Meeting date: Thursday, June 22, 2017
Meeting of the Parliament 22 June 2017
Agenda: General Question Time, First Minister’s Question Time, Island Games (Support for Athletes), Provisional Outturn 2016-17, Limitation (Childhood Abuse) (Scotland) Bill: Stage 3, Limitation (Childhood Abuse) (Scotland) Bill, Decision Time, Point of Order
- General Question Time
- First Minister’s Question Time
- Island Games (Support for Athletes)
- Provisional Outturn 2016-17
- Limitation (Childhood Abuse) (Scotland) Bill: Stage 3
- Limitation (Childhood Abuse) (Scotland) Bill
- Decision Time
- Point of Order
Limitation (Childhood Abuse) (Scotland) Bill
The next item of business is a debate on motion S5M-06201, in the name of Annabelle Ewing, on the Limitation (Childhood Abuse) (Scotland) Bill at stage 3. I ask those who wish to speak in the debate to press their request-to-speak buttons.
I call Annabelle Ewing to speak to and move the motion. You may have no more than eight minutes, please, minister.15:37
I am pleased to open the stage 3 debate on the Limitation (Childhood Abuse) (Scotland) Bill and to invite members to agree to pass it.
I thank members of the Justice Committee, the Finance and Constitution Committee, and the Delegated Powers and Law Reform Committee for their hard work and careful scrutiny of this hugely important bill. I also thank members for their comments on the bill during its passage through the Parliament, and I thank the organisations and individuals who provided oral and written evidence to the committee and briefings on the bill’s provisions.
Most important, I thank survivors, who have been at the heart of this process. I thank them for their bravery and their persistence, for bringing to our attention their plight and the injustices that they have suffered and for not giving up their fight to set those injustices right. I am humbled by the courage that they have shown, not only in campaigning for this legislative change but in coming forward and sharing their experiences. It is the survivors coming forward that has made the bill possible and been the reason why we have reached this important milestone today.
I was deeply saddened to learn that Frank Docherty passed away on 30 April. He was a survivor who fought long and hard for the voices of survivors to be heard, and it is clear that we have lost an important witness and champion of survivors’ rights.
I also thank the Scottish Human Rights Commission for all the work that it has done for many years on this subject. As members will be aware, the bill stems from its interaction process and the “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, which came out of that work. The action plan set out a number of recommendations and today I am pleased to be at the point of fulfilling a key commitment in response to them.
I have welcomed the constructive discussions that we have had on the bill as it has made its way through the parliamentary stages. The Justice Committee’s evidence-taking sessions highlighted a number of important issues, among them the definition of abuse and, in particular, the issue of neglect. I am grateful to the witnesses and the committee for raising this issue and recommending that we look at it again, and I believe that our amendment, agreed at stage 2, to mention “neglect” expressly in the definition has added clarity to the bill. It ensures that there is no doubt that abuse in the form of neglect is covered by the definition of abuse in the bill.
The committee evidence sessions also highlighted other issues in the bill, in particular in relation to inserted section 17C of the Prescription and Limitation (Scotland) Act 1973, which allows previously raised cases to be reraised, and also in relation to inserted section 17D, which provides safeguards in line with the European convention on human rights. I found those discussions helpful in relation to re-examining the issues. With regard to section 17C, I noted the committee’s suggestion that more clarity could be provided in the explanatory notes on the question of the burden of proof. I can confirm that changes have been made to the explanatory notes in line with that recommendation.
As I have mentioned before, the bill is about striking a balance, in particular finding a balance between being inclusive and avoiding unintended consequences. I have made every effort to ensure that the provisions in the bill are justified and proportionate.
On the important issue of prescription, I welcome the conclusions of the Justice Committee on the law on prescription, which is relevant to abuse that took place before September 1964. Because of the nature of the law on prescription and human rights considerations, prescription will remain unchanged, and the committee agreed that that is the right approach. I am, however, aware that the issue of prescription has come as a great disappointment to many survivors, and I regret that that is not something that the bill is able to address.
However, as members will be aware, the bill is not the only step that has been taken by the Scottish Government to support survivors of childhood abuse, and it is important to set the bill in the context of a number of other measures that are designed to improve the situation for survivors.
In relation to survivors who are affected by the law of prescription, the current work to develop a consultation on the provision of financial compensation will include all in-care survivors within its scope. That work is being taken forward by the centre for excellence for looked after children in Scotland, in collaboration with the interaction action plan review group, which includes survivor representatives. That work is in its early stages, with consultation expected to start later in the summer.
Already up and running since October 2016 is the £2.5 million in-care survivor support fund, which is now called future pathways. Older adults have been identified as a priority group since the inception of the support fund, along with people in distress. Demand for support has been encouraging, with more survivors than initially anticipated coming forward. To improve the responsiveness of the service, and to address the needs of older and more vulnerable survivors who might not yet have come forward for support, future pathways is increasing the number of support co-ordinators to enable more responsive support to all. One of those co-ordinators will focus on the needs of priority groups such as older survivors. I take this opportunity to encourage all survivors of in-care abuse, regardless of age, to get in touch with future pathways.
Other measures to support survivors of in-care childhood abuse include the national confidential forum, which continues to be a forum in which the voices of in-care survivors can be heard, acknowledged and understood. In October 2015, the Scottish Government established the independent Scottish child abuse inquiry, which was tasked with conducting an independent investigation of the abuse of children in care in Scotland. That is one of the widest-ranging public inquiries that Scotland has ever seen, and it began its first phase of hearings on 31 May.
The Scottish Government also supported the Apologies (Scotland) Act 2016, which came fully into force earlier this week. By protecting the giving of apologies in certain civil actions, the act is intended to encourage changes in social and cultural attitudes towards apologising.
That range of measures, along with the passing of this bill, will make a significant difference for survivors, and I am pleased to be here today at this significant milestone.
That the Parliament agrees that the Limitation (Childhood Abuse) (Scotland) Bill be passed.
Presiding Officer, Johann Lamont made a point earlier about the time that is available for the debate. I wonder whether I could move a motion without notice to postpone decision time to 4.45, to ensure that there is time for all contributions to be made in this important debate.
I am currently giving consideration to that. I will send you a note and ask you to move the motion without notice at the appropriate time.15:44
For many, today represents a historic day, not only in the life of the Parliament but for our society as a whole. Today, we have the opportunity to right a historic wrong. Although the legislation is no panacea, there can be no denying the significance—real and symbolic—that changing the law will bring. For far too long, survivors and victims of abuse have been denied justice. I say “survivors”, but we must remember that many have not survived.
As I have already said today, vile monsters have been allowed to hide behind the law, shielded by technical legal considerations. Our state did not want to know. Many like us who have held elected office have let down those individuals. As we welcome this step forward, we must take our share of collective responsibility for the grave failings of the past.
There are many living among us who have had their lives destroyed; there are many who were in our care but experienced no care at all and who have endured the unimaginable and been denied their childhood. To call what has happened an atrocity is inadequate. What is harder still to acknowledge and to accept is that such acts continue to happen to this day.
On behalf of those on the Conservative benches, I say to all those who have experienced abuse that we are truly sorry. They have been wronged and nothing that is said or done in this place will ever put that right. However, we must do what we can and, at the very least, we owe it to all those who have gone before and all those who are yet to come to give them their chance to have their day in court. We owe them the right to seek justice, to bring the issues into the light and to demand that the perpetrators face the consequences of their actions. Of course, there will be disappointments; of course, there will be cases that do not proceed due to a lack of evidence, or because evidence has been destroyed. There will be further cases in which, because of the delay in getting this legislation, the perpetrators are dead.
Over the past few months, I have met survivors and heard their stories. I will never forget a survivor who told me that the violence inflicted on her had gone beyond the physical and the psychological and had destroyed part of her soul. However, she had not given in or given up. Like many who deserve our praise and admiration, she had the courage to speak out.
It is the survivors who have delivered this legislation and forced change. They have campaigned tirelessly and vocally. Some have, in their own way, fought back by living their life as fully as they can. For them, this legislation sends out a message that cannot be ignored: no longer will our legal system aid and abet those who deserve no mercy. That is a victory in itself. Those who have done wrong must be answerable, and they do not get to put any time limit on justice.
By removing the time bar, we are removing one of the barriers that stand in victims’ way. The bill rightly recognises and acknowledges that, for many survivors, any attempt at healing may take some time. For some, it will take years before they are ready to speak about their ordeal and to confide in another after their trust has been broken and perhaps many more years after that before they can face the legal process.
Many of us will never be able to comprehend the complexity of that process, so let us not be arrogant enough to imagine that today’s legislation solves or addresses all those challenges. Although this is rightly a victory for campaigners, we as parliamentarians must consider this the start, not the end, of a journey. There will always be more that we can do. There is no room for complacency on our part.
Let us remember that the bill is not the answer for everyone. For example, it does not offer, as the minister has outlined, the same opportunities for justice to those who suffered abuse prior to 1964. For reasons that others will cover in their speeches, it has not been legally possible to do the same for them.
To end on a more positive note, it is clear that some who have suffered are no longer afraid. This change will help to deliver the closure that they are seeking.
I urge ministers to reflect on what further steps can be taken to address childhood abuse. In the same spirit, I ask the Government to keep an ever-watchful eye on how the changes that we are making today work in practice and how they are funded. Let us make sure that those who have campaigned so hard and those who have waited so long are not let down a second time.15:50
I am pleased that the Limitation (Childhood Abuse) (Scotland) Bill has reached its final stage today. We should acknowledge that it is 10 years since Lord McEwan commented in a judgment:
“I have an uneasy feeling that the legislation and the strict way the Courts have interpreted it has failed a generation of children who have been abused and whose attempts to seek a fair remedy have become mired in the legal system ... there is little I can do about it except to hope that reform will not be long delayed.”
It can be argued that it has taken too long to see that reform, and there will be survivors for whom the legislation is too late. However, it will give people choice—people who suffered terrible abuse as children, who were abused when they were supposed to be protected and who had experiences that have hugely impacted on their lives as adults.
Child abuse is an extremely difficult crime to acknowledge. It has come out of the shadows only in recent years, and the increase in historical criminal cases demonstrates the legacy that Scotland has to deal with. The bill was introduced in the shade of the Scottish child abuse inquiry, which is vital to demonstrating transparency, accountability and responsibility. A challenging inquiry, it has been problematic and it has not been able to maintain the confidence of all survivor groups. Although the bill extends to survivors new rights to pursue cases in the civil courts, not all survivors will wish to take that path, and it does not recognise the collective experience. It is crucial that the inquiry delivers answers and that it can expose a culture that we as a society are no longer prepared to hide or tolerate.
We must now focus on supporting successful implementation of the legislation. The report of the commission on parliamentary reform, which was published this week, recognises the importance of post-legislative scrutiny, and the bill is a piece of legislation that we need to be alert to. We are giving people a new right, and it is one that they must have confidence in.
The amendment to the bill was not agreed to, but the Government needs to address the on-going concerns about costs. I appreciate that the minister is having conversations with the Convention of Scottish Local Authorities, but it is clear from evidence to the committee that, as well as the anticipated costs of legal defence and action, more significant costs will be involved in successful claims. The financial memorandum on the bill argues that there is an unquantifiable cost, but there will be a financial impact for defenders, and there are continuing concerns from COSLA and others about the ability to meet those costs. Those are important matters that the Government needs to resolve.
We need to recognise that insurance may be available in some cases, but not always, and concerns have also been raised about expired policies, companies that have folded and inadequate insurance policies. The Government must recognise that a demand-led response is necessary, and it will have to work with others to make that possible. Authorities will have responsibility, but it will not be by intent, and the burden will be greater on some than on others.
The debate on the amendment should focus the Government’s mind on ensuring that sufficient resources are available. At committee, the minister talked about the risk of signing a blank cheque, but we do not want to suggest that the available support could be capped or that we will not be able to respond to demand.
I hope that today’s debate will reassure survivors that we are not going to have empty legislation, and that it will deliver rights to them. Not all survivors will want to pursue a case that could be difficult, disputed and traumatic. There was recognition in the evidence that that could be a difficult task, given all the normal practices of the legal system. However, the bill provides choice for survivors. We must ensure that measures are in place to support people to make an informed choice and that there is support for those who wish to pursue this course of action.
How does the minister anticipate support being made available to survivors who bring civil actions? The third sector offers support groups, but how can we ensure that it can develop knowledge and expertise on the legislation? Is the minister aware of plans for training opportunities or events? How does she plan to promote such opportunities?
There is also recognition of the need to provide training for the legal profession and to develop specialisms. The cases that come forward will be complex. Specialist courts were proposed and discussed in the evidence, and the Government could legislate for those if it accepts the case for them. I hope that it will give that idea further consideration.
Finally, I want to talk about the merits of a financial redress scheme. The new legislation will not apply to people who were abused prior to 1964 and no civil action is available to them. A financial redress scheme could be a way to recognise the abuse they suffered while in care. A scheme aimed specifically at the needs of that group of elderly and often frail survivors would ensure that they are provided with a level of redress while they can benefit from it. I urge the Government to advance the work on that as soon as possible.
The bill will be an important piece of legislation that addresses an injustice for a group of people who deserve recognition and justice. The law as it stands excludes them from the civil courts because they were young, vulnerable and abused when the crime took place. We must now make sure that they can successfully use the legislation—if they decide to use it—by ensuring that they are supported and that the act is properly resourced.
Before we move on, in order to allow all those who wish to contribute to do so, I am minded to take a motion without notice under rule 8.14.3, to move decision time to 4.45.
That, under rule 8.14.3, the debate be extended by up to 30 minutes.—[Joe FitzPatrick]
Motion agreed to.
We now move to the open debate, with speeches of four minutes—we will still be quite strict on timing.15:56
As a member of the Justice Committee, I support the bill and I agree that it will improve access to justice for survivors of historical childhood abuse. I thank the minister and the Government for introducing the bill and I thank all the members and witnesses who participated in the committee’s scrutiny. The committee dealt with many of the technicalities of the bill and scrutinised it fully. We heard evidence from a number of people. As Oliver Mundell and others have said, some of the most powerful evidence was from the survivors who presented to us.
Although the bill undoubtedly has some shortfalls, to me it represents our continuing progress as a nation. It shows that we treat the issue with the utmost seriousness, that we acknowledge that we got things wrong for victims in the past and that we are on the right path to truly tackle the issue. It is absolutely right that the time limit should be removed for such horrible offences, because we know that many people take years to disclose this sort of crime. Indeed, in my experience in social work, many people do not speak about childhood abuse until they become parents, or even way after that. As I think I have said previously in the chamber, it is not uncommon for services to work with a family and for disclosure to come out through that work, even when the terms of engagement have nothing to do with that.
The Moira Anderson Foundation undertakes a lot of work across Lanarkshire and has direct experience of working with victims who have taken years to disclose. Today, I told people at the foundation that I was speaking in the debate, and they told me about a service user they have been working with for the past couple of years who will be directly affected by the bill. I have been given permission to share his story. For approximately two years, the foundation has supported a male in his 30s who was sexually and physically abused by a trusted adult when he was in his early teens. The abuse was very violent and threats were constantly made about what would happen to his family should he ever speak up. The abuse got so bad that his behaviour deteriorated and he ended up in care, where he suffered further abuse.
The individual turned to alcohol and drugs as a way of blocking out the memories of the horrendous abuse. As an adult, his marriage and contact with his children broke down due to his anger issues and his huge distrust of people. The individual felt unable to go to the police because of his deep sense of shame. He felt that, being male and a teenager, he should have been able to fight off his abuser.
With the support of the Moira Anderson Foundation, he went on to make a statement to the police. During his interview, he disclosed sexual abuse in care as well as physical abuse. The sexual abuse had been undisclosed even to the Moira Anderson Foundation before that point. Despite the trust that he had built up with the worker from that organisation, there was more abuse that he had not been able to disclose. He would never have been able to speak to the police earlier than he did, because he was not in the right place. However, he was able to speak to the Moira Anderson Foundation. When I contacted people at the foundation today, they said that they have been discussing the bill’s progress through Parliament with that individual. When we sit in the chamber and pass bills, it is all about people like that who are directly affected. He will, I hope, be able to take advantage of the bill.
The bill takes the correct steps that are needed to ensure that access to justice is available to survivors of historical abuse. It is vital that we continue to explore measures through which survivors of abuse have the support and means to deal with the effects felt from childhood abuse. As has been said before in the chamber, at present individuals are not able to bring cases to civil court after three years, including cases that involve side effects such as post-traumatic stress disorder, anxiety or depression. Survivors currently face barriers in attempting to access the civil justice system.
I see that my time is running out, so I will conclude, although I had more to say.
I did not agree with Oliver Mundell’s amendment, but it was well placed. Overall, the whole Parliament and every party has supported the bill. Let us take that support forward and ensure that the bill works.
Mr MacGregor, your time was not running out; it had run out. I ask everyone else to take note of that, please.16:00
I am pleased to take part in this stage 3 debate.
I thank members of the Parliament’s Justice Committee and other colleagues for their work at previous stages of the bill, including on a thorough and useful stage 1 report. I also thank the external organisations that contributed briefings and materials during the legislative process.
The Scottish Conservatives have consistently supported the bill in principle and in its aims, and we will continue that support at decision time.
It is right that the Parliament will remove the three-year limitation or time bar so that survivors of childhood abuse will no longer have to undertake the additional and potentially very difficult task of persuading a court to overrule the limitation period. The need for the bill was clearly demonstrated in the Justice Committee’s stage 1 report and is also evidenced by the fact that the discretion that is allowed in existing law through the Prescription and Limitation (Scotland) Act 1973 has been used only once since that act was passed some 44 years ago.
The Faculty of Advocates and other organisations have warned that the removal of the time bar will lead to an increase—possibly a significant increase—in the number of court actions, and many of those court actions are likely to be extremely complex. The Justice Committee also identified that in its report. We need to recognise that the number of potentially complex and additional cases that will come forward will inevitably lead to resource implications for our courts, as has been outlined. That was the reasoning behind the amendment that my former colleague Douglas Ross lodged at stage 2 and Oliver Mundell’s amendment, which we discussed this afternoon. Obviously, I am disappointed that the Scottish Government chose not to accept that amendment, but I hope that ministers will keep the subject under constant and close review and that they will be ready to take the necessary action to ensure that our court system is always appropriately resourced and supported.
Ministers will be aware of the Health and Sport Committee’s recent inquiry into child protection in sport following the BBC Scotland investigation that revealed allegations that young football players were sexually abused by coaches during the 1970s, 1980s and 1990s. Although the committee’s inquiry focused on the safeguards that are currently in place for children and young people, it has been made clear by individuals who have contacted me privately that the public airing of those historical allegations may result in a real increase in the number of historical cases that come forward.
Childhood abuse is incredibly difficult for people to revisit and talk about at any stage in their lives, but it is vital that we send out the message to victims who have suffered abuse that they will be listened to and that we will put in place the resources that are needed to support them when they decide to come forward. It is important that survivors of childhood sexual abuse who decide to pursue civil claims do not face unacceptable delays because of a lack of resource in the court system.
I join other members in urging the Scottish Government to continue to look at how it will address the rights of survivors of abuse that took place before 1964. I welcome what the minister had to say when she covered that subject.
To conclude, I support the bill, which will result in appropriate action being taken to ensure that our legal system recognises that victims of childhood abuse are a unique category of pursuer because the nature of their abuse means that they often do not pursue claims until many years after the abuse took place. I hope that the bill will send out a clear message that our Parliament and Government want to do all that they can to support the victims of childhood abuse. I am confident that the bill can and will make a real difference to many survivors as they seek to take court action.
It is vital that we deliver justice for those who have suffered. I hope that the passing of the bill is another step towards truly delivering justice for people who have suffered at the hands of those whom we entrusted to protect and care for them.16:04
I welcome the opportunity to participate in the debate, and I recognise that members across the chamber want to make the legislation work. We would not be in the position that we are in if there had not been long, hard arguments about how to deliver justice for people who—because of the nature of the abuse that they suffered and the time in their lives when they suffered it—were routinely denied justice.
I will make some brief comments about Oliver Mundell’s amendment. Although some members voted against it on the basis that they believed that the bill would be stalled if it were agreed to, those who supported it believed that it was necessary in order to give people confidence that resources would match the theory behind the bill. I do not belittle the judgment of those who voted against the amendment, but they should not think that anyone who supported it did so in order to prevent the bill from being enacted.
I have heard the phrase “a blank cheque” being used, but we would not want to have a bounced cheque, either. That is why the question of resources really matters. It is not just a case of having dialogue with COSLA or whomever; the Scottish Government must underpin the bill and commit to finding resources to ensure that the rights that it provides are real for people in their lives.
We must recognise the role of survivors, survivors groups and those who understood the diverse needs and experiences of survivors and stood with them. I am talking not only about survivors who found their voices but those people who, when childhood abuse was not readily understood, stood with survivors, gave them a voice to talk about their suffering and saw the patterns of behaviour. I am talking about the women’s organisations that identified the connections between domestic abuse, sexual abuse and child abuse and insisted that those in the political process understood that the issue was something to do with them at a time when many organisations said, “This is not our business—this is not the business of the state.” We should recognise that the progress that we have made is their victory.
It is important to understand the journey. There was a time when there was simply denial that abuse occurred. Instead of confronting what was happening, the system moved perpetrators on to abuse again. There was a refusal to listen to young people who spoke about what was happening. Many young people were silenced and left to continue suffering, and many were scapegoated in their own homes or in the schools and the care system in which they found themselves. They were blamed for their own abuse, and their poor behaviour—which was a consequence of the abuse that they had suffered—was used to explain why they were in the situation that they were in.
There is a bit of unfinished business in relation to those professionals who had a duty of care and who, at a time when there were already policies that mentioned abuse, did not speak up for young people or understand properly what they were being told. I mention that because what now seems to be an inevitable journey of progress was not always so. If we do not recognise that the journey was long fought for or understand the scale and the pernicious nature of such abuse, how it might reveal itself and the long-term suffering that it can cause, justice will be denied and institutions will again say, “This is too difficult.”
We have had revelations about abuse in football clubs, sports clubs, community groups, care homes and at home. The truth is that predators take many forms, and we should not take a silo approach. We need to talk about why the abuse of power happens and how it is experienced so that we can protect our young people in the future.
Turning to the issue of a survivors strategy, I understand and recognise the importance of the inquiry into historic child abuse, but there are people whose suffering does not fall within its remit. Regardless of where the abuse was suffered, it is essential that there is a proper survivors strategy to support survivors, wherever they are. We must understand that, although some survivors are not ill, they need emotional support at particular times in their lives. They grieve the loss of their childhood and of the potential that they had as young adults, and they deserve support.
As well as having provision for survivors and protection through the justice system, we must have prevention by talking about abuse and ensuring that those who would perpetrate abuse against others understand the scale of society’s hostility to that and our determination to ensure that it does not happen. I know that the Government supports that position. I am grateful to the Government for the work that it has done to get the bill to this stage and look forward to supporting it at decision time.
I ask the chamber to note that I may have to cut down speeches, because members are running over time. I call John Finnie, to be followed by Alex Cole-Hamilton.16:09
I think that it was Oliver Mundell who used the term “historic”, and a lot of people will view the bill as that.
I thank everyone who participated in our scrutiny of the bill—particularly the survivors. I am a member of the Justice Committee, which took testimony in private. Although the individuals will rightly remain anonymous, it is entirely appropriate to record that they were very worthy ambassadors for their group. We learned a lot from them.
A lot of excellent organisations offer support to childhood abuse survivors, and the police and the Crown Office and Procurator Fiscal Service are playing important roles, as we have also seen in relation to sexual crimes and crimes such as domestic violence. A proactive approach by the police gives people the confidence to come forward. Members have talked about the resources that are behind the Crown Office and Procurator Fiscal Service, on which the Justice Committee has also conducted an inquiry, and it is important that the people who support survivors—in the broadest sense—are properly resourced.
The Scottish Human Rights Commission’s “Action Plan on Justice for Victims of Historic Abuse of Children in Care” has been mentioned, and I commend the national confidential forum. The briefing that the Scottish Human Rights Commission gave members at the outset of the bill process states:
“Judicial and other remedies for human rights breaches must be practical and effective and equally accessible in practice as well as in law. This requires that they ‘should be appropriately adapted so as to take account of the special vulnerability of certain categories of person’ ... Legal limitation on claims may render the remedy ineffective.”
I take a rights-based approach, and the retrospective application of the bill is unusual. We have talked about prescription and the phrase “equitable to do so”. The legal system deemed it “equitable” to set the time bar aside on only one occasion, so it is entirely appropriate that we have a special limitations regime. The right to a fair trial is a human right for both sides of the equation, applying equally to the pursuer and the defender in a civil case.
This is very positive legislation, as removing the time bar removes one of the hurdles to justice. However, the time bar is just one of those hurdles. As I said in the stage 1 debate, legislation in itself is not sufficient; we need a range of measures including a special regime for childhood abuse.
I will quickly make a couple of other points.
I welcome the definition of a “child” as being someone under the age of 18. That approach is being reflected in other legislation.
The subject is emotive, as we have heard today, and the bill is about addressing the wrongs of the past and moving to a positive future. Nevertheless, there are challenges around what we know. For example, some people see a commercial challenge, and we have heard the insurers’ concerns about the number of people who will come forward. However, when we talk about statistics and numbers, we must remember that we are talking about individuals who all have a particular experience.
The way ahead is through prevention, as other members have said. That includes education, and there is a lot of good education in our schools. It is about obligations to challenge, whistleblowing policies and people feeling that they can challenge if they see wrong.
Regarding older survivors, I am sometimes involved with an organisation called SiMBA that helps people who have suffered a stillbirth. I met a woman in her late 40s who had never had that support, and she came forward many years after the event. People can always gain from support, and I hope that survivors will come forward.
There are other initiatives on the go. The position of children is important in the Domestic Abuse (Scotland) Bill. In my final eight seconds, I will plug the proposed children (equal protection from assault) (Scotland) bill, of which I am the proposer. It aims to protect children from assault and corporal punishment and will bring in equality there. I hope that my proposed bill will gain support in the future.16:13
I remind colleagues of my entry in the register of members’ interests, about my career in the residential childcare sector before coming to the Parliament.
Coming to terms with the depth and extent of historic abuse has been the darkest awakening for our generation. As a society, we have failed untold numbers of those who were entrusted to the care of charities, churches, schools and social clubs who, in the course of the care and supervision that they should have enjoyed to the highest standards, were let down and damaged in the most horrific ways imaginable. We can never hope to know the full extent of the suffering, but by our actions here today, we can at least offer some access to justice and, by extension, an element of peace to those victims who can now finally tell their stories.
I am standing in for Liam McArthur, who cannot be here today, so I was not party to the committee proceedings and the powerful evidence that it received. However, I have worked with providers of care and survivors of abuse for much of my professional life. I understand the dehumanising and savage impact that abuse can have on people’s lives, whatever their age.
As the committee heard, it can take an average of 22 years for a survivor of abuse to feel able to come forward and talk openly about the abuse and its impact on their life. As such, the very existence of a time bar against civil proceedings saw a barrier to justice baked into our legal system. As with so many aspects of indemnity in our society, the system was tilted towards protecting providers from litigation rather than protecting the rights of individuals to seek justice in a timeframe of their choosing.
We live in a time when the walls that have protected abusers and cultures of abuse are steadily coming down—historic though they may be. Although the pursuit of criminal justice against the perpetrators of historic abuse has no time restraint, victims have faced such a restriction in obtaining satisfaction and redress through the civil courts. The bill rightly rectifies that situation for cases of abuse after 1964.
In the evolution of the bill we have seen an expansion of both definition and settings. To shift the focus of the legislation to the vulnerability of the victim, rather than the stage on which the abuse took place, puts us in step with the tenets of international best practice and human rights law. Similarly, the definitions of abuse against which justice can be sought have rightly been expanded to include all forms of abuse.
I am hugely gratified that following the contributions of my colleague Liam McArthur and other members, such as Mairi Evans, during the stage 1 debate, the Government to its credit saw fit to move an amendment at stage 2 to include neglect as a judicial offence against which victims might seek civil redress. That, too, brings us closer still to meeting the international gold standard.
We have had a consensual debate and I am grateful for that. The bill is a short but essential piece of legislation that will have wide-ranging implications for people who have lived in the shadow of an appalling thing that happened to them and who have suffered in the knowledge that their abusers were protected by organisations and institutions that so singularly failed in that crucial first line of their duty of care and which, in some cases, fostered a culture of silence and complicity.
This has been a time of uncomfortable revelation in the course of our nation’s story but I am confident that, when we pass the bill today, it will be seen as a time of long overdue justice as well.16:17
I will begin by talking about my colleagues in the chamber. I have always thought that all of us who stand for Parliament and elected office, whatever our political traditions and beliefs, come here—with almost no exceptions—wanting to do good for the people whom we are elected to represent. That does not change the fact that I will disagree with members in other parties on matters that are important to me. However, as we reach the conclusion of the Limitation (Childhood Abuse) (Scotland) Bill, I am gratified to find that we are likely to find ourselves of a single mind.
I have no difficulty with the motivation behind Oliver Mundell’s amendment. Indeed, after the stage 2 amendment fell in committee, I had discussions about precisely how a new amendment might look. At the end of the day the amendment was not quite there—but that is only a personal opinion and does not matter greatly in the big scheme of things.
I pay tribute to Johann Lamont, who, like me, has been here for some considerable time. She has been a tireless campaigner—on occasion, an extremely irritating, but proper one—on the rights of the disadvantaged in our society. Although we heard some pretty robust words today, we should utterly respect the motivation behind them. We are of one mind in supporting the bill.
The debates and disagreements that we have in Parliament will not be understood in any shape or form by the people whom we seek to help. Their attitude is simple. They want us to get on with it and do something. I think that that is where we have got to.
In committee, we heard from people who suffered childhood abuse. Their stories were moving beyond belief. I say that as someone whose general practitioner father—I always refer to my history—had to deal with childhood abuse. He was the GP responsible for pupils in a boarding school, and he came across some examples of abuse in that context. The issue was discussed around the dinner table, because it was thought that we children should understand what goes on. Indeed, my father sought our views.
However, nothing that we discussed around our dinner table compares with the stories that committee members were told. The stories did not quite move me to tears, but only for the reason that I did not want to let down the person who was telling their story by crying. I felt like crying—I really did—and I know that other members were in the same position.
What we do today is a noble and proper thing, which has been needing to be done for a long time. However, let us not imagine that by putting words on a page in the statute book we will have completed the job. That is not the case. We must ensure that the resources are in place—I signed up to the part of the committee’s report that said so, and I am confident that that will happen.
There are new threats coming over the horizon, with which we will have to engage. Immediately before this debate, I had an hour’s briefing from the Internet Watch Foundation, which is involved in addressing child abuse on the internet. We must remain alert to the new threats and protect future generations from them, as well as properly addressing abuse that took place in the past.16:21
I will keep my speech fairly short, as many members have expressed a lot of what I had written down and I want to give others a chance to speak. We have had a consensual debate, but I want to raise a couple of issues.
In their evidence to the committee, a number of witnesses questioned the assumptions in the financial memorandum. Police Scotland said that the figure of 2,200 for the cases that might initially come forward was a conservative estimate and suggested that it would be appropriate to carry out a further scoping exercise. I hope that the Government will do the required work at an early stage.
Another concern that was shared by witnesses at stage 1 was about the court system’s capacity to deal with cases. It is important that people who have waited for many years to raise an action are not discouraged by lengthy and avoidable delays. I would be interested to hear from the minister how she thinks that the new arrangements will work, in a court system that is already very busy.
The Faculty of Advocates said that the removal of the time bar will lead to more cases, which could put strain on the courts and delay cases getting heard. We need to ensure that the court system has the right resources.
Concerns were also expressed about the potentially negative impact on survivors of going to court. As members said, that will not be the course of action for everyone. The Faculty of Advocates pointed out the
“Significant emotional impact on those raising actions”,
and suggested that “litigation is inherently stressful” and might do “more harm than good.”
If people are brave enough to come forward and raise appropriate actions, we must ensure that there is support to help them through the complex legal procedures. It is vital that the appropriate support and advice are in place to assist victims and survivors of childhood abuse. I made that point in the stage 1 debate.
The Scottish Government must give the appropriate consideration, ensuring not only that the right things are in place financially but that the emotional support is provided, too.
It is our duty as a Parliament to ensure that the bill meets the aspirations of the people who have suffered childhood abuse. As they have waited so long for this opportunity, it is incumbent on each and every one of us to give the victims the best legislation that is within our gift, and to ensure that what happens after the legislation gets royal assent is the best that can be put in place.16:25
The bill that is before Parliament today is important to thousands of the most vulnerable and wronged people in our society. They have been barred from gaining access to justice simply because they were unable to bring a civil action within a three-year period.
At the outset, I thank the witnesses who gave evidence to the Justice Committee for their courage and bravery. Their evidence was difficult for us to hear, but it must have been agonising for them to recount, and I cannot commend them highly enough. They spoke out so that never again would those vile crimes be covered up and to ensure that there is no hiding place for abusers.
Three years is not long enough for survivors to garner the strength to proceed with civil action against their abusers. They have been emotionally terrorised and stricken with fear and guilt. They simply need longer to attempt to deal with what has happened to them. We are not discussing a court action about neighbours fighting over land or about suing a company for damages; it is about people seeking recognition and an apology for being robbed of a childhood and sentenced to a lifetime of unimaginable emotional distress.
The terrible abuse that survivors suffered during childhood—sexual, physical and mental abuse—was a life sentence. I am pleased that the bill was amended at stage 2 to include neglect, such a damaging form of abuse with lifelong effects. The cruelty that was bestowed upon survivors, often by people they trusted and to whose care they were entrusted, left them feeling worthless and violated.
Some people have raised concerns that the bill will open the floodgates to those seeking compensation and that that will be costly. That was at the root of Oliver Mundell’s amendment today. Apart from being unworkable, the amendment would have delayed justice to many survivors and sent out entirely the wrong message: that they would get justice only if those who were ultimately responsible could afford it. I know that that was certainly not the intention behind Oliver Mundell’s amendment, nor was it the intention of those who supported it, and I commend Oliver for his moving and heartfelt speech. I also agree with Johann Lamont’s comments about the need for a survivors strategy.
Like my colleague Stewart Stevenson, I am sure that there is not a single person in the chamber who does not support the bill. However, the reality is that, at this stage, the number of people seeking access to justice for historical crimes is unknown, and estimates vary widely. The bill is not a panacea for survivors. The Scottish Human Rights Commission believes that the vast majority of survivors will not go down the civil justice route. Many survivors simply could not face the prospect of resurrecting the horrors that they have kept locked away in a box throughout their lives, and bringing that to court will never be the answer for them.
The committee found a common thread throughout the testimonies: most survivors would not pursue the matter for the money, even if they brought it to court. Many of them simply want the perpetrators brought to justice and an apology for the terrible injustice and violation that they suffered. Many of them have been so emotionally damaged that they have been unable to attain a good standard of living. Their financial potential has not been realised, and they have struggled to make ends meet. But how can we put a price on what any of them has suffered? It is simply too hard for any of us to imagine.
If the bill brings any light at the end of a long, dark tunnel for some survivors, then I am happy to commend it to the Parliament.16:29
I begin my speech by reaffirming the support of Labour members for the Limitation (Childhood Abuse) (Scotland) Bill. I take this opportunity to thank the Government, the Minister for Community Safety and Legal Affairs and the external organisations for their input throughout the Justice Committee’s evidence sessions.
At stage 1 of the bill proceedings, I praised the outstanding bravery of the survivors of childhood abuse in giving us their input throughout the process. It is important that today I repeat my admiration for the survivors in helping to progress the bill. Without their bravery, patience and co-operation, the bill would not have been possible.
The committee heard from a range of stakeholders that removing the time bar will create choices that some survivors will prefer to make and some will not. At stage 1, I called for the right support to be made available to survivors in setting out their options, and I cannot stress enough the importance of that. In taking action through the courts, the survivor will have to face a series of obstacles in providing evidence and reliving the horrors that they faced. That is why Laura Dunlop QC warned that some action could do “more harm than good”, which is a quote that I highlighted at stage 1 and one that must be re-emphasised. It is of the utmost importance that throughout the process and for as long after the process as they require, all survivors have access to support and guidance that is tailored to their needs, to ensure that they do not suffer more trauma.
I thank the minister for the amendment that was lodged at stage 2. As Alex Cole-Hamilton said, ensuring that neglect is covered by the definition of abuse gives the certainty that many of those who provided evidence to the committee asked for. Although neglect was covered in the bill as introduced, giving the term its own place provides clarity for survivors, as Liam McArthur highlighted at stage 2. The inclusion of neglect rightly widens the scope of the bill and reflects the evidence that we heard and the concerns that survivors raised about the definition. The wider definition will ensure maximum support and protection for all survivors.
Today is a historic day. The passing of the bill will provide redress that thousands of survivors of childhood abuse have been unable to access for decades. It is clear from this afternoon’s debate that all parties represented in this chamber are committed to the principles and passing of the bill.
No speech was more powerful or persuasive today than Johann Lamont’s. There is a clear consensus that the appropriate support must be available to all survivors who decide to pursue a civil action, and that all survivors should have guidance if they choose to take forward a claim.
In closing for Scottish Labour, I would like to reaffirm our support for the bill, and once again I thank every survivor for their bravery, patience and support during the legislative process of the bill. From the consultation process through to the passing of the bill today, the bravery, patience and support that survivors have shown has been commendable.
Before we move on, I remind members that if they contribute in the debate they should be in the chamber for the beginning of the closing speeches.16:33
I welcome the bill, which aims to increase access to justice for survivors of childhood abuse. I pay tribute to those survivors, who have over many years lobbied for the three-year limitation period for historical childhood abuse claims, also known as the time bar, to be abolished. As Rona Mackay and Mary Fee said, it took considerable courage for those survivors to give evidence to the Justice Committee, and we were most appreciative of that. I want to personally acknowledge and thank the members of the cross-party group on adult survivors of childhood sexual abuse for their valued input.
The removal of the three-year time bar for specific cases involving historical childhood abuse puts an end to a previously insurmountable barrier for survivors, and in doing so implements a change for the better. However, as the minister and members have stressed, it is important to note that pursuing a civil action will not be the right solution for all survivors. In that sense, as members have said, the bill will not be a panacea. It is therefore essential that expectations surrounding pursuing a civil action are managed, in an effort to avoid raising false hopes, while at the same time alternatives to the civil court process must be highlighted.
One of the main alternatives is the Apologies (Scotland) Act 2016, which came into force on Monday 19 June. I introduced that legislation as a members’ bill and it was not just welcomed but actively promoted by survivors on the cross-party group. It is a matter of immense sadness to me that the Government’s secondary legislation, which has been proposed and passed and which involved complex issues, potentially thwarts the aims of the 2016 act.
In the scrutiny of the Limitations (Scotland) Bill, the provisions that raised the most concern were new sections 17C and 17D of the Prescription and Limitation (Scotland) Act 1973. New section 17C of the 1973 act allows for certain past cases that have been disposed of by decree of absolvitor to be reraised. The concern was that that could lead to a breach of the defender’s human rights, in respect of their right to a fair trial and their right to peaceful enjoyment of their possessions. Furthermore, by overturning a decree of absolvitor there was a very real concern that it would, in turn, undermine a fundamental principle of Scots law.
New section 17D of the 1973 act provides a safeguard for defenders, in an attempt to ensure that their convention rights are not breached. However, despite the minister’s reference to an adjustment to the explanatory notes and her assurance that the provisions will not set a precedent for other areas of law, it is fair to say that the concerns remain. That being the case, if the legislation is passed, it will be down to the courts to decide.
Scrutiny also raised issues concerning the absence of detail regarding the bill’s financial and resource implications—for example, those relating to the administrative burden that the bill may place on public bodies, a point that Oliver Mundell sought to address with his amendment and in his contribution to the debate. As Johann Lamont, Claire Baker, Miles Briggs, Jeremy Balfour and others pointed out, the financial implications of the bill for local authorities, charities and support services still require to be addressed and resolved. The need for adequate resourcing featured in a number of members’ statements.
Notwithstanding the concerns outlined above, the bill helps to achieve access to justice for survivors of historical child abuse by removing the time bar obstacle and the whole Parliament can celebrate that fact. I therefore confirm that the Scottish Conservatives will support the bill at decision time.16:37
This has been an important and constructive debate at stage 3. I thank all members for their contributions, to which I listened carefully, and for supporting and indicating their support for the passing of the bill. As has been recognised, the bill is an important step in ensuring access to justice for survivors of childhood abuse; the bill is designed to remove a barrier that has in the past proved impossible for survivors to overcome.
The bill acknowledges the unique position of survivors, recognising the abhorrent nature of the abuse, the vulnerability of the child at the time, and the profound impact of abuse. In passing the bill today, Parliament will be recognising that survivors have been let down repeatedly. They were severely and fundamentally let down by their abuser and by the adults who were meant to protect them at the time, but they have also been let down by a justice system that has effectively denied them access to a remedy.
It has been acknowledged, including by many members this afternoon, that raising a civil action may not be the right way forward for everyone. Each individual survivor will have to take their own view. However, what the bill does is to widen the options that are available to survivors seeking redress. Of course, raising a civil action is still a challenging task and I agree with the members who have pointed out—both today and during previous debates on the bill—the importance of ensuring that survivors are supported. Support works best if it is based on individual needs, which means that the most effective support will be different for each individual survivor.
Through the survivor support innovation and development fund, which has a budget of £1.8 million for this financial year, we fund third and voluntary sector organisations to provide a wide range of services, including practical and emotional support, information provision, creative therapies, counselling, employability, peer-to-peer support and befriending programmes.
It is also important that survivors are able to access quality legal advice. Survivors will be able to apply for legal aid and will no longer be required to demonstrate a reasonable prospect of success in overcoming the time bar hurdle, which has proved insurmountable for survivors in the past. We are also working with the Law Society of Scotland to ensure that solicitors are well placed to support survivors through the legal process, including looking at what training could be made available.
The potential impact on the courts has been raised in this afternoon’s debate by a number of members. Just as we cannot quantify at this stage the potential impact on local authorities and other bodies, we cannot with absolute certainty say what the impact will be on the Scottish Courts and Tribunals Service. The estimates that we have, including those relating to when cases would be lodged, are presented in the financial memorandum. Following recent discussions that officials have had with the courts service, they are of the view that those cases could be absorbed within current business programming. There is, of course, no certainty around those numbers, as we have previously discussed at length. We are in on-going discussions with the courts service on how best to monitor the impact and will consider any issues that may arise.
The impact on local authorities and on third sector and voluntary organisations has been a key theme in the consideration of the bill and in today’s debate. It is important to keep in mind that COSLA and many third sector organisations absolutely support the bill. As I have made clear, I recognise that there will be financial and other resource implications, and that costs might go beyond the costs that are directly associated with defending actions. However, as we have discussed in detail this afternoon, at this point it is not possible to say what those costs will be. This is why I have committed to keeping the situation under close review and to carefully considering evidence about the impact of the bill.
With regard to other issues that have been raised, such as the ability to look at previously litigated cases, the decree of declarator and so forth, I would say in summary that the bill has been about striking a balance between the rights of the survivor and the rights of the defender. We believe that we have found the correct balance, and we feel that we have demonstrated that in the presentation of the provisions of the bill and by ensuring that we are saying what the mechanism is by which the courts must make that assessment. We feel that we have worked hard to find that balance, and I am pleased to note that that is the view of many members in the chamber.
In conclusion, I once again thank the Justice Committee for its detailed scrutiny of the bill and all those who provided written and oral evidence. I thank the Scottish Human Rights Commission for its extensive work in this area and all other individuals and organisations who have engaged in this process. As I said in my opening remarks, and most importantly, I thank all survivors, whose bravery and persistence have secured the proposed legislation that we are about to vote on this evening.
I am proud to be here today to support the passing of the bill. We should not underestimate the significance of the message that we are sending today: that we will always seek to support and respect those in society who have been harmed and that access to justice for all of our citizens is at the heart of our values. I ask that members support the motion and agree to pass the Limitation (Childhood Abuse) (Scotland) Bill.