Meeting date: Thursday, April 27, 2017
Meeting of the Parliament 27 April 2017
Agenda: General Question Time, First Minister’s Question Time, Edinburgh Airport (Consultation), Social Security Agency, Limitation (Childhood Abuse) (Scotland) Bill: Stage 1, Limitation (Childhood Abuse) (Scotland) Bill: Financial Resolution, Decision Time
- General Question Time
- First Minister’s Question Time
- Edinburgh Airport (Consultation)
- Social Security Agency
- Limitation (Childhood Abuse) (Scotland) Bill: Stage 1
- Limitation (Childhood Abuse) (Scotland) Bill: Financial Resolution
- Decision Time
Limitation (Childhood Abuse) (Scotland) Bill: Stage 1
I am moving straight on, as time is tight in this debate as well. The next item of business is a debate on motion S5M-05290, in the name of Annabelle Ewing, on the Limitation (Childhood Abuse) (Scotland) Bill at stage 1.15:00
I am very pleased to open the debate on the general principles of the Limitation (Childhood Abuse) (Scotland) Bill. I thank all those who gave evidence, and I thank the convener and members of the Justice Committee for their detailed scrutiny of the bill at stage 1. In particular, I thank the survivors who have been brave enough to come forward and share their experiences. Many survivors have campaigned for this change in the law for many years and I thank them for their bravery and persistence. Without them, we would not be here today.
I welcome the Justice Committee’s support for the general principles of the bill. I am pleased to see that the committee recognises the importance of widening access to justice and removing a barrier that has proved insurmountable for so many survivors. The committee has highlighted some key issues that I will seek to address in the debate.
As some members will be aware, the bill was introduced in response to a recommendation by the Scottish Human Rights Commission. Through the SHRC’s work in the interaction process, which is a facilitated negotiation within a human rights framework, and its subsequent “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, it brought to light the clear difficulties that survivors currently face in trying to access the civil justice system. The SHRC’s work, along with evidence from a range of other sources, demonstrates that the three-year limitation period is a barrier that most survivors have found impossible to overcome.
That is why I am here today. The bill is about access to justice. It is about acknowledging the unique position of survivors of childhood abuse, in addition to recognising the abhorrent nature of the abuse, the vulnerability of the child at the time and the profound impact of such abuse, which lasts well into adulthood.
The bill removes the three-year limitation period for cases of childhood abuse and does so for rights of action arising before or after the bill comes into force. Moreover, the bill allows cases that have been raised previously, but which were unsuccessful precisely because of the limitation period, to be relitigated. The bill is a significant step for survivors of childhood abuse, as it recognises their unique position and the barriers that they have faced in the past.
As I have been keen to point out, the bill is about striking a balance. At every step in the process of developing the policy and drafting the bill, important judgments have had to be made about where the balance should be struck. That has included careful consideration of the implications of the European convention on human rights and striking a balance between being inclusive and, at the same time, avoiding unintended consequences.
On the definition of abuse, I have listened carefully to the evidence that has been presented to the Justice Committee and I have noted the committee’s recommendations. The bill goes further than other jurisdictions by including sexual, physical and emotional abuse, while similar legislation elsewhere has been limited to sexual abuse only or has included only emotional abuse that is connected to other forms of abuse.
I have noted the committee’s concern about the uncertainty around emotional abuse. Although it may be more challenging to define and prove emotional abuse, that does not make the impact of such abuse any less fundamental or its consequences any less severe. We are concerned with abuse that seriously damages a child’s emotional health and development.
It will ultimately be for the court to decide whether a case presented to it involves emotional abuse. Providing any further definition on the face of the bill might prove to be misleading or exclusionary. I agree with the Scottish Human Rights Commission that the Scottish courts are well placed to assess on a case-by-case basis whether a case meets the relevant threshold to constitute abuse.
I have also considered the evidence that was put to the Justice Committee about the different forms that abuse can take and how that might influence the bill’s definition of abuse. I am keen to ensure that the bill is confined to truly abusive behaviour, avoiding unintended consequences such as satellite litigation testing and pushing its boundaries. It is also important to point out that for forms of abuse not mentioned in the bill, the definition is inclusive rather than exhaustive and that the court is well placed to make appropriate judgments based on the evidence. I have, however, reflected on the evidence to the committee and its recommendation in relation to abuse that takes the form of neglect, and I will be giving that issue further careful consideration.
The bill seeks to insert proposed new section 17C into the Prescription and Limitation (Scotland) Act 1973. It provides that cases that were previously raised but were unsuccessful because of the time bar can be relitigated, regardless of whether they were determined by the court or settled between the parties without damages being paid, including where there is a decree of absolvitor. I recognise that that is a unique step, but it is being taken because the position of childhood abuse survivors is unique. The context of childhood abuse, the particular impact that it has on survivors and the fact that limitation periods have in the past operated so as to frustrate access to justice for survivors provide the necessary special justification.
If decrees of absolvitor were not included in the bill, a large number of survivors who previously raised cases—often cases that were sisted behind a lead case awaiting the outcome of that case—would not benefit from the bill. Those survivors agreed to the disposal of their cases because of the limitation period and it would be fundamentally unfair to treat those cases differently from cases that happened to be the lead case and that were therefore disposed of by the court, by decree of dismissal, on the basis of those same limitation grounds.
I very much understand the rationale for including decrees of absolvitor in the scope of the bill, but I am struggling to understand how that does not necessarily set a precedent that has the potential to be dangerous in other areas of the law.
What I have tried to stress at the outset today and, indeed, in committee is that the bill was drafted further to very careful consideration of striking the right balance in both reflecting the unique set of circumstances pertaining to survivors of childhood abuse and, of course, respecting laws that are otherwise applicable, including the ECHR. Having conducted that careful consideration, I do not share the member’s concern about there being any wider application. The way in which the bill has been drafted clearly sets forth the special justification requirement that has to be adduced in order to displace certain elements that would otherwise be applicable. Having carefully considered the matter, I can assure the member that I am satisfied that the bill’s provisions are ECHR compatible.
I have listened with interest to the evidence presented to the Justice Committee in relation to previously raised cases. The committee has noted concerns about the bill’s provisions that prevent actions from being reraised where there was a financial award that went beyond simple reimbursement of expenses. Those provisions are based on the policy that only actions that previously failed on time bar should be allowed to be reraised, thus reflecting the balance that I explained to Mr McArthur a moment ago. If a survivor received financial compensation from the previous action, the link to failure due to time bar is not there.
As I said, the bill is about striking a balance, and the issue of previously raised cases is one of the issues where special care has to be taken. The bill already goes further than other jurisdictions that have implemented similar legislation. Those other jurisdictions either do not allow relitigation at all or restrict relitigation to cases determined by the court. I noted earlier the Justice Committee’s concern about including the decree of absolvitor in the bill and whether doing so would be ECHR compatible. However, the suggestion mooted by the committee of off-setting any compensation previously paid against any new compensation that would be awarded would take the ECHR concerns to a whole new level and would significantly tip the balance away from the special justification and proportionality that are required in respect of potential interference with ECHR, in particular article 1 of protocol 1.
I have also noted concerns with regard to potential difficulties in establishing the terms of the settlement. As I said in my evidence to the committee, a pursuer seeking to rely on section 17C would have the burden of proving that the circumstances of their case fell within its terms unless that fact was admitted by the defender. Proving that the case is covered by section 17C will involve the pursuer leading evidence to that effect, which could involve a statement of their own understanding of what previously took place. It could also include records that the court holds, or the pursuer could call on the defender to disclose any formal documentation to which the defender had access. I will reflect on what, if anything, can be clarified in the explanatory notes.
The committee has also noted some concerns about proposed new section 17D of the 1973 act, which will ensure that actions to which the bill applies will be able to proceed only if the defender’s convention rights would not be breached as a consequence. Although it is clear that, even without the section, such actions would not be able to proceed, section 17D ensures that there is a mechanism for those issues to be dealt with and it sets out the test that the court is to apply. Those provisions make it clear that, as a legislature, we do not expect every single case to proceed just because it falls within the new section 17A, and we recognise that there will be cases where issues of fairness and prejudice will have to be carefully assessed. That is important, especially in the context of the unusual steps that we are taking in the bill. Without section 17D, it might appear as if the legislature assumed that all cases should go ahead regardless of ECHR concerns. Removing that section could therefore result in a challenge to the bill, which would have an impact on all potential cases, with the result that survivors would be deprived of the benefit of the bill while that challenge was resolved.
Section 17D is another difficult area that has required careful reflection on where the balance should be struck. Although I sympathise with calls for more clarity—it is, after all, a very difficult and complex area of law—it is important to keep in mind the point that each case must be considered on its own facts and circumstances. It is clear that what is relevant in one case could be completely irrelevant in another. Although it is impossible to predict what will be important in each case, factors that the courts might consider to cause prejudice to the defender include the diminution of the quality and availability of evidence, or the defender’s affairs or resources having been arranged in reliance on the disposal of an earlier case. However, it must remain a task of the court to assess whether or not those or other factors would give rise to the defender being substantially prejudiced in all the circumstances of the case and whether, having had regard to the pursuer’s interest, the prejudice is such that the action cannot proceed. I am, however, keen to avoid a checklist approach to those complex issues. My concern is that more guidance in the legislation, such as a list of factors, could unhelpfully constrain the court’s considerations.
In conclusion, I thank the Justice Committee once again for its detailed scrutiny of the bill and for its support of the general principles. This bill is about access to justice and about recognising the unique position of survivors of childhood abuse and the barriers that they currently face. That unique position means that the current limitation regime acts as an impossible barrier for most survivors. It requires the survivors to explain to the court why they have not raised an action earlier, a task that has proved extremely challenging and traumatic for many survivors. It is clear that the current limitation regime has created an in-built resistance to allowing historical claims to proceed. The bill recognises that that inbuilt resistance is not appropriate for cases of childhood abuse because, by the very nature of those cases, it is likely to take years—often decades—before a survivor is in a position to come forward.
When meeting survivors, I have been struck by their dedication, their bravery and their determination to keep fighting for the acknowledgment and recognition that they deserve, and for justice. I hope that all members will join me today in supporting the general principles of the bill, which gives them that recognition.
That the Parliament agrees to the general principles of the Limitation (Childhood Abuse) (Scotland) Bill.
I call Margaret Mitchell to speak on behalf of the Justice Committee.15:14
It is a pleasure to speak in the stage 1 debate on the Limitation (Childhood Abuse) (Scotland) Bill and, on behalf of the Justice Committee, to thank the various witnesses who took the time to provide evidence to the committee. My grateful thanks are also due to the clerks and the committee members for their hard work in producing the report.
In particular, I pay tribute to those survivors of childhood abuse who were willing to share their views with the committee, either in private or during our formal evidence sessions. Their contributions have been invaluable in shaping our thinking on the bill, and we fully recognise the immense courage that it took to appear before the committee.
Childhood abuse, in whichever form it takes, is abhorrent. The committee heard that being the subject of childhood abuse can have a silencing effect. Shame, guilt and fear, as well as the stigma associated with abuse, can prevent survivors from disclosing the abuse until many years after the event. In addition, because abusers are often figures of authority, survivors are frequently left with feelings of fear or mistrust towards authorities, which in turn means that it may be a considerable number of years before survivors feel able to disclose or to take action—if they can ever feel able to do so. Despite that, current civil law fails to recognise why there can be delays in reporting, and survivors are expected to make a claim by their 19th birthday.
The courts have typically not accepted explanations for delay based on the shame, fear and psychological difficulties that can result from childhood abuse. Although the current law provides judges with the discretion to allow a case to proceed even if it is brought outwith the three-year limitation period, that discretion has virtually never been used. In more than 40 years, just one reported case relating to historical childhood abuse has been allowed to proceed. In view of that, the committee considers that survivors have been let down by the justice system and have been denied the opportunity to have their voice heard.
The bill removes the limitation period, which is also known as the time bar, for civil claims relating to childhood abuse. The committee heard powerful evidence that the time bar has created an insurmountable barrier to access to justice in the civil courts. Survivors of such abuse should be able to bring a civil claim for damages if they wish to do so. The committee is therefore unanimous in its support for the bill, which gives survivors a voice and, crucially, removes a barrier to accessing justice. Furthermore, given the nature of childhood abuse, the committee considers the retrospective effect to be both necessary and justified.
Pursuing a civil action will not be the right solution for all survivors, and in that respect the bill is not a panacea. In fact, the committee heard that the court process could sometimes do more harm than good. However, it is extremely important to recognise that, as one survivor told the committee,
“The significance of the bill is that, at long last, survivors will have the choice.”—[Official Report, Justice Committee, 21 February 2017; c 5.]
That said, support must be available to survivors to take that choice. The committee whole-heartedly agrees with the minister that without such support, the bill will be an “empty gesture”.
If a survivor does not decide to pursue civil action, there are other options open to them, including through the Scottish childhood abuse inquiry and under the Apologies (Scotland) Act 2016.
I turn to other provisions. The bill does not remove the time bar for survivors who were abused before 1964. That is because their substantive right to claim compensation will have been extinguished entirely by the law of prescription. To revive those rights in the bill would involve imposing legal liability anew where none had existed for more than 30 years. The committee is persuaded by the Scottish Government’s argument that that approach would raise serious human rights implications, and it urges the Government to consider what other options for redress could be made available in pre-1964 cases.
The bill defines “abuse” as including physical, sexual and emotional abuse, and, overall, the committee agreed with that definition. However, members heard strong support, particularly from the Scottish Human Rights Commission, for explicitly including “neglect” within the definition. The committee considers that that would be consistent with other domestic and international law, including the United Nations Convention on the Rights of the Child and the Scottish Government’s own national guidance for child protection in Scotland, which clearly documents that abuse and neglect are forms of maltreatment.
More complex provisions include proposed new section 17C of the Prescription and Limitation (Scotland) Act 1973, which allows certain previously raised cases to be reraised, including those disposed of by a decree of absolvitor. That, in turn, has proportionality and human rights implications, in particular in relation to a person’s right to a fair trial and their right to peaceful enjoyment of their possessions. A decree of absolvitor is a final judgment of the court in favour of the defender and usually prevents the same issue from being litigated again. The committee understands that there is no precedent for legislating away decrees of absolvitor, as provided for in the bill, and that section 17C therefore raises issues about legal certainty. Furthermore, it was the view of some witnesses that that approach undermines fundamental principles of Scots law and could breach convention rights.
Proposed new section 17D of the 1973 act provides safeguards for defenders. The committee’s report raises a number of concerns about the provisions in that section, which I hope other members will refer to in more detail. Suffice it to say that the minister told the committee that the bill is all about striking balances, and the committee recognises that to be the case. Notwithstanding the minister’s opening comments, it has, therefore, asked the Government to look again at those provisions to ensure that the right balance is struck.
Finally, a vitally important issue raised during the committee’s scrutiny concerned the bill’s financial and resource implications. The committee heard that those could result in significant costs for bodies such as local authorities and charities. The financial memorandum does not attempt to quantify those costs. While the committee recognises the difficulties in doing that, it considers that the financial memorandum does not fully reflect the fact that those costs go beyond any compensation to be paid. There may be, for example, a significant administrative burden in responding to information requests from people who are considering making a claim. The committee’s report therefore highlights the potential negative impact of the bill’s financial and resource implications on the provision of current services. That includes the potential adverse effect of the provisions on support services. In the words of one witness, it would be “illogical” for the bill to adversely affect the vital support provided today to children who have been abused or who are at risk of being abused. The committee has, therefore, called on the Government to ensure that the bill is properly resourced.
The committee supports the removal of the limitation period for childhood abuse claims and fully endorses the general principles of the bill.15:23
Scottish Conservatives support the bill and its aims. Like the convener, I put on record my thanks, as a member of the Justice Committee, to the clerks and the Scottish Parliament information centre for their work during our stage 1 considerations. I acknowledge the sensitive and constructive way in which Margaret Mitchell chaired our meetings and the evidence sessions that looked at such an emotive and personal issue.
Above all, like the minister and the convener, I pay tribute to everyone who gave evidence and responded to the committee’s call for evidence. The bravery shown by the witnesses who had been victims of childhood abuse highlighted their resolve that a change in the law is required.
As a committee, we heard powerful evidence that the current limitation regime has created a significant barrier to access to justice for survivors of childhood abuse. Although section 19A of the Prescription and Limitation (Scotland) Act 1973 allows the courts to ignore the time bar where it seems “equitable to do so”, the fact that the courts have used that discretion only once since the 1973 act was passed more than four decades ago means that a change is needed.
We know that victims often do not come forward with compensation claims until many years or decades after their abuse. It is wrong that the limitation period should prevent victims from seeking that course of redress. Tonight, the Parliament, by approving the stage 1 report, can start the process of correcting that wrong.
Although there is support from the committee for the bill, it noted in its unanimously agreed report concerns that I hope the Government will continue to monitor and address.
I have read the minister’s response to the committee report and have concerns that legitimate issues that we raised have so far received only a superficial response from the Government.
An example concerns the Scottish Government’s financial memorandum, which is based on a figure of 2,200 cases that could be brought forward initially following the passage of the legislation. The Government’s response to our report maintains that position, despite several witnesses questioning that figure and the committee noting at paragraph 222 that the
“2,200 figure could be a significant underestimate.”
Police Scotland argued that there is value in “further scoping” the methodology that is used in the financial memorandum and considered the 2,200 figure to be a “conservative estimate”. Further, Harry Aitken of Former Boys and Girls Abused in Quarriers Homes highlighted to the committee that one firm of solicitors previously had 1,000 survivors prepared to raise an action, but that it had not been able to proceed following a test case relating to the time bar.
It is paramount that survivors who have previously been unable to raise a civil action due to the time bar are not then left frustrated and disappointed with the legislation because the Scottish Government has not adequately projected the number of cases that could be brought forward. The Government must put in place the necessary resources to support that possible increase in actions.
To stay with finance, I put on record my concern about the Finance and Constitution Committee’s scrutiny of the bill—I note that the convener of that committee is in the chamber. At paragraph 37 of our report, we note that the Finance and Constitution Committee received responses to its call for evidence on the financial memorandum but then agreed that it would give no further consideration to the financial memorandum. I understand that that has not been the practice in the past and I would be keen to understand why the Finance and Constitution Committee took that approach when many others have raised issues about the financial implications of the bill.
Another concern that was shared by some witnesses concerned the capacity of the court system. It is important that people who have waited for many years to raise an action are not discouraged by lengthy and potentially avoidable delays. On page 10 of her response to the committee report, Annabelle Ewing said that she expected
“that the actions raised as a result of the Bill will be spread over a number of years”.
However, I would suggest that there is a compelling argument that many people who have waited several decades for a genuine opportunity to raise an action will want to do so very soon after the bill becomes law. That issue must be fully considered by the Scottish Government.
The final issue that I want to raise is the recommendation at paragraph 245 of the committee’s report, which the convener just alluded to and which members of all parties agreed to. It says:
“It is important that the Bill is properly resourced to ensure both that its policy intent is achieved and to prevent any negative impact on the provision of current services by local authorities.”
That recommendation is far stronger than the response that I got from the minister at committee when I asked whether the Scottish Government was addressing the issues that the Convention of Scottish Local Authorities had raised about resourcing investigations of claims and potential financial awards. The minister responded that the Government were “in conversation with COSLA” and said:
“We have to see what happens.”—[Official Report, Justice Committee, 14 March 2017; c 25.]
The committee says that the Government must resource the bill and that local authorities must not have to cut services to pay for historical offences. We need the Scottish Government to accept that recommendation and tell us how it will achieve that.
As the Justice Committee’s report states, the bill is no panacea: it will not be a solution for everyone. However, there can be no doubt that, from the point of view of the witnesses—witnesses whom I felt privileged to listen to—the bill is an important step forward for many in terms of their ability to access justice.
It is our duty as a Parliament to ensure that the bill meets the aspirations of the people who have suffered childhood abuse. Having waited so long for this opportunity, it is incumbent on each and every one of us to give the victims the best legislation and ensure that we give survivors the voice that they have been denied for so long.15:29
The bill is narrowly defined, but important. The issue that it seeks to address has been recognised as an injustice for a number of years. Child abuse—sexual, physical and emotional—has a lasting and damaging impact on the person’s life; we are aware of the risks and vulnerabilities that they must face in creating safe, secure and happy lives for themselves. The civil justice system is a part of that process that some survivors want to access, so the bill will make that possible. The report acknowledges that although the bill is not a panacea and will not be the right path for everyone, it will provide choice.
I was struck by the committee’s thanks to the survivors who presented evidence to it, recognising their courage in sharing their experiences. We should all recognise that the legislation is being introduced in order to provide options for people who have suffered a traumatic and damaging childhood and adolescence. The bill is limited in what it can achieve in that it provides a date beyond which claims cannot proceed. Although the bill will extend access to justice, it is not a path that all survivors will wish to take. Nevertheless, it increases the options for people to have their voices heard and acknowledged.
Some evidence questions the necessity of the bill and highlights the fact that section 19A of the Prescription and Limitation (Scotland) Act 1973 gives courts discretion to waive the time limit. There has also been debate about whether the bill will undermine legal certainty, about whether it will create an exemption that will set a precedent, and about the quality of evidence, which could be compromised by the passage of time. However, the courts’ discretion has been exercised only once.
Witnesses described the barriers that survivors who seek to take legal action face, the fact that the time bar does not recognise the complexity of the nature of the abuse, which creates barriers to raising a claim, and the inconsistency with being able to pursue a criminal case for child abuse. The submission from Victim Support Scotland outlines some of the difficulties that survivors face. It states:
“It can take many years for someone to realise that what has happened to them was in fact abuse, and it is common for abusers to use silencing tactics to ensure that the abuse is kept hidden. A significant amount of time can also be required for a person to feel able to disclose their abuse ... Because abusers are often figures of authority in the victims’ lives, they are regularly left with feelings of fear or mistrust towards authorities, which presents challenges in reporting the abuse or participating in court action.”
The Association of Personal Injury Lawyers gave evidence and argued that
“Anyone who has looked at this matter over the years would be forced to conclude that the Scottish judiciary is an extremely conservative body and that it has operated the discretionary power in a way that has simply closed the door”.—[Official Report, Justice Committee, 21 February 2017; c 24.]
Although the bill is welcome, it is regrettable that it has perhaps taken longer than was necessary to introduce it. The difficulty with the time bar is well documented. In 2008—nearly 10 years ago—Lord McEwan said 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. ... The concerns I expressed ... remain with me although sitting in the Outer House there is little I can do about it except to hope that reform will not be long delayed.”
I welcome the Government’s having introduced the bill in this session, but I cannot help but consider the survivors who have continued to be excluded from civil action when they could have been given an earlier remedy.
The bill has been introduced in the shadow of the Scottish child abuse inquiry, which has been hugely challenging, but also problematic, and has struggled to maintain the confidence of all survivor groups. Although the bill addresses one aspect of the legacy of abuse and goes further than the scope of the inquiry, it is imperative that the inquiry delivers accountability, answers and transparency.
Although I, along with the committee, support the broad principles of the bill, a number of areas require further clarification or debate. In recognising that the bill provides choice for survivors, there must also be recognition that bringing an action is, as has been said, a “difficult task”, given all the normal practices of the legal system. The minister might want to say more about what support could be made available to survivors who bring civil actions, and about what training or specialisation there could be in the legal profession. There was also a discussion of the merits of specialist courts, which the Government could legislate for, were it to accept the case for them.
There is a further debate to be had about the definition of abuse. Although I was not convinced by the arguments opposing a non-exhaustive definition, there were persuasive arguments about expanding the categories of abuse to ensure consistency with the ECHR and international human rights law. I welcome the minister’s comments in that regard this afternoon. Witnesses also raised questions about spiritual and psychological abuse, which the minister considered and thought would be covered by emotional abuse. However, a bit more certainty on that might be helpful.
There are two final issues that I wish to raise: a financial redress scheme and the accuracy of the financial memorandum. The Convention of Scottish Local Authorities, Social Work Scotland and the Society of Local Authority Lawyers and Administrators in Scotland argue the merits of a financial redress scheme. The bill will not apply to people who were abused prior to 1964, and there is no civil action available to them; I understand that a financial redress scheme could be a way to acknowledge their experience. It is also argued that that could avoid the stress and exposure that would come with the public declaration that would be needed in a civil case. Such a scheme might also acknowledge the age and the health of some complainers by ensuring that they are provided with redress while they can access it. A financial redress scheme has been described as being a way to complement the bill rather than to be an alternative to it. I urge the Government to advance work on that as soon as possible.
The committee expressed concern about the bill’s financial impact and the potential number of actions that will be brought forward; it believes the estimate to be conservative. The committee also heard from COSLA and others concerns about potentially significant costs to defenders. The Government must resolve those important matters.
I imagine that there will at stage 2 be greater interrogation of the bill on retrospective application, the fair hearing test and the substantial prejudice test. It is important that we get right the legislation and that it delivers the policy objective that it aims for, which we all support. The Government will have our support in taking forward the legislation.15:35
Access to justice is fundamental to a civilised democratic society, and the Scottish system has a track record to be proud of. Consequently, the Limitation (Childhood Abuse) (Scotland) Bill that is before Parliament today is important and necessary. It will be the vehicle for access to justice for thousands of the most vulnerable and wronged people in our society—people who have been barred from justice simply because they were unable to bring a civil action within a three-year period. Three years is not long enough for survivors to garner the strength to proceed with civil actions against their abusers. They have been emotionally terrorised, stricken with fear and guilt and they simply need longer—much longer—to come to terms with what has happened to them.
In a study of sexual abuse allegations that were made by 180 survivors against the Anglican clergy in Australia, the average time from the alleged sexual abuse to a complaint being made was 25 years for males and 18 years for females. These are not court actions about neighbours fighting over a piece of land or about suing a company for damages; they are about seeking recognition and an apology for being robbed of a childhood and being sentenced to a lifetime of unimaginable emotional distress.
During the evidence-taking process, Justice Committee members heard shocking, painful and distressing accounts of the terrible abuse—sexual, physical and mental—that survivors had suffered during childhood. If it was painful for us to hear, it must have been agonising for the survivors to recount, and I cannot thank and commend highly enough those who had the bravery and courage to do so. From somewhere deep within, they found the strength to speak out about their traumatic experiences, about the cruelty that had been visited on them, often by people they trusted, and about how they were left feeling worthless and violated. They spoke out so that such vile crimes would never again be covered up. They did it to send a message to abusers that they will be caught and that justice will be done, so that future generations do not have to endure a lifetime of suffering, as they have. They did it to ensure that there is no hiding place for abusers.
As Douglas Ross and others mentioned, there have been fears that the bill will open the floodgates to people seeking compensation, which would be costly and would put extra pressure on the court system. At this stage, the numbers who would seek access to justice for historical crimes is unknown—estimates vary widely. There is simply no way of making predictions, although the Scottish Human Rights Commission considers that the vast majority of survivors will not go down the civil court justice route, and is certain that that recourse will not be suitable or desirable for everybody. Many survivors could simply not face the prospect of publicly resurrecting the horrors that they have kept locked away in a box throughout their lives; bringing that to court would not be the answer for them. For those who bring a case to court, it is clear that their expectations must be managed, in particular in claims that may be historic or partial. There must be support for claimants.
As was discussed at the committee, there may be potential to have specialist judges or courts. Ultimately, that decision is for the Lord President to make. The committee also carefully considered the definition of abuse and decided that it should be non-exhaustive and inclusive, because survivors have suffered such a wide range of abuse.
We found a common thread through most of the testimonies: most survivors would not bring a case to court for the money. Many will simply want the perpetrators to be brought to justice and an apology made for the terrible injustice and violation that they have suffered and that has blighted their lives. It is only now that they feel strong enough to seek justice.
Many survivors have been so emotionally damaged that they have been unable to forge successful careers and attain a good standard of living. Their financial potential has not been realised and they have struggled to make ends meet. However, how can we put a price on what they have suffered? We simply cannot, which is why, for most survivors, it is not about money, but about long-awaited justice.
Of all the speeches that I have written for debates in the chamber over the past year, this has been the hardest to write because it is about something that is so sensitive and personal to the people who are affected that, as someone who has never endured that suffering, I hardly feel qualified to comment on it. However, the bill will bring some light at the end of a long, dark tunnel for some survivors, so I am happy to commend its general principles to Parliament.
Time is a bit tight, so I would appreciate everybody doing as Ms Mackay did and coming in below time, if possible.15:40
I welcome the bill, the debate and the work that the Justice Committee has done to get the bill to this stage. As someone who is not a member of the committee, I have to say that it was fairly harrowing to read the report. I did not have to listen to their evidence directly, so I pay tribute to the people who came in and were brave enough to give the evidence that was required, and to the committee for dealing with it so sensitively.
As members are aware, the bill will create for childhood abuse cases a special regime in respect of the time limit for personal injury actions by removing the three-year time limit that exists for certain types of claims. The practical consequences will be immense. Survivors of child abuse will no longer have the difficult—in fact, almost impossible—job of persuading the courts to overrule the limitation period and will have a right to raise an action regardless of the time that has elapsed.
As we have heard already from some of my colleagues, the Conservative Party agrees that cases of childhood abuse have unique characteristics that justify a special limitation regime. Those characteristics are derived from the horrible nature of the acts, the particular vulnerability of the victims and the effects of the abuse, which continue throughout the victim’s lifetime. Abuse at a time when a person is vulnerable and, perhaps, in a dependent relationship has been shown to have long-standing and severe adverse consequences. Mental health issues, incapacity, addiction, post-traumatic stress and self-harming behaviour often go hand in hand with a person’s having suffered such abuse.
The witnesses who support removal of the limitation period emphasised in their evidence the impact of childhood abuse on survivors and the length of time that it could take for a survivor to be able to bring a civil action. It is common for adult survivors to suppress abuse because of shame, guilt, fear or stigma—the so-called silencing effect. Furthermore, some survivors do not know or understand that they were subjected to abuse until many years later. It is widely recognised that child abuse often causes victims to hold back from telling others until well into their adult years. Those views were echoed by many witnesses, including Police Scotland, the Law Society of Scotland and—perhaps most harrowing—the survivors of childhood abuse whose private testimonies the committee heard.
I will highlight two slight concerns on which I would be interested to hear the Government respond. The first, which was raised by the Faculty of Advocates, is that litigation is inherently stressful and might place extra strain on victims and add to their suffering and anxiety if cases do not come to proof quickly. I appreciate that that may be an issue for the Lord President to consider, but it would be helpful if Parliament sent out a message that such cases should be dealt with as quickly as possible while also going through the appropriate judicial process.
In addition, it is important that there is appropriate support and advice for victims and survivors of childhood abuse. Will there be extra funding for third sector organisations or local authorities that provide such support? We need to ensure that that is in place.
The second issue on which I would like to hear the Scottish Government’s view is, perhaps, one that has not been considered. Given that we are going back decades, some organisations may face litigation because they have taken over other organisations in the meantime and if a claim is successful it might cause the current organisation real financial hardship, thereby preventing it from doing what it currently does that is positive. We have heard from Douglas Ross about that in respect of local authorities. I would be interested to know whether any protection can be given to third sector organisations that face litigation through no fault of their own, but because they have taken over other organisations.
That said, the Scottish Conservatives support the bill and its aims. I look forward to Parliament passing the bill, in due course. I hope that victims will feel that due process has been carried out.15:46
Like others, I welcome the bill, although I take no pleasure in the fact that we have had to come to a legislative solution to such a problem.
Some survivors that we spoke to made the point that not all of them are looking for a court solution and that there are some for whom there is no resolution. The issue is not just about institutional abuse, because the bill covers abuse by individuals perpetrated on individual children and in some cases the abuser is simply no longer around—they have died—and such closure cannot be given. I am grateful to the person in that position who came to tell their story. That was very emotional for the person concerned and for those of us who heard it because in such cases we cannot provide any way forward through legislation.
The courts are one way in which to get peace after suffering abuse. The Jersey process, which went farther back than 1964, but in very limited and different circumstances, was of interest to the committee because it provided a quicker way of dealing with some things and was perhaps a less stressful approach. There is scope for considering whether there are ways in which we can assist people through pre-action protocols and other non-court approaches. We should not yet discount such ways of helping people.
During our committee consideration I made a very brief reference to an issue that I have subsequently thought further about, which is whether there is further scope for our thinking about what is a child. A child is someone who has not reached the capacity of someone of more than 18 years old, but the description may also be held to reasonably apply to people whose calendar age is in excess of 18, but who have not got the capacity of an adult. I wonder whether there is an opportunity to ensure that we capture people of a greater age, but a more limited capacity, who have suffered exactly the same kind of abuse.
Paragraph (2) of proposed new section 17A of the Prescription and Limitation (Scotland) Act 1973 simply defines “child” as
“an individual under the age of 18.”
There might be scope for looking again at that. It is not something that the committee has considered in detail, so I will understand if we cannot see how we might move forward on that.
As we discussed in the committee, the bill is structured so as to make it clear that we must look at the circumstances of the abuse in the light of the legal and practical position at the point when the abuse took place. That is, of course, a difficult issue, because it almost means that we are endorsing abuse that we would now castigate in law, in practice and in our moral code, because it might not have been so castigated at the point when the abuse took place—post-1964, which is the period that is covered by the bill. I see no resolution that would enable us properly to address that.
There is also the issue to do with cases in which a nugatory financial settlement was made—perhaps £1, although it is fair to say that there seems to be no evidence of such nugatory settlements, so perhaps that is an academic issue. On the principal point, which is that there would be risks to the bill’s legitimacy as a whole if provision were made to reopen cases in which a financial settlement had been made, I think that I have ultimately been convinced—I was not initially convinced—that the bill is cast in the right way.
The bill is very simple, in that it covers two sides of paper, but the complex legal issues that it covers are much more substantial than is suggested by the limited number of words in it.
Members mentioned the financial memorandum and the uncertainty about the number of people who are involved. I think that the minister’s response to the committee was simply that there are other views, which is correct. All the views that can be expressed by various people are no more than that—views. No one actually knows.
We must rise above a rather pointless debate about numbers and say that this is a principled matter and that we wish to support people who have suffered childhood abuse. We simply have to deal with the practical effects of that when we come to them, while making proper initial provision to cover what we think is a middle-point estimate. Let us not imagine that we can keep looking at the numbers and find a magic, certain answer—I am convinced, as I think others are, that there ain’t one to find. We do this as a matter of principle, not as a matter of money.15:52
I am grateful for the opportunity to participate in this debate, and I thank everyone who had a role in getting us to this stage, whether it is the ministerial team or the committee and others who contributed to what is a thorough report.
This is an important stage in the long journey of confronting the reality of child abuse, addressing the needs of those who suffered in the past and reaffirming our wish to do all that we can to eradicate child abuse, protect young people and secure justice for all those who have been abused in the past.
In recognising progress, we should of course be alive to the continuing hurt of those who remain excluded because the abuse happened before 1964. We should also salute the survivors—some are in the public gallery today—who, despite the trauma of their experience, have spoken up and spoken out, giving voice to those who were silenced in the past and demanding justice for the past and action to protect those who might be at risk, right now and in future.
This is a day on which to reflect on the progress that has been made and to resolve to continue in the search for justice, so that we bring out into the light of day a scourge of our society, which went too long without even the words to describe it, with people silenced in their suffering.
The bill reflects progress, and we should be optimistic about that. It represents a change in attitudes to and understanding of the causes and consequences of child sexual abuse. We know that for survivors of abuse, their experience was one of not being heard or believed. That was all too common. The experience was compounded by the reality that justice was not possible, because of a time bar—a rule that seemed to have been wilfully designed to reinforce the message that people had experienced all too often as children, which was that their abuse did not count. The time bar reinforced the message that their experiences were disregarded, and it silenced them, without any recognition that people were often silenced into adulthood by a suffering about which they could not talk and that had a massive impact on their health and wellbeing.
We live in times when revelations of abuse seem to emerge by the day. We hear of abuse in football, in sports clubs, by celebrities, in youth clubs and in churches. We see the progress, stumbling as it is, of the national inquiry into child abuse, which is revealing evidence of the absolute betrayal of young people, who were abused while in the care of the state. They were brought in to be protected and were abused more. We also hear of young people being abused as they were educated.
Some say that they are shocked by what has been reported about football, but the truth is that, as survivors will tell us, although the individual experience that people report of their abuse is shocking, it is ultimately not surprising. That is because abuse is defined not by category or location but by the opportunity for abusers to abuse—to use their power against those without power. That is why active child protection measures are of such importance wherever our young people are. It is particularly welcome that the Government has recognised that in the bill and has provided rights for all survivors of abuse.
We should take the opportunity to reflect on how we tackle child abuse. The development of the strategy on domestic abuse and violence against women more broadly was underpinned by the three Ps of prevention, provision and protection. I ask the minister to confirm that the Scottish Government will commit to taking that approach to child abuse. It is essential that work on prevention is given a high priority and that we educate our young people and adults to be vigilant so that they know that it can happen and can find a way of speaking out if it does. Of course, that preventative work needs investment.
It is also essential that there is effective provision for survivors of abuse and an awareness of how that trauma is experienced and can be tackled. I urge the Government to resist the temptation to see support in only medical terms and to give proper recognition to the groups and organisations with a proven record in providing support that is shaped by the needs and wishes of survivors. The solutions are not only clinical—there are solutions that have been developed over time alongside survivors, and they must not be lost to us.
We recognise the steps that are taken through the bill to protect young people from abuse in future by giving a strong message that such abuse is a crime and that there will be criminal and civil remedies. The bill and the Parliament’s concentration on the issue send a powerful message that child abuse is unacceptable. They speak powerfully to the importance of protecting people by creating an understanding that there are consequences for those who seek to perpetrate abuse.
I urge the Scottish Government to work with survivors and to recognise their achievements and the progress that they have already secured, no matter how difficult that has been. I ask the Government to work with the cross-party group on adult survivors of childhood sexual abuse, whose campaigning work brought about the first successful survivor strategy and a focus on this important issue. We would welcome a commitment to an effective survivor strategy with a ministerial focus on that work.
We should acknowledge that the journey continues to be difficult. In the film “Hidden in Silence”, which was screened last night in the Parliament, a survivor of abuse said—I apologise if I paraphrase—“I do not see myself as a victim. If I say I am a victim, I continue to blame myself. I am a survivor who wants to move on with my life.” The bill seeks to support survivors in getting on with their lives, certain that they are being heard and with their right to justice confirmed. I am grateful to the Government for introducing the bill, and I welcome the work that will be done to support the needs of survivors as the bill continues its progress. [Applause.]
I ask those in the public gallery not to show pleasure or otherwise while they are sitting there. Thank you.15:59
The Limitation (Childhood Abuse) (Scotland) Bill is a strong and necessary step towards achieving justice for the survivors of child abuse in Scotland. I agree with Johann Lamont’s point about our use of language such as “victim” and “survivor”.
I will demonstrate why the removal of the limitation period, or the time bar, in civil action cases relating to child abuse is a vital step and what the bill needs to include.
I echo what we have heard from members across the chamber: the current law does not recognise the innumerable reasons why someone might not come forward about childhood abuse by the age of 19. In its evidence to the committee, Victim Support Scotland outlined some of the reasons why survivors might not come forward. It takes some people years to realise that their experiences were abuse and many will not yet have come to terms with it.
To keep their victims from talking about what happened, abusers use silencing tactics that are effective years into the future, even when that person is no longer under the direct influence of the abuser. Shame, fear of authority and the stigma associated with the events are all reasons why a survivor of childhood abuse might not come forward and take civil action in the current period of limitation.
The limitation period punishes those who have survived such trauma by, in effect, not allowing them the time to come to terms with what they experienced. The committee heard direct evidence of that when we met a survivor of childhood abuse who shared her harrowing experience with us. She spent most of her early life in foster care and had been systematically abused by her own family, her foster family, in a children’s home and by a professional who worked with children. She carried with her a constant guilt and started the incredibly long journey towards addressing what had happened to her only years later when she sought help for depression. She spoke to a health professional who identified the potential cause of the feelings that she was experiencing. Her brother who had been in care with her had committed suicide, which she said might not have happened if he had known that this remedy was coming along. In a note to the committee she wrote:
“Abuse of power is a mental trap for the victim. It can take many years if not a lifetime to find our true being.”
That is why the bill is vital.
The current law allows courts to use discretion and permit a case to proceed even if it would normally be limited. However, that discretionary ability has been used only once in the 44 years since the law was enacted in 1973. The Government’s policy memorandum notes that the way in which judges have used that discretionary ability has created an “insurmountable barrier” to justice for victims of childhood abuse.
A number of organisations commented on that in their written and oral evidence to the committee. The Scottish Human Rights Commission highlighted a judgment that said:
“the legislation and the strict way the courts have interpreted it has failed a generation of children who’ve been abused”.
There has been no cognisance or understanding of the legitimate reasons why some cases simply could not have been brought within three years.
There is no confidence in the use of discretion, which has been borne out in the number of cases presented since 1973. The bill is essential to give survivors the confidence to bring cases forward.
One area of the committee’s report that I hope that the Government will take into consideration concerns what constitutes abuse and how broad or restrictive the definition should be. I will focus specifically on the inclusion of neglect. As the bill is drafted, childhood abuse covers sexual abuse, physical abuse and emotional abuse, with neglect omitted on the ground that it could
“become problematic by broadening the scope [of the bill] beyond what was intended.”
The Government noted that some types of neglect could equal abuse and argued that it would fall under the label of emotional abuse. Although I fully agree that we should not attempt to create an exhaustive list of actions that could constitute abuse, I think that neglect is a category of abuse that is separate from the current definition.
During one of our evidence sessions the representative from the Scottish Human Rights Commission strongly encouraged the explicit addition of neglect in the definition of abuse to bring the bill into line with international human rights standards, which clearly list neglect as a separate category. The inclusion of neglect in the definition would not change the substantive law regarding the proof that is required by the victim or pursuer to win the case but, as COSLA also noted, it could give more certainty to victims of an abusive form of neglect who wish to come forward. I urge the Scottish Government to consider including neglect in the definition of abuse. Neglect can manifest itself differently from a form of emotional abuse, and not explicitly including it could add more doubt to victims who are struggling to come to terms with what they went through.
Disposing of the limitations on childhood abuse civil cases is a huge step to help the generations of survivors of childhood abuse on their journey to recovery, justice and, perhaps for some, a form of closure. I commend the Scottish Government for taking that step and for introducing the legislation.
The bill has the general support of the Justice Committee, of a number of key organisations and, most important, of the survivors whom it will most affect. The bill will not be able to right all the wrongs for those who suffered childhood abuse and it certainly will not be the answer for everyone. From here on in, it is vital that survivors receive the support that they need if they are looking to take forward an action, and that the survivors of abuse that took place prior to 1964—currently inhibited by the law of prescription—are also provided with adequate paths to justice.16:06
I start with an apology to the Presiding Officer, the minister and MSP colleagues as I need to catch a flight back to Orkney this evening and will be unable to stay to the conclusion of the debate.
I confirm that Scottish Liberal Democrats strongly support and will vote in favour of the general principles of the bill. Having consistently, with others, made the case for such a measure, we warmly welcome the Government’s decision to introduce that very short, but crucially important, piece of legislation.
The bill does not stand in isolation and the Scottish Human Rights Commission was right to remind us how it fits in a wider context of efforts to ensure that survivors of historical childhood abuse have access to justice and effective remedies, including through the Apologies (Scotland) Act 2016, the national inquiry and the survivor support fund. Nevertheless, the bill represents an important milestone, which will have practical and symbolic significance.
Before touching on the detail of the bill and some of the areas in which improvements are still needed, I thank committee colleagues, clerks, SPICe and all those who gave evidence to our committee. It is not an easy or comfortable issue to address, but we were fortunate in the candour and sensitivity with which the evidence was presented. Much of it was compelling but, without doubt, the evidence that hit home the hardest was that from survivors. As others have done, I offer special thanks to them for showing the strength and courage to share their experience and insights, and to say what the bill means to them.
In the company of a survivor, it does not take long to understand very clearly why the changes to the law are essential. It is estimated to take, on average, 22 years for a survivor of childhood abuse to be in a position to feel able to talk openly about what they have suffered and, for some, that point never arrives. That silencing effect goes to the heart of why a new approach is needed.
The courts already have discretion to set aside legal limitations in such cases, but in practice—as we heard repeatedly in committee and again this afternoon—that discretion has scarcely been used. Therefore, the bill offers greater clarity and certainty to those who take the difficult step of bringing a civil case about what they can expect. As the committee concluded, simply providing further guidance to the courts on how discretion should be applied would not achieve that.
Taking forward a civil action is not an easy option. The testimony that we heard in public and in private sessions underscored the imperative for ensuring that survivors have access to the widest possible support and advice. I am pleased that the minister recognised that in her written response to the committee, although—as Claire Baker said—it would be helpful to have a bit more detail about the type of support that is likely to be available.
Definitions were another issue that was considered by the committee. I very much welcome the decision to broaden the scope of the bill to cover not only those who suffered abuse in a care setting. Under human rights law, the vulnerability of the pursuer who was a child at the time of the abuse is the critical determining factor, not where the abuse took place. Also helpful is the fact that the definition of abuse has been expanded to include not just physical and sexual, but emotional abuse. Like Mairi Evans, I think that the bill needs to go further still to bring it into line with international human rights law standards with an explicit reference to neglect.
Clearly, the retrospective application of the legislation is fundamental to the bill achieving its objectives. By and large, I think that the right balance has been struck, including the difficult decision not to overturn the substantive law of prescription. However, as I said to the minister earlier, I have some misgivings about permitting cases disposed of by decree of absolvitor to be reraised. I entirely accept and support that we must ensure fair treatment for those who have tried to bring actions in the past, but who were time barred. In cases disposed of by decree of dismissal that seems relatively straightforward. However, by also opening up cases disposed of by decree of absolvitor, I worry that we may be setting a dangerous precedent, albeit with the best of intentions. The minister said in a written response:
“Given the uniqueness of this category, it will not set a precedent for future categories of claims.”
The basis on which such an assertion can be made is difficult for me to understand.
Finally, let me offer a few thoughts on the financial aspects of the bill, which also raised concerns among those from whom we took evidence. In truth, as Rona Mackay rightly pointed out, no one can know for certain the number of cases that are likely to be brought, or indeed the nature and extent of the support that survivors might require in pursuing claims. Of course, some will opt not to go down a legal route, but many will. Police Scotland’s evidence pointed to a number much higher than the 2,000 or so projected in the bill’s financial memorandum. Meanwhile, we heard suggestions that one law firm already has 1,000 clients on its books. Knowing, as we do, the pressure that our court service and staff are already under, I feel that we should not underestimate the potential risks.
Likewise, as Jeremy Balfour reminded us, we heard evidence about the risk that some organisations that are vital to providing support and care to vulnerable young people today could themselves be liable for large claims. That, in turn, would put the services that they provide under threat. None of that is easy, nor is it an argument against the approach that is laid out in the bill. However, in addressing the failures of the past, we must guard against creating the conditions whereby they can be repeated in the future.
Let me give the final word to one of the survivors we heard from. Mr Aitken said:
“It will have a dramatic impact on the lives of ... the thousands of survivors in this country who have suffered the most terrible and horrific abuse. They are still suffering from that abuse to this day. ... As they grow older, every survivor loses resilience and resource, and the effects of the trauma that they suffered in childhood surface. ... In many cases, they end up in hospital, the criminal justice system or prison. Worst of all, there are friends of ours who have suffered so badly that they have taken their own lives.”—[Official Report, Justice Committee, 21 February 2017; c 3-4.]
The bill may not be a panacea, but I look forward to Parliament agreeing its general principles this evening.16:12
I say at the outset that the Scottish Green Party will be supporting the general principles of the bill at decision time tonight. As a member of the Justice Committee, I, like others, convey my thanks to the many people both within and without the Parliament who have brought us to this point, with particular reference to the Scottish Human Rights Commission and the action plan that it drafted.
A lot of people have touched on points that are worthy of repetition, including the importance of the removal of the limitation period—the time bar, which generally requires that civil actions must be raised within three years. Everyone has rightly said that the policy is about improving access to justice and addressing barriers. It is fair to say that it is part of a package, in that not all barriers to justice are legal or have a legal remedy.
There has often been discussion in the chamber about how changing the law for a single category of claims can have unintended consequences. The minister addressed that at the outset by saying that it is about striking a balance, and I think that the balance has been properly struck. The bill will have retrospective application and I hope that that will address the silencing effect, which has not been appreciated.
We know that the Scottish Government considered the wider rights aspects of the matter and had to find a special justification for bringing the bill forward. It is certainly my view that childhood sexual abuse has unique characteristics, which have been touched on by other speakers, and that those characteristics—the abhorrence of the acts, the vulnerability of the victim and the effect of the abuse—justify a special limitation regime.
Reference has also been made to some of the consequences of abuse—mental health issues, effective incapacity and post-traumatic stress. It is also important to say that all survivors are individuals and people are affected in different ways. We heard very powerful evidence about the insurmountable barrier that victims face at the moment.
We heard about section 19A of the Prescription and Limitation (Scotland) Act 1973, which provides—as other members mentioned—for discretion in overriding time limits. Under the act, the court retains the discretion to allow an action to proceed
“if it seems to it equitable to do so”.
However, we have seen from the statistics that that course has never—bar one occasion—been followed. Indeed, the onus is on the pursuer to show that justice requires action to be taken. It was suggested to the committee that the judiciary has been conservative—I stress that that is with a small c—on that aspect.
I would like to touch on the private evidence that we heard. Members will understand that a large measure of confidentiality attaches itself to the process as a result of the need to respect individual privacy. The experiences that we heard about, and people’s views on the bill, informed us greatly in our consideration.
I heard from the same gentleman to whom Stewart Stevenson referred; he was abused not only by individuals but in the public system by various groups. He was passed around carelessly and callously, and finally abandoned, in the system. It was a humbling experience to listen to him. I have great respect for, and I am grateful to, all the individuals who came forward to speak to us, not least because some, as we know, will not necessarily benefit from taking the route for which the bill provides.
I am always concerned about human rights, and even more so if they are extinguished. The Scottish Government stated that it had considered whether anything could be done to “revive the rights extinguished” in respect of abuse that occurred prior to 1964. The Justice Committee has asked the Government to look at other options for redress that could be made available to the group in question.
Members talked about the expectations that have been raised; the impact on the Scottish Courts and Tribunals Service, which the committee report also picked up on; and the potential adverse impact on the ability of the third sector to provide support. Again, the committee has asked the Government for input in that respect. We do not know what the numbers are, and it is not necessarily helpful to speculate.
We heard that the passage of time, and the poor quality of evidence and potentially missing evidence, could lead to unfair trials. I roundly reject that suggestion. It is certainly the case that witnesses may be dead, incapacitated or untraceable, and that key documents may have been lost or destroyed. As some of us will know from our constituency work, getting information can be a challenge. However, we know that criminal offences are not subject to any limitation period, and the passage of time has not prevented Police Scotland from doing excellent work, with support from the statutory agencies, third sector support groups and a dedicated unit in the Crown Office and Procurator Fiscal Service, to prosecute historical cases successfully. Each case is dealt with on its individual merits, but it is important to point out that a higher degree of proof—beyond all reasonable doubt—applies in criminal cases. There is a lower threshold—the balance of probabilities—for civil litigation.
In the short time that I have left, I reiterate the comments from other members on the inclusion of the term “neglect” in the definition of abuse. The use of such terminology is consistent, as we have heard, with domestic and international law and with the United Nations Convention on the Rights of the Child, which is an important factor.
I have learned the phrase “decree of absolvitor”, which I had not heard before. The decree of absolvitor route is not for everyone. I also learned the phrase “legal certainty”. We want to leave survivors with the certainty that their position has been recognised, and that principle may be an avenue of redress for some survivors.16:18
As a member of the Justice Committee, I support the bill, and I agree with other members 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 the convener and all the members of the Justice Committee for agreeing to the general principles of the bill in such a consensual and sensitive way.
In committee, we dealt with many of the technicalities of the bill—which other members have mentioned—and scrutinised it fully. We heard evidence from a number of people. As other members said, the most powerful evidence came from the survivors, whom I cannot thank highly enough for coming to committee and giving evidence. Although there are undoubtedly some shortfalls in the bill, for me, as a social worker and a socialist, it represents our continuing progression as a nation. It represents the fact that, as a country, we treat the issue of abuse with the utmost seriousness; that we acknowledge that we got things wrong for victims in the past; that we are on the right path towards truly tackling the issue.
It is absolutely right that the time bar should be removed for these types of horrible offences. Earlier this week, the chamber engaged in a debate on the rape clause, and many members who spoke—including Kezia Dugdale, who read out a letter from a woman affected—referred to the difficulties that people have in coming forward about rape and the fact that they often stay silent about it for many years. That is also the case with the sort of offences that the bill deals with. Through my experience in social work and through speaking to people from that fabulous charity the Moira Anderson Foundation, I know that many people do not speak out about childhood abuse until they are parents. As another speaker in this debate said, it is not uncommon for social workers, health professionals and others to have a parent of a family disclose their childhood abuse for the first time, after many years, when the reason for their initial engagement is something totally different.
Last night, I, like Johann Lamont and other MSPs, viewed “Hidden in Silence”, which is a powerful film that documents the trauma of two women from an ethnic minority background who were sexually abused in their childhood. One of them chose to speak out about her abuse to authorities, but the other did not. However, both came back to the issue after many years, and the film demonstrated through the contrasting approaches the difficulties that they had faced. I thank Margaret Mitchell, the convener of the cross-party group on survivors of childhood sexual abuse, for arranging the screening. I encourage all members to view the film when they get the chance.
I believe that the bill takes the steps that are needed to ensure that access to justice is available to survivors of historical childhood abuse. It is vital that we continue to explore the measures that can ensure that survivors of historical childhood abuse have the support and means to deal with the effects of that abuse. At present, individuals are not able to bring personal injury cases to civil court after a time limit of three years, including for side effects such as post-traumatic stress disorder, anxiety and depression. Survivors currently face barriers in attempting to access the civil justice system to bring a civil action against their abusers. Although it is impossible ever to remove the damage and hurt caused by abuse—I think that everybody has recognised that—removing the time limit for cases means that those who suffered historical abuse while in care, or outwith care, can now have access to a further means of justice. They might take some comfort from that and be able to have their voices heard.
As we heard from the Justice Committee, the bill is not designed to be a solution for all survivors, but we must ensure that support for survivors is always available in varying forms. Civil action will not be for everyone, but I believe that it should still be an option and that we should have measures in place to ensure that it is accessible to those who choose that route.
I am glad that the bill is all-encompassing, regardless of where abuse takes place. That could bring in those affected by historical abuse in football, for example, to which Johann Lamont referred. Just yesterday, the local media in my area reported on the fairly high-profile case of an individual originally from my constituency who has now been convicted of sexually abusing several victims over 40 years ago. Previously, a case involving him had failed to result in prosecution in the 1970s because of a lack of evidence, but he has now been found guilty of four serious sexual offences. The individuals concerned now have further options open to them, if they wish to take them.
Does the bill go far enough? Maybe not, but it is a start and it puts us ahead of many other countries on the issue of historical childhood abuse. Should there be any reason for not passing the bill? Of course not. The bill’s purpose is to bring justice to some of those who were abused and give them a voice. I believe that we should make further provision for those who were affected pre-1964. However, as I said at the start of my speech, the bill represents more, because it is a statement from a bold and progressive Government. The bill is part of a journey, and I am confident that there will be further developments as we move forward. I am delighted that the Justice Committee has agreed to the bill’s principles and I urge all in the chamber to agree the motion in the name of the minister.16:23
For the avoidance of doubt, I refer members to my registered interest as a practising member of the Faculty of Advocates.
I welcome the Scottish Government seeking to address the unfortunate issue of childhood abuse past, present and future. As the policy memorandum that accompanies the bill makes clear—it has already been referred to—one of the reasons for pursuing the bill is that the social taboo that has long been attached to childhood abuse has added to survivors’ reluctance to come forward.
It is important that the law and the legal system should be a facilitator of and not a barrier to justice for survivors. As evidence before the Justice Committee has indicated, and as is set out in the committee’s report, the limitation period can pose a particular difficulty for victims of childhood abuse. The discretion that is set out in section 19A of the Prescription and Limitation (Scotland) Act 1973 is not often exercised, and it is against that background that the new provisions for the 1973 act are proposed.
The committee’s support for clarification and improvement of that law is to be welcomed. At the same time, the committee has rightly raised a number of matters that require further consideration and attention. Although they may be thought at first sight to be matters of mere detail, on closer examination it is clear that they merit greater scrutiny.
As someone who is not a member of the Justice Committee, I commend it on its thorough and thoughtful approach to the bill and on the fairly comprehensive report that it has prepared. I say “comprehensive” but I know, as a lawyer, that inevitably something will not have been covered, although every issue that arose in my mind has certainly been covered. I encourage the Government to respond to the points that are raised in the report for further consideration. Some of them have been referred to in today’s debate, and l will focus on one aspect in particular.
That issue is the costs that may arise and which appear to be wholly uncertain, according to the committee’s report. There are a number of aspects to consider. The Government has sought to estimate the number of survivors who may seek to raise a civil action, but the report details a number of factors that could mean that that number rises significantly. An example is the role that claims management companies or personal injury lawyers play. A larger number of claimants than expected could mean that court costs rise, especially for complex cases. It is essential to take that possibility into account at this stage, in order that any required changes are made so that the bill is effective in ensuring justice in a timely manner. Resources are key, as is a more accurate picture of the number of cases that are likely to be brought.
Jeremy Balfour raised the issue of successor organisations in the third sector. Voluntary organisations that provide essential support services in society today may find themselves having to shoulder responsibility—financial and otherwise—for the unauthorised and unacceptable actions of individuals who previously worked for or with those organisations, sometimes decades before. Such an organisation might not have had insurance at the time or might have an insurance policy that does not indemnify it against such claims, or its insurance provider might no longer exist. An organisation could face dissolution in order to meet a claim. In such circumstances, how can we ensure that essential work that the third sector does is not lost as a result of unintended consequences?
What of local authorities? How will all this further impact their ability to deliver services? They are likely to face similar issues. That question has already been raised today, and it was raised before the Justice Committee by COSLA. A number of concerns that are raised in the committee’s report relate to the potential for a higher percentage of claims to be against local authorities because they provided the majority of children’s services. No estimate is available at present of the costs that local authorities could face. The main insurance provider for them between 1975 and 1992 ceased operations in the 1990s. Insurance premiums that cover such matters now could rise significantly as a result of the bill.
I emphasise that those are not reasons to vote against the bill and its purposes; rather, we must ensure that the bill will not have unintended consequences that are desired by no one. It is clear that assistance must be given to all survivors so that they can assess for themselves which solution they want to follow, whether through the court process or by other means, and that the bill has support across the chamber.
I look forward to a detailed response from the Government to the areas of concern that the committee identified, particularly in relation to resolving potential unintended and undesired consequences of the bill, which I have briefly sketched.16:29
Like Gordon Lindhurst, I refer members to my voluntary entry in the register of interests, in which I state that I am a non-practising member of the Law Society of Scotland.
I commend the Government for introducing an important bill. Like other members, I commend fellow members of the Justice Committee, and Margaret Mitchell for her stewardship during the bill process. The way in which the committee worked collaboratively and constructively on the bill demonstrated the strength of the Scottish Parliament’s committee system when members and parties work together on matters of importance.
Like other members, I thank witnesses from organisations who gave evidence and, in particular, the survivors who gave evidence in private. The experience of taking evidence from the survivors was incredibly moving and upsetting for all of us. I was struck not only by their powerful evidence on their determination to seek justice and the harrowing experiences that they had gone through, but by the sense among the survivors to whom I spoke that the bill has already started to give important recognition to their suffering. Although we absolutely should focus on the bill’s technicalities and practicalities, we should recognise that a process of justice has already begun because of the fact that the bill is being discussed here, in the Scottish Parliament.
Like all members of the committee, I welcome the bill’s aim of improving access to justice for survivors of horrific historical abuse and I endorse its general principles. By removing the three-year time limit on victims of childhood abuse bringing a civil action against the abuser, we are creating not a panacea but an important choice for survivors. In the current system, as Kim Leslie of the Law Society said, it
“does not square ... that there is no such time limit for a criminal prosecution.”—[Official Report, Justice Committee, 28 February 2017; c 9.]
An individual case cannot be prosecuted after a lengthy time when it comes to a civil matter. The bill will—rightly—address that injustice.
I will pick up on two particular points. The first concerns cases in which abuse occurred before 1964 and the other is about the definition of emotional abuse.
The Government gave serious consideration to prescription and cases in which abuse occurred before 1964, and I am glad that it did. It was clear from the oral evidence that the committee took that, in the view of witnesses, the Government had struck the right balance. The Faculty of Advocates said that there could be a “potential challenge” to the bill if prescription was sought to be extinguished. Like Margaret Mitchell and Mairi Evans, I urge the minister to address what other redress measures can be made available to those who were abused before 1964.
Many of the points about the definition of emotional abuse have been covered by other members. I support the inclusive and non-exhaustive definition of abuse. However, in oral evidence, Laura Dunlop QC, who represented the Faculty of Advocates, said:
“It is open to the courts to develop the concept of abuse—in particular, emotional abuse”.—[Official Report, Justice Committee, 28 February 2017; c 15.]
Will the Government comment on whether guidance on the definition of emotional abuse would be useful, particularly given that the committee has asked the Government to respond to uncertainties about the term? Spiritual abuse and psychological abuse were both raised in the committee.
I support what members have said about neglect and, in the interests of time, I will not expand on that.
As members have said, it was emphasised to the committee that the bill is not a panacea, and I share that view. However, I finish by quoting Harry Aitken, who gave evidence in one of our first sessions and represented Former Boys and Girls Abused in Quarriers Homes. He said:
“The significance of the bill is that, at long last, survivors will have the choice. That element of choice has been denied to them up until now ... they will already have heard that it will be a difficult task for them to go to court. They will have to have a robust case, that case will be cross-examined and it will have to stand up to the normal practices of the legal system. However, having made that choice and found the courage to go forward, I believe that that will fortify them.”—[Official Report, Justice Committee, 21 February 2017; c 5.]
We should support and pass the bill to help to fortify survivors—as Mairi Evans powerfully said—on their journey to recovery, in the interests of justice and to seek the closure that they so rightly desire.
We now move to the closing speeches. I call Mary Fee.16:35
In closing for Scottish Labour, and as our member on the Justice Committee, I thank all the individuals and organisations who assisted the committee to produce this stage 1 report on the Limitation (Childhood Abuse) (Scotland) Bill. I praise the outstanding bravery of the survivors of childhood abuse who gave the committee a very powerful insight as to why this bill is needed.
I commend everyone who has taken part in the debate for maintaining a respectful and calm atmosphere as we discuss highly sensitive and emotive issues. Contributions from members across the chamber today indicate that this legislation is, rightly, a priority that all of us share.
The Limitation (Childhood Abuse) (Scotland) Bill will enable many survivors of childhood abuse to make the choices that they need to make, to seek appropriate reparations for the abuse that they suffered. The reasons for introducing the bill are sound and I support the Government in its aims. The Justice Committee report supports the general principles of the bill. Like the committee, I have a few reservations about some small technical details. The recommendations of the report are well researched and well thought out, and I will touch on some of them in order to raise with the Government how we can work together to find the right outcomes for survivors of childhood abuse.
The current three-year limitation period is, as we have heard, a barrier to seeking justice that the bill will overcome. That was agreed by the committee and the majority of those who presented evidence to the committee. Removing the current time bar will enable survivors to exercise their rights and bring a civil action against an offender. That may not be the right option for all survivors, as we heard in evidence sessions and in the chamber today. However, very importantly, it will give survivors further choices.
During one of our evidence sessions, Laura Dunlop QC pointed out that the process of bringing an action could, in some cases, do “more harm than good” because of the significant emotional impact of speaking about their abuse and reliving the trauma. That is why I believe that we must ensure that support is available for survivors to make the right decision.
The Scottish Human Rights Commission also highlighted that there would remain a
“necessary or significant evidential burden”
for survivors in raising this through the court and identifying the offender. In supporting survivors, we help them to make the right individual choice and, as the committee report states,
“this could help to manage survivors’ expectations about what can be achieved”.
The minister advised the committee that steps would be taken to ensure that support is available and, as others have raised in the chamber today, I look to the minister for further detail of that support.
On the definition of abuse and the setting, the committee rightly welcomed the decision to allow action against abusers regardless of the setting in which the abuse took place. It would have been a further injustice to survivors to create a two-tier system that prevented some from seeking redress because they had been abused in a protected place, while others were able to take action.
As we have heard, in cases in which the abuse started before 1964, Scottish Labour is happy to work with the Government and people across the chamber to find some form of restitution.
During the evidence sessions, other options were proposed. However, we would like a model that would fit not only Scotland’s needs but, far more importantly, survivors’ needs. The Scottish Government must work with survivors, listen to their needs and find the most suitable solution for them.
I recognise that there were mixed views on the inclusion of neglect within the definition of abuse. However, the inclusion of neglect would mean consistency with other domestic and international laws and, as argued by Detective Chief Superintendent Lesley Boal, would be a deterrent to such behaviour. I support the inclusion of neglect and welcome the commitment from the minister to consider the issue further.
On the financial implications that were highlighted by COSLA and third sector organisations, there are serious concerns that the backroom costs will impact on the resources that are available for current services. Although we wholly support the Government’s aim of widening access to justice for survivors, we need more information on how the Government will deal with the financial implications. I welcome the minister’s acknowledgement of the fact that there is great sympathy for local authorities, charities and third sector groups, and we look to the Scottish Government for information on how it plans to support those organisations.
We welcome this bill and praise the courage of the survivors, some of whom are in the gallery today, in contributing to the Justice Committee’s report and in campaigning to end the time bar that has denied them access to justice for too long. I confirm our support for the aims and provisions of the bill.16:41
I thank everyone who has spoken today and I give special thanks to those who gave evidence to the Justice Committee, especially the survivors, who spoke on such sensitive and personal issues. I will start by reaffirming my support and that of my party for the bill.
Widening access to justice for survivors of historical childhood abuse is the right thing to do. The very nature of the crime means that it is absolutely right to expect that it can take survivors many years to come to terms with what they have been through and to seek the justice that they deserve. Of course, the current law provides judges with the discretion to allow cases outwith the three-year limitation period to proceed but, as my colleague and convener of the Justice Committee, Margaret Mitchell, has stated, along with many other speakers, that discretion has virtually never been used.
We all understand the practical rationale behind the three-year time limitation on civil court claims. The longer the delay, the less concrete the evidence. The wider the window for potential legal cases, the more difficult it becomes for organisations to have the certainty and finality that is needed for day-to-day business as well as the security of knowing that there are no pending legal claims. Those are the reasons why similar time bars for personal injury claims exist in nearly all developed legal systems in the world. However, despite those practical concerns, we are unanimous that the time limitation for survivors of historical childhood abuse—whether sexual, physical or emotional—should be lifted so that survivors get the justice that they deserve.
Underpinning the bill is the unanimous recognition of the unique experiences of survivors of childhood abuse. Victim Support Scotland supports that idea, highlighting the length of time that it might take for someone to realise that they have been abused, and the silencing tactics that are used by abusers, as well as the feelings of shame, embarrassment and trauma that might prevent someone from coming forward for many years. The National Society for the Prevention of Cruelty to Children Scotland, through a piece of research involving 60 adults, found that it took a survivor an average of eight years to tell someone about their abuse. Therefore, I am pleased not only that the three-year limitation will be lifted but also that the law will be applied retrospectively, which means that the bill will apply to abuse that occurred as far back as 1964.
In line with what has been raised in the chamber today and was raised previously in the Justice Committee, there are, of course, considerations to be made as we look beyond our agreement on the bill’s general principles.
Although it is undoubtedly the right and moral thing to do, the committee highlighted what it saw as a conservative estimate by the Government of the number of survivors who could come forward. My colleague Gordon Lindhurst touched on that in detail, citing the difficulty in predicting such numbers and, therefore, in identifying the cost implications.
Local authorities and third sector organisations will be affected, as we heard when COSLA came before the Justice Committee. Although they very much support the bill, concerns were raised about its financial implications for local authorities and how such costs would be met with currently identified insurance policies. Furthermore, there are practical considerations for such bodies when it comes to giving evidence. How will such organisations answer questions on behalf of a defender—perhaps an ex-employee who has either passed away or long since left?
Douglas Ross spoke about the broader impact that the bill will have on the courts’ resources. What is the courts’ capacity to take on a number of new cases, an estimate for which we do not have, and how do we ensure that survivors are not deterred from pursuing cases because of lengthy and potentially avoidable delays?
I would like to touch on the more human aspects of the bill. As my colleague Jeremy Balfour suggested, pursuing a civil action will not be the right solution for all survivors. At times, the court process could do more harm than good—a point that was made by many members across the chamber. Jeremy Balfour also said that we need to consider the vulnerability of survivors and the long-standing effects that go hand in hand with abuse, such as alcohol and drugs misuse. We need to make sure that there is support there for the survivors. Furthermore, what potential action could the Scottish Government take to ensure justice in cases of abuse that occurred prior to 1964?
As Margaret Mitchell highlighted, given the overall financial resource implications of the bill, we need to ensure that current support services for survivors are not adversely affected by the bill. As other members have mentioned, last night, the cross-party group on adult survivors of childhood sexual abuse screened an extremely insightful documentary on the experiences of victims of childhood abuse from the black and minority ethnic community. In such cases, in which survivors already face vast sociocultural barriers to coming forward, we would seek to reaffirm support for the existing services.
In closing for the Scottish Conservatives, I reaffirm my party’s support for the bill. To rightfully acknowledge the unique case of childhood abuse victims, the three-year time limitation that is in place for civil claims should be lifted. Concerns exist over the bill’s implementation but, as long as we are realistic about what those are and what measures should be put in place early on, they will be manageable.
I hope for further scrutiny in the later debates, and I very much welcome the bill at stage 1.16:48
It has been a valuable and important debate, and I thank members for their speeches. Mary Fee was absolutely right to say that the tenor of the debate has been excellent and fitting for the subject that we are addressing.
I am pleased that members share the aim of widening access to justice for survivors of childhood abuse. Ben Macpherson was absolutely right to say that the key objective of ensuring justice for that group of people, who have been through so much, should not become obscured when we discuss the bill’s more technical provisions, important though those discussions are.
I am also pleased to note that there is support across the chamber for the general principles of the bill. I assure members that I have listened carefully to the points that have been raised and will give them full consideration. I will touch on some of the issues that have been referred to. If I do not have time to address them all, members should not hesitate to corner me and seek further clarification.
I am grateful to Mary Fee, Claire Baker and others for raising the issue of support for survivors. I agree that it is important that survivors be given the right support to make their decisions—whether it is a decision about whether to raise a civil action or about what support will be best.
I point out to members that, since 2017, more than £10 million has been distributed through the survivor support innovation and development fund to third sector and voluntary sector organisations. This financial year’s budget for the fund is £1.8 million. Furthermore, in May 2015, we announced investment of £13.5 million over five years to expand and enhance support for survivors of in-care childhood abuse through a dedicated support fund, which was relaunched this year as the future pathways fund.
As we have heard, decisions on civil actions are complex—that point was well made by Rona Mackay—and anyone who faces such a decision needs good-quality impartial advice and guidance. We are in active discussions with the Law Society of Scotland about how best we can raise awareness among solicitors of the very particular issues that are involved in such cases, and how they can be better equipped to support survivors. We are also planning an event, in conjunction with the Law Society, that will bring together the legal profession and professionals in survivor support organisations in order to ensure mutual understanding and sharing of knowledge. We, of course, remain committed to exploring what other forms of support can be made available.
On the definition of abuse, I am grateful in particular to Mairi Evans, Liam McArthur—who has had to leave us to catch his flight to Orkney—John Finnie and others for raising the question of how abuse should be defined in the bill. It is important to keep in mind, when we look at how abuse is defined elsewhere, that each definition is designed for its own purpose, so what works best in one context may not be the best approach in another. As I mentioned in my opening speech, it is important that the definition sends the right signal while avoiding, as much as is possible, unintended consequences. I listened carefully to the evidence that was presented to the committee and to the arguments that have been made today. As I said in my opening remarks, I will carefully reflect on them.
On the estimation of numbers, I note concerns about the impact of the bill and the estimates that we have made of the number of survivors who are likely to come forward. As members will have seen, we estimate that between 400 and 4,000 survivors may come forward, with the mid-point of 2,200 being considered to be the most likely figure. I accept that this is not an exact science; we simply do not know, and that is our position. We have used a variety of methods and looked at a range of sources. It is, of course, possible that more or fewer actions than that will be raised. It is clear, at this stage, that we do not know whether the estimates will be right or wrong.
All witnesses who came to the Justice Committee’s meetings accepted that the number will be difficult to predict. Nothing in the evidence indicates that there is a better estimate that should be used instead—a point that was well made by Stewart Stevenson. It may interest members to note that the Law Society says in a briefing for the debate that the likely impact of the bill has been adequately captured in the financial memorandum.
Reference was made to Police Scotland data. It is helpful to hear about the on-going work by, among others, Police Scotland. It is also important to keep in mind that the number of victims who are identified in police files is not the same as the number of survivors who will come forward to raise actions. In deciding whether to go ahead with an action, factors that will need to be considered include whether there is a solvent defender, whether there is sufficient evidence to prove the case and—perhaps key above all—whether the survivor is prepared to go through the often challenging court process. Not all cases that are identified by the police will translate into civil actions. Witnesses who gave evidence to the committee recognised the difficult task of estimating numbers and the great uncertainties involved.
On the potential impact on local authorities, third sector organisations and their insurers’ finances and resources—which several members have raised this afternoon—I acknowledge that costs might go beyond the costs that are directly associated with defending against actions. However, as we set out in the financial memorandum, it is not possible at this time to estimate what the impact will be.
The bill’s general principles are supported by COSLA and many third sector organisations. I will continue my engagement with COSLA; in fact, I recently met Councillor Stephanie Primrose, who is COSLA’s spokesperson for education, children and young people. We agreed that the best way forward is to continue our dialogue and that we should not rush ahead and draw conclusions before the facts of the matter are known, so we will carefully consider evidence on the impact of the bill.
Annie Wells—I think—made the point that no estimate has been made of the impact on courts. I refer her to the financial memorandum, in case she has not had time to read it, in which we provide a gross cost estimate of £280,000. [Interruption.]
Excuse me, minister.
I ask members to have a bit of courtesy and be quiet. An important discussion is going on with the minister.
Thank you, Presiding Officer.
It is important to keep it in mind that not all people will pursue an action. That is absolutely a decision for the survivors themselves. It is important to bear in mind the fact that, if survivors decide that they want to take that route, not all the actions that are raised in court will be raised at exactly the same time or be of exactly the same length. It is also important to remember that many actions settle out of court. The Government will, of course, continue to have discussions with the Scottish Courts and Tribunals Service and the situation will be continuously reviewed.
Reference was also made to the fact that one particular law firm might have a significant number of cases. That example was raised in committee as well but, of course—[Interruption.]
Excuse me again, minister.
I ask members to be courteous and quiet. Thank you.
Thank you, Presiding Officer.
Reference was made to a law firm having, I think, 1,000 potential cases on its books. It is important to recognise that not all those cases might be reraised. Again, that goes back to the choice of the survivor. We should not seek to usurp that choice in any way; it will be entirely a matter for each survivor to determine for themselves. Although we cannot predict exactly how many actions will be reraised, it is likely that not all cases will end up in the courts.
I will clarify again proposed new sections 17C and 17D of the 1973 act. With regard to section 17C, I return to the decree of absolvitor, which some members raised. I think that members will be surprised to find that they are becoming, as John Finnie suggested, legal experts on our civil procedure. However, it is important to recall that whether a decree of absolvitor was the most appropriate disposal for the actions would have been a matter for the parties who agreed the settlement. The fundamental point is that those cases did not receive an adjudication on their merits. For the sake of completeness, it should be noted that, in current Scots law, a decree of absolvitor is not an absolute in any event. There is the possibility of new evidence being brought forward under the res noviter procedure—albeit that that is extremely rare.
Some members, including Johann Lamont, referred to wider issues for survivors. As we have heard, raising a civil action will not be the solution for all survivors. A number of strands of activity are currently under way, including work that the centre for excellence for looked after children in Scotland—CELCIS—is doing with survivors directly on framing further engagement, and on consultation on financial redress. That work will consider the position of in-care survivors who were abused before September 1964. That process is being led by CELCIS and the interaction action plan review group, and it will fully explore issues around redress and gather a wider range of views.
I thank, once again, all the members who contributed to the debate. It has been an engaging and meaningful debate that has raised a number of important issues. I am pleased to reiterate that there is support across the chamber for the principles of the bill. That is a very important signal that Parliament can send to the survivors who have been through so much, and to whom we have paid tribute for their bravery and determination to ensure that their voices were listened to so that they could get the justice that they have been seeking.
It has been an important and useful debate. I will reflect carefully on the issues that members have raised, and I look forward to further progressing the bill.
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