived historical child abuse while in care? Surely, child abuse should be treated seriously in every background and circumstance, including in a school. Not doing so creates secondary victimisation for those who are not included.

John Swinney

The issue here is the role of the state. Mr Whittle cites the example of a young person who may have experienced abuse in a school. If they were living in a domestic environment, the parent or carer would be responsible for that young person’s care, and the state would not be acting in any parental capacity. The bill covers cases in which abuse occurred while the state was acting in the role of a parent. The state must address liability in such cases, and that is the scope of the bill.

Kenneth Gibson (Cunninghame North) (SNP)

How will the Government reach out to survivors who may live on the margins of society, such as homeless people and addicts, given that those people are more likely to have had their lives ruined by abuse during childhood? How will all those who should seek redress be made aware of how to apply for it?

John Swinney

Many of the organisations that deal with survivors find that those people are often immensely traumatised by their experiences and can be hard to reach. Survivors’ confidence must be built to enable that to happen. Those organisations have built up extensive experience over many years in creating an approach that will reach survivors. I assure Mr Gibson that that thinking will be at the heart of the support that is in place to assist survivors and to support them in meeting the challenges they will face in interacting with a scheme of this type.

Daniel Johnson (Edinburgh Southern) (Lab)

Annabelle Ewing touched on the point that the purpose of the new body will be to assess claims. The methodology for doing that will be highly sensitive. When will the guidance for those assessments be available, and how will it be devised?

John Swinney

The bill is extensive. We have tried to put as much as possible of the information to which Mr Johnson refers into the bill itself. Structuring the bill in that way will allow us to provide as much legal certainty as possible.

I would like to have a situation in which we have the fundamental components of the approach specified in law, rather than relying on guidance to enable that. There will be greater-than-usual reliance on primary legislation. The guidance will be formulated to operate within the terms of the primary legislation that is put in place by Parliament. It will be available before the scheme is enacted, so that applications from individuals can be resolved.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

The bill requires the provision of information and evidence in support of applications and it gives the power to compel any individual or body to provide specific information. What assurances can the cabinet secretary provide that steps will be taken to ensure that victims will not experience retraumatisation as a result of the process of applying to the scheme?

John Swinney

That is a fundamental question. We all want to avoid any individual experiencing retraumatisation. The bill is designed to help to address the unacceptable experience of survivors. It is an indication from the state that we acknowledge the importance of addressing those requirements.

The purpose of the process that we invite people to move through is to avoid retraumatisation and to provide them with support to enable them to participate in the process and have some benefit from the outcome that is arrived at. Those aspirations will be built into the approach that will be taken forward, as part of the legislation, to ensure that individuals are supported to address the unacceptable experiences that they have had in the past.

The Deputy Presiding Officer

Thank you. That completes questions on the statement.