Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

The Convener

Our second agenda item is two evidence sessions on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome from the Scottish Government’s redress, relations and response division Donald Henderson, who is the deputy director, Paul Beaton, who is the unit head, and Lisa McCloy, who is the bill team leader; and from the Government’s legal directorate Barry McCaffrey, who is a lawyer.

There will be no opening statement, so we will move directly to questions.

Daniel Johnson (Edinburgh Southern) (Lab)

I am sure that the bill team will agree that, for the legislation to be ultimately successful, we need to ensure that the right decisions are made for the right reasons in the right way. As it stands, it is difficult to have confidence that that will be the case, because the bill does not set out the criteria or the process—it leaves that to guidance. What are your reflections on that? What should we expect to come forward on those matters?

Donald Henderson (Scottish Government)

As you know, the bill sets out at a high level the factors that need to be taken into account by redress Scotland in making awards. More detail needs to be fleshed out. We would expect to provide materials to you before the end of the stage 1 proceedings, to allow the Parliament to step beyond the high-level principles.

It is vital that this work is done correctly. In addition to making redress payments, we are trying to address not only the failures that were made over many decades in allowing the abuse to happen and persist, but the treatment of too many survivors afterwards, who have felt ignored and belittled by society. If we do not have a scheme that addresses their needs, including an assessment framework, we will not have achieved our aim. More detail is undoubtedly needed, and we aim to have it with the committee before the end of stage 1.

Daniel Johnson

The only criterion that I understand is currently in the bill is that the decisions

“must have regard to the nature, severity, frequency and duration of the abuse”.

There is no mention of the consequences, the costs or the wider social impact, nor is there any requirement to have regard to whether those incidents could or should have been avoided. Those are clearly things that, at the very least, require clarification. Why are those high-level principles not in the bill?

Donald Henderson

The bill is intended to pick up activity—crimes—that should not have been going on in the first place. We are not trying to deal with activity that was perfectly legal and acceptable at the time, and we are not designing a scheme that is intended to replace the civil courts, which have a place in assessing the on-going impact on loss of earnings, for instance. That is not part of the redress scheme.

We will look at the nature and frequency of the abuse that took place, as you mentioned. The guidance that we produce, which we will discuss with survivors, and the work that we are doing with psychologists who are advising us will flesh out those high-level principles as we build the approach that redress Scotland will take in looking at individual applications and the circumstances behind those in order to settle on an award level.

Daniel Johnson

Given the broad scope that redress Scotland will have to develop assessment processes and criteria, even given the guidance that you have set out, would it not be a good idea to have an independent chair who is separate from the chief executive? I understand that the bill combines those two roles. Is good governance not absolutely critical, given the scope that redress Scotland will have?

Donald Henderson

I certainly agree that good governance will be critical. Alongside that, independence from the Government is also critical, which is why we have protected redress Scotland from ministers having any involvement in decisions on individual applications.

In order to set up the scheme quickly, we propose that the administration be done by the Scottish Government and that that arm of the Scottish Government be instructed by redress Scotland. That means that redress Scotland will be very small and the bulk of the work will continue to be done by staff in the Scottish Government.

We can continue to talk about that. Our conclusion was that, because redress Scotland will be so small, having a separate chief executive and chair was not the right approach. However, there will be other views on that and we will listen to them and learn.

Daniel Johnson

I am not sure that I understand why scale alters the requirement for good governance, but I will leave it there.

Beatrice Wishart (Shetland Islands) (LD)

Good morning, panel. My connection dropped out briefly, so I hope that I will not be repeating the questions that Daniel Johnson asked—I do not think that I will.

My questions are about applicants who have convictions for serious criminal offences. There are differing views about the proposal that compensation should not be awarded to a survivor who has a criminal record for a significant offence. We now know that unresolved childhood trauma can lead to offending behaviour, so what account was taken of that understanding in the decision not to offer redress payment where it would be

“contrary to the public interest”

due to the applicant having been convicted of a serious criminal offence and

“sentenced to imprisonment for a term of 5 years or more”?

Lisa McCloy (Scottish Government)

That is a good question. We recognise that that is a difficult and sensitive aspect of the bill, and we know that there are varied but strongly held and opposing views on it. We have listened to those views throughout the consultation, and we will continue to listen to the evidence that the committee hears on that aspect of the bill.

In the bill, we have set out what we think is a proportionate response to an incredibly complex issue. It is important to note that there is no blanket presumption or exclusion in the bill to prevent redress payments being made to people with criminal convictions, including serious criminal convictions. However, there is an acknowledgment of some people’s concern about redress payments, which are obviously to be made in relation to abuse, going to those who have gone on to commit very serious crimes—particularly crimes of abuse.

The bill takes the position that the independent decision makers of redress Scotland will have an opportunity to look at cases on an individual basis to see whether there is a public interest argument not to make a redress payment in such cases. The bar is deliberately set high, and that power will be triggered only when applicants have convictions for murder, rape or serious sexual or violent offences for which they received a sentence of imprisonment of five years or more. I emphasise that there is no presumption to use that power and no blanket exclusion of those applicants. They would also have a right to review decisions that were made by the independent decision-making body, redress Scotland.

The other point to note is that applicants with very serious previous convictions would still be eligible for the elements of non-financial redress that will be offered by the scheme.

Beatrice Wishart

Thank you for that. Let us turn to support for legal advice. How will support for legal fees and costs that applicants might incur in trying to find evidence work in practice?

Lisa McCloy

We recognise that support is an important aspect of any redress scheme and that some applicants will want it. The support that will be available will vary according to what the applicant needs or wants assistance with. We recognise that there is an obligation to ensure that the scheme is as accessible as possible, and we are working with partners to make sure that information on the scheme is in accessible formats and so on.

We also recognise that applicants might require practical support to apply for redress, such as support to access records. Another important aspect of the scheme is that we recognise that survivors might require emotional support to apply, because, for some, applying for redress could re-trigger difficult aspects of a survivor’s past. There will be emotional support to assist survivors who are confronting that.

In terms of support for legal aspects, we understand that some applicants will want legal advice from the outset, but it is important to note that we are trying to design a scheme in which that will not be necessary. There will be a point in the survivor’s application at which we will strongly advise that advice is given before acceptance of a payment—that relates to the signing of a waiver, which we may come on to discuss separately.

To focus on the provision and funding of legal advice for the moment, we have looked at what happened in other redress schemes, and we are aware that legal fees can escalate in some of them. That is not something that we want for this scheme—we want the majority of the money to go to survivors, although we do respect that there is a need for independent legal advice. We are therefore proposing that ceiling limits or caps are placed on the legal advice, to try to control the legal expenses of the scheme. However, we recognise that there will be cases that are more complex than the fee will allow for, so there is a mechanism in the bill for solicitors to apply to exceed the ceiling and a mechanism to review decisions on whether to allow someone to exceed the fees.

Iain Gray (East Lothian) (Lab)

I will ask about the waiver. The bill means that those survivors who avail themselves of the redress scheme will have to sign a waiver giving up their rights to pursue compensation in the civil courts. When the cabinet secretary introduced the bill in Parliament, he made it clear that the reason was to use that incentive to encourage the institutions that were responsible for historical abuse to contribute to the fund from which redress payments would be made. Can the bill team see that, from the point of view of survivors, it would appear that the interests of the institutions that were responsible for their abuse have been put ahead of their interests?

Paul Beaton (Scottish Government)

It might be helpful if I set out a little about what the waiver is designed to offer for survivors, as well as for providers. The scheme that is proposed in the bill looks to create a national collective endeavour, which, as you say, encourages those who may be responsible for abuse in the past to step forward and to acknowledge and respond to survivors in a way that does not require them to go to court. It is designed to give survivors a choice as to whether they would prefer to pursue litigation or proceed through redress. It is not a choice that is available to all, but it would be for the majority.

Through previous consultation and work with survivors, it has been made very clear that contributions from organisations are an important part of the scheme’s acting in that collective way. The waiver is the most effective way of achieving that. It has been used in the majority of redress schemes worldwide, particularly where contributions are in play. There should be no suggestion that the operation of the waiver can silence survivors—those who prefer their day in court can absolutely proceed on that basis. There is no sense that participation in the redress scheme involves anything like a non-disclosure agreement, and participation does not prevent survivors from discussing their experience privately or publicly.

We have just touched on the issue of independent legal advice regarding the decision on whether to accept a redress payment. The waiver will be signed only at the end of the process, once the survivor is clear about what redress Scotland’s proposal is and the organisations to which the waiver will apply.

As part of that national collective endeavour, it is fair to acknowledge those organisations that find a way to play their part in this. In encouraging them to do so, it is appropriate that they have the opportunity to fund payments to survivors, to offer that sense of acceptance and participation and, as I say, to face up to their historical legacy as part of that national endeavour rather than requiring survivors to receive it through another mechanism. Absolutely, we know that there are different views on that, and the matter has been given careful consideration as we have developed the bill. We will continue to listen closely to the evidence as it comes forward in the coming weeks.

I am happy to take any follow-up questions on that, as it is a crucial matter.

Iain Gray

We all understand that survivors wish to see these institutions playing their part in contributing to the redress fund, but they would want them to do that because of their historical guilt rather than as a good financial option on their part, which is really the argument that is being made here.

You said that survivors will be able to pursue the redress scheme and will only have to decide once they know what the outcome of that process is whether they accept that and, at that point, whether they sign their waiver. That will put survivors in an almost impossible position, will it not? In a hypothetical case in which a survivor has been told that the redress scheme will award them the maximum of £80,000, they will then have to decide whether to accept that as redress and give up their right to civil justice or reject it and go to the civil courts where, of course, they will not know what the outcome would be. They might feel that they have strong evidence and will receive a greater level of redress from the civil court, but they will not know that until they have gone through the process. Can you see that we are potentially putting survivors in a difficult, perhaps impossible, situation by asking them to make that decision at that point?

Paul Beaton

You are absolutely right to highlight the uncertainty of the civil court process. The redress scheme is designed very much for the majority of survivors, but we completely accept that there will be survivors whose experience, evidence or preference might be to pursue their position in court, but that might not be the case for all. The redress scheme is designed to offer something different and to allow people to exercise that choice.

However, you are right that there will be a choice to make at the end of the redress process and there is no certainty about what might emerge from the court at that stage.

Iain Gray

Surely, the way out of that dilemma is to allow survivors to pursue both routes. That is in the interests of the survivors, is it not?

Paul Beaton

It would be possible to have a redress scheme that proceeds on that basis. We have provision for legal advice, as we have discussed. There is also the point about contributions. If we are looking for organisations to step forward and seek to play an active part in this, the existence and operation of the waiver within the scheme as designed is a critical factor.

It is not for me to speak on behalf of any organisations, but it is clear that their considerations about whether to participate and, if so, to what extent, are on-going and are based on the scheme as it is designed. It will be a really interesting area of evidence as we go through the following weeks. There is, however, no question but that the waiver is right at the top of the list of issues that organisations are looking at when they consider whether to be part of this.

I absolutely share the wish that organisations would want to play their part and make contributions on the basis of the historical legacy alone. That may prove to be the case with some, but I would not be as optimistic across the range of organisations that we are looking at, representing 70 years of operation of the care system in Scotland.

Iain Gray

Have those institutions—

The Convener

Sorry, Mr Gray—Mr Henderson wants to come in, and we then need to move on to questions from Jamie Greene, followed by Alex Neil.

Donald Henderson

I emphasise that, in the Government’s estimation, it is not possible to produce a redress scheme that will cater equally for the very small number of potential £1 million civil law cases and for the enormous bulk of survivors who, if they were able to take a case at all, would end up with far lower settlement levels.

There will be people who, on the basis of legal advice and their own judgment, decide that they will get more in the civil courts. We want to leave that choice for survivors as late in the process as we possibly can, and we want to allow them to lead and conclude civil cases before they find out whether they are successful under the scheme. We are giving as much choice as we can to survivors who already have choice, by introducing a mechanism for survivors who cannot bring civil litigation at all because they are—[Inaudible.]—and for those who know that they have no evidence, as it is sometimes difficult to gather evidence from past decades, or who have evidence but are certain that the last thing that they want to do is go through the type of disclosure processes that are necessary in a civil case.

Some will be involved but in quite small numbers, and we are leaving the choice for them as late in the process as we possibly can.

Jamie Greene (West Scotland) (Con)

Good morning, panel. I will focus on the financial aspects. For the benefit of those people watching the session, who will not have reviewed all the documents to which we, as MSPs, have access, can somebody outline the estimated cost of setting up and operating the scheme?

What will be the on-going cost per annum of running it, aside from the compensation money? Can the panel indicate how they arrived at the projected forecast for the levels of compensation that will be paid out? What assumptions and estimates were made, and how will those translate into reality when people start to apply for the scheme?

I appreciate that we do not know how many people will apply, but surely some thought has gone into the potential cost of pay-outs once the scheme opens.

Donald Henderson

My colleague Paul Beaton can go into some of the detail on that. Our overall estimate is £400 million for the scheme as a whole, but—as you recognise in your question—this is intensely difficult territory in which to estimate the final number of applicants and the average award that would be made.

In the considerable research that we have conducted into other schemes running internationally, we have not found a single case in which the initial estimates were correct. We have spoken to people in Ireland who are capable, accomplished civil servants, but their original estimates were out by multiples. We benefit from their experience and from the experience of colleagues in other countries. Our central estimate is £400 million, but there is inevitably wide uncertainty in that.

Paul Beaton

The uncertainties that Donald Henderson mentioned are live. We have tried to look as carefully as we can to see how many survivors might come forward to the scheme. You will see from the documentation that our central estimate is for 11,000 potential applicants. However, we accept that that will be inaccurate to one degree or another and that we will have to keep a close watch on it. We have made our estimate by considering the totality of those who have been in care over the period covered by the scheme, which, as things stand in the bill, goes up to 2004. Within living memory, that is perhaps 70 years of a care landscape, which changed fundamentally several different times over those years.

We have worked with Scottish Government analytical colleagues and with the Government Actuary’s Department in London to try to understand what those numbers could mean historically in respect of the different sectors and institutions that were providing care over that time. There is some really good research on the numbers of children in care. Interestingly, the number of children in care is fairly consistent, but they were in very different places by the end of the period covered by the scheme. It is incredibly complicated.

The work that we were able to do with the Government Actuary’s Department, looking at schemes elsewhere and the experience of our own advance payment scheme—500 applications or so—has given us some really good information, particularly around the earlier part of the scheme. We have also looked at the experience of schemes elsewhere in relation to their distribution of payment levels. We have done that without any sense of an objective or target. We are fortunate that we have a clear commitment that redress Scotland will take independent decisions and that survivors will receive payments decided upon through that process, rather than be subject to a more normal sense of financial drive. That is a very positive position to be in. However, it exacerbates the uncertainty.

Jamie Greene

I am sorry to interject, but that is rather a lengthy answer and I have some supplementary questions.

The Convener

Only one supplementary question, please, Jamie—perhaps you can wrap them together.

Jamie Greene

I will try, convener. However, they are important issues and unfortunately my initial question was not really answered. I want to press the point, although I am happy to receive an answer in writing if that would be easier, because I appreciate that there is a lot of detail. My first question was this: what will be the set-up and running costs? Those are fixed costs, which you must be able to estimate now, notwithstanding the levels of compensation.

I am concerned by the suggestion that you do not really know the compensation costs, given that other schemes have been massively out of kilter in their estimates. Could the £400 million easily become £800 million if 20,000 applications are made? What percentage of the compensation paid out will be paid out by the Government as opposed to the institutions that will contribute to the scheme? Has there been any indication of the levels or any caps on moneys available from the institutions that will participate in the scheme? How much will those institutions make available to pay compensation?

Paul Beaton

I can answer that element briefly, and then Donald Henderson and Lisa McCloy can answer on other matters.

The set-up and on-going programme costs are set out in the financial memorandum. As discussed in the earlier answer, the intention has been to provide a good balance of independence and efficiency in the set-up, to ensure that redress Scotland has the right structure and decision-making powers without taking anything away from the primacy of payments to survivors.

Discussions on contributions are on-going. The point about having a waiver bears repetition, because it is about organisations finding ways to participate in the scheme. Mr Greene is right. The issue of affordability is being raised, particularly in respect of the protection of current services. As you will know from the bill, we are working on a set of principles around fair and meaningful contributions to the scheme that will take into account those aspects, and we are looking at issues of transparency as well. We want to get that right because we do not want to do anything that unreasonably jeopardises an organisation’s existence and we certainly would not wish the scheme to have an adverse effect on any vulnerable person today. However, we clearly need to encourage significant contributions from organisations in the most effective way that we can. Again, that is where the waiver and the package as a whole comes in.

I am conscious of the time, so I will give way to colleagues to respond to other matters in your question.

Lisa McCloy

I will briefly answer the questions about the set-up and the on-going costs of implementation and delivery. As Paul Beaton said, we set those out as best we could in the financial memorandum and we have kept a keen eye on them in designing the delivery vehicle of redress Scotland, which is why we have gone for a small, independent decision-making body supported by the Government administrating the scheme. In that way, we can keep costs down and there is access to shared resources and services.

The financial memorandum indicates some of the different issues that we have thought about in terms of the programme costs, including recruitment and staffing, the digital and information and communications technology estate, other services and communications and engagement, because it will be important that we reach the survivors that we need to in order to be inclusive about those who can apply to the scheme. We estimate in the financial memorandum that the costs could be up to £34 million across the four years for implementation and delivery, which would not include money for legal fees or non-financial redress.

I do not know whether that is helpful, but we can follow up later on anything else.

Donald Henderson

I am grateful to Lisa McCloy for those details. That £34 million figure is the answer to Mr Greene’s question—[Inaudible.] A lot is dependent on volume, however, because the actual set-up costs are pretty marginal. The real costs are in relation to the numbers of people who will need to be appointed through the public appointment process to make the decisions, and to the scale of the back-office activity in the Scottish Government. If we are wildly overestimating and there are only 2,000 applicants, we will clearly need to employ a lot fewer people; if there are 20,000 applicants, we will need to employ more people. However, there would be proportionate increases or reductions accordingly.

Alex Neil (Airdrie and Shotts) (SNP)

As I understand it, the total costs have four elements: a £400 million estimate for compensation; £34 million in basic administration of the scheme; legal fees, which are indeterminate at present; and non-financial support. Adding all that up, what percentage of those costs do you anticipate being funded by the offending institution and what level of commitment can be got on that at the moment?

Donald Henderson

Others can come in with more detail if time allows, but I can say that it is too early in the process for us to have those numbers. Understandably, the conversations that we are having with organisations are dependent in turn on the shape of the bill that Parliament passes next March. Will it be passed as introduced or will there have been amendments to it? The reality is that we will not have signatures on bits of paper before organisations know the bill’s final shape. A number of promising conversations are going on with providers, many of whom we know are keen to find a way to contribute, but the outcome depends on the work that we and they have embarked on for the parliamentary process.

Alex Neil

So, basically, we are being asked to pass a bill with a waiver provision that is supposed to incentivise the offending organisations, many of which are very rich and which I assume—given what Donald Henderson has said—have still not made any commitment in principle to significantly or even partially fund the costs. Even though those organisations have not made even a ballpark commitment, we are saying to survivors, “Take the money, but on condition that you don’t pursue these organisations for civil action.” Why should we pass a bill that is based on a wing-and-a-prayer hope that those institutions will live up to their responsibilities when, to date, many of them have quite blatantly not done so?

Donald Henderson

I am not sure whether it constitutes agreement in principle, but, as I mentioned, there are organisations that are very keen to find a way to join the scheme.

When it comes to a survivor’s application, it would be at the very end of that process that the applicant would be invited to sign a waiver. At that point, they would know exactly who had contributed to—

Alex Neil

I am sorry, Donald, but once the bill has been passed, what leverage will you have over those organisations? We are being asked to decide whether to recommend to the Parliament that it should support all the principles in the bill. One of the key principles is the concept of giving people a choice, whereby if they take the money, they will waive their right to civil action. Why should we vote for that at stage 1 when there is no guarantee even in principle that the organisations in question would live up to their responsibility? We are not talking about giving those organisations an incentive; we are talking about letting them away with what they have done for all those years. Surely, we are entitled to have some kind of commitment before we can be expected to agree to the general principles of the bill.

Donald Henderson

If an organisation fails to make a fair and meaningful contribution in the first place, or if it fails to make a fair and meaningful contribution that it has agreed, it will not be subject to the waiver and the question will not come up. It will have made the decision that it would prefer to have cases go through the civil courts.

Alex Neil

But the fundamental point is that, as a legislator, I do not want to know only that the organisations will make some kind of contribution; I want to know that they will make proportionate contributions, because they are the source of the problem. Their failure to protect the children concerned is the source of the problem—that is why we are here today. Quite frankly, a wing and a prayer does not do it.

Donald Henderson

I think that, sadly, we are here today because of wider societal and regulatory failures. There was not an understanding among regulators, which is why the Scottish Government has its responsibilities. There was not adequate scrutiny or adequate inspection and follow-up. By and large, it was other people, such as people in Government or our predecessors in Government, who were—

Alex Neil

That is like saying that we should help—

The Convener

I am sorry, Mr Neil. I understand that you want to pursue your questioning, but Paul Beaton and Lisa McCloy have both indicated that they want to answer. I will let them to do so, after which I will move on to Ms Mackay and Mr Gibson. I will come back to you at the end if there is time.

Paul Beaton

I hope that it is helpful if I emphasise that the protection of waiver will be in place only if the organisation concerned is making fair and meaningful contributions to the scheme. As I said, we are working on the principles of that at the moment. I hope that it will be reassuring for the committee to hear that one of the core elements that we are proceeding with is that we are looking to organisations to pay the equivalent of the individually assessed payments for survivors who come forward to the scheme, over and above a starting contribution from the Government to reflect the wide systemic concern that Donald Henderson referred to.

Therefore, the contribution that is made will be proportionate. It will relate directly to survivors and to the decisions that are taken by redress Scotland as to what is appropriate for survivors. If that is not forthcoming, and if the delivery does not begin in advance of redress decisions being determined, the protection—the waiver—does not apply, and survivors can continue to raise legal action in addition to receiving the redress payment. No survivor will be disadvantaged by not receiving a redress payment at any stage.

Lisa McCloy

As Paul Beaton said, the waiver extends only to those who have agreed to make fair and meaningful contributions; it is not a blanket prohibition on all who accept redress payments against any action in relation to the abuse that they suffered. Where there is a party to that abuse who has not made a contribution, a survivor will still be able to raise a civil action against them, regardless of their having received a redress payment.

That is not how all redress schemes operate—some schemes have a blanket prohibition on civil action should someone choose to receive a redress payment rather than going to court. However, we have gone for a model that means that survivors would be unable to raise actions only against those who make fair and meaningful contributions to the scheme. We understand the need for transparency around what makes up a fair and meaningful contribution. Donald Henderson may have something to add on that.

The Convener

We will move to a question from Rona Mackay, but if Donald Henderson wants to comment on that point in his answer, that would be fine.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

To follow on from Alex Neil’s line of questioning regarding contributions, this is a historical redress scheme, and it strikes me that a lot of the care organisations and charities that would have been involved or culpable at that time will no longer exist. Has an assessment been done of how many of those organisations are no longer in operation and what financial impact that will have on the compensation scheme?

Paul Beaton

That process is on-going and is not yet final. As I said earlier, we are looking at a relentlessly complex picture of multiple responsibilities held by different actors and agents in different sectors over different periods of time. Some of the organisations from which contributions are being sought continue to provide vital services for vulnerable people today, some are reconstituted in a different form, some are no longer operating in Scotland and, as you said, some no longer exist. We will have to make sure that survivors continue to receive the redress payments to which they are entitled, irrespective of the status of an organisation.

We have had discussions with a broad range of organisations thus far, including a number of trusts and other similar bodies that hold legacy responsibility for organisations that no longer exist. However, the conclusion to those discussions, and the ultimate financial impact, will depend on the survivors who come forward to the scheme and the organisations that are named in the applications.

As we move forward, we are looking to have discussions with and seek contributions from any organisation that is facing up to a historical legacy in this space, but the process is very much on-going.

Rona Mackay

Do you have a sense of how many of those organisations no longer exist?

Paul Beaton

To be honest, I do not. We have a number of different databases, as you would expect, and there are literally hundreds of names of organisations that may have had a role in the care system over the post-war period, by and large. We have made contact with all organisations that are subject to the Scottish child abuse inquiry, and we are now reaching out to others that may, although we cannot definitively say, have an interest in the process. Regrettably, therefore, I do not know how many organisations no longer exist, but we will continue to look into that.

Kenneth Gibson (Cunninghame North) (SNP)

Good morning, panel. I notice that up to 11,000 people could apply for the payments. However, in the Republic of Ireland, which has a smaller population than Scotland, there were more than 15,000 applicants. What is the difference between Scotland and Ireland in terms of the pool of people who could apply? In other words, how many people were in care for the time period that we are looking at and what proportion of them does the panel believe were abused?

Donald Henderson

I do not know whether one of my colleagues has detailed figures on the number of people in care in Scotland to hand. If we do not have that, we will write to the committee. As Mr Beaton said, the number is relatively stable across the years—surprisingly so—but the distribution between foster care, residential care and other settings varies significantly.

Each country that has established a redress scheme has been dealing with its own circumstances. You are right that Ireland’s population is about 4 million as against our 5 or 5.5 million, but the circumstances there were quite different from ours. Although the regulatory procedures in Scotland did not work as well in past decades as we would now wish that they had, by and large we did have them. In Ireland, there was a different set-up for the provision and inspection of education. For instance, Ireland lost a case in the European Court of Human Rights in 2014 that related to historical abuse—the O’Keeffe case—largely on the basis that the state just did not have the instruments that it should have had, rather than that they did not work. That is but an illustration of the fact that each country needs to look at its own circumstances, because those inevitably vary from one to another. We have learned a huge amount from colleagues in Ireland, but the historical situation in Scotland was not the same and therefore our answers differ.

Kenneth Gibson

The answer seems to be that we do not know what proportion of the people who were in care in Scotland were subject to abuse, as I am not getting a specific answer. I would like that information, if you can provide it.

Other members have asked about organisations whose lack of care contributed to the problem that we are trying to address, but what is happening about foster parents who may have abused people who were in their care? Will they be expected to make any payments through this legislation?

Donald Henderson

No. Children who were in foster care are eligible to make applications, but we are not even attempting to have conversations with individual foster carers. If survivors want to take civil action, that route is open to them, but we are not including foster carers in any potential contribution to the scheme. We are, of course, talking to the Convention of Scottish Local Authorities and through it to local authorities in relation to the wide variety of responsibilities that they had over the seven or eight decades that we are looking at. One of those responsibilities was for the foster care network.

Kenneth Gibson

Is that not a flaw in the bill? You are talking about institutions being responsible but, surely, if someone is personally and directly responsible for abusing an individual, they should not be allowed to get off scot free. That seems to me to be a weakness in the bill.

Donald Henderson

Any allegations of criminal offences or criminal cases can, of course, continue to be brought.

Kenneth Gibson

I appreciate that.

Donald Henderson

Cases can continue, if the survivor wants them to, and those can include individual foster carers. We have made a judgment on the basis of diminishing returns that, given the historical period that we are looking at, we would spend more on finding people in order to have a financial conversation with them than we would get from them, so there would be no value to doing that.

Kenneth Gibson

On the evidential threshold, there is a real difference between those who are looking for the higher payments, who have to present documentary evidence, and those who accept the minimum £10,000 payment and who make, in effect, an oral declaration for that. If someone has suffered the more serious type of abuse, they have to come up with much more detailed evidence.

Is there not a huge gulf between the £10,000 award and the awards of £20,000, £40,000 and £80,000 when it comes to the proof that individuals are expected to provide—for what are often fairly modest amounts, given that they have suffered a lifetime of trauma as a result of what happened to them in care?

Donald Henderson

The structure of fixed-rate payments and individually assessed payments comes through work that we have done with survivors through the interaction action plan review group. Again, that was as part of trying to give survivors choice.

For an individually assessed payment application, redress Scotland will look at everything that the survivor is able to bring. That will certainly have to include a personal statement, but it can also include health records, complaints to police and wider environmental information about the children’s home that they were in and any convictions relating to it—the wide totality of evidence that redress Scotland can find or which the survivor can bring to bear. All of that will be looked at and assessed.

When we have walked survivors through the advance payment scheme, which is very much simpler and has the equivalent of the fixed-rate payment, we have worked with them on proving that they were in care. Survivors have come to us thinking that they did not have evidence and we have helped them to find it. We have not rejected a single case because somebody could not establish that they were in care—sometimes very many decades ago. We have always found a way. That would be our intent for redress Scotland as well.

The Convener

I think that Ms McCloy wants to come in on that point as well.

Will you clarify that what was said in answer to Kenneth Gibson’s question about foster care would apply to an informal foster carer arrangement, but if somebody was placed in foster care by a local authority, or a social work department, that would be covered by the bill?

Lisa McCloy

Yes, that is right; I give that clarification. Private fostering arrangements are not covered by the bill, but local authority arrangements, as you have described, would be covered by the eligibility criteria.

I add to what Donald Henderson has said about evidence requirements. Evidence will be required for both fixed-rate and individually assessed payments. It is absolutely right to say that more evidence will be required for the individually assessed payments, given the type of assessment that will be carried out for those cases.

As Donald Henderson has mentioned, we want redress Scotland to be well informed in making its decisions, so it will be able to consider the information that is provided by the survivor. However, if the survivor wishes assistance to obtain information, there are powers in the bill to offer that assistance. That may include getting information from third parties. There is also a power to commission reports to assist the survivor in the process, whether that is through a psychological assessment or a medical report.

We have an understanding of the historical nature of the abuse that we are talking about, and of the difficulties over the adequacy of record keeping and in evidencing abuse of that sort. We will therefore be taking a flexible approach, so as to make sure that the scheme is robust and credible but does not set unduly onerous burdens on survivors in their access to redress.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

We have heard the phrase “fair and meaningful” a few times in the conversation about the contribution that might be made by organisations that had responsibility for children in the past, but I am not much clearer about what “fair and meaningful” means. Will you explain that?

You mentioned some of the reasons that organisations could give for not paying, one of which would be that the organisation was currently providing services that were useful. I do not dispute that that might be the case, but I am not sure why, morally, it gets the organisation round the issue of liability.

Will you also say more about how we get round the problem of an organisation arguing that although it has lots of resources they are all subject to restrictions that are contained in various bequests?

Paul Beaton

Discussions about what is fair and meaningful have been at the core of our work with organisations. I might ask Barry McCaffrey to talk about the law in respect of charity reform and restricted funds. We want to ensure that, if organisations are looking to play their part and make contributions, there are no barriers to their doing so—but Barry can speak a little about that, if time allows.

On the point about services, affordability and so on, I agree that the issue does not bypass responsibility or liability, as you said. There is absolutely no intention to dilute the sense of “fair” that we are looking for in this context.

The word “meaningful” is about trying to offer survivors choices, as we said. It has something to do with that collective national endeavour, whereby everyone has a role to play in the effort to face up to the past. In doing that, we are looking for people to contribute without there being formal findings of liability or a scheme that proceeds on that basis and without requiring people to go through litigation in a way that builds as much of that collective effort as it can do.

The word “fair” is really tightly tied to survivors who come forward to the scheme. The Government accepts that there is a need to demonstrate commitment to and acceptance of the broader responsibility—others have mentioned the local government complexity in that regard over the period that the scheme will cover. We are proceeding on the basis that, above and beyond the initial commitment and contribution, “fair” is about the organisation delivering the remainder of the individually assessed payments for survivors—that is a contribution for the benefit of survivors across the scheme, which is why the waiver is designed in the way that it is designed rather than more narrowly.

The point that you raise is also ripe for discussion as we go through the bill process. Although the phrase “fair and meaningful” is in the bill, transparency is key in that space, too. We need to reassure survivors about the basis on which contributions are made and about the certainty that they will be delivered.

Also, in respect of organisational matters, we want to encourage organisations to play their part and to be willing to participate and deliver contributions, rather than shying away from doing so, for other reasons. I hope that that will prove to be the case.

Barry McCaffrey (Scottish Government)

Dr Allan asked about bequests. We have engaged with the charity sector and the regulator; I suppose that the issues that we have been trying to address operate at two levels. In the context of general charity law, there are potential barriers to contributions that might be contrary to an organisation’s constitution or that do not meet the charity test; we have tried to address that in section 14, by removing any doubt about contributions from charitable bodies contravening charity law in any way.

The issue of bequests is slightly trickier. In section 15, we have taken an enabling power to explore that further. A lot of contributions to charities may be tied up in what are called restricted funds, which are for a specific purpose. We continue to engage with the charity sector and the charity regulator on that, but our idea is to bring forward regulations that, in a similar way to section 14, try to remove barriers that would otherwise be in the way of contributions to the fund from charitable bequests that are tied up in restricted funds.

Dr Allan

I have a related question about the other side of the equation. Keep me right, but my understanding is that the £10,000 payment option involves a simpler process and there is less need to explain things than with higher sums. How do we avoid a situation in which the people who find it most difficult to talk about what has happened to them feel that their only option, or the simplest option, is to go for the £10,000, regardless of the severity of the offences against them? How do we balance that? I appreciate that it is a difficult balancing act, but how do we avoid situations where the people who find it most difficult to talk about this stuff go for the simplest option?

Donald Henderson

That is a very important point. We have some advisers to the Government on advance payment for whom the first person that they have told about the abuse is one of my colleagues who supports that work. There is no easy answer to that question, but the provision of support is part of the answer to it. We have been careful to design the scheme so that an application, and a settled application, for a fixed-rate payment will not preclude the survivor coming back later in the lifetime of the scheme to open an individually assessed application if that is what they decide to do.

Because of the delicacy and sensitivity and the difficulties that survivors have faced, I am afraid that that still does not wholly answer the question, but we are always trying to find ways to give choice and maintain that choice for as long as we can in the process.

Lisa McCloy

I was going to make the same points as Donald Henderson. We are ensuring that we have provision to support applicants through the process, and we will learn from our experience with advance payments. Donald Henderson makes the important point that those who receive a fixed payment will later be able to apply for an individually assessed payment. We know that survivors sometimes have staged disclosure and that they sometimes want to test services to see how those services will meet their needs and how sensitive services can be to them. We hope that that approach will provide more choice.

Ross Greer (West Scotland) (Green)

Construction work has just begun immediately outside my office, so I apologise if my microphone picks up the jackhammer that has just started up.

I have questions on the next of kin payments. If a cohabitant is to be eligible ahead of a spouse through marriage or civil partnership, they need to have lived with the deceased survivor for at least six months. That seems like a proportionate way of indicating that the person was the deceased survivor’s partner at the point that the survivor passed. However, I seek clarification on whether there is a similar provision for the length of time that the cohabitant needs to have lived with the survivor for them to be eligible ahead of the survivor’s children.

Barry McCaffrey

We have taken a proportionate approach on cohabitants, and we have looked at other legislative frameworks. There is similar provision in the Burial and Cremation (Scotland) Act 2016 as to who can make arrangements on the death of a person.

On the more general point, in every case, the next of kin has to be the spouse, civil partner or cohabitant. They rank ahead of surviving children because it was felt that the partner of the deceased survivor should have first call on whether to make a next of kin application. The surviving children would come into play only if there was no one in that category.

Ross Greer

To clarify that, Mr McCaffrey, does the cohabitant need to have lived with the survivor for a minimum period for them to be ahead of the children? The scenario that I am thinking of is that they need to have lived with the survivor for at least six months to be ahead of that survivor’s spouse. If someone has lived with a survivor for a matter of weeks before they passed away, are they eligible ahead of that survivor’s children? Do they become a cohabitant and rank above the child, without a requirement for a minimum period of residency, as is required to come ahead of a spouse?

Barry McCaffrey

I will double-check, but I think that the answer is that they do not.

The Convener

Will you come back to us on that? Thank you.

Ross Greer

I have a brief technical question. The next of kin payment is a fixed payment of £10,000. Will the next of kin simply need to present evidence in exactly the same way as the survivor would have done, showing that their deceased partner was at whatever the setting was and when they were there and simply state that they were abused? They will not be required to provide any more information than a survivor would have had to, were they still alive.

Lisa McCloy

We recognise that the evidence that next of kin have access to can be a challenging area. However, your general understanding of the bill is correct. They would not have to produce anything over and above what a survivor would have to produce. We will have to look carefully at the requirements for evidence for next of kin. We expect that we will need more than simply hearsay evidence from next of kin applicants that the survivor experienced abuse. They may need to access a previous statement or account by the deceased survivor. It is important to note that the next of kin provision entitlement relates to the deceased survivor’s inability to access the redress scheme.

The Convener

Thank you, Ms McCloy. We have almost run out of time. I have a couple of final points, before we finish the evidence session. First, in relation to the definition of abuse, the bill refers to the time at which corporal punishment was administered. However, we would consider that to be abuse by today’s standards. How can survivors have confidence that abuse will be recognised and dealt with? Secondly, I would like to understand a bit more about what non-financial redress will look like. Mr Henderson wants to come in.

Donald Henderson

I will come in on those questions. On corporal punishment and the definition of abuse, our aim is not to criminalise behaviour that was perfectly legal and accepted at the time, bearing in mind that we are going back to activities that took place after the second world war and even before the second world war in some cases. Our aim is not to penalise what was perfectly normal in Scottish schooling, including in my own school, where one could get the belt, for instance. If it was the normal experience of schoolchildren in Scotland, corporal punishment does not, of itself, constitute abuse.

However, it is possible that corporal punishment could constitute abuse if there are extreme patterns. We are looking hard at the various regulations that were in place as regards what was acceptable in residential care, because the rules and regulations were often different there as compared with normal day schooling.

The principal point is that we are aiming to address behaviour that was illegal and unacceptable at the time, but was ignored, and was ignored for too long. The ignoring for too long becomes a part of the injury. That is what we are trying to address.

The Convener

Who would like to comment on non-financial redress?

Donald Henderson

I will start, and then others may be able to comment.

That links to the support element, because we know from survivors that for somebody to just sign a cheque, regardless of how efficiently that is done, is not the answer that they are looking for. They are looking for acknowledgement and an apology. I refer again to our experience from the advance payment scheme. I or one of my senior colleagues have written out a personal letter of apology to each survivor, because we know that that makes a difference. We have had stories come back about survivors reading that letter each night before they go to bed. It helps them to sleep because it is the first time that somebody in authority has listened to them and acknowledged that what went on should not have gone on and that public services need to respond to that. Acknowledgement and an apology are vital aspects alongside the financial redress, and link closely to the support element.

A great deal of this will be for redress Scotland, but our aim is to understand what each survivor wants, and the process should do as much as it can to deliver that, because the package that will help each survivor may be different. We need to listen to their voices.

The Convener

I am afraid that we have run out of time, as we have another panel coming in this morning. I thank everyone for their attendance.

I know that Mr McCaffrey wants to come back to us with an answer. I apologise to Mr Gray, Mr Greene and Mr Neil, all of whom wanted to continue a line of questioning. I am sure that the committee will follow that up by letter, and we look forward to receiving your responses.

I will suspend the meeting for five minutes to allow the panels to change over.

The Convener

We move to our second evidence session on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I welcome Dr Maeve O’Rourke, who is a lecturer in human rights law and director of the bachelor of civil law, law and human rights programme at the National University of Ireland Galway.

We move straight to questions. What were the major lessons that were learned from the redress system in Ireland? What might you have done differently?

Dr Maeve O’Rourke (National University of Ireland Galway)

Thank you so much for having me. It is a real privilege and no small responsibility to be here—I take it extremely seriously.

It is worth stating that I consider the survivors of abuse to be the absolute experts. I will offer what I can from my limited experience of working for more than a decade in the area. Alongside being a barrister in child law, doing a PhD on the rights of older people to freedom from torture and ill treatment and on redress for such harms, and now being a lecturer, I have worked voluntarily between 10 and 20 hours a week for the past 10 years on issues relating to so-called historical abuse in Ireland.

In relation to what we can learn, I will speak to the two themes that were mentioned in the briefing papers. I have great knowledge of one theme and less, but still a considerable amount, of the other.

The first theme relates to the Irish Residential Institutions Redress Board, which was established in 2002, two years after the Commission to Inquire into Child Abuse began its proceedings. The two measures—the inquiry and the redress board—were prompted by an apology, in 1999, by former Taoiseach Bertie Ahern to survivors of child abuse in industrial and reformatory schools. In the previous evidence session, the Scottish Government officials talked a little bit about Ireland’s set-up. In essence, those were state-funded and statutorily based institutions, but they were left to their own devices in terms of how they were run. Ultimately, the Commission to Inquire into Child Abuse’s report in 2009 found that abuse had been “endemic”. The board was set up following the Residential Institutions Redress Act 2002.

I have less knowledge in that area, but a lot of the Magdalen laundry survivors are also survivors of industrial schools, because teenage girls were transferred from them to Magdalen laundries, which is where most of my knowledge comes from.

A very positive aspect of the RIRB was that, at the outset, there was the promise to provide compensation that was commensurate with legal proceedings. As the committee will know, the compensation was going to be up to—and, in some cases, beyond—€300,000. As the briefing notes say, as it transpired, the average award was in the region of €62,000, so although it had been promised at the outset that there would be commensurate compensation, that did not end up being the case.

Some survivors have stated that the redress board’s procedures were deeply traumatising. It is very difficult to understand how exactly the redress board affected survivors, because there is what is known colloquially as the gagging clause—section 28(6)—of the 2002 act, which underpins the redress board. That section prohibits everybody, including survivors, from discussing an application to, or an award from, the redress board in any way that could possibly lead to the identification of an individual or institution involved in a complaint. It has operated as a massive chilling factor. The only voices that we hear are well supported by, for example, our national broadcaster, Raidió Teilifís Éireann, when it reports. However, such reporting is minimal.

It is worth noting that the section 28(6) gagging order has never been legally acted on by the state. As I said, it has a massive chilling effect and it seems to be understood by the state to be not effective and, possibly, not constitutional. Unfortunately, that hampers our understanding of the impact of the procedures.

I made notes on the positive and negative aspects. When it comes to the redress board, I have to move on pretty quickly to the negatives, unfortunately. I will talk about the procedures, and then we can compare them to what I see in the Scottish bill.

The redress scheme was an ex gratia scheme and the underpinning legislation stated explicitly that an award could not be construed as a fault having been found against an institution or individual. Nonetheless, under the legislation and the guidelines, every person or institution that a survivor named in their application was entitled to a full right of reply. They were entitled to receive copies of all the survivor’s documentation and were entitled to respond to the board in writing with any evidence concerning the application that the relevant person considered appropriate. They were entitled to request the opportunity to cross-examine the survivor themselves, or through a legal representative, for one of three purposes, which were

“(i) correcting any mistake of fact or misstatement relating to or affecting the relevant person made in the application,

(ii) defending the relevant person in relation to any allegation or defamatory or untrue statement, made in the application, or

(iii) protecting and vindicating the personal and other rights of the relevant person”—

the “relevant person” being a person or a representative of an individual named. The only reference to rights in the entire act is in relation to the rights of the alleged wrongdoers.

As I said, it was more or less an ex gratia scheme and the legislation said that none of the documents that were provided to the redress board could ever be used in future criminal or civil proceedings. We have extremely strong defamation law in Ireland so, in my academic view, the procedures were wholly unnecessary and, as we can tell from the survivors who have spoken out and taken the risk of breaking the gagging order, they have had a massively traumatising impact. It is welcome to see that there does not seem to be anything comparable in the Scottish bill.

Another downside of the fact that, under the 2002 redress act, awards were accompanied by the gagging order was that—even though, strictly, it should not have had this effect—many survivors felt that they could not even go to the police. There have been no prosecutions to speak of in relation to the industrial and reformatory schools, and access to the records relating to those schools is problematic.

Last year, the Department of Education and Skills introduced the Retention of Records Bill 2019, which sought to seal entirely for at least the next 75 years—even from survivors—every single document that was gathered and held by the Commission to Inquire into Child Abuse and by the Residential Institutions Redress Board. I accept that arguments for publication of some records are stronger in relation to the commission’s state and other administrative documents, but when it comes to the redress board’s records, survivors have an entitlement, under the general data protection regulation, to their personal data, which does not seem to be recognised in the Retention of Records Bill.

I would like to discuss interpretation of the GDPR. I do not know to what extent, if any, this is a problem in Scotland, but there is certainly no understanding in Ireland of the concept of mixed personal data and a survivor having an equal right of access to data that belongs to somebody else if it is also the survivor’s data—that is, information about what somebody did to them. For example, you and I have a right to know who our doctors are and what they have done to us—our medical records are as much our data as they are theirs. Another example is the European Court of Justice case of Nowak v Data Protection Commissioner. Unfortunately, the concept has not been properly understood in Ireland.

Following the establishment of the redress board, there was also provision of non-financial support in relation to industrial and reformatory schools. That came partly from the controversy over the very small compensation contribution that the religious orders had given to the redress board. They were called on to give more; that went into a separate statutory fund that then began to administer other payments to survivors—and, to some extent, to second-generation survivors—for education. That turned into a fund called Caranua, which is Irish for “new friend”. Unfortunately, that fund is now being wound up. Survivors have the sense that the fact that their needs continue for as long as they live is not understood.

The Caranua fund provides things such as help with house renovations and educational support. If we have time, I would like to talk about the very real need for survivors of childhood institutional abuse not to be re-institutionalised. Home care and home renovations are massive issues. The fund provided some help for those, but it is being wound up now.

The last thing that I would like to mention about the industrial and reformatory schools is that there was, in July 2019, a pre-consultation report, done through consultation of 100 industrial school and reformatory school survivors. That was to find out what the method for fuller consultation of industrial and reformatory survivors should be. It was funded by our Department of Education and the report was written by Barbara Walshe and Catherine O’Connell. I would be happy to send the committee any documents relating to that. The 100 survivors spoke about their on-going needs. I would be happy to come back to that.

The Convener

Thank you. We have 10 committee members who all want to come in. If we can be succinct in both questions and answers, that would be helpful.

Daniel Johnson

I was interested by what you said about the controversial nature of the procedures for making determinations. You might have heard during the previous panel’s evidence that I have some concerns about how that will be defined in the guidance that accompanies the bill.

What are your reflections on the safeguards? Given your experience as a barrister, what would you think about putting those safeguards and high-level principles in the bill itself? What we would have here would be a panel making determinations in private and then reporting them, whereas in Ireland you had public hearings. Can you compare and contrast the approaches?

Dr O’Rourke

The redress board was private, even though there was cross-examination as if it was a court.

That is an important question. Fair procedures must still apply, even if the panel does not in any way operate like a court. To give credit to the ministers who established the second scheme that we had more recently in Ireland, I point out that they wanted to avoid the traumatising effect of the previous industrial schools redress scheme.

The Magdalen scheme was established in 2013. The first problem was that there were no lawyers to help the women through the scheme. Secondly, the officials who administered it did not publish any guidance on what the criteria were or what the decision-making process was. They also did not seem to understand that it was an administrative scheme affecting rights, and that therefore the ordinary fair procedures should still have applied. I was ultimately involved in High Court judicial reviews of what was found and in a larger investigation by the Office of the Ombudsman into maladministration and denial of fair procedures. The women were dealing with something that was totally opaque and they were doing so alone.

It was said that all that they needed to show about their time in the Magdalen laundries was the duration of their detention. However, as is the case in the Scottish bill, there was an absolute requirement for records. As a result of the inquiries into the Magdalen laundries, it was known that the nuns did not have records for all the women. In fact it seemed that there were insufficient records, even back in 2013, for more than half of the women.

However, because the women had no lawyers, they were not able to swear a witness statement to an affidavit and there was no one to receive their evidence. Therefore, they were caught in constant phone calls, on their own, without even independent advocates to help them. I should say that there should be independent advocates as well as lawyers, because some things need done for which lawyers might be too expensive, or might not be well equipped to do.

The women were caught in a horrible situation in which they were told that they had to get records, and they had no way of proving their duration of stay. The ombudsman ultimately found that their own testimony and that of relatives and friends was not given any evidentiary value by the officials in the scheme. I would say that, even when you are engaged in something that is non-adversarial, there is a real need to be extremely strict with yourselves about ensuring that fair procedures are followed, because it benefits everyone, at the end of the day.

I noted that the briefings on the bill suggest that the Residential Institutions Redress Board’s matrix might have been a problem; I am not sure that it was a massive one. I think that the procedures, which involved a full right of reply and the ability of the church to cross-examine the women, were a massive problem. However, having boxes that set out what kind of points are used to decide whether someone meets the criteria is not problematic, because there is a need for transparency.

The Convener

I do not know whether Dr O’Rourke is aware of it, but there is a lot of sound interference going on, so I think we should switch off as many microphones as possible.

Daniel Johnson has a brief question.

Daniel Johnson

Section 34(3) states:

“When determining an application, the panel must not consider or make a determination on any issue of fault or negligence arising from any matter to which the application relates.”

Is it important that the process deals with fault, or should it be more about acknowledging the issue and putting the matter on the record for the survivors?

Dr O’Rourke

My feeling is that there should not be a waiver, so my view is connected to that. The measure that we are discussing should be an interim one to provide people with the beginnings of rehabilitation. Accountability is a different issue—perhaps we can speak about it afterwards.

If you accept that you are still willing to allow people to seek legal accountability, there is no problem with having something that is ex gratia in the meantime. Bringing in fault brings in causation, which was a massive issue in the work of the redress board for industrial schools and reformatory schools, because people had to be examined by psychiatrists, which led to the survivors feeling that it was they who were on trial rather than the wrongdoers.

I see that there is a massive relaxation in the bill of the notions that applied in our board, which required people to prove that the injury related directly to the abuse. That meant that, in cross-examination, people were asked questions such as, “Is it not because you were abused before you went into care that you are now the way you are?” That is not an acceptable position to put people in. In my view, the waiver is an issue, and I would say that there are other ways to do it.

Beatrice Wishart

Good morning, Dr O’Rourke. Your evidence thus far has been informative and helpful. On the basis of your experience of the Irish redress scheme, do you see anything specific that is missing in the bill and that should be included?

Dr O’Rourke

The first point that I noted was that, even though a non-adversarial procedure is proposed, there is a real need to ensure that there are still fair procedures, that people know what documentation they are supposed to be providing and that, if someone else is providing it, survivors get to see it.

I understand that, in the previous question session, one of the officials mentioned that a next of kin’s sworn statement of what they know their spouse to have experienced, based on however many decades they lived together, would be classed as hearsay. There is a need to think through what a survivor-focused process entails and what we know about the abuse that has happened.

The bill contains some really good things that we have not seen in Ireland. For example, there is no ceiling on the information and no gagging of survivors. It is also positive that an initial decision cannot be reduced on appeal. That was a real issue with the redress board in Ireland. Survivors said that lawyers would go into a room without them, have a discussion with the board and come out with an offer, and the survivors would be told, “If you don’t take this, you may well not get as much as you might get if you went through the whole process of being challenged and so on.” It is also good that legal assistance will be provided during the course of making an application rather than just at the end, in relation to a waiver, which was the case with regard to the more recent Magdalen scheme in Ireland—no lawyers were involved, because the Government said that it wanted a non-adversarial approach. However, of course, lawyers were still involved at the end to help you sign away all your rights against the state.

I see some issues with the bill, though. I think that the time limit of five years is a problem. The redress board had a time limit of less than five years, I think, and I have come across many women, in particular, who did not realise that that procedure applied to the kind of abuse that they had suffered. Further, there were people, particularly in the diaspora, who did not find out about the procedure, and there are people who cannot come forward. One of the positive things about the Magdalen redress scheme was that there was no time limit. That was an explicit recommendation of Mr Justice John Quirke.

Another thing that concerns me, as a human rights lawyer, is the exclusion of corporal punishment that might have been allowed under domestic law. Of course, the fact that it was allowed under domestic law does not necessarily mean that it was compliant with the European convention on human rights or other international human rights instruments. To the extent that corporal punishment was allowed under legislation, I wonder how that relates to the particular circumstances that someone who was a child in care is in, and I wonder whether there should be an approach to understanding corporal punishment within the context of the broader abuse that that person suffered.

Lastly, I come to the issue of the waiver. I have six points to make about it—I really appreciate your patience. I recommend serious consideration of this issue. It would be possible to legislate so that, in any future court action, any damages could be reduced by what someone had already received in the scheme. Of course, the scheme is doing that in relation to previous awards that survivors might have received from other places.

I see two main arguments in the briefing for the waiver. One, which makes sense, is that it is seen as a way of coaxing the private institutions to contribute. However, the other is that it would provide a swifter, non-adversarial and more trauma-informed response to historical child abuse. I think that that confuses the waiver with the scheme. I do not see any benefit of the waiver, other than to the taxpayer. Of course, that benefit to the taxpayer needs to be considered, but it must be weighed up against the harm that a waiver can cause not only to the survivors individually but to society, because accountability is about ensuring a restructuring in the interests of future child protection as much as it is about ensuring that there is an accounting to the individual.

The first thing that I would say about the waiver is that the abuses that are involved here are torture and other forms of cruel, inhuman and degrading treatment, which has already been recognised by the Scottish Human Rights Commission. As is well known, the right to be free from torture and ill treatment is absolute, and that includes the right to access justice as a survivor of torture and ill treatment.

On my second point, I note that I am a lawyer in the case of Elizabeth Coppin v Ireland, which has recently received an admissibility decision from the United Nations committee against torture—the judgment was published on 20 January and, although it is not yet on the committee’s website, it is available online and I am happy to forward it to you. Elizabeth Coppin signed up to the Residential Institutions Redress Board and the Magdalen scheme, and she signed waivers signing away her rights against the state and, in the case of the redress board, religious institutions. For reasons that relate to Ireland and our particular procedures around secrecy of evidence, the state still says that there is no evidence that systematic abuse of a criminal nature or under the convention against torture occurred in the Magdalen laundries.

Elizabeth Coppin is claiming that the state has failed to investigate and has failed to provide her with full redress, which includes satisfaction guarantees of non-recurrence. The UN committee against torture had to issue an admissibility decision on the situation, because the Irish Government said that she signed waivers that mean that she cannot take legal action against it. In January, the UN committee, referring to its own general comment on article 14 of the UN convention against torture, found in Elizabeth Coppin’s favour, saying that the waivers do not prevent her coming to the UN committee against torture, because the right to accountability that she has under the convention remains. You cannot sign away your right to not be subjected to torture and ill treatment, and nor can you sign away your right to accountability. General comment number 3 mentions that judicial remedies must always remain in place.

What the waiver says is just as important as what it does. We have already heard evidence that there are many barriers to litigation, and many people will not take that arduous route. However, ultimately, survivors are being placed in a position in which they have to choose between accountability and money. From our experience in Ireland, I can say that what that says to the public is that survivors chose money, and that that was what they were concerned about. However, most survivors cannot afford not to take the money that is available from the scheme, at least as an initial way of achieving some kind of rehabilitation. That issue must be considered.

We must also consider that court cases are not just about money—indeed, for many survivors of abuse, they are primarily not about money. They are actually about having legal findings about what abuse means and who is responsible, and, in that way, they have an impact on the whole of society.

I think that I have said enough on that, although I am happy to go into more detail if you would like. I feel strongly that Scotland could take a different approach to the waiver issue and could be world leading in that regard. That would be worth doing, because we are dealing with torture and other forms of ill treatment.

Jamie Greene

Good afternoon. I appreciate those fulsome answers, as these are complex matters. However, in the interests of time—we have only 10 minutes left and a number of members still have questions—I would be happy if you could respond to my question in writing.

If the bill, as it is currently drafted, were presented to TDs in the Dáil and you were reading and reviewing it and advising those members on anything that jumped out at you as being of concern, what would be the main thing that you would raise? What should we be looking at, as the people who will inevitably be amending and scrutinising the bill?

You said that around six points of interest jumped out at you in the Scottish bill. Can you put those in writing to the committee so that we can review your independent expertise? I have found what you have said so far extremely helpful and useful.

Dr O’Rourke

I would be delighted to do so. I will put that in writing.

Rona Mackay

I agree with Jamie Greene that what you have said has been very useful.

I want to ask about charities. The policy memorandum says that some charities might have a constitution that does not allow them to make redress contributions, so they do not have the power to do that. Also, a lot of charities’ funds are tied up in restricted ways, such as in donations that have been given for a particular purpose. There is a fear that knowing that their funds will be used for redress contributions will stop people donating to charities.

The policy memorandum says that utilising restricted funds would be “a proportionate intervention”. However, that power is not included in the bill. Do you foresee any problems with that, and should it be tightened up?

Dr O’Rourke

I do not have expertise in charity law. I can see that it would make it easier for private institutions to make contributions, and I cannot see a massive problem with that. The Parliament’s powers in areas of very sensitive social policy such as this, and also in extremely strong public interest factors, are very broad. However, I could not say, because I do not know about charity law and I certainly do not know about Scottish charity law.

Kenneth Gibson

I was fascinated by the conversation about the Magdalen laundries. We had them in Scotland, and the last one closed in 1958. Therefore, I hope that, if there are any—albeit elderly—survivors from that time, they will be included in our legislation—indeed, along with those from the the Glasgow Lock hospital, which was an institution for women with venereal diseases that closed in 1950.

When speaking about Ireland, you talked about the “diaspora”. Has there been any attempt to reach out to the diaspora, and do you feel that it is important that we do that in Scotland?

Dr O’Rourke

Yes, it is extremely important. My colleagues in the justice for Magdalenes research group and I have constantly brought the attention of ministers to the Magdalen scheme. They sent circulars, and I think that they have re-sent additional ones over time, to every consulate and embassy. We also recommended advertising in magazines such as Ireland’s Own or online and in places where we know the Irish diaspora are easily reached.

I have to say that I do not know whether the Government reached out to emigrant support groups beyond the UK. They reached out to UK-based organisations, but we found that survivors live all around the world, so my colleagues and I made great efforts to send out notices beyond the UK.

It is absolutely vital, and it goes back to the time limit. I do not think that a time limit is justifiable when you weigh up the importance of this to survivors.

Kenneth Gibson

The issue of the time limit is really important. What kind of response did you get to your work to bring in people from the diaspora who had suffered in Ireland when they were younger?

Dr O’Rourke

In summer 2018, along with colleagues, I organised a gathering of more than 200 Magdalen laundry survivors. One of the aspects of the Magdalen scheme that had not been implemented was that the women had told Mr Justice John Quirke that they wanted to meet each other.

They also wanted to be consulted on and oversee memorialisation. I do not know to what extent this applies in Scotland, but in Magdalen laundries in Ireland, women’s names were changed when they were in there. If they escaped, it was without warning and they never met anybody again. Therefore, bringing them together was hugely important for them. For the women from Australia, Canada and many countries in Europe, it was absolutely crucial to meet and connect with other survivors with whom they would otherwise have had no contact in their individual circumstances halfway across the world.

Kenneth Gibson

A lot of them would probably have felt a sense of betrayal by the country that they grew up in, and that might have been a way of Ireland providing restoration for that and saying that the country has not forgotten about them but that it feels their pain, albeit belatedly.

Dr O’Rourke

Yes, it is extremely meaningful. In Ireland, we often have those big initiatives for our diaspora. There was a year of welcoming people back to Ireland, and we would have heard from a lot of survivors around that time. The fact that the women were excluded from that did not sit well.

There is a mixed bag of effects from having left Ireland. We have found that it enabled some women to live in a different way from how they would have lived if they had still been in the same place. Because of the effects of post-traumatic stress disorder, people often feel that they could be picked up off the street at any time or they feel a sense of still being in the centre of the abuse that they suffered.

Kenneth Gibson

I have one more question on a different topic. We are talking about organisations that presided over that wrongdoing and the fact that they need to make a contribution to the fund. In Ireland’s experience, given that nearly €1 billion was paid out, some of which would have come from those organisations, was a limitation imposed, so that, if an organisation was going to go bankrupt because of the amount of money that it was supposed to pay, the Irish Government would step in? We have a lot of organisations and charities that might cease to exist if they had to pay significant contributions. Their wrongdoing might have been long ago and they might have got their act together since then. Was any action taken in Ireland to ensure that the organisations paid without killing the goose that laid the golden egg?

Dr O’Rourke

It is worth speaking to your parliamentary colleagues in Ireland about that, because there is a huge controversy around that issue. Before the scheme was established, the minister for education gave an indemnity to a group of religious orders that had come together and promised to contribute. However, it was a fight to get them actually to contribute, and my understanding is that they never contributed everything that they promised. I do not have the figures, but the indemnity was for €120 million; the scheme progressed and ultimately cost almost €1.5 billion. There was no way of going back, because the religious orders had already been indemnified. It is worth looking into what happened in Ireland, because the general public feel that the institutions got away almost scot free. That is also why access to the courts, legal accountability—and what that brings in terms of establishing legal standards—and lines of responsibility for things that happened are important. Those institutions often still operate, exercise control and provide services in that space.

Kenneth Gibson

Thank you, Dr O’Rourke. That is much appreciated.

Dr Allan

In our earlier evidence session, we talked a lot about financial redress, but I am keen to get your views on non-financial redress, such as apologies. What can Scotland learn from the Irish experience? How should apologies be made? How should we ensure that they are not half-hearted and that they meet survivors’ needs? Was it the experience in Ireland that any institution or individual refused to apologise?

Dr O’Rourke

There have not been proper apologies from the four religious orders that ran Magdalen laundries, and they never contributed to the Magdalen scheme. The waiver that applies therefore applies only to the state. Part of the reason that they did not contribute is because it is not at all easy to sue them, and so they did not necessarily feel any particular need to safeguard themselves from being sued. We have a very strict statute of limitations. Unlike your changes, the costs regime allows the religious orders to pursue their costs if someone sues and loses, and they always do pursue their costs, saying from day one that they will do so.

The way that the inquiry has gone in Scotland is—to an extent—different, in that it is not wholly in private. In Ireland, all the evidence that was gathered by the state on the Magdalen laundries is, unfortunately, being held secret. It is being held in the Department of the Taoiseach for safekeeping and not for the purposes of the Freedom of Information Act 2014. There is therefore no way of people getting into court, so the religious orders did not join the scheme.

Interestingly, in relation to whether people feel that an apology means something or not, because the state has safeguarded itself from being sued—I have not found a single Magdalen laundries survivor who was able to not go into that scheme because of her current living situation—despite the political apology in 2013 and because there has been no court action, the officials still maintain that there is no evidence of legal wrongdoing.

Over the past seven years, the schemes on the Magdalen laundries have progressed and there have been judicial review challenges in relation to lack of fair procedures. The ombudsman got involved to try to ensure that the scheme was administered in, as he put it, “the spirit” of the apology that was given. He also mentioned “forced labour” at one point in his report. The Department of Justice and Equality responded to the ombudsman’s report to say that, with some very limited exceptions, there has never been any statutory basis for committing a person to a Magdalen institution or any lawful basis for keeping a person there against their will. It is therefore relying on something that would be, in itself, evidence of arbitrary detention, but no court has ever been able to find that. It also said that there had been no court ruling that the state has any liability for women who entered such institutions, that it had never seen any legal advice or factual evidence that would give rise to the belief that the state has any legal liability and that it was also not aware of any successful legal action taken against the religious order concerned.

In response to that, the ombudsman said that, in his 10 years of being an ombudsman in Ireland and elsewhere, he had never come across such a refusal to co-operate with his recommendations. We can therefore see that the political apology is at major risk of becoming hollow if there is not proper accountability to go along with the financial payments. People have used the words “crocodile tears”, which does no justice to the intention of the apology from back in 2013.

One of the big things that never transpired in the Magdalen scheme was proper healthcare, which elicits words such as “crocodile tears” from some of the women. For example, when they start to need homecare, they are told that the card that they were given is nothing better than an ordinary medical card, when it was supposed to be something different. However, when they signed away all their rights against the state and got their money, the healthcare was something that they thought would come down the road, but it never materialised. That demonstrates that, even though there can be great intention in an apology, it absolutely needs to be followed through.

To be helpful, I could briefly mention the on-going needs that—in a consultation—100 survivors of industrial and reformatory schools said were required separately to financial payments.

The Convener

I have one final question before you go, Dr O’Rourke. On the issue of the issuing of an apology, the scheme that is suggested in Scotland is for those who experienced abuse up to the date of the apology. Did a similar restriction exist in either of the Irish schemes? What are your general comments on that issue?

Dr O’Rourke

That is a good question. Our schemes were for institutions that had closed by the time that the apologies happened, so that did not apply.

I would like to check whether, if there is time, you would like me to mention the key non-financial forms of redress? It is up to you whether there is time; otherwise, I can forward them.

The Convener

If you have time, I am sure that we can give you a few more minutes. If you can cover them in that time, that would be great.

Dr O’Rourke

This concerns industrial and reformatory school survivors now, in 2020—some 20 years on from the state apology. The redress scheme has come and gone, and Caranua has come and gone. The survivors are saying that they need enhanced medical and health care, in particular home care. I cannot stress that enough. We are starting to see survivors with dementia, who may well just be put into nursing homes. Reinstitutionalisation is a huge issue for survivors of institutional abuse.

Other measures include prioritisation for housing, a contributory pension, a designated drop-in centre and a confidential space where survivors can meet. The covering of funeral expenses comes up a lot, and the survivors mentioned it in the consultation. Free unlimited counselling is also mentioned.

It is important to mention second-generation survivors—the children of survivors. I would advise you to consider that, as the scheme’s payment terms will not always apply to a child, even if their parent is deceased. There is a real need to consider the needs of the second generation. In the consultation, survivors said that there was a need for counselling and psychiatric services for children and grandchildren. Information is very important for both survivors and their family members. Education is highlighted, too.

It is important to remember survivors by way of memorials. In the context of national education, more than 200 women came together as Magdalen survivors in the summer of 2018 and spoke to us about memorialisation. It has to be not just about plaques or statues; it should be about ensuring that such abuse does not happen again. Many of those women have gone on to work in the care system or the care sector. We are so lucky that they wish to speak to us about what they see today that needs to be different and that is reminiscent of their experiences. They want children and young people to learn in schools about what happened and for us to know about it. I am involved with colleagues in Ireland, seeking a national archival and educational centre by way of memorialisation, where archives can be made available, where the gagging clauses are got rid of and where survivors can volunteer if they wish. Oral history projects are important, as is information tracing for family members.

A further issue came up in relation to the Scottish bill, which seems to need to be caught before it happens. In Ireland, the non-financial measures were attached to the person already having gone to the redress board. There was a short deadline for going to the redress board, so many people did not manage to get in. If they did not get an award from the redress board, they were also barred from everything that might come along in the future. There will also be people who simply do not want money, for their principled reasons. For whatever reasons they have, they do not want to go to the redress board, but they should still be entitled to the non-financial measures.

The Convener

Thank you so much for your time this morning, Dr O’Rourke—that evidence was exceptionally helpful to the committee. I think you have agreed to have an exchange with us regarding some questions, and we look forward to that.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-23707, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

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

I am pleased to open this debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. The bill is a significant milestone in delivering a redress scheme for survivors, which many have fought relentlessly to achieve. I acknowledge their bravery and resilience, which have brought us to this point.

I also acknowledge those who are no longer with us. It is right and necessary that we remember their contribution to today’s debate and their persistence in ensuring that we reached this point. I hope that we can now join collectively, as a Parliament and as a nation, to deliver a redress scheme that acknowledges the injustice and the suffering with honesty, humanity and dignity.

The work, the bill and the scheme are for survivors. I extend my sincere thanks to all the survivors who have engaged with us throughout the consultation and the bill process. Their input has been crucial in shaping the bill, and they will continue to play a central part in the development of the scheme.

I thank the Education and Skills Committee for its comprehensive stage 1 report and the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill. We responded to the Education and Skills Committee’s very detailed report in a very short space of time. I hope that members of that committee and the Parliament find the Government’s response of assistance in considering how we will take forward the issues that the committee raised. I am grateful for that committee’s support for the general principles of the bill and its acknowledgement of the work that has been done to date with survivor communities and organisations, and I look forward to the debate, which will—I have no doubt—be open, positive, compassionate and constructive. I assure members of the Government’s willingness to engage constructively on the issues that the Education and Skills Committee raised in its consideration of the bill in order that we can maximise agreement on the bill’s provisions.

The bill deals with extremely complex and sensitive matters, and the development of the redress scheme has involved many difficult and balanced judgments. We have learned from schemes around the world, and we will continue to do so as we design and deliver the best redress scheme for the circumstances in Scotland.

We have excellent practice at home from which to learn. Our advance payment scheme has continued to make payments throughout the pandemic. Since April 2019, we have been able to make payments to more than 520 survivors. Financial redress and also the acknowledgement and the apology that are so important to our most elderly and ill survivors have been provided. The scheme has proven that we can deliver a scheme that works for survivors.

Scotland failed to protect its most vulnerable children. The bill is one part of our unshakeable commitment to face up to that shame and make sure that that never happens again. That must be a collective endeavour, and we believe that all those with a responsibility for the failings of the past have a responsibility to do the right thing today. I want to work with the Parliament to deliver the best possible scheme for survivors and to ensure that those who have a moral responsibility to participate do so. The scheme encourages, facilitates and recognises those that are willing to make fair financial contributions to redress payments of survivors. That is what survivors have repeatedly told us that they want to see.

I have noted the committee’s emphasis on the affordability of the scheme for providers. A central element of our approach has been to link contributions to a proportion of the actual redress payments that would be made in the lifetime of the scheme. Taking an alternative approach, such as seeking a capped or fixed contribution, fails to deliver assurance that the organisation will play its part for every survivor who receives a redress payment. It also carries a risk, as seen in other redress schemes around the world, that the cap could be set too low, given the uncertainty over how many survivors will apply to the scheme. [Interruption.]

I will give way to Jamie Greene, first, and I will then come to Mr Johnson.

Jamie Greene (West Scotland) (Con)

I hope that I do not pre-empt Mr Johnson’s question, but does the cabinet secretary accept that, without a cap, the stark reality is that many contributing organisations would simply not participate and that they could not possibly recommend participation in the scheme without some form of cap? That open-ended liability would hit them financially.

John Swinney

Mr Greene makes a fair point, but we have to make judgments about the way in which we are able to address survivors’ legitimate aspiration for there to be a contribution that relates to the circumstances of their abuse. That is the mechanism that we have chosen in trying to address that issue. Obviously, if we put a cap on that, we may not be able to fulfil the commitment that survivors wish us to fulfil. We need to arrive at a balance of judgment. Fundamentally, it comes down to the workability of the scheme and how we can elicit those contributions.

I will give way to Mr Johnson.

Daniel Johnson (Edinburgh Southern) (Lab)

I am grateful to the cabinet secretary for giving way. Will he comment on the concept of sustainability being included in the bill, as is highlighted in the committee’s report?

John Swinney

That is a reasonable point for us to consider, because there is a fine balance to be struck. Although there is a need for organisations to be held accountable for abuse that has taken place in the past, I do not think that anybody wants that to happen at the expense of the survivability of an organisation that is delivering vital services today to protect the wellbeing of children and young people in our society. A careful balance has to be struck. As we work our way through the detailed text of the bill, I am sure that, as a Parliament, we can come to a conclusion about that issue.

The quality of redress for many survivors comes, at least in part, in seeing their provider make a fair and meaningful contribution. That is the point that I was making to Mr Greene. I commit to continuing to work with organisations to ensure that a fair contribution is deliverable in a way that is not detrimental to vulnerable service users today.

I have listened to the concerns regarding what is in the bill about the use of charities’ restricted funds—some of that relates to Mr Johnson’s point. Although the provision was intended to empower organisations and to remove barriers, I accept that that has not been welcomed by organisations and I agree to remove section 15.

There is no doubt that the proposed waiver in the bill has been contentious, and I welcome the committee’s consideration of that important issue. I have wrestled with how to fairly encourage contributions and to recognise the organisations that have made them while maintaining the integrity of the scheme for survivors. A scheme without contributions from other organisations would mean that survivors who sought acknowledgement and financial redress from those other than the Government would need to take civil action, and we know that there are many reasons why some survivors are unable or would choose not to pursue that route.

The committee highlighted the evidence that it heard about offsetting being a preferable way to encourage contributions. My concern is that offsetting may provide only nominal contributions to the scheme. Organisations would still require to plan for the high costs of future litigation. If offsetting led to only nominal contributions, the onus would remain on individual survivors to pursue court actions in order to compel those responsible for their care to make adequate reparation. That would exclude pre-1964 survivors, survivors who do not feel that they have the evidence to go to court, survivors who do not want to go to court and survivors who are elderly or unwell and might not live long enough for a court action to conclude.

We have looked at other redress schemes, but we do not know of any that secure contributions by using an offsetting model, nor of any scheme in which providers make contributions but receive no waiver. I have, however, listened to the concerns that have been raised about the waiver, and I will continue to listen today and beyond in order to reflect on whether that remains the right path for the proposed legislation.

To put those two points simply and in summary, I am keen to develop a scheme that secures contributions from providers and meets the needs of survivors. After careful and exhaustive consideration, I came to the conclusion that the waiver was the reliable way to do that. I recognise that that view is not shared across the board in Parliament, or even among survivors, but I am keen to air the issues in order to take an approach that means that we can secure the outcome that I have highlighted. I will engage constructively with members of Parliament in order to do that.

I appreciate the significance of the choice that the waiver asks survivors to make. I have heard the evidence on the importance of survivors making that choice only once they know the full redress payment that they would receive from the scheme, are able to access appropriate advice and know who is making a fair contribution to their payment. I will lodge an amendment to ensure that the decision has to be made only at that point.

I recognise that, for many survivors, the decision will not be easy. I have considered the evidence that the committee has heard and I commit to lodging amendments at stage 2 to increase the 12-week acceptance period to six months and the four-week review request period to eight weeks.

I also listened to the evidence that the committee heard on payment levels. I want to provide fair payments according to a fair structure, and I will revisit the level of the increase between the different payment levels. The redress scheme is an alternative remedy for survivors. It does not follow the same rules and procedures as a court and it is not designed to achieve the same outcome. Redress payments may be lower for some than would have been awarded by the courts; for others, the opposite may be true. However, I listened to the evidence and will reflect on the maximum payment level that is available.

I understand the need for clarity and transparency in the assessment and decision-making processes, and I will reflect on calls from survivors, organisations and insurers for greater clarity as to the standard of proof that will apply in determining redress applications. It is vital that everyone has confidence in the decisions that are taken by redress Scotland and that survivors and organisations know that applications are considered carefully and supported with the right information. I am aware that, should the integrity of the scheme be called into question, the impact that that would have on survivors cannot be overstated.

Survivors have given powerful evidence on the purpose of the scheme. The scheme looks to address the widespread and systemic failures in our historical care system that led to children being abused. Those who were abused in care prior to 2004 were abused at a time when their welfare was not prioritised as it should have been and when any complaints that were made were less likely to be believed or to result in any action. Survivors from that time period have also faced a series of obstacles to accessing justice through the civil or criminal courts.

The scheme is about a particular part of our history and the particular circumstances of children in care at that time, when we collectively failed them. Now, we must collectively respond. An important part of that response is in recognising the survivors who did not live long enough to access redress. The committee heard moving evidence about the importance of recognising those deceased survivors. Today, I commit to amending the bill to change the eligibility criteria for next-of-kin payments, to extend those to the next of kin of survivors who died on or after 1 December 2004.

I welcome the committee’s recognition of the importance of support, both practical and emotional, for those who apply to the scheme. I am committed to designing and delivering a trauma-informed service, working with survivors to ensure that their needs are met. A survivor forum will be in place so that continuous monitoring and feedback can lead to on-going improvements in the scheme.

We know that, on its own, a monetary payment will not deliver the redress that survivors need. For too long, survivors were not believed. As part of our collective endeavour, we must now right that additional wrong and apologise both for the abuse and for the length of time that it has taken for it to be fully recognised and acknowledged. The redress scheme will offer individual applicants the opportunity for support and apology as well as a financial payment. On behalf of the Scottish Government, I reiterate the apology that I made in the chamber in 2018 and I say to survivors, “We believe you and we are sorry.”

I hope that what I have just said demonstrates the care and compassion that have been invested in the development of the bill. Our approach represents a thoughtful and authentic desire to do the right thing, to provide survivors with the collective response that they deserve and to provide those who are facing up to the harms of the past with a fair way to do so.

The scheme is not for lawyers, insurers, providers or the Government; it is for survivors, whose interests must dictate its design and determine its delivery. We must balance the various interests to the best of our ability, and we must do so with integrity and compassion, for that collective expression of our humanity will be the measure of our nation in its response to one of the darkest chapters in our history. We owe it to the children whom we failed—and to the adults that they have become—to deliver the best possible scheme. I look forward to working with members across the chamber to make that a reality.

I move,

That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

The Deputy Presiding Officer

I call Clare Adamson to open the debate on behalf of the Education and Skills Committee.

Clare Adamson (Motherwell and Wishaw) (SNP)

As convener of the Education and Skills Committee, I welcome the opportunity to highlight its views on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. Before I do so, I thank everyone who took time to share with us their views on the bill, whether in evidence or privately. I also thank our adviser, Professor Andrew Kendrick of the University of Strathclyde, who so generously shared his expertise with the committee throughout the stage 1 process; the committee’s clerks and the Scottish Parliament information centre staff for their endeavours; and, indeed, the committee’s members, who throughout the process have approached it with sympathy, sensitivity and compassion.

I feel that I can speak for the whole committee when I say that we recognised that victims/survivors campaigned for such a bill for many years, including some who are no longer here to see it become a reality. We know that that has involved working constructively with both the Scottish Government and care providers who were responsible for historical child abuse. In particular, we thank victims/survivors for doing so, as that has allowed us to reach the point where we believe that we have a straightforward, easy-to-access scheme that will play a vital role in helping victims/survivors to obtain the redress remedy to which they are entitled.

The bill creates a new way for victims/survivors of historical abuse to seek redress. It recognises that civil litigation is not for everyone. For many victims/survivors, making their way through an adversarial system and reliving their childhood experiences is not something that they will feel able to do. Consequently, the committee supports the bill’s intention to create an accessible alternative. As the cabinet secretary highlighted, for victims/survivors of abuse that took place before 1964, the scheme creates a route to redress that would not otherwise have existed, which is particularly welcome.

I turn to some of the issues addressed in the bill. The need for dignity, respect and compassion was a theme that the committee picked up, and it was also a key theme in the evidence that we heard. We need to ensure that victims/survivors who access the redress scheme are treated with dignity, respect and compassion throughout that process. Victims/survivors themselves spoke very clearly about the dehumanising effect that abuse had on them, and of how it had impacted on their families.

In our stage 1 report, the committee asked the Scottish Government to include in the bill a statement that would recognise the need for the principles of dignity, respect and compassion to be applied across each element of the redress scheme—from the application process, through to the support provided to access care records and the issuing of apologies from care providers. We welcome the fact that the Government has gone some way towards recognising that need, and indeed has agreed to some of our recommendations being put in place.

I cannot cover the whole bill, because I will soon run out of time, but I will turn to the waiver and the fair and meaningful payments. The bill encourages care providers whose organisations were responsible for historical child abuse to make a fair and meaningful contribution to the redress scheme. A victim/survivor accepting a redress scheme payment will be required to waive their right to take future civil action against any contributing organisation. Victims/survivors viewed the waiver as restricting their rights and suggested that an offsetting payment might be a better model.

Care providers raised concerns that there is currently no way of them knowing how much their overall contribution to the scheme would be. They also pointed out that their trustees could not agree to participate where that would breach their duties to safeguard the organisation’s longer-term financial viability. It was also unclear whether insurance providers would commit to making a payment on their behalf, undermining the case that the waiver would encourage organisations to contribute. In its report, the committee suggested that further work on those provisions was required ahead of stage 2. We note the Government’s very detailed response to our report—in a short turnaround—and I welcome the news that a waiver will not be given unless the body is a contributor to the scheme. We look forward to discussing those issues at stage 2 and seeing how we can develop them with the cabinet secretary, as he has indicated that he is willing to do.

The committee heard from many victims/survivors that a meaningful apology was a vital element of the redress scheme.

Eligibility for the scheme is another important area. Although the committee welcomes the aims of the bill, we heard concerns from victims/survivors and other stakeholders about aspects of eligibility criteria including qualifying dates and the definitions of relevant care settings and abuse. To qualify for a payment under the proposed redress scheme, a victim/survivor must have experienced abuse in a relevant care setting before 1 December 2004. In contrast, the Scottish child abuse inquiry can consider abuse that occurred up to 14 December 2014. We could see no justification for the disparity between those two dates and suggested that they should be aligned. We take on board the cabinet secretary’s comments in response to that and in the chamber today.

Some settings and circumstances are currently excluded from the definition of “relevant care setting” and we heard evidence on how that would affect eligibility for the scheme. While recognising that there was a need to clearly define the limits of the redress scheme, the committee believed that there should be scope for redress Scotland to be able to consider some cases on an exceptional basis and recommended that the Government should revisit the eligibility criteria and relevant care settings in the bill in advance of stage 2. We welcome the acknowledgement that Scotland placed some young people in care settings across the border and that that issue will be considered.

The bill clearly defines the kinds of abuse that can be considered under the scheme and stakeholders expressed concern at the apparent exclusion of corporal punishment from the definition of abuse, where it was considered lawful at the time. The concern was that that would deter some victims/survivors from applying to the scheme. The committee was grateful for the cabinet secretary’s clarification that there would be no blanket ban on including corporal punishment as a form of abuse and that, when assessing claims, corporal punishment would be considered in the full context in which it was used. I look forward to working with the cabinet secretary to understand how victims/survivors can be informed of that to the fullest possible extent, so that no one is excluded from applying to the scheme because they think that the abuse that they experienced would not be considered.

I also welcome the cabinet secretary’s comments on the levels in the scheme. Currently, the bill sets out two different kinds of payment that can be made to victims/survivors: a fixed-rate payment of £10,000 and individualised payments set at £20,000, £40,000 and £80,000. There were concerns that there were large gaps between the levels. It was unclear how that would be decided by the administrating panel and how fair that was. I welcome the Government’s willingness to consider those levels again before stage 2.

Redress Scotland will be a new non-departmental public body—an NDPB—which will administer the scheme, and decision making will be guided by an assessment framework. As I am running out of time, I hope that some of the other areas will be picked up by my committee colleagues—

The Deputy Presiding Officer

If you have more to say, just say it. We have time.

Clare Adamson

Okay, thank you. That is slightly unusual for you, Presiding Officer.

The Deputy Presiding Officer

Excuse me! I might get piqued by that and change my mind. No, I am too big a person to do that.

Clare Adamson

I am grateful, Presiding Officer, especially as it is a very important bill and we want to give due consideration to the other areas. However, I will conclude by saying that we welcome the efforts that have been made by the Scottish Government to work with victim/survivor communities to shape many aspects of the bill. We hope that that will continue as the bill progresses through stage 2.

We would also like to thank the bill team for its constructive engagement with the committee throughout stage 1. Although there are fundamental issues with the bill’s waiver provisions that we are unclear about, we absolutely support the bill’s principles. Therefore, on behalf of the Education and Skills Committee, I am pleased to commend the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill to the Parliament and recommend that they be agreed. Thank you.

The Deputy Presiding Officer

Thank you, convener. I call Jamie Greene to open for the Conservatives.

Jamie Greene (West Scotland) (Con)

Thank you, Presiding Officer. I look forward to your generosity in equal measure to members on these benches.

The Deputy Presiding Officer

We do not want to set a trend.

Jamie Greene

The stark and sad reality is that there is little that we can do to fully compensate victims of abuse in care. Words, pounds, letters and payments are the physical manifestations of compensation schemes such as this. They are tokens of apology. They are an acceptance of our modern-day endeavours to right the wrongs of the past. However, no apology will ever right the wrongdoings of others, no legislation will bury memories of horrific abuse and no compensation scheme will replace traumatic memories of unhappy childhoods with happy ones.

Yet we have to start somewhere. That somewhere started in December 2004, when the then First Minister, Jack McConnell, told the Parliament:

“Now that we know what has happened, it falls to us, as representatives of the Scottish people, to acknowledge it.”—[Official Report, 1 December 2004; c 12389.]

Today, we do our bit here, by acknowledging that a redress scheme such as this has been a long time coming. It is an acceptance by the Government of the day that Governments of old failed thousands of young children in state care. The weight of that responsibility lies heavily on our shoulders—on the shoulders of the committee and of the cabinet secretary, who will guide the bill to completion before the Parliament dissolves.

At the end of that journey, it must be a bill that we are proud of. The journey will not be easy, because, as those who sit on the committee have learned, the subject is one of great sensitivity and debate, with uncomfortable substance. Despite our nuanced and differing approaches to the bill, I am pleased that we came to consensus. I record my thanks to my colleagues on the committee, the convener, her adviser and the clerks for putting together the report.

Today we debate the key recommendations, which are based on the evidence that we took. Our biggest thanks must go to those who took the time to enable us to come to those conclusions: the survivors who spoke frankly and honestly with us. I cannot even begin to imagine what some of them have lived through. It still lives with them. As one survivor put it,

“Abuse never leaves a person. It is like a human shadow”.—[Official Report, Education and Skills Committee, 28 October 2020; c 29.]

The debate is for them. The bill is technical, with technical problems that will require technical solutions, but at its heart lie brave people.

I turn to those technical issues now, because although the committee endorses the general principles of the bill, it also raised a number of difficult issues that the Government must contend with. I welcome that the cabinet secretary has already indicated that he will give way on some of those issues. I hope that that is a sign of things to come. We acknowledge in the report, right from the outset, that the scheme will not cater for or work for everyone. It is intended to offer an alternative to civil court proceedings and an easier route to redress. However, that alternative must be fair and affordable. The scheme has limitations, and we must be honest with people about what they are.

There are also flaws and assumptions that we think require revisiting. The first of those is the waiver, which is the biggest of those hurdles and the most contentious area of the bill. There remain large differences between its intended purpose and the reality of what its presence in the scheme would mean. Absolutely nobody had anything positive to say about the waiver, which should serve as a warning to us as we go through the bill process. In the committee, I said from the beginning that I would like to give the Government the benefit of the doubt on the issue, but I will be honest and say that I do not think that evidence in favour of a waiver has been strongly given—a conclusion that I came to reluctantly.

We also talked about what is fair and meaningful, and the words themselves provide a clue here; the bill must be fair and meaningful. The concerns about the waiver, for example, would potentially discourage some survivors from applying because it could prevent them from opting in to civil litigation in future. Many have expressed discomfort and have said that they might feel compelled to sign the waiver because of their current financial hardship.

Such victims need to be fully aware of the implications of their decision, and that leads on to what is fair and meaningful. The point of the waiver is apparently to encourage participation, but we heard openly and directly from organisations that are potential contributors that they would not recommend to the trustees of their respective charities participation in the scheme as proposed. That is not because they do not want to participate but because they feel that the open-ended nature of participation and the large sums of money being asked of them would entirely jeopardise their abilities as current, on-going concerns. Nobody wants that—not least the survivors.

That, plus the absence of ensured participation, means that it is likely that organisations will need to meet the commitments in the scheme through their own funds—their working capital. That will provide a disincentive to participate. I think that the organisations want to do the right thing; the ones that I have spoken to absolutely do. They feel the moral obligation that we know exists. However, those contributions must be fair, and not least, fair to the users of existing services, which is why the concept of sustainability that the committee talked about is so important and must be taken into account.

I must also touch on the difficult issue of money, which is not an easy subject when we talk about abuse, but we must give clarity on it. The Government has already said that it will cover compensation up to £10,000 per application, which covers the lowest level with the lowest evidential threshold, but that could result in public funds having an open-ended liability and covering massive proportions of the payments, even with contributions.

John Swinney

I am grateful to Mr Greene for giving way. He has just made the point that contributions are necessary to limit the impact on the public purse. That is one of the arguments that I would marshal as to why the waiver is important: to elicit those contributions in the first place. I ask Jamie Greene to consider the relationship between the concept of contributions from providers and the necessity of providing a waiver in a fashion that gets those contributions but restricts liability on providers. That was the point of the intervention that Jamie Greene made on me earlier in the debate. There is a relationship between the two that I invite him to reflect on.

Jamie Greene

I understand and accept that relationship. We all want maximum participation in the scheme for the benefit of everyone: contributing organisations, the taxpayer and so on. We must make the pot as large as it can be, but there has been no evidence—the committee took none—of the link between the concept of the waiver and participation. The real problem for the contributing organisations was the open-ended liability that would be placed upon them. The sums of money that they would have to pay up front have not been quantified to the committee, but those huge sums of money would come out of organisations’ working cash reserves and would directly affect their abilities to be on-going concerns. It was nothing to do with the waiver. I do not make that link in the way that the cabinet secretary does.

There is a conundrum there that needs to be resolved. Linked to that are the payment levels, which create a hierarchy of abuse. That makes some people incredibly uneasy, but is it necessary to compensate at higher levels with higher evidence thresholds? Again, the Government will have to contend with that. I do not think that the pound and pence value needs to be in the bill, because value changes over time, and I hope that the cabinet secretary will reflect on that.

I have limited time, but there are two other areas that I want to briefly touch on. One is the application process and who can apply. We want a survivor-centric approach to be at the heart of the bill’s operation. This must be an easy-to-navigate, inclusive process. That leads me to an important discussion about who should be eligible to apply to the scheme. There is a serious moral question about whether making a payment from the public purse to someone who has been convicted of the most heinous acts of violence, sexual violence or harm to children is fair or in the public interest. The committee rightly recognises that some offending behaviours can be rooted in trauma caused by abuse. Any survivor of abuse should therefore be eligible to participate in the scheme, but the bill itself cannot be the moral arbiter. My view is that it is right and fair that the awarding panel should make those decisions based on clear guidance and parameters and on individual evidence. That is a fair compromise, and one on which the committee reached consensus.

The final issue is that of an apology. “Sorry” is the hardest word, but an apology will go a long way. Helen Holland told the committee that, for some victims,

“an apology is the most sacred thing that could come out of this”.—[Official Report, Education and Skills Committee, 28 October 2020; c 10.]

Some victims even said that they would forgo money in favour of an apology.

There are other ways to support victims. The committee encourages those. We also encourage the Government to look at other countries’ schemes and I hope that the cabinet secretary will reflect on those asks.

This is a short debate on a big report. I end knowing that those who engaged with the committee have done themselves proud. It is not an easy bill. There is debate about what should be included in it and there are warnings from all sides about possible barriers to participation. There is much work to do: the cabinet secretary and the Government have a difficult task ahead of them.

My offer is that Conservative members are open to discussion, debate and amendment. We will go into stages 2 and 3 constructively. We will work across parties, with the Government, stakeholders and, not least, with survivors. We all want this to work, because it must. The work of the committee will continue, but the word of apology must now be translated into action.

The Deputy Presiding Officer

There is some time in hand. Members may expand a little in this sensitive and important debate.

Iain Gray (East Lothian) (Lab)

Today has been a long time coming: too long in many ways. It is the latest, and perhaps last, link in a chain of recognition, regret and now, hopefully, redress—as far as that is possible.

We are once again called on to face up to and acknowledge our collective guilt regarding one of the darkest and most shameful chapters in our recent past. The most vulnerable of children were taken into our care, looking to us for love and nurture, only to face abuse—sometimes for years on end—while we looked the other way.

The process of facing up to what was allowed to happen, and to the lifelong consequences that that has had for so many survivors, has taken us from Jack McConnell’s apology 16 years ago, as referred to by Jamie Greene, through to the agreement to a public inquiry, the removal of the time bar and the creation of the advance payment scheme, and we have now come a bill that will provide redress to survivors and their families.

None of that would have happened without the determination of survivors themselves, who had the courage to relive their abuse by speaking out and the persistence to make themselves heard at last.

Governments and ministers of all parties, including mine, were too slow to listen and respond. So, we should take the opportunity to add our apologies to that given by the Deputy First Minister. We are sorry that the abuse was ever allowed to happen, that survivors were not listened to or believed for so long and that we have been so slow to act.

However, we are here today and I give Mr Swinney credit for that. Since he took on this responsibility, he has delivered the inquiry, the advance payment scheme and now the bill. His desire to get this done at last is clear and sincere.

What must we do to get the bill right? Above all, it must create a scheme that survivors believe is fair and in which they can have confidence. They must know that they will be believed as part of a process that, unlike civil or criminal justice proceedings, is not confrontational.

Survivors want to see both the state and the organisations in whose care they were abused make a contribution to their redress.

To achieve all that, there are some difficult circles to be squared, but square them we must. Although the bill sets out to achieve all that, the committee was clear that some changes are required. I am pleased to see from the Government’s response that it accepts that in a number of areas.

First, the overall level of payment and the proposed bands need to be reconsidered. The bands are too far apart, particularly the jump from £40,000 to £80,000, which is too big a jump. However, it was also clear from the evidence that survivors feel that the maximum payment is not enough, especially when they look at other schemes, such as that in Ireland. This is not really about the money, of course, but about the seriousness with which we take the matter now. As I have said, I believe that the Deputy First Minister is serious about it, so I am sure that he will consider the payment aspect again.

Secondly, the burden of proof that will be required is critical to the success of the scheme. It must be enough to provide confidence for survivors and contributors but not be so burdensome as to be simply a civil court by a different name or to discourage applications. The committee understood how difficult that is, but we felt that more clarity was required.

However, it is on the question of the waiver that perhaps the bill will succeed or fail. The evidence of survivors was clear. They see the requirement to give up their right to civil justice to benefit from the redress scheme as an abrogation of their rights that would compromise their confidence in the scheme. Their concerns were echoed by those who support survivors and, indeed, those who represent them, including the Faculty of Advocates. All recommended some form of offsetting and all opposed the waiver.

The committee report reflects that and, appropriately, does so in a way that tries to offer the Deputy First Minister the space to respond. However, I want to be clear. Our view is that the waiver compromises the integrity of the bill. It cannot stand; it must go. That is not a party-political position; indeed, I think that it is shared across the Parliament.

The Deputy First Minister has explained that the waiver is there to incentivise contributions from care providers, and it is true that survivors want those contributions. However, the evidence heard by the committee was that the waiver will not work as an incentive. Some providers expressed initial support for the waiver, but as scrutiny proceeded, it became clear that because their insurers are unlikely to support their contributions to the scheme—although they would support them in legal action were they engaged in it—the waiver was no incentive. In fact, arguably, it is a disincentive to the organisations to take part in the scheme.

John Swinney

I understand the argument that Mr Gray is marshalling. However, the waiver point is critical, because it hinges on the question of how we enable contributions to be made to the scheme by providers. That is the question that we are all trying to answer. In the judgment that I have come to, the point that Mr Gray makes about the relationship to insurers is adequately dealt with if the waiver is there, because it provides an alternative to court action. In marshalling his argument, Mr Gray acknowledged that an insurer might stand behind a provider in a court action. What I am trying to do with the bill is to find a means whereby the insurer will stand behind the provider for the alternative route. Without that, I cannot see how we elicit the contributions that we all want to see made by providers to a scheme of this type.

Iain Gray

I take the point and I appreciate that that is the Deputy First Minister’s intention. However, all the evidence that we heard from providers and, indeed, from the Association of British Insurers was that insurers would not stand behind providers in making contributions to the redress scheme. That is partly because of the level of contestability of the evidence given in the scheme. However, we cannot compromise that because we want the scheme to be easy, or as easy as possible. We do need an incentive, though, and we need the contributions.

Providers also told us that the calculation of contribution that was being developed and the requirement for future unspecified contributions once in the scheme meant that their participation would jeopardise their continued existence and that trustees would not be able in law to agree to participate.

Providers are saying that they will be unlikely to be able to participate with the waiver in place. I think that the incentive that they need is a contribution formula that takes account of affordability, sustainability and the legal position of their trustees. I agree with Jamie Greene—they are not looking for a way out of the scheme; they are looking for a way into it, because they accept that they have a moral responsibility to take part in it.

The danger that we face is having a scheme that asks survivors to give up their rights to justice but fails to attract the contributions from providers that survivors want. That is the circle that must be squared. That is not easy, but my concern is that the Deputy First Minster’s response—in his letter to the committee and today—shows that he is still not seized of the need to find an alternative to the waiver or to change the contribution scheme.

I ask him to do that now, because time is so short, and if we are to get it right, he and his officials need to be working now with stakeholders to introduce those changes.

I will be honest: if need be, we will consider introducing amendments at stage 2 to remove the waiver and establish the principle of affordability in contributions. However, it would be much better if the Government were to start on that work immediately and do that itself.

Time is short. It has taken so long to get here, and we all want to get to the same place, so let us get it right. That is what we all want.

Ross Greer (West Scotland) (Green)

The introduction and the passage of the bill were always going to be a painful experience for many survivors. I pay tribute to the survivor groups and individuals who have fought so hard and for so long to bring us to this point, and to those who have shared their experiences and relived their trauma in the process of explaining why redress is necessary. Their bravery and dignity over many years has been astonishing, and their contribution to the Education and Skills Committee’s scrutiny of the bill has had a profound impact on the conclusions that we have arrived at collectively and individually.

We all support the general principles of the bill, and we all acknowledge that survivors deserve redress for the abuse that they suffered. It is the responsibility of the state to ensure that that redress is delivered. However, the clearest message received during the committee’s scrutiny—from survivors, lawyers and the organisations that would be expected to participate in the scheme—is that the model that is proposed in the bill simply would not achieve its intended goals.

The committee’s recommendations for change are extensive, covering almost every section of the bill. I will pick up just a couple of those, the first of which is the proposed waiver, which others have already mentioned and which I expect will be discussed extensively this afternoon.

The waiver is the most contentious provision in the bill, particularly for survivors. Many survivors are understandably extremely distrustful of the state and other authorities. To be blunt, they see the waiver as a way to silence them. Organisations that are likely to be involved in the scheme certainly do not all appear to support the waiver either, although that is for different reasons.

The argument for the waiver is based in part on the premise that organisations and insurers will not pay out without it, but the committee did not consider that the evidence submitted supported that claim, as Iain Gray has highlighted.

The technical argument about whether a waiver would allow organisations to contribute fully to the scheme is a secondary one. The primary reason to oppose the inclusion of the waiver is that it violates the right of survivors to pursue justice at a later date. It is extremely common in cases of abuse for an individual to have insufficient evidence of their abuse to pursue civil action, only for that evidence to later emerge through others coming forward or records being found.

If a survivor were to take financial redress through the scheme, because sufficient evidence was not available to them at the time, but that evidence was to emerge later, they should not be restricted from then pursuing action.

The committee does not support the waiver, and I struggle to see how the bill could achieve majority support at its final stage if it were to remain. That would be a source of profound regret.

The bill also contains provisions for a survivor’s next of kin to apply for and receive the payment, provided that the survivor made a statement prior to their death that they suffered abuse. The Greens certainly welcome that, but the bill proposes an odd hierarchy for the next of kin. By default, the next of kin is the spouse or the civil partner of a survivor, and after them, it is the survivor’s children, which is relatively normal. The exception to that in the bill is for cohabiting partners. A cohabitant must have lived with a survivor for at least six months to be eligible ahead of a spouse. That would indicate de facto separation. There is no time period required for the cohabitant to come ahead of the survivor’s children. The moment that the cohabitant moves in, they come ahead of the children. That is inconsistent and it could cause unnecessary conflict. I am grateful that the committee agreed and recommended that the six-month cohabiting requirement should apply before a cohabitant is eligible ahead of a survivor’s children, equalising that with the position for a spouse or civil partner.

The final issue is one about which I harbour a personal concern, although Jamie Greene also partly raised it earlier. Although my concern was shared by other committee members, it was not quite a feature of the report. It is about the viability of delivering a just system of tiered payments. The committee made a number of recommendations on payment levels, but I would like to go a bit further and question whether the system should be tiered at all. Although we might all recognise that, however uncomfortable it sounds, some abuse is of such severity that a larger financial payment might seem appropriate, I struggle to see how that can be codified in such a manner that it would not result in a great deal of upset and even further trauma for some survivors. Any tiered system would unavoidably create a hierarchy of abuse, as Jamie Greene said.

The survivors who have spoken to me—people whose experience of abuse was very different, as they would collectively recognise—do not support such a system. They would prefer to see a system of flat payments. Not only would that avoid the morally questionable creation of such a hierarchy of abuse; it would dramatically simplify the system. I am inclined to agree with such a position.

I recognise that there will be a diversity of opinion among individual survivors and different survivors groups. I can speak only for those who came forward to engage with me during the process—people who had different experiences of abuse, but who collectively agreed that a flat payment system would be the most effective way of ensuring a just form of redress for them all.

As with the waiver, I came to agree with that position for practical and ethical reasons. We all want the scheme to work. I have no doubt that the Government and the cabinet secretary are committed to that. However, as I said, the bill will require substantial changes if the cabinet secretary is to be confident that it will command the support of Parliament and, more importantly, that it will have the confidence of survivors and provide them with the redress that they deserve.

Beatrice Wishart (Shetland Islands) (LD)

I, too, am pleased to be speaking in the stage 1 debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill; the bill has been described as technical, but it is also complex.

At its heart, the bill is about vulnerable children who were abused while in residential care settings and who have had to live with the consequences of that abuse. I thank all the victims/survivors who engaged with and gave evidence to the committee, either in person or by writing to us. As other members have done, I add my thanks to the unseen but important committee support team that has enabled us to reach this stage.

I also thank colleagues on the Education and Skills Committee and convener Clare Adamson for her leadership. The committee worked in a spirit of co-operation with the aim of meeting the needs of victims/survivors, and ensuring that it did so with dignity, respect and compassion. The responsibility weighs heavily on me, as I am sure it weighs on all of us.

The bill aims for a trauma-informed, non-adversarial process that acknowledges the abuse and provides redress through a fast financial payment. It should be noted that, for some victims/survivors, meaningful and individual non-financial redress is as important—perhaps more important in some cases—as receiving any payment.

As we have heard this afternoon, there are continuing concerns about the waiver in the bill. The Scottish Government has suggested that the waiver is necessary to incentivise contributions to the redress fund from organisations that were responsible for the care of children, but the evidence from some care providers and survivors indicates that it will not function in the way that the Government intends. By signing a waiver, survivors will give up the right to pursue civil justice. As the stage 1 report indicates, the evidence heard by the committee from the victims/survivors is that the waiver would restrict their choices and should be removed.

The cabinet secretary has suggested that no other redress scheme anywhere in the world has been identified in which providers make contributions but receive no waiver. That is not a reason not to establish an alternative method that is suitable for this redress scheme. The Scottish Human Rights Commission suggested a different approach by proposing an offsetting option rather than a waiver.

It is clear that survivors do not seek double payments by accessing both the redress scheme and civil action. Obviously, that would not be equitable. In the written evidence that she provided to the committee, Dr Maeve O’Rourke from the National University of Ireland Galway stated:

“In forcing survivors to choose between a guaranteed financial payment and accountability, the waiver arguably emits a message to survivors themselves and to the general public about survivors that they are interested in money above all else. This is simply untrue and degrading to survivors.”

I remain unconvinced that the waiver scheme is appropriate. In fact, it goes against natural justice and it will not work.

Beyond the waiver, views differed about the payment levels and tension exists in relation to institutions and their financial contributions. Institutions and charities want to contribute and they are committed to the survivors and the important process of national healing and reconciliation. However, some have said that they cannot sign up to an open-ended chequebook and the estimated figures.

The modelling of the overall cost of £408 million is on the basis of 11,000 payments to victims/survivors, with a further 1,000 payments to next of kin. It is in nobody’s interests to lose institutions or charities that are carrying out good work now because contributions for past wrongs become unsustainable. Financial risk has to be managed and charity law has a role to play in that, too.

Viv Dickenson of the Church of Scotland social care council said that the level of contributions being asked for was predicated on contributions being backed up by insurance. That may be a dangerous assumption to make. Charities have said that they do not have spare cash lying around. The scheme has value only if it works. There needs to be clarity about what institutions are being asked to contribute and about the process, if it is to be affordable for them.

Another issue that must be ironed out is the qualifying age. The qualifying age for the advance payment scheme was 70 years old; it has been brought down to 68, but a written submission asked for it to be reduced to the state pension age.

Finally, the bill must be properly trauma informed. In that light, the way in which the scheme deals with applicants with criminal convictions must reflect what we know about the impact of adverse childhood experiences. Some evidence has shown that those with significant ACEs can be 20 times more likely to be incarcerated at some point in their lives. The scheme cannot be ignorant of the relationship between its subject and the impact of that trauma.

There is work to be done, but today I and the other Scottish Liberal Democrats are happy to support the principles of the bill.

The Deputy Presiding Officer (Linda Fabiani)

Before we move to the open debate, I remind members that, if they are taking part in the debate, they should be in for all the opening speeches and that, even if previous business finishes earlier than expected, business items run on one from the other.

We have a little time in hand, so I can give a bit of space for interventions. Speeches can be up to six minutes long.

Kenneth Gibson (Cunninghame North) (SNP)

As we know—and to our collective shame—over several generations, many Scottish children who were placed in the care of organisations or boarded out by the state were victims of widespread, serious, systemic and societal failings. Those trusted organisations badly let down many of our most vulnerable children in their basic duty of care.

Because of the systemic nature of the abuse and the lack of accountability, survivors were betrayed by those who should have protected them. The Scottish Government has a moral obligation to those children, who are now in their adulthood. The bill aims to fulfil that responsibility by attempting to address, in modest financial terms, the damage that was caused to survivors of historical child abuse in Scottish care institutions.

The committee heard a range of views from stakeholders regarding the value at which recompense should be set. The bill currently sets out two types of payment under the scheme: a fixed payment of £10,000 and individualised payments dependent on the scale of the abuse experienced. Those are dependent on the provision of evidence and are set at £20,000, £40,000 and £80,000.

The committee heard concerns from survivors that those sums are significantly lower than could be gained through civil litigation. That is designed to reflect the fact that the scheme will have lower evidential requirements than courts have. However, the proposed payments are considerably lower than those for similar schemes in other countries. The £10,000 fixed-rate payment was particularly unpopular among survivors. My view is that the gap between where evidence is required and where it is not is too narrow, given the need to provide evidence for an increase just from £10,000 to £20,000.

It is vital that we remain open to considering the appropriateness of all levels as the bill proceeds. Some stakeholders suggested that, rather than have set amounts, the panel should have powers to make payments within bandings. The broad levels in the bill create uncomfortable lines, and survivors with very similar experiences might fall either side of those. One survivor could conceivably receive £40,000 less than another because they spent one month less, or even one week less, in care.

However, there are also difficulties with wholly individualised sums. As the bill’s policy memorandum states, there is a risk that that would

“further individualise payments and distinguish the experiences of survivors”.

Different levels allow for different payments without necessitating overly detailed and highly individualised assessments.

It is not easy to create an assessment framework that avoids a so-called hierarchy of abuse and recognises that some experiences may have been more severe than others. Nevertheless, there might be scope to retain levels as envisaged in the bill while making the differences between them less stark. The decision on that must be reached in consultation with stakeholders to ensure that an appropriate balance is struck. As much detail as possible must be provided to make the process as transparent as possible.

The on-going Scottish child abuse inquiry seeks to understand the scope of the abuse of children in care and is investigating the type of abuse, the effects on children and their families and the extent to which organisations failed in their duty of care. The inquiry is also examining whether legislative changes are necessary to protect children who are currently in care.

To encourage organisations to contribute to the scheme, the bill states that those who make a fair and meaningful contribution will benefit from a waiver. We have heard extensively about that particularly contentious issue. The committee heard that the waiver is unpopular with survivors, as many view it as restricting their right to pursue future civil litigation. For many survivors, acknowledgement of culpability is as important as financial redress. As Jamie Greene said, for some people, an apology is worth more even than the money.

The issue of a waiver is emotive, so we must take into account the views of survivors. Above all, we have to recognise the role that must be played in the scheme by the organisations that ran the institutions where abuse took place. However we proceed, maximising care providers’ participation is a pivotal part of ensuring meaningful redress.

It would not be appropriate for applicants for redress to have to contribute to associated legal fees, and nor is that expected. However, legal fees are an important consideration when assessing the cost of redress, and a cap on the legal fees paid by the Scottish Government is necessary. Other redress schemes—for example, that in Ireland—found that the overall cost escalated due to spiralling fees. By 31 December 2015, the Irish Residential Institutions Redress Board had approved fees of €192.9 million to 991 legal firms, with 17 paid between €1 million and €5 million each and seven paid between €5 million and €19 million each. That was certainly an unanticipated aspect of the scheme and an example from which we can learn. By ensuring that fees are subject to an appropriate cap, we can ensure that the money in the scheme goes where it should go: to survivors of historical abuse.

Currently, the scheme is intended to redress abuse that took place before 1 December 2004, which was when the then First Minister, Jack McConnell, issued an apology on behalf of the Scottish Government to victims and survivors of historical abuse in care. That acknowledgement is often considered to be Scotland’s first step in coming to terms with systemic abuse in its institutions. However, the evidence suggested that the date should be reconsidered. Abuse in care did not end on 1 December 2004.

The inquiry can consider abuse that took place up to 14 December 2014. The committee heard in evidence that the qualifying date for redress payments should be aligned with that date. As the bill stands, survivors of abuse in care that happened between 1 December 2004 and 14 December 2014 could contribute to the inquiry but would not be eligible for redress.

The bill also permits a survivor’s next of kin to apply on their behalf after their death, provided that the death was after 17 November 2016. I am pleased that the cabinet secretary has said that that date will be changed to 1 December 2004. While partners and spouses can claim redress, the children of survivors should also be considered, in line with existing Scots law.

Scotland’s reckoning with our legacy of historical child abuse has been a long process, and we are by no means nearing the end of that journey. That said, the bill is vital for demonstrating Scotland’s commitment to delivering justice for survivors. We have listened carefully to their experiences and heard the lessons of previous redress schemes, and we must continue to do so as the bill progresses. If we do, we can create a bill that will work for Scotland’s survivors, who were let down so badly.

I know that the cabinet secretary will give further consideration to improving the bill, and I am pleased to support it at stage 1 today.

Oliver Mundell (Dumfriesshire) (Con)

I am pleased to follow a number of thoughtful speeches.

I start by making it clear that, for victims and survivors, no amount of money nor any apology can take away or make good what has happened to them. Although, as others do, I believe that the bill is right and necessary, we must never fall into the trap of believing that we are somehow righting any wrongs or doing something good to make up for the actions of others.

For a start, despite the Deputy First Minister’s significant efforts on the issue, which Iain Gray rightly referenced, we have collectively come to the matter far too late, so—as the Deputy First Minister acknowledged—some people have not lived to see the legislation coming before Parliament. I could fill many speeches with the how, when, where and why of what has gone wrong over the years, but I would rather focus in the time that is available on a few practical concerns that relate to the bill.

First, I will raise two general points; I will then highlight a specific constituency example that has come to my attention that shows why those points are important, and which continues to give me cause for concern when I look at the bill.

I know that the cabinet secretary takes very seriously his responsibility for making the bill as robust and effective as possible, and I know that he has responded at length to the committee’s report. I know that he cannot please or help everyone, and I know that that fact will weigh heavily on him. However, from the point of view of expectation management and in the interests of clarity, I think that it is important that we understand the limitations of the proposed scheme and how it will work in practice.

The first issue that I want to understand better is the evidential threshold that will be required and the principles that will guide that. I note that the cabinet secretary has said that the tests that will be used will be lower than those for civil proceedings, but I am not clear what that will mean in practice. I would like to be included in the bill a provision that would put in place a presumption throughout the process that the people who come forward will be telling the truth. That sounds obvious, and it is the position that everyone here starts from, but I think that including that in the bill would be symbolic and would help the scheme in the future.

I also think that it is important that the process should recognise where individuals have made all reasonable endeavours and have exhausted inquiries when trying to produce evidence. I hope that that will be a factor that can be taken into account when decisions are made about whether, and at what level, to make an award.

The second issue on which further clarity is needed is the related issue of how the quality and availability of evidence will interact with the different levels of payment. Ross Greer made a number of important points on that. Evidence could become available at a later stage, after people might have signed a waiver, and if they had had that evidence at the time, they might have been eligible for a different award.

There is a more fundamental challenge. I find it very difficult even to say that there are different levels of harm. However, as a Parliament, we must recognise that that is an existing concept in the Scottish legal system; in many difficult areas, it is already accepted that there are different levels of harm. It is right to recognise that people who have experienced very serious abuse might legitimately expect the system to take that into account—albeit that I would not like to try to work out where the different thresholds should sit.

We really need to understand what evidence will be required and how the testimony of individuals who come forward will be looked at. I, for one, do not want people to be taken through a process that asks them to set out a great deal of detail, which will often be difficult and personal to them, only for them to be knocked back from a higher payment. Again, I would be grateful if the cabinet secretary could say more about that, so that I can understand his thinking on it.

Partly to illustrate the points that I have just made, I will highlight a constituency example. Over a number of years, the local authority whose area my constituency is in was in the habit of paying bursaries for young people to attend St Joseph’s college. I am aware of individuals who can prove that they were there because they have photos and certificates, and former teachers remember them. Those teachers also remember or believe that those individuals were on bursaries. It is well known and accepted that the bursaries were a common practice that the council adopted at the time.

Some of these individuals were abused—or, rather, some individuals who attended the school were abused; I do not want to mix up the two. However, those individuals cannot show that they were in receipt of a bursary, because the records no longer exist. My problem is that, when I look at the criteria that are set out for the redress scheme, I cannot be sure whether those individuals will be successful in seeking redress and, if they are successful, at what level. That illustrates how complicated the scheme is, and it is why it is so important that we understand what the evidential thresholds will be, what people will need to prove and when they will simply be taken at their word.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill has been shaped and is owned by the many people who suffered abuse by people who were supposed to be caring for them.

In 2004, former First Minister Jack McConnell apologised on behalf of the Scottish people, and in 2018 the Deputy First Minister, John Swinney, apologised on behalf of the Scottish Government. The bill is the next step on that journey for the many survivors who are haunted by those terrible experiences. Money alone could never erase the memories and hurt, but for some people, whose life chances have been severely affected by what happened to them, it is a tangible way for society to say that it is sorry.

I, too, thank the many survivors who bravely gave evidence to the Education and Skills Committee. It was not an easy thing for them to do, but their views have been invaluable in shaping the bill, which is their bill.

Of course, not all survivors will want to take the route that is set out in the bill. That is understandable and it is their right. However, for some survivors, it just might make a difference in helping them to get on with their lives. The organisations that failed them will be asked to make fair and meaningful contributions: to me, that seems to be entirely right.

The bill is complex and the committee struggled with many aspects during its scrutiny. As the convener outlined, we have sought to ensure that our recommendations reflect the desire that victims/survivors be treated with dignity, respect and compassion. That is the least that we can do.

The bill will allow applicants to choose whether to apply for a fixed-rate redress payment of £10,000 or an individually assessed redress payment of £20,000, £40,000 or £80,000. An independent non-departmental public body—redress Scotland—will make the decisions on applications for financial redress.

The most contested element of the bill is the waiver that would mean that a person who chooses the redress scheme would be unable also to choose civil litigation. The waiver would allow survivors to access justice without the implications of taking court action, and to receive compensation from the organisation that was responsible for the abuse. It would mean that the survivor would choose the path that they take. They would have a choice.

However, the overwhelming view that victims/survivors conveyed to the committee was that the waiver would restrict their choices, so it should be removed. The committee also spoke to many care providers at stage 1 and heard no evidence to suggest that the waiver would incentivise them to participate in the redress scheme. To be clear, I note that a survivor would not have to waive their right to pursue litigation where a provider did not contribute. The waiver would apply only where organisations made a fair and meaningful contribution. The committee has determined that the waiver provision as drafted would not function in the way that the Scottish Government hopes.

There are issues about the sustainability of charities and organisations and about restricted funds, and there is doubt about whether insurers would pay out in relation to the scheme. I am pleased that the Government has committed to considering that aspect before stage 2.

The time period around the waiver is also a problem, but the Government has listened to the evidence that was taken by the committee and will lodge amendments at stage 2 to increase the 12-week extension period to six months, and the four-week review request period to eight weeks.

There is also an issue with survivors who are more than 70 years of age whose records have been destroyed and who therefore cannot access redress. I hope that that can be considered before stage 2.

Another crucial issue is relevant care settings, and the disappointment that was expressed by some survivors that their abuse will not be recognised because they were placed in a care setting by a parent or guardian. Many children found themselves in care due to having a disability, through a scholarship or for religious reasons. Their abuse was no less than that which was suffered by children who were placed in care by the state. However, the Government believes that if the eligibility criteria are open ended, that could undermine the scheme, and it is content that there is

“an appropriate limit to set.”

I am pleased that there is, however, some flexibility in the regulation-making power, should the position change.

I turn to the definition of abuse. The Government decided that an exhaustive, rather than inclusive, definition was better for legal certainty, but it conceded that an amendment to align it with previous legislation would be considered. In addition, the on-going drafting of the assessment framework will reflect the evidence that was heard at stage 1. In that regard, corporal punishment that was legal at the time when it took place, for example, would be considered to be abuse if it was excessive. That is the right course of action.

The issue of cross-border placements will also be addressed in an amendment at stage 2.

Qualifying dates for the scheme are contentious, so the Government has committed to considering its position on them in advance of stage 2.

Evidential thresholds and payment level thresholds are matters on which there are strong views. As others have said, this is a very sensitive area in which it is important to avoid a hierarchy of abuse. How could we say what level of cruelty traumatised one person more than it did another? It is certainly not for the committee to recommend payment bands, but we believe that the assessment framework is integral to the scheme. I am pleased that the Government has committed to looking at the issue and to adopting flexibility where necessary.

The bill deals with issues that are understandably sensitive and complex; those that I have highlighted are just some of many that were considered during scrutiny. I am extremely pleased that all the issues that were highlighted by the committee are being carefully considered by the Government. I am also encouraged that every part of the process, should a survivor take the redress route, will be led by trauma-informed practitioners, and that wellbeing support will be available for survivors.

People who have not been abused as a child will never know the lifetime of trauma that it causes survivors. A meaningful apology might make a huge difference. The redress scheme is not a magic bullet, but it offers something tangible—it offers choice to survivors.

I will be pleased to agree to the bill’s general principles at decision time.

Jackie Baillie (Dumbarton) (Lab)

I thank the Scottish Government and the Education and Skills Committee for their work on the bill, and I thank all the survivors who helped to shape it.

The bill is incredibly important and significant, because the provisions that it seeks to create for survivors of child abuse have been a long time coming. For many survivors, providing redress signifies a step forward in their on-going recovery. The redress payment signifies far more than just the giving and receiving of compensation. It represents the justice that survivors have been seeking for decades.

Since I was first elected as MSP for Dumbarton, back in 1999—I was young then, Presiding Officer—I have been working with an incredibly brave woman, who has already been mentioned in the chamber today, called Helen Holland. Helen is a constituent of mine who, throughout the 1960s and 1970s, faced unimaginable abuse and neglect at the hands of nuns and other care workers at Nazareth house in Kilmarnock. The stories that Helen has shared over the years about her time in care are harrowing, and she still suffers the lasting effects of her experiences each and every day. For many survivors, simple daily tasks are difficult, and some are still affected by the deep trauma of their past. Over the past 20 years, Helen has spent her time fighting to ensure that no child in care ever goes through what she and so many others did.

In 2000, Helen worked with others to found INCAS—In Care Abuse Survivors—which supports survivors of in-care abuse. The organisation was set up because there was nowhere that survivors could turn to for practical support and help at the time. More than 120 survivors went to INCAS’s first gathering. Since then, the organisation has grown and grown, and it continues to provide support and therapy for people who are still struggling to cope. It also campaigns for justice for survivors. It has been at the forefront of the fight for redress, and its continued efforts will result in many survivors receiving long-overdue justice and recognition.

When I spoke to Helen a couple of days ago about today’s debate, she told me that, although the bill is very welcome, amendments are needed if it is to truly support survivors. Therefore, I welcome the cabinet secretary’s indication that he is listening and willing to lodge amendments.

As Iain Gray has already explained, the waiver in the bill presents a number of problems. By signing the waiver, survivors would be agreeing not to start or continue any civil legal action on their abuse against the Scottish Government or, indeed, any other care provider. I understand that the Scottish Government is trying to incentivise care provider participation, but the waiver as it stands perhaps does the opposite of what we want it to do. It is wrong to deny survivors an informed choice. Surely that could be easily resolved if the bill was amended so that the courts were directed to deduct from any future damages awarded the amount already paid to the survivor by the Scottish Government or the relevant care provider.

Many survivors simply cannot cope with going to court and being forced to relive their unbearable levels of suffering. Because of the historical nature of the abuse, many survivors are now elderly and have long-term mental health problems; indeed, some of them have terminal illnesses. It is right that they should receive a redress payment while they are still able to do so, but it is not right that they should be forced to sign away their right to pursue the matter in the courts. Allowing survivors to seek informed advice from a legal representative on any future action that they may wish to take is probably the most straightforward and obvious way of ensuring that justice is truly served for them.

The second area of concern that Helen raised with me is the payment amounts that are set out in the bill. Helen and, indeed, all the survivors whom I have met will say that it is not about the money. No amount of money will ever be adequate compensation for what they went through, but there are significant inconsistencies between the maximum amount that Scottish survivors can receive and the amount that Irish survivors, for example, receive. They are different countries with different legislative systems, but abuse is abuse, and abuse should not be of less importance because of the country, especially if the abusers were the same people.

Helen told me about two sisters. One was sent to a home in Ireland and the other went to a home in Scotland. Both were in Nazareth house homes, and they were abused by the same individual over a number of years. However, the sister in Ireland has received 200 per cent more in compensation than the sister in Scotland is likely to receive. That is because the block payments in Ireland range from €50,000 to €350,000, whereas the range in Scotland starts at £10,000 and rises to a maximum of £80,000. Given that the only difference in many cases is the country in which the child was abused, it is vital that more consistency is created in the amounts that are paid out.

As we have heard from colleagues in the chamber, there is also an issue to do with the structure of the block payments. The payments, which are set in blocks of £10,000, £20,000, £40,000 and £80,000, are decided according to the severity of the case. However, as others have said, the level of proof that is required is not clear, and there appears to be no flexibility in the level of award. That is unfortunate, and I hope that it will be addressed at stage 2.

It is 21 years since I met Helen Holland. It has taken a very long time to get to this stage. As Iain Gray said, there was an apology to survivors from Jack McConnell in 2004. We have had the removal of the time bar and the public inquiry, but it would be another 16 years before a redress scheme was before the Parliament. Today is very welcome, and I commend John Swinney for his efforts in ensuring that that has happened. It is time for justice for survivors, and I urge support for the bill.

Alex Neil (Airdrie and Shotts) (SNP)

I very much welcome the bill. As other members have said—in particular, people such as Jackie Baillie, who, like me, have been in the Parliament since day 1—we have lessons to learn for the future. The bill should have come to the Parliament many years ago—probably 20 years ago—rather than now.

However, we now have the bill at long last. As a Parliament, we have two duties to survivors. The first is to make sure that the bill is enacted as legislation and gets royal assent before the election next year. We cannot afford to delay any longer and we need to do all that we can to get it right. This is not a party-political issue. We all accept that it is a good bill, but we—and that includes John Swinney—also accept that there are one or two areas where we can improve it to make it an even better bill, which we should do over the next couple of months.

Like others, I will start with the waiver. The first thing to understand is that the waiver is the totemic issue for survivors. Survivors are not happy with it, because whether the law says so or not, they are of the view that it undermines their human rights. With the horrendous experiences that those people have already been through—and I commend the cabinet secretary for listening to what survivors have been saying—we have to listen to what survivors are saying about the waiver.

Survivors have two fundamental concerns. I have already referred to the first, which is that they believe that it is a waiver of their human rights and that they should have the right to go to court if they feel that they should, even if they have been paid the maximum amount, or indeed any amount, under the redress scheme.

Secondly, and this has been mentioned briefly in passing by a previous speaker in the debate, the waiver could be a disincentive to some survivors to apply for the redress scheme. That is absolutely not what any of us wants. We have to take the survivor community’s views seriously about the waiver. I welcome John Swinney’s open response to the committee’s recommendations on that issue.

On the other side, as it were, providers are not happy with the waiver either. They indicated that had they been consulted a bit more—and they believe that they were not consulted enough pre-legislatively—they would have pointed out that the waiver as it is currently constituted will not act as an incentive. The incentives will come from handling the contribution scheme in a different way. Neither the survivors nor the providers are happy with the waiver scheme.

In the committee’s evidence, we heard about an issue with the legal enforceability of the waiver in Ireland, which has not been mentioned in the debate so far. The Irish had a waiver that was subject to legal challenge under the United Nations convention against torture. The legal point that was made in that challenge was that, despite the fact that the waiver—the Ireland Residential Institutions Redress Board scheme—had been legislated for and established in Irish statute, it was still open to challenge by international law on the basis of rights that are given to and exercised by people under the convention against torture. There is still a big question mark over the enforceability and legality of the waiver from a human rights point of view, which is a point that was also expressed by the Scottish Human Rights Commission.

I do not think that it is black and white, but there are serious question marks. Looking at the Irish experience also suggests that the offset route, whereby courts are directed to take any settlement in any court action into account, might be a better way to do it. Other halfway measures may be possible and, obviously, the Government will be looking at that. I welcome the fact that the Government is looking at that issue again.

I come to the contribution scheme. Most of the providers whose organisations have been responsible for historical abuse want, in principle, to contribute to the scheme. Anybody with any feeling of moral responsibility who is running those organisations would, obviously and correctly, feel that they should contribute. However, there are a number of issues that could incentivise and facilitate contributions from the providers, if they were added to the bill.

At the moment, the bill establishes, rightly, the principle that those organisations’ contributions should be fair and meaningful, and there is a clear message from Parliament about the moral obligation on all those providers to participate in the contributory element of the legislation. However, there are three areas of concern.

The first is that levels of compensation should not be such that they undermine the financial viability of the organisations. That point was supported by the survivors in their evidence to the committee. They do not want to ruin the providers financially, because, although they are critical of the providers’ history, they are often very supportive of the work that the providers are doing now. The second issue is that survivors do not want levels of compensation to be so high that they could endanger the quality or level of services provided by organisations to the people who need those services today.

I absolutely support John Swinney’s point about not putting a cap on contributions—that would send out completely the wrong message—so the way to handle those concerns is to add to the bill the principles that, as well as being fair and meaningful, compensation levels must not in any way be threatening to the financial viability of the providers or threaten the services that are provided by them. Including those principles would help us to incentivise people to contribute. Organisations are worried about what they perceive to be the open-ended nature of the commitment that they might be signing up to, but if those principles are established in the bill, those worries should disappear.

Let us not forget that many of the organisations are charities. Under charity law, the directors of a charity cannot sign up to any scheme that has the potential to threaten the financial viability of the organisation. Establishing those two principles, in addition to having fair and meaningful payments, would strike the right balance and allow us to ensure that we get contributions from those organisations.

The Deputy Presiding Officer

Come to a close, please.

Alex Neil

We should look at what we can do in respect of organisations that should be contributing but do not do so, albeit probably not on a statutory basis. By making those changes relating to the waiver and the contribution scheme, the cabinet secretary could achieve his very worthwhile objectives.

Brian Whittle (South Scotland) (Con)

I am pleased to speak in the stage 1 debate on what is a very important bill. I commend the Education and Skills Committee for its in-depth and comprehensive report and John Swinney and the Scottish Government for their swift response to that report. In the limited time that I have, I will cover some specific points where I think that the bill needs strengthening.

As I said in last week’s debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, this type of bill demonstrates that Parliament is prepared to tackle a difficult topic and to bring the issues out of the shadows and into the light. Sexual abuse—specifically, child sexual abuse—has been swept under the carpet for far too long, with victims left without the support that they so desperately need.

As many of my colleagues will be aware, I have been working on such an issue on behalf of a constituent. It is fair to say that, over the prolonged period of time during which she has been seeking justice and redress, as my understanding of the trauma that she has suffered has increased, so have my discomfort and disquiet about how the ways in which victims are retraumatised and left open to suffering secondary abuse have continued to rise. The organisations that have been brought into question in my constituent’s case include local government bodies, an education authority, the police, the church, support services and the Scottish Government. We should not shy away from scrutinising the actions of any such organisations that might be involved in such cases.

The redress scheme is designed so that it is easier to access it than it is to take a case through the civil courts. However, the Criminal Injuries Compensation Authority already has a similar scheme in which decisions are based on the balance of probabilities. That is a different standard from that which is employed by a criminal court, which decides whether a case has been proved beyond reasonable doubt. The victim does not need to wait for the outcome of any criminal trial if enough information is already available for a decision to be made on their case.

Crucially, though—and contrary to the bill’s intention that the victim should waive their right to future civil action—should any subsequent payment be made arising from a civil action on a CICA compensation payment, the CICA payment should be reimbursed, which other members have said should be an option. I contend that, in that respect, the bill is flawed. It should not impose a ban on future civil action, otherwise why would a victim not just approach the CICA instead?

Furthermore, I contend that many of the support organisations for survivors are too close to the Government and receive funding directly from central Government, which potentially impacts their ability to act autonomously.

Another issue that has been raised in the debate is record keeping, which is currently woefully inadequate. As I said in last week’s debate, that is especially the case among local authorities, where there does not seem to be any requirement that they record potential cases of abuse within facilities that are run by them. Oliver Mundell also made that point.

Most importantly, the bill is currently designed specifically to provide financial redress for survivors of historical sexual abuse in care in Scotland. Of course, that is welcome, but in my view that aim is too narrow in scope. When I questioned the cabinet secretary on the eligibility criteria and urged that victims of sexual abuse in school settings should also be included, he responded that the scheme was designed to compensate those in relation to whom the state had undertaken parental responsibilities, by which he meant those in care homes. However, the bill that led to the Education (Scotland) Act 1980 used the term “in loco parentis”, which has the effect of transferring parental responsibilities to schools temporarily. That would also be true in other instances. That being the case, the bill as it is currently drafted could leave the Government open to potential challenge in the European Court of Human Rights or by the Equality and Human Rights Commission because of the inequality in its approach to victims of crime, and especially such a heinous crime. Alex Neil was hinting at that in his contribution.

The cabinet secretary may be aware of a related case in which a judge found that the Irish Government had misrepresented a ruling by the European Court of Human Rights by excluding from its redress scheme children who had been abused in Irish schools. I accept that the issues that were dealt with in that ruling were not exactly the same as those that we are debating, but that situation suggests that the bill that is before us could be open to a similar legal challenge.

As is the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which was passed last week, the bill that is before us is very welcome and long overdue. In developing it, though, it will be incumbent on us all to ensure that it is the very best that it can be for all those who have been victims of such horrendous crimes and who have to carry that burden throughout their lives. Financial redress will never heal their wounds, but it might at least give them comfort that their voices have been heard and there is an acceptance that they have been victims.

However, so much can be and needs to be done. Understanding the journeys of victims—both those who speak out and those who initially cannot—and the repeated trauma caused by having to retell their stories to multiple agencies, and tackling the lack of accessible, adequate support must all become part of the jigsaw. I have absolutely no doubt about Mr Swinney’s commitment to those who have suffered such crimes. However, I ask him to be a bit braver—to look beyond the limitations created by the way in which the bill is currently drafted and towards those who have suffered in similar ways but who are currently excluded. If we do not do so, it will only require more legislation further down the line. I urge him to make the bill everything that it can be.

The Deputy Presiding Officer (Lewis Macdonald)

The last member to speak in the open debate will be Annabelle Ewing.

I am sorry, but we cannot hear Annabelle Ewing because there is a problem with the sound. As we have some time in hand, I will suspend for a few moments to see whether we can connect Annabelle Ewing.

The Deputy Presiding Officer

We can now hear you loud and clear, Ms Ewing.

Annabelle Ewing (Cowdenbeath) (SNP)

Perfect—I am very pleased to be called to speak in the debate.

Although I am not a member of the Education and Skills Committee, which is the lead committee, I have a particular interest in the subject matter because I was the Scottish Government minister tasked with steering through the Limitation (Childhood Abuse) (Scotland) Bill. In the stage 3 debate on the bill in June 2017, I considered it of the utmost importance to recognise the bravery and perseverance of survivors, who have had such a long and arduous fight to set right the terrible injustices that they have suffered.

The Limitation (Childhood Abuse) (Scotland) Act 2017 was passed unanimously by the Scottish Parliament. It was just one element of a suite of actions that the Scottish Government undertook to carry out following on from the recommendations set forth further to the Scottish Human Rights Commission’s interaction process. Further to that process, the Scottish Government has taken several actions, including setting up a national confidential forum, the establishment of the Future Pathways support fund, the support for Margaret Mitchell’s member’s bill, which became the Apologies (Scotland) Act 2016, the establishment of the Scottish child abuse inquiry and the undertaking to propose a redress scheme. We have heard about the advance payments that have already been made under that scheme. It has evidently been a long journey for the Scottish Parliament, and importantly, for the survivors.

It is important to recall the backdrop to the bill, because it puts several key issues in context. The key issue that the bill must address is the most efficacious way in which to set up the non-adversarial redress scheme. It will have to have the means to pay out the contributions from the providers of care concerns. I understand that that is a key issue for the survivors because, quite rightly, they feel that those providers of care have a moral responsibility. I agree entirely with that sentiment. Seeing society recognise the harm that was done to those individuals and doing right by them is part of the important task that we are engaged in. That has been a persistent ask of survivors over many years.

As to the mechanics proposed, I know—and we have heard this afternoon—that the most controversial issue is the waiver. I note that the Law Society of Scotland, for example, has raised particular legal issues with it. As a member of the Law Society of Scotland, I understand the rationale for those concerns but I feel that they could be overcome, certainly from a legal perspective.

In considering the issue, it is always important that we keep two particular issues in mind. The first is the role of the redress scheme. The scheme is to be a non-adversarial alternative to court, offering a faster and more straightforward process. It is intended to be less traumatic for survivors, in particular, because of the in-built support that it entails. Also, it will encompass within its scope the pre-1964 survivors, which was an issue that we simply could not square under limitation legislation, in the light of the prescription law of Scotland. The second important issue to keep in mind is that not all survivors want to go down the court route. They might find that it is not for them, or they might not be able to do so successfully given the very significant procedural and evidential hurdles that remain. In that regard, I note that the limitation legislation did not remove all barriers to a successful action. It removed one barrier—the three-year time bar, which applied de facto in all cases that were brought. Those two key issues are important as the backdrop.

The cabinet secretary has said that he will continue his reflections on this important subject, and I welcome that approach. I think that it is recognised that the cabinet secretary has a deep and personal commitment to securing access to justice for survivors. In the instant case, that means finding a redress system that is workable in practice. It is not good enough for Parliament simply to come up with something on paper that will not work in practice and that does not take account of what are perhaps unrealistic expectations of the role of the redress scheme and, in some instances, of the role of civil litigation with regard to this issue, because of the immense hurdles that survivors will face in the civil courts in terms of evidential and procedural rules.

It is fair to say that the cabinet secretary made the point in his response to the stage 1 report—I think quite fairly—that there is no evidence of any international redress scheme with no form of waiver in place. It is also fair to say that we can come up with something different. However, the international evidence suggests that the issue has been wrestled with by many people in many places and no workable alternative has been found. That is important to bear in mind in future considerations.

I understand that some care providers, in their written submissions to the committee, suggested that the waiver was important to the making of financial contributions. Those care providers included Aberlour Child Care Trust, Quarriers and the Church of Scotland’s CrossReach organisation. That issue has to be weighed significantly in the further deliberations on the bill, and I am sure that it will be. It is fair to say that, without financial contributions, there will not be a redress scheme—that is the stark reality, and I believe that, if that happened, it would be a failure on the part of the Parliament in its duty to survivors.

Parliament has had an honourable track record in recent years. It has shown that it recognises the state’s failure in its duty of care to some of our most vulnerable children. It has also shown that it is really determined to see justice done. Therefore I feel confident that, after further scrutiny has taken place, we will see, in due course, the bill pass at stage 3.

The Deputy Presiding Officer

We move to closing speeches. We have a little time in hand, so speakers have a generous six minutes.

Daniel Johnson (Edinburgh Southern) (Lab)

I begin by expressing a hope that, collectively, we live up to survivors’ expectations and that we meet their needs.

It is difficult to articulate the injustice and suffering that the bill seeks to address. Over generations, countless children were placed in the care of authorities and organisations where they were supposed to be kept safe, looked after and cared for. Instead, they were abused, exploited and preyed upon. Not only was that not prevented, but in many cases it was ignored and covered up.

As many speakers in this afternoon’s debate have commented, we have been on a very long—perhaps too long—journey. We heard apologies from the former First Minister, Jack McConnell, and they were repeated by the Deputy First Minister. We have also seen the creation of the independent child abuse inquiry. The debate is an opportunity for us to repeat those apologies and acknowledge the seriousness of what occurred in the past.

The debate also provides us with an opportunity to collectively take an important further and, I hope, final step. We must go beyond simply acknowledging the abuse and the wrongs that were done in their generality. We must seek to ensure that survivors have their personal experiences acknowledged and receive an apology and justice for the wrongs that were done to them as individuals. I will reflect and reiterate the Deputy First Minister’s comments, because I think that it is vital that we treat this as a genuine, collective endeavour and responsibility. There is a duty on all of us—not on any particular party—to live up to the expectations that so many survivors quite rightly have.

The creation of redress Scotland aims to create the means for survivors to seek justice in a way that is more straightforward and less burdensome than that of pursuing a claim through the civil courts. Its creation also recognises that many might find it difficult to evidence their experience to the level that would be required in the courts. It is the right approach.

Experience in other countries tells us that we must avoid adversarial processes such as those that might occur in the courts. It also tells us that it is important to ensure that survivors are helped to make their claims, rather than having to fight for recognition, particularly given that so many have been fighting all their adult life for recognition and redress.

Labour will support the bill at stage 1. However, it is important that we highlight the areas that must be improved so that the bill achieves its aims as effectively as possible and provides justice to survivors.

As many speakers—Iain Gray, Jamie Greene, Rona Mackay, Beatrice Wishart, Alex Neil and Kenny Gibson—have noted, the waiver is the central issue that we must address. It is fair to say that we understand the intent behind the waiver, which is to incentivise organisations and maximise the number that participate by protecting them from further claims in the civil courts. However, the provision is deeply problematic for two reasons.

First, as Ross Greer, among others, set out, in the eyes of many survivors, at best, the waiver provides them with an invidious choice between compensation through the scheme or going through the courts; at worst, it is a removal of their rights.

Furthermore, and perhaps more fundamentally, I do not believe—nor do most members—that the provision does what it sets out to do. It does not provide an incentive for participation, because it is likely that participating organisations will not be assisted by their insurers in making payments, whereas they would get that assistance if they were taken to court. Bluntly, based on crude financial calculations, providers will be worse off if they participate in the scheme than they would be if they were sued. That is the blunt and simple reality that many of the providers will face, and it is the basis of their concerns.

John Swinney

I am grateful to Mr Johnson for giving way. I follow the rationale behind his argument. However, does he accept that, if that were to be the case, the provisions in the bill would run the risk of not requiring providers to make contributions to the scheme if they thought that it was more in their financial interests to rely on court action being taken against them?

Daniel Johnson

I accept the point that the waiver cannot simply be additional to any potential liability that providers might find themselves facing. However, that is why it is incumbent on all of us to find alternative mechanisms to provide incentives. I think that the waiver sets out to provide an incentive, but it ultimately fails because it does not establish liability, and therefore the policies that providers have in place will not cover them. It also fails because uncapped liability might mean that trustees are simply unable to allow their organisations to participate, which is the point that Jamie Greene made. For both those reasons, the waiver is deeply flawed, although I understand the predicament and the challenge that the Deputy First Minister set forth.

There are also issues with the calculation of fair payments. It is essential that the concept of sustainability is included in the bill as a guarantee to organisations that participation will not put them, or the important services that they provide, at risk.

The issues concerning individual assessment have been made clear by Kenneth Gibson, Oliver Mundell and Ross Greer. It is the most delicate area of the work that redress Scotland will undertake. We are asking the organisation to listen to survivors, determine the veracity of their claims, assess the severity of that experience and then award a compensation payment commensurate with that.

Although I understand Ross Greer’s suggestion that a single payment should be made, I disagree with him. However, we must set out clearer principles on which the assessments can be made and on the evidence that is required to establish proof. Those principles should be in the bill with further detail in regulations. The only way to provide justice for survivors is to have a clear process so that any decisions made by redress Scotland will be beyond reproach.

The bill is complex. There are other areas that I could and should give attention to, but I do not have time.

I thank my colleagues on the committee and note the collegiate and constructive way in which everyone has approached the bill. I thank the clerks for their work. I have no doubt that we can address the issues that have been identified and that we can make sure that the bill does what survivors require of it.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

In closing for the Scottish Conservatives, I record my gratitude to the survivors who gave evidence to the committee and bravely came forward to tell their stories.

Members from all parties have made excellent, poignant and thoughtful contributions to the debate. As my colleague Brian Whittle pointed out, this is a difficult subject for some of us who have constituents who have been affected.

I thank the Education and Skills Committee for its work on this important step in redressing historical child abuse. Jamie Greene rightly said that no compensation can make up for the dark times experienced by survivors. However, members have acknowledged that we are taking a positive step for victims who suffered years of abuse that was largely ignored and swept under the carpet.

I am also pleased to hear the Government’s commitment to work with Parliament to get the bill right for those who were failed as children. Scottish Conservatives will work with the Government as the bill progresses.

Not only will the bill deliver fair and accessible forms of financial and non-financial redress for survivors, but it marks our recognition of the abuse and harm caused to the youngest in society, which should never have been tolerated.

The detailed text of the bill will be set out in the coming months. It is encouraging that we have much common ground to work on. First and foremost, we feel that we must do what is right and appropriate for victims and survivors. That is why Scottish Conservatives will support the bill.

The choices to be made by victims and survivors must be at the heart of the support mechanisms that the bill creates. I am glad that the committee noted that victims and survivors should

“be treated with dignity, respect and compassion”.

Those words should form the foundations of the bill.

We also welcome the Government’s commitment to establishing the survivor forum that John Swinney mentioned in his opening speech. Given the difficult circumstances that many survivors have faced for many years, it would be wrong not to make that a driving force behind the bill.

Support must be better tailored to what victims and survivors would find most helpful. We welcome the redress scheme that is set out in the bill, as it is designed to be far more accessible than the process of taking a case through the civil courts. We know that civil and criminal court cases can cause survivors harmful memories. As many speakers have said, it is vital that we ensure that the process is less arduous and damaging for survivors of abuse.

We welcome the inclusion of next of kin in the redress scheme. There seems to be unanimous agreement that, in certain cases, even if the requirement to take a case to the civil courts is removed, it is difficult for an individual to access support. The Law Society made an important recommendation in that regard, particularly for those who might find it difficult to seek redress, such as adults with incapacity.

That issue has not been mentioned in the debate as much as I thought that it would be. Adults with incapacity might have difficulties in relation to some aspects of making and processing an application for a payment, but they should not be excluded as a result. One way to address that issue would be to appoint a guardian or intervener under the Adults with Incapacity (Scotland) Act 2000, to allow an application to the redress scheme to be made on someone’s behalf.

I turn to what is included in the bill’s definition of abuse, which is another point that has not been mentioned in the debate as much as I expected it to be. Probably because I am not a member of the Education and Skills Committee, that caught my attention more than some of the other points that members have made, which I will summarise at the end of my speech.

Many stakeholders have expressed concerns about the omission of certain terms from the definition, but the one that has come to the forefront is the omission of corporal punishment, which in days past was commonplace in many settings, such as schools and children’s care homes, with teachers and care staff abusing their power. Because corporal punishment was permitted at the time, people who experienced it being used in an abusive way might feel discouraged from coming forward.

I understand that the cabinet secretary has given assurances regarding the redress Scotland panel taking a one-size-fits-all approach, and that it will consider whether corporal punishment should constitute abuse and whether redress should be considered for that. However, I agree with the committee that it is vital that the Government reflects on the wealth of compelling evidence on that point and addresses stakeholders’ views in forming a robust and encompassing definition.

Many members have spoken about the importance of the waiver and of the balance that must be achieved for the future viability of organisations. I am sure that that will continue to be a subject of debate, but we are here to encourage, not discourage, debate and participation. That is the approach of not only survivors but of members to the bill.

Jackie Baillie, Iain Gray and my colleague Jamie Greene are concerned that the waiver is a disincentive and said that they had heard evidence to that effect. The key issues of affordability and sustainability have also been raised. We must be able to attract contributions from organisations, and it has been suggested that the Government must look at that issue carefully if it is to get cross-party support on it at stage 2.

My colleague Oliver Mundell expressed his wish to see all evidence being taken at face value, which is an important point. There should be a presumption that those who come forward are telling the truth.

The committee suggested that, instead of fixed payments, payments should be made in bandings. As Jackie Baillie said, abuse is abuse, and there should be more consistency in payments, as well as in relation to the level of proof required.

Many members raised the requirement on survivors to make key decisions regarding offers of redress in a short timescale.

There is a lot to work on with the bill, but the Conservatives will vote to support its general principles at stage 1. John Swinney deserves grateful thanks for his pursuit of the bill, as everyone who has spoken in the debate has mentioned. We take our hats off to him.

We echo the calls in the committee’s recommendations and we look forward to making amendments to the bill at stage 2.

The Deputy Presiding Officer

I call John Swinney to wind up the debate. Cabinet secretary, you have until 5 past 5.

John Swinney

I thank colleagues from all political parties for their thoughtful and substantial contributions to the debate, which I think will help us significantly in advancing the development of the bill and in the resolution of the issues on which there is not yet agreement.

The only place that I can start in closing the debate is with Jackie Baillie’s contribution—not because of the quiet banter that was going on during the suspension, which happened before Annabelle Ewing’s wise and thoughtful speech, but because of her comments about Helen Holland.

Helen Holland is one of the most remarkable people I have met in my life. I cannot begin to imagine the suffering that she has endured in her life; I cannot begin to fathom and understand any of it. However, she has devoted the past 20 years of her life to making sure that the world is a better place as a consequence of all the terrible suffering that she has endured. If there was ever an example to any of us as to how we should live our lives, it is how she has devoted the past 20 years of her life to the pursuit of justice, which is not really for herself at all but for everyone else. It has been the privilege of my life to get to know her and to be motivated by the spirit that motivates her.

Members have been generous in their comments about my personal commitment to the bill. My very high personal commitment to the bill, which is traced back to Helen Holland, is to make sure that I complete a task that she has been determined to complete. I pay warm public tribute to the many survivors who I have had the privilege to meet, but particularly to Helen for her determination in that endeavour.

Annabelle Ewing talked about the journey that we have been on. A few weeks ago, I gave evidence to the Scottish child abuse inquiry. I accepted—indeed, I offered this up to the inquiry—that I felt that we are getting to a place in which we are completing the addressing of the historical wrongs that have afflicted our society on these issues, with the Limitation (Childhood Abuse) (Scotland) Act 2017, for which Annabelle Ewing was responsible; the apology that the former First Minister Jack McConnell made; the Apologies (Scotland) Act 2016; the establishment of the Scottish child abuse inquiry; the establishment of the advance payment scheme; and now the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

It has taken us too long to get here—I accept that point in front of Parliament today as I accepted it in front of the Scottish child abuse inquiry when I gave evidence to Lady Smith—but we are here and I am absolutely determined to ensure that we get it right now that we have arrived at this point.

One of the strong points that Annabelle Ewing made—Jamie Greene, Daniel Johnson and Iain Gray made it, too—is that the purpose of the waiver scheme is to provide an alternative to court. It is to provide a reliable, dependable route that saves survivors going through the ordeal of providing evidence in a court case in an adversarial setting where it may be difficult to address the issues and find the evidence to successfully win a court action. As it is an alternative to court, it does not require the same burden of proof that a court requires. I will come back to that point in a moment.

Crucially, Annabelle Ewing also made the point that the scheme must work in practice. In that respect, Iain Gray’s comments are important. We all want to achieve the same objectives through the bill. The heart of the matter is that we want survivors to have an alternative to court that secures a dependable outcome for them and we want organisations—providers—to make a contribution. We are all agreed on those points. However, we are not quite agreed on the mechanism by which we can enable those two things at the same time.

In the spirit of the fair contribution that Daniel Johnson made to the debate, in which he called on us all to live up to the hopes of survivors to do it properly—I am completely committed to doing that—I invite members to go into the next stage of the process with an open mind and to try to address the question that I have posed: how do we design a mechanism that enables us to secure contributions from providers and delivers an outcome for survivors? That is the spirit in which I am going into the discussion.

I have proposed that the way to do that is through a waiver scheme, but if there is a better idea, I am prepared to contemplate it.

Iain Gray

An important element of this is the discussions that have taken place and of which the committee has some awareness—although perhaps not a great awareness of the detail—between Mr Swinney’s officials and the organisations about how the calculation would work and what the contribution would be. Will Mr Swinney go back into those discussions and revisit some of that because he clearly feels that there was a problem with where they had got to?

John Swinney

I am absolutely committed to doing that. I would also welcome some cross-party discussions before we get too far into stage 2 so that we can air openly the evidence and assumptions that underpin the Government’s position and hear what underlies other opinions. I am very open to that so that we can focus on answering the question how we design a mechanism that secures contributions and enables us to make payments to survivors. I have put a model on the table, but I would welcome a commitment to open cross-party conversations before we get to stage 2 amendments that will enable us to hear some of the detail that underlies that. I commit to that today.

Jamie Greene

I appreciate the cabinet secretary giving up his time in this short debate. I welcome his openness, and Conservative members will, as I am sure that other members will, fully participate in those discussions with transparency and an earnest intention to get to the root of it. However, the stage 1 report is based on evidence that the committee took. Paragraph 510 notes that the care providers that we spoke to said that there was no suggestion that the waiver would incentivise them to participate. The answer therefore lies in the contributing organisations. What do they say to us and what do they say to the Government? If they come forward with a suggestion that works, of course we will look at it, but ultimately it will be those organisations that pay the money. What do they say to you, cabinet secretary?

John Swinney

As I said to the committee, I have in my briefing the point that various organisations have welcomed the proposal for a waiver provision, including the Aberlour Child Care Trust, Quarriers, and Church of Scotland CrossReach. These are the issues that we have to explore. I want to answer Mr Greene’s question and I want these organisations to provide, because I want to address the issue that Helen Holland raises—she wants to make sure that these organisations are accountable to many survivors.

On the issue of the burden of proof, which Daniel Johnson raised, one of the important opportunities of the scheme that we are providing is that we do not have to have the same standard of proof as would be required in a court setting. We have set out that we are attracted by a standard of proof that is something equivalent to a civil standard, where the balance of probability is essentially assumed to be on the side of the victim and that something is more likely than not to have happened.

Crucially, in the advance payment scheme, 520 cases have been fulfilled and not one of them has, to date, been rejected on the basis of a lack of evidence. My officials are working hand in hand with survivors in some cases to find proof to substantiate the claims that are being made, but it is important to reassure Parliament that, in the approach that we have taken on the advance payment scheme, we have not rejected any cases on the basis of a lack of evidence so far.

Daniel Johnson

On the point about helping claimants to find the evidence, could that be put in the bill? That was something that I did not manage to say when I spoke earlier.

John Swinney

Without a doubt. That might also help to define in more detail, perhaps to the reassurance of Parliament, what is envisaged in terms of the standard of proof that might be required to address these questions.

Oliver Mundell

Does the cabinet secretary accept that the point that he is making becomes more complicated when it comes to determining the different levels or does he just not envisage a problem there? I worry that, to get the higher-end payments, the balance of probabilities might be interpreted differently.

John Swinney

I meant to mention Mr Mundell in relation to the burden of proof question, because his speech was dominated by that point. However, his intervention leads us to one of the other issues, which was covered in Ross Greer’s contribution. Another question that we have to resolve is whether we believe that a flat-rate payment is more appropriate than a range of payments.

I suspect that going down the route of having a range of payments would require more evidence to be marshalled, whereas a flat-rate payment—which is what the advance payment scheme is based on—would perhaps make it more straightforward to enable payments to be made without it becoming a traumatic and arduous process for survivors.

There are choices to be made about the payments; in relation to that question, again, I am not wedded to a particular approach. I will listen carefully to where Parliament is on those questions and I will listen to survivors because, fundamentally, we want to secure a scheme that meets the needs of survivors and does not add to their trauma.

I hope that I have helped to reassure Parliament this evening that the Government will engage constructively on those questions. The bill has to be workable, because we have to be able to look survivors in the eye after the bill has passed and give them confidence that it delivers what they expect of us. I commit myself to that and I am greatly encouraged by the response of members this afternoon as to the commitment that is shared across the political spectrum.

The Deputy Presiding Officer

That concludes the debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is decision time. There is one question to be put as a result of today’s business. The question is, that motion S5M-23707, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill at stage 1, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

The Deputy Presiding Officer

That concludes decision time.

The Convener

Item 7 is an evidence session on the bill. I welcome our witnesses. I have a note from the clerks that says that David Whelan from Former Boys and Girls Abused in Quarriers Homes is in attendance but that we are still waiting for confirmation of Mr Aitken’s attendance—we will bring him on board if he manages to join the meeting. We also have Helen Holland and Simon Collins from In Care Abuse Survivors and Janine Rennie, the chief executive of Wellbeing Scotland.

I ask members to indicate that they wish to ask a question by putting an R in the chat box.

Iain Gray

The witnesses will know, because they were there, that the evidence that they gave at stage 1 led in particular to the recommendation in the committee’s report that the waiver whereby survivors who are to benefit from the redress scheme must waive their right to seek justice in the civil courts should be removed from the bill. The witnesses will have seen from the correspondence with the Deputy First Minister that he is going some way to mitigate some of the waiver’s effects. For example, he has listened to the evidence that more time is needed to allow survivors to decide whether to accept a redress payment and sign the waiver or to refuse the payment and keep their right to civil justice.

My question to the witnesses is simple: in your view, and in the view of the survivors whom you represent, is that enough of a change, or do survivors still feel that the principle of the waiver undermines their confidence in the bill?

The Convener

If any panel member wishes to come in, they should indicate that by putting an R in the chat function. As I cannot see everybody on the screen, I am afraid that raising a hand will not help very much.

Janine Rennie (Wellbeing Scotland)

We had a meeting with a large team of survivors yesterday. We also have a team of survivors who have introduced a petition about the waiver. Survivors are not satisfied at all by the changes that have been proposed. They still feel that the waiver is a betrayal of everything that they have been through over the years and a large number of survivors have said that they would fight it all the way if they felt that a waiver was still going to be in place in the bill.

They come back to the same argument, which is that a lot of survivors would sign the waiver but, years later, circumstances might change. For example, there might be a case that was not able to succeed; however, more survivors could come forward and then it would be able to succeed. Survivors feel that, when they signed the waiver, they would not know all the possible ramifications, which might be two or three years down the line. Things are changing all the time, with more survivors coming forward and more ability to seek civil redress.

Survivors want the choice to seek that, and a number of them have told me that they feel that the waiver is a betrayal. The meeting yesterday was very angry; every meeting that we have had has been the same, and nothing that has been produced has changed that. They feel that it is an absolute betrayal and that their choice should absolutely be respected.

Although I understand that there has been a waiver in a lot of other countries, survivors feel that the situation in Scotland is unique and should not be considered along with evidence from other areas.

Helen Holland OBE (In Care Abuse Survivors)

In relation to INCAS and the many survivors who engaged with the consultation, I agree that there was an element of misunderstanding—that is probably the right word—across the board. The biggest issue with the waiver is that it is linked to contributions. It is all well and good to say that Scotland is unique, but it is not unique in the sense that we are talking about redress, and there has been redress in many countries.

Even if I went down the civil court route, for example, the reality is that I would probably need to sign a full and final settlement agreement or some kind of financial agreement at the end of that process; if I was doing an out of court settlement, I would probably have to do the same thing.

The survivors have the right to go down the civil court route. In relation to the bill, we are now talking about a prolonged period of time of six months for the survivor to get independent legal advice. Within that legal advice, the survivors would be able to make a choice. What is coming across from our members is that, although everybody is talking about rights, they have not heard people talking about choice.

Survivors have waited a long time for this coming and—quite frankly—many have already made that choice for themselves. We have members who are going down the civil court route; equally, we have members who are patiently waiting for the redress scheme to open. It will never suit everybody; I do not dispute that at all.

There appears to be a lot of confusion, which for me is the biggest difficulty. People do not fully understand that there would be an agreement at the end of any financial settlement. The reality is that it has happened in every other country in the world. My concern is that, if it does not happen here, care providers will simply stand back and do nothing. They will not engage unless there is a waiver and, if there is no waiver, who will pay the redress? It would have to be the taxpayers of Scotland, and how is that justice for the survivors? It would mean that, at the end of the process, the care providers would walk away without acknowledgement of the fact that the people who allowed the abuse, or the organisations where the abuse took place, had not been held to account. I do not know any survivor who would find that to be justice.

I am not saying that there is an easy answer; it is extremely difficult. It is not for us to decide—it is for the committee to decide. That is the predicament.

The Convener

Thank you very much. I will bring in Simon Collins.

Simon Collins (In Care Abuse Survivors)

It was helpful for Helen Holland to speak before me, because she has explained the views of INCAS members. I am aware that there are different views and legal opinions on the waiver. Now that the committee has heard the INCAS view in general on the waiver, I return to the question that was asked, which was whether we are satisfied with the steps that are proposed as the bill goes from stage 1 to stage 2. There are a couple of things to say. First, the increased length of time to consult is essential—that is recognised and welcomed.

Secondly, if there is to be a waiver, which is still a big issue that others will engage with, it is also essential that consideration is given to making the waiver capable of revocation. Survivors do not believe that every organisation that undertakes to contribute will follow through. That doubt is based on what has happened in the past; it is not wild supposition, because it is based on examples. Survivors want to know that, if they sign a waiver and waive their rights, conditions have to be met, and that, if those conditions are not met, they have the right to put the waiver aside and pursue an action.

The issue that remains is the provision of proper advice. From our written submission, members can see that I am still concerned about the interpretation of sections 89(2)(d) and 89(3) of the bill. Section 89(2)(d) says that a survivor will be given cover for legal advice on

“whether to accept an offer of a redress payment and sign a waiver”,

but section 89(3) suggests that that will not include

“legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment.”

That reads as meaning that people will not be able to seek legal advice before they engage in a process and before they make an application—that is how I understand it. However, if it is intended to be at the point when the waiver is signed, it is totally unacceptable. You cannot waive a right without full understanding of what the right is.

That part of the bill must be made clear, because my reading of it is not clear. It must be made clear that, at the time that a survivor has to sign a waiver—if they are to sign a waiver—they will be given proper advice. I suggest that that should mean counsel’s opinion on the prospects for and likely outcome of civil litigation. That is the only way that someone can make an informed decision.

The Convener

Mr Whelan has been able to join us. I will bring him in shortly, after quickly going back to Janine Rennie.

Janine Rennie

I have a clarification to make. Helen Holland alluded to survivors not understanding, but it has been clear to me throughout that survivors have a really clear understanding of the process. When survivors receive legal advice at the beginning of the process, they do not know the future and what the prospects are for a civil action three years hence. A lot of survivors have expressed that concern to me.

I forgot to mention that the insurers have not been at all clear about whether they will contribute to a redress scheme. Although for, say, Quarriers homes, some survivors might sign a waiver, there might be a large cohort—we have worked with 135 survivors from Quarriers homes—that will not sign. An organisation contributing to the waiver scheme will not mean that there will not be litigation against it because, although one survivor might waive their rights, another 100 survivors might not. I do not see that there is an incentive for insurance companies to contribute to the waiver scheme.

The survivors do not see a connection between the contribution of organisations and whether they have accepted the waiver scheme. They are not really interested in whether organisations have signed up to that. They are more interested in receiving maximum compensation and justice for what they have endured.

The Convener

David Whelan, would you like to come in on that? I appreciate that you were not with us when the question was asked.

David Whelan (Former Boys and Girls Abused in Quarriers Homes)

Good morning. Can you hear me?

The Convener

Yes, we can.

David Whelan

Sorry about that. There was an issue in logging on.

I picked up some of the last part of the conversation. I understand that it was about the waiver and contributions. For us, the issue is about those two things being linked. There was no suggestion of that in the consultation; I agree with Janine Rennie, who said in her submission that no linkage was made.

When it comes to the waiver, I find it extraordinary that—[Inaudible.]—may want to contribute, such as Quarriers. Those residents will have to sign a waiver, if the scheme comes into place. If other institutions do not contribute, their former residents will not have to sign a waiver. Whoever thought that up has created a system that discriminates completely against various residents, at a basic level.

We have been told that the waiver is based on contributions that will come from the insurers. FBGA has worked out the liability for the current Quarriers cases. It is significantly lower than what the Scottish Government is asking the organisation to contribute. Insurance companies are commercial private companies and therefore have a financial interest whenever they do business. Why does anybody think that insurance companies would contribute to a scheme far more money than is their current liability, as they are being asked to do? I do not understand the rationale behind that plan.

If I missed part of the question, convener, you can give it to me and I will be happy to answer.

The Convener

We will keep the debate going, Mr Whelan, and if you want to come back in we will bring you back in. I will bring in Helen Holland briefly, before we go back to Iain Gray.

Helen Holland

I have a very brief response to what Janine Rennie said. What I meant by survivors being confused was to do with the consultation paper and process in that the link between the waiver and the contributions was not clear.

The Convener

Thank you. I will bring Iain Gray back in.

Iain Gray

I am happy for colleagues to come in.

Rona Mackay

To move on a wee bit, what are the witnesses’ views on the variations between payment levels and the maximum level of payment? Do they think that higher payment levels might make survivors more amenable to the waiver? If there was less of a difference between the different levels of redress scheme payment and civil court awards, would that make a difference to witnesses’ views on the waiver?

Helen Holland

I think that it would—absolutely. In comparing the redress scheme with civil court action, we must consider the reality that many survivors are over 65. For them, and especially for the pre-1964 survivors, who, let us remember, have no choice about the court option, if the settlement figures were more in line with civil court action—again, with the correct legal advice—yes, absolutely, that would be deemed fairer for the survivors who engaged with the redress scheme.

If a survivor comes to the redress scheme and, within that period their legal advice is, “Actually, with the evidence that you’ve got, you would be better taking civil court action”, it will be for the survivor to make the choice. If a survivor says to their lawyer, “I know I could probably get more from civil court action, but, for me, it’s about more than finance,” that needs to be respected as well. It is unique to the individual, but my understanding from the consultation process is that the majority of survivors who have been waiting 20 years just want it to be done and dusted. They want to be able to move on with their lives and put all this behind them, because the longer it goes on, the longer they have to engage with those thoughts and memories. Therefore, just on the basis of what has been said, it probably would make a difference to the survivors.

Simon Collins

Helen Holland mentioned that a higher level of payment would assist. I want to make two points, one of which is about the difference between the proposed levels of payment and the payments that were made in Ireland. Looking at the responses to level 1 payments, reference is made regularly to the intention to set up a non-adversarial system. I cannot understand why, from a legal perspective, that is linked to the level of payment. The benefit of the non-adversarial system is the ease of access for those who apply and the reduced legal costs. As a lawyer, suggesting that legal costs should be reduced could get me turned out of my private clubs, but there we are. Reducing legal costs is the advantage of the scheme, but that should not affect the level of payment, because the abuse that has been suffered is what triggers a level of payment. The fact that we have made it easier to access that should not justify a lower level of payment.

Helen Holland mentioned the pre-1964 survivors. When consideration of redress was first raised along the lines that we are talking about today—it has been discussed for many years—one of the significant moments was Angela Constance announcing that there would be a bill to remove the time bar. David Whelan, Helen Holland and others were in the room at the time. The promise that was made was that those pre-1964 survivors, who cannot have their time bar removed, will be treated equitably, in a way that is comparable to the position of post-1964 survivors. The only way that that can be achieved is by the pre-1964 survivors being able to achieve through this scheme what they would have achieved through the courts. Unfortunately, for obvious reasons, there is a reducing number of pre-1964 survivors, but if we are to deliver on the promise that was made back then, and which has continued to be made, pre-1964 survivors must be eligible to be assessed for the payment that they would have achieved in court, because they do not have the option of going to court. There should not be an upper cap on that.

On the banding of payments, there are huge jumps, from £20,000 to £40,000 to £80,000. In paragraph 80 of its response to the committee’s stage 1 report, the Scottish Government states:

“We remain concerned that a wider range of payment levels may result in different payments being offered for similar experiences.”

Wherever you draw a line and people on one side of the line receive one payment and people on the other side of the line receive another, there will be people who fall either side of that line whose experiences might be similar. When there is such wide banding, the difference is double the payment—it jumps from £20,000 to £40,000 to £80,000. That is much starker than if the difference were less, so a greater number of bands and more assessment are needed.

The Convener

Mr Aitken has managed to join the meeting, so I welcome him.

David Whelan

I thank the clinical professionals whom we commissioned to write a response to the Government’s draft assessment framework on behalf of Former Boys and Girls Abused. It is clear that many elements were missing from the Government assessment paper.

Based on the consultation, it became very clear that survivors wanted their individual experience recognised in any process, and that they wanted further assessment of testimony that would recognise the whole experience of the survivor—not only the abuse experienced but the life circumstances. Aggravated circumstances are not currently recognised in the assessment framework. Experience of sexual incidents, disability and racial discrimination—a number of children suffered abuse in Quarriers homes because of their colour—are a significant handicap to survivors as they enter the labour market, because of what occurred. There is a loss of opportunity, which is not addressed.

That goes to the heart of what the payment system actually is. It should be there to address the whole-life experience of the survivor. Currently, the figures go from £40,000 to £80,000. The financial memorandum makes clear that the Scottish Government based its calculations on the fact that everyone will be pushed down into a calculated sum and the majority of payments will be around £32,000.

First, I do not know how the Government arrived at that calculation, without seeing the detail. Secondly, the payment levels can certainly be expanded and improved; we only need to consider other schemes. If what we and our clinical professionals have said is missing from the assessment framework is addressed, those gaps will also be addressed. The payment level should go all the way up—beyond £80,000 to £100,000 and £125,000 for the most extreme and exceptional circumstances.

I ask the committee to have a good look at the Lambeth children’s homes redress scheme and its modelling approach, which identified levels on a scale and matched them with people’s experiences. The Lambeth model is excellent. Eighty-three per cent of applicants to the Lambeth model received payment, council legal fees were 7 per cent and applicants’ legal fees were 10 per cent.

We want a survivor-centred, trauma-informed process that—as the convener has said—puts the survivor at the centre of the process. It is difficult to see how the Government’s figure was arrived at. We are working with the model that came out of the consultation, but, from my recollection, there were no other models on the table. We have considered Janine Rennie’s model, and there is merit in some of that. However, we are working with the Government’s model, and there was no choice of others, based on my recollection.

We have tried to improve the bill as best we can and to help the Government. I want to thank the Scottish Government, particularly John Swinney and his officials Claire Soper and Donald Henderson. We recognise that there has been significant progress in latter years, which has happened under Mr Swinney’s brief. We thank him for that and for engagement with Scottish Government officials. The conversations are difficult but that can be overcome and we are committed to working with the Government to overcome those difficulties.

The Convener

Thank you, Mr Whelan. I am going to bring in Ms Rennie.

Janine Rennie

[Inaudible.]

The Convener

Ms Rennie, we missed the start of that.

Janine Rennie

Can you hear me now?

The Convener

Yes, we can.

Janine Rennie

On the question of whether survivors would accept the waiver if there was a higher level of payment, the survivors have been very clear that they would not. They still feel that they should have the choice. They know that there are plenty opportunities where, if there has been double counting of money then, as with the criminal injuries cases, there could be other ways of reclaiming any money that has been paid out. The survivors are very clear about that.

It is not about the amount of money. The survivors have been very clear that it has nothing to do with the money; it is about the betrayal that they feel. They are clear that they would never agree to the waiver. They feel very strongly about that, and they wanted me to stress it.

I welcome David Whelan’s paper. That is the first time that we have ever really talked about the impact on survivors. When I was reading through it, everything that was said about the long-term impact on survivors of abuse resonated with me. I do not think that the levels of redress are adequate. We have been delivering the In Care Survivors Service Scotland since 2008—for 12 years—and I have worked personally with survivors on a therapeutic basis. The level of physical, emotional and all other forms of distress that we have seen in everybody that we work with is significant. Essentially, £80,000 is two years’ salary for a lot of people, whereas we have worked with people who have never been able to work because of the severe distress that they have faced. How do you compensate them for that? I feel really strongly about that.

I should also say that the clients do not want a panel; they are very unhappy about the idea of a panel. They do not want to have to speak about their experiences to anybody else, because they have done it so many times.

Since we started, 12 years ago, we have worked with thousands of survivors in a clinical way and we have a huge number of incredibly thick clinical files. Survivors have said to us that they are quite happy to access their files and then present them as evidence. That shows the significant levels of physical and emotional distress that survivors have faced. In some ways, survivors feel that those files are their evidence.

Some of those survivors have worked with us for the whole 12 years, and one of them gave me a letter to bring to the committee. He feels really strongly that nobody represents him and that he has to speak for himself. He knows that there are other survivor organisations but he feels that nobody represents him and that he has been betrayed for the whole of his life. That particular survivor has not worked for the past 20 years because of the level of abuse that he received, and he lives in poverty. He said that he might feel compelled to take the money but that he might want to kill himself a year later because he had felt compelled to take it.

That is what we need to consider. As David Whelan’s paper shows, we are dealing with human beings who have been through distress that nobody should ever have to experience in their lives. They were betrayed and let down.

I find it really uncomfortable that we are arguing over a waiver, because it should not exist. It should absolutely be the case that the survivors get the choice that was taken away from them as children. They did not have a choice then. They were placed into a care setting against their will and their lives were essentially destroyed.

We cannot take the choice away from them. It is what we have all been fighting for for years, and the survivor who I referred to has been fighting for it for his entire life. We should not take away the choice for those survivors as to how they receive their redress and whether they go to a civil court or to the redress scheme. No amount of legal advice will be able to make them understand what it will mean to them when they make that decision. That is what is important to me, because I know survivors who settled but then felt horrible about that. We need to think about what the impact of suicidal ideation will be down the line, as I do not think that that has been considered.

The Convener

Thank you. I see that both Mr Whelan and Ms Holland have indicated that they want to come back in on that point. However, I note for the record that I am bringing Ms Mackay back in and that Ms Wishart, Mr Johnson, Mr Greer and Mr Greene all want to ask questions as well, so if the survivors do not mind, I will not come back to you this time. You may address previous points when you answer the questions going forward, if you want to do so. I want everyone to have the opportunity to say their piece and to ask their questions, if that is okay with everyone. I will go back to Ms Mackay just now. [Interruption.] I think that Ms Mackay has finished her questions. I will move now to Ms Wishart.

Beatrice Wishart

What are the witnesses’ views on the composition of the redress panel? I would like an understanding of where they are on that at the moment.

David Whelan

The redress panel should have a wide range of skills. Clearly, it is basic that it should be trauma informed. We suggested in our first submission what the skill set might be. The important thing for us is that the panel is independent and impartial and has lawful discretion to make independent and impartial decisions. We believe that the words “lawful discretion” in relation to the panel should be included in the bill.

I want to go back to a couple of previous points. We have had legal advice from international lawyers that, in the Scottish circumstances, the waiver will be unlawful, even if the Government tries to argue that there were different circumstances in the Irish case. We had that confirmed last night by the international lawyers who worked on the Irish case. I am saddened that we have got to this point and that, as Janine Rennie said, we are arguing over a waiver that has many strands to it but is supposed to make the scheme successful. It is just incredible.

I am also astonished by the deafening silence from the Catholic church and the Catholic establishment. We have not heard anything. I do not represent the children who were in those institutions, but I think that the Parliament has a clear duty with regard to the voluntary contributions. Quarriers, CrossReach and Aberlour have committed to trying to find a way to make contributions if the conditions are right. We believe that, if the waiver is not there, people will be able to make those voluntary contributions. People are looking at Aberlour, Quarriers and CrossReach, but they have already committed to the voluntary contributions. I think that we should be looking the other way, at all the organisations that have not committed to the voluntary contributions.

The other point that I want to make is about eligibility. The Government must understand that we are really struggling with the fact that the Scottish child abuse inquiry has investigated all these institutions but it is not legitimate for former residents in half of them to access the redress scheme. How can you have a system, on which there has been an inquiry, that denies those former residents access to a redress scheme?

We are saying to the Government that it has a once-in-a-lifetime chance to redress all the issues. Ireland has done that. It is now setting up its third redress scheme, which will take about three months—it is due to start in April.

The Irish route is addressing all the issues of all the survivors from every institution. The Scottish Government needs to consider doing that, too. The Government will have to revisit the issue. We are telling it that it has an opportunity to address the issue and make the scheme one of the best in the world. We, in Scotland, are the last to do anything—let us stop pretending that that is not the case.

The Convener

I will bring in Ms Holland at this point.

We seem to be having a wee bit of trouble with the connection.

Helen Holland

Can you hear me now?

The Convener

We can hear you, but we cannot see you.

We can see you now.

Helen Holland

I am sorry about that. I got logged out of the system.

The consultation papers mentioned the redress panel, but, to be honest, there has not yet been a great deal of discussion around who would be on the panel, and so on. That has still to be covered. We ask that the panel members be qualified with trauma-informed and financial qualifications—whatever the situation requires—but those conversations have not taken place yet.

On the issue of who is engaging with whom on redress, we are not privy to the conversations that are taking place between the Government and care provider bodies. That might be right, in a way, because the burden of responsibility of deciding who is paying what should not lie on the shoulders of the survivors. They are already carrying so many burdens, and that would be yet another one.

As I said, the conversations have not taken place yet, so it is difficult to answer the question.

The Convener

Okay. I have not seen any indications from Ms Rennie or the other witnesses that they want to come in on that question, so I will go back to Ms Wishart.

Ms Wishart has indicated that her question has been answered, so I will move to questions from Mr Johnson, please.

Daniel Johnson (Edinburgh Southern) (Lab)

I have two related questions on the evidential requirements for redress, so I will wrap them into one. There was a lot of detail on that topic in the written submissions, and we have examined the matter quite a lot. My questions follow on from Janine Rennie’s comments.

My first question is: what should the evidential requirements be for making an application? Do the witnesses agree with Janine Rennie’s points? How should the requirements be formulated, so that it is clear and easy for survivors to present that evidence?

Regarding my second question, I received a direct communication from a survivor who is keen that any information or evidence that is obtained by redress Scotland be provided to survivors. Many survivors do not necessarily know everything that happened to them, including where they were, or why. It is therefore possible that redress Scotland could obtain information that survivors simply do not have. That is not a matter on which we took evidence, so I am interested in hearing from witnesses about the possibility of requiring redress Scotland to hand back any information that it holds, subject to the protection of other individuals’ privacy.

My two questions are on evidential requirements and the requirement to hand back any information to survivors at the end of the process.

Simon Collins

At INCAS, we have a lot of experience of engaging with the child abuse inquiry. It is clear from what Janine Rennie said that there are organisations, such as hers, with which survivors engage and to which survivors spend a lot of time explaining the traumas that they have suffered, to the extent that they relive them. Whatever the basis of the evidence gathering, at all stages, it should be borne in mind that, whenever it is possible to gather evidence from a source without requiring survivors to go over very painful ground, that is the only appropriate approach.

I welcome the fact that an approach will be made to the inquiry. Many, although not all, survivors who want to come forward have engaged with the inquiry, and that is one means of gathering their evidence. Therefore, I welcome the fact that an approach has been made to Lady Smith about whether the information that is already held there can be used.

On the point about returning information, I am aware that, in the course of giving evidence to the inquiry, survivors have encountered documents relating to them that they have not seen before, including records that had been lost. Survivors might have spent many years struggling to find that information and, in some cases, put together a sense of identity from it. I cannot speak on behalf of survivors, but I have observed the distress that can be caused when such documents are locked back in a vault because they are part of confidentiality arrangements. Having observed the reaction of survivors, it seems to me that information that is obtained should be left with the survivor to use as they wish.

David Whelan

As Simon Collins said, we do not want the survivor to have to keep retelling their experience, as they will have repeated it many times. For us, it is important that the survivor is at the heart of the process and chooses the support mechanism that they want to take them through it.

On evidential requirements, people ask me, “David, when did this all happen?” For FBGA, it all started in 2002. I pay special tribute to two women who had the courage and tenacity to highlight the Quarriers abuses. They were in the media in 1984—one was Jan McQueenie, and the other was Doris Black. They were ostracised by the state and the Government because they had the tenacity to raise issues in the media about the abuse that they suffered in Quarriers in the 1940s, 1950s and 1960s. Unfortunately, they are now deceased, but their families will have some evidence, which is where next of kin come into it.

I have a second point, on evidential requirements. In our submission, we talk about the standard of proof, which needs to be lawful. We keep hearing from the Government that the process is not a civil proceeding, but we want the evidential standard of proof to be robust and credible. My concern, if I have one, is that the pre-1964 records of many survivors were destroyed, which means that much of what the committee might consider to be evidence that would normally be available to meet the requirements is, unfortunately, not available to survivors. We are concerned that, if the bar is set too high, it will exclude many survivors. The committee needs to consider that when it thinks about where the threshold should be set. We have an open mind on that—we have addressed it with regard to what I have just said.

On the governance of redress Scotland, it is important to put on record that we believe that redress Scotland should be independently regulated, with independent audits and impartial surveys of its functions. It will not give survivors confidence if the whole process is embedded in the Government. If a report were to come out from the Government that said that the organisation was doing fine, it would not, unfortunately, be independent or impartial.

On the gathering of evidence, we are concerned about what happens to the evidence when it is submitted to the process. Where does it go? Where does the consent and permission of the survivor start and end? If the survivor submits a document that requires to be validated, we believe that there is a need to go back to the survivor to ask for permission. There should not be a unilateral decision to send the document to a third party without the permission and express consent of the survivor.

On sharing information and data, I agree completely with Mr Johnson. If redress Scotland has information to which a survivor has not previously had access, it needs to find a way to share that with them while abiding by the data protection legislation. Redress Scotland cannot simply take the view that it can hold everything. If it has information on people who have not been able to access that information, it should share as much of that data and information as possible with the individual.

Janine Rennie

It is important that going for redress is a survivors’ process. It should be for survivors to choose which information they provide to whatever body is set up. We have been very much involved with the advance payments scheme in respect of access to records. Since the In Care Survivors Service Scotland was established, in 2008, one of its main roles has been to access records for survivors, so we already hold substantial records that survivors have been looking for over the years. A lot of the client files will contain their access-to-records information, with evidential information on what care home they were in and so on.

As I said when I gave evidence previously, one concern is the number of fires and floods that have occurred, which means that a lot of evidence unfortunately no longer exists. We have had reports back from two of the care homes that we are currently dealing with to say that there are absolutely no records. We have tried our hardest to go through school records and all sorts of different routes to find evidence that people were in a certain care home and, from that, to provide evidence that abuse took place, but it has been really challenging.

One important point that comes across all the time from survivors is that, when clients access their records, those are their records—and they should have support to go through them. We initially developed the model of access to records through the Care Leavers Association down south, which gave us some support in setting it up, drawing on its experience. It came across clearly from the association that there would be things in files that people did not know about. For instance, siblings had no idea about all sorts of information, which was a surprise to them. For their safety and to address risk, it is really important that people are supported through the process of accessing their records. We have been encouraged by the advance payment team, who have provided support and worked responsibly with us to ensure that we can access client records. We hope that that will continue. In Care Survivors Service Scotland has 12 years’ experience of that.

The records should belong to the survivor—I have been clear about that from the beginning. Every bit of information on a survivor should belong to the survivor—and that fits with the general data protection regulation, or GDPR. If the panel manages to find any additional information, it should go to the survivor first so that they can choose what information is then shared, as somebody would if they were looking to give their general practitioner’s records to an insurance company. What information is shared should be the survivor’s choice, as there might be aspects of their past that they do not remember being discussed and they should have a chance to reflect on that.

I would ask the panel to reflect again: how would you feel if some stranger got hold of your GP records and there were things in there that you did not want anybody to know? It should be the survivor’s choice what is known. The redress scheme is the survivor’s scheme, and it should absolutely be their choice what is shared within that.

Helen Holland

At the moment, there is an assumption that there will have to be a high level of evidence, but nothing has been said in the debate or anywhere else to suggest that. The whole point of the redress scheme is that the evidence required would be less.

I take on board exactly what is being said. For years, survivors were told that records did not exist and so on, but the child abuse inquiry has proven that to be absolutely wrong. For example, I was told that there were no procurator fiscal records, but they appeared before I was due to give evidence, so the reality is that there are records that are not being made available.

In the redress board, perhaps something could be put in place whereby the people who hold the records are compelled to provide them and the survivor—together with a support worker—is able to go through the records, not necessarily for the sake of proving that they were abused or whatever, but to find whatever it is that they wish to put before the panel.

INCAS’s position is that providing any evidence that is already out there, in order to avoid a survivor having to go through their experience over and over again, has to be a priority.

Many of our members who applied to the advance payments team thought that they did not have anything—they were told that they did not have anything—but the support people in the advance payments team or the people who were dealing with the applications were able to find that evidence. There is a lot of evidence out there that people think is missing, but it is still there. I am not, however, saying that that will be the case for everybody—some survivors will have difficulty, and I would not sit here and say otherwise.

Going back to the question about the basis of evidence, we do not know what level of evidence is being asked for at this stage. Until there is clarity on that, we are making the assumption that a high level of evidence will be required, although my understanding from the feedback both from the minister and from officials is that the level of evidence that will be required will be much lower. Given how the scheme has been set up and how things have been written, the redress is said to be more trauma informed, and there is no desire to make survivors relive all their experiences. That is my understanding, to date, of how the redress scheme is being set up. I may have picked that up wrongly, but I do not think so.

David Whelan

I agree completely with what Janine Rennie says and also with a number of the points that Helen Holland raised. Mr Swinney is on record as saying that the evidential requirement will be lower—that is in our submission. The committee and the Parliament will have to come to an agreement on where to set the standard of proof, so that it matches the lower evidential requirement.

The Convener

We will move on to questions from Mr Greer.

Ross Greer (West Scotland) (Green)

Let us turn to the issue of fair and meaningful contributions from organisations, following up on something that Helen Holland said in response to the first question from Iain Gray. There is some tension around the matter of fair and meaningful contribution. If we work on the assumption that contributions will be met directly by the organisations—probably from their reserves, because it is not a scheme that the insurers will engage with—the challenge becomes how to ensure both an appropriate level of contribution from the organisation and that any survivor who comes forward is able to get financial redress, no matter what.

That takes us to the point that Helen Holland made about how much comes from the Government and is public money. Some organisations will be able to cover all that is asked of them, although whether they do so is up to them, as it is voluntary. However, given that we cannot predict how many people will come forward and how much the sums will be, it may simply not be financially possible or realistic for some organisations to cover it all themselves. Also, some organisations may wish to give a lump sum at the start of the process but, by the end of it, survivors’ demands of that organisation might outstrip that sum.

I am not asking the panel to come up with a solution, and I recognise that what survivors want, overwhelmingly, is redress from the organisations, not from the Government. However, it would be helpful to hear the witnesses’ reflections on what it would mean for survivors if we ended up in a situation in which organisations made what was broadly regarded as a fair and meaningful contribution but that did not cover the demand, so that financial redress for some survivors came overwhelmingly from the Government.

David Whelan

Respectfully, Mr Greer, I disagree with what you are saying about survivors expecting the institutions to carry the complete burden of redress. The ultimate responsibility lies with the state, so it should be a shared burden. The providers, as we can see, have asked that conditions be set so that contributions are fair and meaningful, affordable and sustainable, which would enable them to contribute.

We believe that that would also enable lots of other institutions that wish to contribute to do so. Some of the institutions no longer exist, so there is, again, an issue with the waiver. Some of the institutions have trust funds that are on-going and that operate slightly differently, but they may wish to contribute a sum. I think that the committee needs to take an open view of the matter, because every organisation will be different.

The expectation is that, based on numbers, one organisation could pay more than another organisation that is very rich today or that maybe does not exist but that has assets all over the place that could be accessed. The scheme has to operate in a way that makes it attractive for institutions to contribute.

It is inevitable that some institutions are not in existence and other institutions cannot afford to contribute. It is on record that the survivors do not wish to damage the institutions. The issue with the contributions is about the waiver. I apologise for going back to that, but I will tell you what we have told Quarriers. I have been asked by survivors what I will say to Quarriers if the waiver comes in. We have told Quarriers that we recognise that it is trying to reconcile and that it has made huge steps, just as the Scottish Government has made significant steps to address the issues in the past few years, and we recognise that it wishes to contribute.

Generations of children have been failed by the organisation, and the organisation recognises that through the child abuse inquiry. We are saying, “Don’t fail the current children and current users.” If the waiver comes in, we will say to Quarriers, “We respectfully acknowledge that, but we’re asking you to keep that contribution and put it into enhancing the aftercare service and back into current services. If you put us in a position in which we have to sign something that is unlawful and that will not hold the Government to account, will not hold the abusers to account”—as Helen Holland said—“and will not hold the institution to account, we do not wish to sign that, so keep your contribution and put it into non-redress and enhance the aftercare service.”

Janine Rennie

David Whelan makes an interesting and useful point about aftercare. We have worked with and have evidence of 367 care establishments. As well as that, we have evidence of probably as many foster carers who abused children in the past. Barnardo’s, Quarriers, the Catholic church and other large institutions are a bit of a distraction from that. Although a number of survivors were abused in those settings, many of the settings have not even been investigated by the child abuse inquiry. As David Whelan said, a lot of institutions are no longer with us—they shut down years ago—and a lot of foster carers are no longer alive, so there is no way that they could contribute to the scheme.

Another thing that the survivors said to me loud and clear is that they feel that there is a focus on particular institutions and that that excludes them entirely. That is the wrong approach, because it makes survivors feel that some organisations are in the limelight as the ones that have abused children. Obviously, the child abuse inquiry has been focused on those organisations, but a whole load of survivors feel lost in among that. They are the ones who were perhaps abused by a small institution. There might be two, three or four people who were in that institution, but it is no longer there, so there is nobody to be held accountable.

A large number of survivors say that it is the absolute responsibility of the state. A number of the homes that they were in were institutions that were run by the state, perhaps through local authorities, so the survivors feel very strongly that, in a way, the issue of institutions paying into the scheme does not affect or apply to them. Even if we get what would be perceived as a reasonable contribution from an organisation that is now running as a charity that helps people, survivors will worry and have concerns about that, as David Whelan said.

It is important to see that that is in no way the answer, because it will miss out all those people. How do you answer those who will be excluded because their foster carer died 10 years ago and cannot contribute to the scheme? You need to think about what we are dealing with—it is not just what is in the public eye or in the big stories; it is every single establishment. As I said, Wellbeing Scotland and In Care Abuse Survivors have evidence of abuse in 367 establishments and by probably just as many foster carers, so it is not an easy issue to consider.

The Convener

We will go back to Ms Holland and then back to Mr Greer.

Helen Holland

Mr Greer, I appreciate the fact that you were not asking us to come up with solutions. However, I agree with Janine Rennie that many survivors were in foster care and the reality is that the foster care system is under the care of the local authority, so the Government would be responsible for covering the costs. There are also establishments that, because of the length of time that has passed, no longer exist, and the redress relating to them, unfortunately, would probably lie with the Government as well.

However, when care provider organisations could contribute to the scheme—and there are still quite a few of them—our opinion is that they should do so. Ninety per cent of survivors have said that they want contributions to come from the state, which was primarily responsible, and from the organisations, which, in many cases, were aware of the abuse but did nothing about it.

This is not an easy issue for the panel. Ross Greer made it clear, when he asked the question, that it is not for the survivors to come up with solutions to every question. Survivors have enough of a burden on their shoulders without having to come up with all the solutions for redress. Yes, we can give input, and I am grateful for being able to do that—as, I am sure, David Whelan and Janine Rennie are—but the reality is that it is not for us to come up with the solutions. Redress has taken place all over the world, and there have probably been the same difficulties. I never expected Scotland to be different; I always knew that this was going to be the most difficult part of everything that we have done over the years, and that has absolutely proven to be the case.

Ross Greer

The answers to my question have been more than adequate, so I do not feel the need to come back in, although Mr Whelan might wish to come back in on that point.

The Convener

Mr Mundell has a supplementary question in the same area—it is either on Ross Greer’s question or on the previous one—so I will go to him first, and then Mr Whelan can wrap up his responses to both questions.

Oliver Mundell (Dumfriesshire) (Con)

My question is supplementary to the question before Mr Greer’s—I was probably slow in typing into the chat box. It follows up on the points that Daniel Johnson made and is about the burden of proof and evidential requirements.

I am not looking for the witnesses to come up with the solutions, but I am interested in their thoughts on whether survivors and victims would expect a different level of evidence to be provided for the higher award payment or whether they would expect the approach to continue to be that the same burden of proof and evidence would be required across all the payment levels.

David Whelan

I fully support what Helen Holland said in response to the previous question—I want to put that on the record. In fact, I would say that Helen has just answered the next question as well, because it is really not down to us what evidential levels will be required. We are being asked to come up with various solutions. Although we can help to explore those, we feel that it will be for the panel to make the ultimate decision, and it should have the power to do so independently and impartially.

If you are saying that there should be certain thresholds for certain payments, we would agree. However, I say that with caution in relation to the evidence that is available to survivors. For example, a 1964 survivor might struggle to find evidence that meets the higher threshold. The Scottish Government has already acknowledged that such a survivor will also be disadvantaged by not being able to access civil litigation. As Helen Holland said, we will continue to explore with the Government solutions for a number of the questions that have been raised, and we hope to help it to find those solutions.

The FBGA feels that, just as is the position with the Scottish child abuse inquiry, in which there will come a point at which the chair has to make decisions, there will also come a point at which the proposed independent and impartial decision-making panel will have to make decisions. I reiterate that provisions on the panel’s discretion, independence and impartiality should be in the bill. It needs to be given such powers.

Simon Collins

The part of the question that I noted asked whether, if a standard brief were to be set, it should follow that a higher standard should be applied when higher payments were sought. The simple answer has to be no. The standard of evidence required to establish that abuse has taken place must be the same; it is the level of payment that should reflect the level of the abuse. Someone who has suffered the most horrific level of abuse as a child and throughout the rest of their life should not have to meet a higher standard of evidence to establish it than someone who suffered abuse that, although still horrible, could be considered to have been at a lower level. The standard should not change.

I want to raise a point of which the committee might already be aware. The inquiry’s experience has been that various organisations have been called upon to observe survivors’ evidence and have the opportunity to put questions to them. However, not a single survivor who has given evidence of the abuse that they have suffered at the hands of those providers has had their evidence challenged by them in any significant way. At the end of every passage of evidence, the providers have been given an opportunity to make submissions, and they have either accepted it or have stated that, although they might not know what happened, they are not saying that the survivor’s position as it was advanced is untrue.

So far, that position has been adopted by a number of organisations. Whatever else might be said about providers seeking to avoid liability, it seems that, when they are publicly faced with the situation, there is no appetite among them for suggesting that those who have been brave enough to come forward and share their childhood experiences should be disbelieved. I suggest that, if an organisation has spoken at the inquiry and has accepted, without dispute, that abuse has happened, the panel should be able to take that into account as a relevant factor for consideration when it weighs up redress claims.

Janine Rennie

[Inaudible.]—That was one of the tensions that was mentioned by most of the survivors to whom we spoke. We also did a survey that asked them about it, and around 90 per cent said that they did not want there to be a scale. They did not want survivors to have to meet different levels of evidence, because that might make one feel that their experience had been worse than someone else’s whereas the situation might just be that the other person had been unable to provide the same level of evidence.

As I have said previously, some survivors have never told anyone in their family that they were sexually abused and they will never tell anyone else about it. Yesterday, I spoke to one of the survivors whom I counsel, and he said that he will never tell anybody that he was sexually abused, even if doing so meant that he would get redress at a higher level on the scale.

It is really difficult. We need to look at the complexity of the issues and consider whether people feel comfortable about disclosing abuse.

Many survivors were not part of the original consultation—way back, when the scale was first presented—and they felt that the scale was the only option that was being presented to them in the subsequent consultation. They say that, if they had been asked the question, they would have said, “No—there should be a reasonable level of redress for everybody,” and that everybody should be treated equally, because we cannot scale the impacts. Somebody might have had an experience of abuse that affected their entire life, whereas somebody else might have experienced abuse and managed to function in life, going on to live in a really fulfilling way. It is therefore very difficult to make such an assessment.

With all due respect, even if the decision-making panel is made up of a lot of professionals, they are not going to be able to make such an assessment without knowing the survivor, and they will not get to know the survivor during the time for which they access the panel.

Throughout my years of working in the field—I am now standing back from it a bit, because I am the chief executive of an organisation—I have seen survivors pitched against survivors, and it has been really damaging for everybody throughout the process. I am really concerned that we could have a process that would continue that.

David Whelan

Some of what Janine Rennie has said has merit. If we had had more time, we could have scrutinised the model that she is talking about. That would have been helpful.

On the evidential thresholds and requirements, we say in our submission:

“these Redress evidential levels are required to be robust and credible, to prevent fraud and support genuine applications.”

We are talking about the process here. There has to be a recognition that this is public money and it must be managed appropriately and properly.

Helen Holland

In response to what Janine Rennie said, I note that our members have made it perfectly clear, as did the people who engaged with the consultation, that they do not agree with a flat-rate payment. I cannot think of anything that would be more unfair. How could that be justified? Some people went into care as toddlers, and we have a member who did not leave the care system until the age of 24. They were not signed off from the care system until then, and they suffered horrific abuse during that period.

I am not saying that abuse does not take place only for a few months, a year or whatever, but the reality is that people’s experience of the care system is unique to them and there are individual circumstances regarding the length of time they were in care, the level of abuse, and so on. In the opinion of the people of INCAS, it would be unfair to make a flat-rate payment across the board, and they would not see that as justifiable. If anything, it would probably cause even more division among survivors.

This is about justice. It is about survivors being able to walk away from redress feeling that they have achieved justice and that they can get on with their lives and start repairing the damage that has been done to them.

The Convener

Mr Mundell, do you have a final question, or are you content?

Oliver Mundell

I am happy with those answers, which were helpful. I clarify that I do not have a strong view one way or the other; I just wanted to highlight that it is a complicated issue.

The Convener

I will go back to Mr Whelan for a final comment, because he has put an R in the chat box. I say to everyone that, if there is something that you wanted to say today but have not been able to say, you should get in touch with our clerks and we will ensure that it is shared with the committee before we start our stage 2 deliberations.

David Whelan

I agree with Helen Holland. As you can see from the clinical assessment paper that we provided to the committee, this is about the individual and their unique experience. That is what we are talking about. The work is survivor centred and survivor informed. It is about the individual and their lifelong experiences in relation to what may have happened to them in care.

The Convener

I thank the survivor organisations that have been with us today for their willingness to engage with the committee during this process. Your evidence has been extremely helpful.

I will suspend the meeting for two minutes, to allow the minister to join us and the current witnesses to leave.

The Convener

We move to item 2. This will be my first stage 2 as convener; I know that some committee members have dealt with bills at stage 2 in other committees. I will endeavour to get through the amendments as efficiently as possible.

When members wish to speak in the debate on an amendment, I ask them to indicate that by typing R in the chat bar. If members wish to intervene on a speaker, I ask them to please type I in the chat bar. I will give further information on divisions if we come to one. We move to consider amendments to the bill.

Section 1—Overview of Act

The Convener

The first group of amendments is on the waiver. Amendment 1, in the name of Iain Gray, is grouped with amendments 38, 2, 40, 3, 43 to 45, 48, 5, 84, 6 to 17, 106 and 107. I draw members’ attention to the pre-emption information that is in the groupings document. If amendment 3 is agreed to, amendment 43 will be pre-empted. If amendment 17 is agreed to, amendment 100, from the group on initial determinations, will be pre-empted.

Iain Gray (East Lothian) (Lab)

I will speak to amendment 1 and the other amendments in my name. It is appropriate that the group on the waiver is the first to be debated, because it goes to the heart of the bill’s purpose. As we know, the redress scheme is the final stage in a very long process of recognising the appalling treatment that many children suffered when they were supposed to be in our collective care. It took years for their stories to be heard at all; years more for those stories to be believed; longer still for an apology to be made to them—initially by the then First Minister, Jack McConnell; and years more until their experience was formally investigated and recognised in an inquiry.

It has taken yet longer to produce the legislation that will provide those people with redress. The abuse that they suffered has blighted their whole lives, which have been further hurt by the struggle for justice that they have faced. We all want to get the scheme right—above all, for survivors. The bill that we pass and the scheme that it creates must be trusted by survivors, yet the bill as introduced has at its heart a measure that threatens to compromise such trust. As the committee has heard, some survivors consider that measure to be a betrayal.

Under the waiver, if a survivor benefits from the redress scheme, they are required to give up their right to pursue civil justice. The cabinet secretary argued to the committee that that is necessary to ensure that care providers in whose care survivors were abused contribute to the scheme. It is true that survivors want care providers to contribute. However, the cabinet secretary has been unable to put before the committee the evidence that the waiver is the critical element that will ensure that contributions are forthcoming.

The committee heard evidence from potential contributors that, although a waiver might help them, it is not the critical factor—that is the affordability of the required contribution and the fear of a commitment without limit, which we will deal with under other sections. The providers were at best ambivalent about the protection that the waiver purports to provide.

We must remember that contributions will be voluntary, with or without the waiver in place. There will be no compulsion. In effect, we are being asked to include in the bill a measure that threatens to undermine the scheme in survivors’ eyes, and to do so in the interests of those who historically allowed the abuse to happen, without creating a compulsion on care providers to contribute.

The key amendments are amendments 6 and 7, which would remove the waiver requirement. The other amendments that are in my name are consequential to those amendments.

I acknowledge that the cabinet secretary has made significant efforts that would mitigate the effect of the waiver, but it would remain in place even if his amendments were agreed to. He has not managed to square the circle of the waiver and contributions. Given the choice, we should choose to square that circle on the side of survivors. We should protect their rights and ensure their confidence in the bill.

I move amendment 1.

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

I thank Mr Gray for raising the issue of the waiver. It has been a key issue throughout the scrutiny of this bill, and it is important that we discuss it today. I also thank the committee for its careful consideration of this complex and sensitive matter. During the past weeks and months, we have all been navigating our way through a wide range of evidence and an even wider range of views on this issue.

[Inaudible.]—explore alternatives, and we have looked far beyond our shores at the experience of other schemes. The result of that exploration and consultation has confirmed my belief that the inclusion of a waiver represents the best possible way of delivering a collective approach to redress that secures the financial contributions that survivors want and deserve.

There can be no mistaking the commitment and desire of all of us in Parliament to do the very best we can for the survivors that our country has let down so badly.

I fully acknowledge that there are no easy options, but I continue to believe that the waiver is the best option available to us. The waiver is an important mechanism to encourage the participation of organisations. It is the only route to securing meaningful contributions at a level that can be considered fair and appropriate. The waiver helps to secure financial contributions by reducing the risk of litigation that organisations, the Scottish Government and local authorities would otherwise face in relation to abuse covered by the scheme. By reducing that risk, the waiver enables those organisations to commit to larger contributions than would be the case if there were no waiver and the risk of future litigation were not reduced.

Alex Neil (Airdrie and Shotts) (SNP)

As the cabinet secretary knows, I am not enamoured with the waiver, although I recognise that in his amendments he has gone a long way to try to deal with the concerns of survivors. A major concern for some survivors is that, after they sign a waiver, additional information might become available that would have given them a good chance of success in getting substantially more compensation and redress in court. Between now and stage 3, will the Government consider the possibility of amendments to address that situation, so that if any survivor finds themselves in it, the waiver could be waived?

John Swinney

I am grateful to Mr Neil for the intervention. I listened carefully to the concerns raised by survivors and others on that point and, if new evidence emerged, the amendments that I am lodging would allow redress payments that have already been accepted to be revisited to take account of that fact.

I want to create a redress scheme that is fair to survivors. That means empowering them to make the right decision, with independent legal advice, and to choose the right path. I lodged amendments to ensure that survivors have the time that they need to make those decisions and that the scheme is open long enough to allow them to fully explore other options. They also have the option to pause their redress application at any time before a determination is made.

However, Mr Neil made an important point, and I will consider that issue again in advance of stage 3. If there is more that we can do to strengthen the safeguards for survivors, we will certainly aim to do so.

The primary purpose and intention of the waiver is to ensure that those who are seen as responsible contribute to the scheme and the national response to historical child abuse in care in Scotland in a sizeable and meaningful way.

It is important to state that it is only by participating in the scheme at an acceptable threshold, by making a fair and meaningful contribution, that any organisation could have the waiver apply to it. In the absence of that fair and meaningful contribution, survivors will be able to receive their redress payment and still retain the option to raise legal action against the organisation.

It is my judgment that removing the waiver would have a significant impact on the Government’s ability to secure financial contributions for redress payments to survivors. We know that from our extensive engagement with organisations and from the written evidence that was submitted at stage 1. Survivors responded in large numbers to both the 2017 consultation and the pre-legislation consultation, and in both cases the overwhelming majority stated that they wanted those responsible to contribute financially to the scheme. Without the waiver, it is unlikely that we will be able to deliver to survivors the redress scheme that they want. That would leave pre-1964 survivors with no avenue through which to hold their provider to account by way of receiving a financial payment from it because, as we all know, court options are not available to pre-1964 survivors.

Some organisations have told us and the committee that the waiver will not make a material difference, as they cannot afford to contribute at the threshold required to be covered by the waiver. However, the scheme cannot be designed around their needs alone, and it is important to recognise that, for many others, including some of the biggest potential contributors, the waiver is essential. Many of those organisations want to do the right thing but, without the waiver, they may not be able to do so, largely because they would continue to face the financial risk of civil litigation.

I understand the concerns that have been raised, and we have sought to safeguard survivors’ rights in the bill—for example, by funding independent legal advice for applicants to ensure that all decision making is fully informed. I am also proposing a broad range of changes to the bill that seek to further strengthen those protections. They include extending the time period that survivors have to make key decisions and removing initial determinations so that the waiver will come only at the very end of the process, when a fully informed decision can be taken. They also include allowing the ability to bring a second application for an individually assessed payment to redress Scotland in light of new evidence, even if an earlier payment of less than the maximum amount was already accepted and a waiver was signed to bring matters to an end.

I will come on to the mitigating measures that I am proposing, including ensuring that waivers can be revoked if an organisation reneges or defaults on its commitment to make the agreed financial contributions to the scheme. That will ensure that waivers will, as intended, stand only in situations in which an organisation made a fair and meaningful contribution to the scheme.

I appreciate that the redress scheme will not be the right path for everyone. Indeed, it is not designed as such; I do not hide from that. It is a route to financial payment in respect of historical abuse for those who currently have no route. For those who already have the choice to go to court but do not want to do so, it offers an alternative option that many, but not all, will find attractive. The right of survivors who can and want to go to court instead of receiving a redress payment is entirely unaffected.

I have carefully considered the alternatives that were discussed in the stage 1 evidence sessions, such as offsetting, but I do not consider that there is an option that is as workable or as effective as the waiver in being able to deliver up front the scale of contributions that we seek for survivors. I have listened to the concerns of those who have given evidence, and I do not in any way dismiss them, but I ask colleagues to consider carefully what we are seeking to do. I believe that, to achieve the aim of providing meaningful redress, which includes payments that contain a contribution from providers, our scheme, like other schemes around the world, must include the waiver.

For the reasons that I have set out, I invite committee members not to agree to Mr Gray’s amendments, which have the intention of removing the waiver.

I have heard concerns expressed by some survivors that organisations that agree to make fair and meaningful contributions to the scheme may not ultimately do so. It is essential that survivors have confidence in the commitments that are made by organisations that choose to participate. The scheme looks to organisations to play their part and to make fair and meaningful contributions to redress payments. It is only on that basis that survivors can be asked to sign a waiver in relation to the organisation, and it is essential that the basis on which that waiver is signed is respected and delivered.

I listened to the concern that waivers, once granted, are currently not affected if an organisation defaults on its agreed payments. The bill, as introduced, provided that unpaid contributions could be recovered as a debt owed to the Scottish ministers. I recognise and acknowledge that that simply did not go far enough for survivors, and I believe that returning the survivors’ rights to them as if they had not signed the waiver against the defaulting organisations in the first place is the fairest way to proceed. The amendments will allow that.

Where it transpires that an individual survivor’s redress payment did not include a contribution from a particular organisation because it failed to pay what is promised, that individual survivor’s waiver will not continue to apply against that organisation. The intention is that survivors sign a waiver on the understanding that they receive redress that includes a fair and meaningful contribution from their provider. If that contribution is not delivered, the survivor should have returned to them the right to pursue that provider in the civil court, through the retrospective removal of the organisation from the contributor list.

I understand that an applicant may choose redress precisely because the scheme has received provider contributions. For some, that will be a preferable way to hold providers to account and to receive financial payments from them. For such survivors, it would be unjust if, in good faith, they signed the waiver but the organisations defaulted and failed to pay. I hope and am confident that all contributions that are agreed in our scheme will be delivered. I have taken significant steps to facilitate participation and to address affordability concerns. Organisations that are seeking to fairly play their part in the scheme are looking to face up to the past with integrity. We will work with them to ensure that their agreed contributions are made. However, in relation to the prospect of default where agreed payments are not delivered, my amendments on the subject will strengthen the rights of survivors. If the contribution is not delivered in full, the settlement cannot be considered to be final.

My amendments will make it possible for the Scottish ministers to retrospectively remove organisations from the contributor list where they default on their agreed fair and meaningful contributions. The amendments put the needs and the confidence of the survivors at the forefront of the process. I therefore ask that the committee supports those amendments.

The committee recognised the Delegated Powers and Law Reform Committee’s concern that the negative procedure would not provide an adequate opportunity for scrutiny of the form and content of the waiver, given its significance in the context of the redress scheme and the potential implications for applicants. In response to the stage 1 report, I committed to lodge an amendment at stage 2 to make the regulation subject to the affirmative procedure. My amendments 106 and 107 will do that. Effective and thorough scrutiny of the waiver is important to ensure that applicants and organisations have confidence in relation to its functioning and that of the scheme as a whole. I hope that that amendment to the procedure for the regulations on the matter will go some way to ensuring that that is the case.

Daniel Johnson (Edinburgh Southern) (Lab)

I thank the cabinet secretary for his contribution and for the manner in which the Government has conducted its engagement with the committee. I also thank fellow committee members. I think that we all understand the seriousness and importance of the bill.

I understand the purpose and intent of the waiver. The bill is about a series of balances between the rights and requirements of survivors and the limitations and restrictions that there might be on providers, and it is important that both of those groups participate. However, despite the significant number of changes that the Government has introduced, which I welcome, there continue to be issues with the waiver.

The first is whether the waiver adequately secures the participation of providers. As Mr Gray alluded, it is far from clear that it will do that. That is simply about the incentives that the waiver will create. Although it would prevent participating organisations from being taken to court, at the moment, it is not clear that that provides those organisations with an incentive, given the arrangements that they might or might not have in place with insurers. In short, if providers are uninsured or their insurance does not cover them whereas it would cover them if they were taken to court, by participating in the scheme, they would be exposed to additional financial liabilities to which they would not be exposed if they simply sat it out and, in essence, allowed people to pursue their claims through the courts. That remains a significant issue.

The other critical issue concerns survivors’ rights. We are essentially asking survivors to set aside their rights in order to take part in the scheme. I understand and appreciate that, for a great number of survivors, it might not be possible—or they might not be willing—to go through the courts. Nonetheless, there are questions around whether the scheme as it is currently constituted would adequately ensure that they were informed in making that decision. There is also the question of scope, given that the scheme does not cover damages in all respects, particularly loss of earnings. Finally, there is the question of whether it is legitimate to ask people to set aside their rights. It is not always acceptable to enable people, regardless of how informed they might be, to set aside their rights voluntarily.

For those reasons, I still question the waiver, particularly as it would apply in situations in which new information came to light, as Mr Neil highlighted. In addition, there is the question of whether it would be legitimate in situations in which the cost lies outside the scope of the scheme. In such cases, individuals must surely retain the right to pursue their claims through the courts.

I ask Mr Swinney, in summing up, to say whether he would consider other compromises and additional situations in which the waiver might be set aside, either by redress Scotland itself or through application to ministers or some other mechanism. For example, if significant new evidence came to light, an individual might ask ministers or redress Scotland for the waiver to be set aside—

The Convener

I am sorry to interrupt, Mr Johnson, but I will pause you there. The cabinet secretary did not move the lead amendment in the group, so he will not have an opportunity to sum up. However, Mr Swinney is in a position to intervene in response to your comment if he wishes to do so and if you wish to take the intervention. I will pause for a moment to see whether that happens, and then we can move on.

John Swinney

I am happy to make some comments in response to Mr Johnson’s very fair observations on the situation. Through the amendments that I have lodged, I am trying to take a number of steps to ensure that, while there is no erosion of survivors’ rights, they have available to them the maximum choice as to what course of action they wish to take.

I have made it clear enough—and I put it on the record again—that the scheme was designed to give survivors a choice in the route that they decide to follow. They are not obliged to use the redress scheme, but it is designed to be an alternative to court action should they consider that to be viable.

As I said to Mr Neil, I certainly commit to identifying, during the remaining period available to me between stage 2 consideration of amendments and stage 3, whether there are other steps that we could take that would go beyond the amendments that we have already crafted to address the issues that Mr Johnson, Mr Neil and Mr Gray have raised in committee this morning.

Daniel Johnson

I appreciate that commitment, and I would seek to work with colleagues and the Government to explore whether there are possibilities in that regard.

I will highlight one other situation in which an application would clearly not be in the interests of the applicant, given the nature and the quantum of the compensation that is available. There might well be situations in which it is apparent that a claim, if taken through the courts, could result in an award that is much more generous than what is available under the scheme, or in which the amount of damages might be such as to cover the loss of earnings, as I mentioned. It might be clear to redress Scotland that it could not make an award to the same degree or extent as might be available through the courts.

I wonder whether, in that situation, we should make it possible for redress Scotland to make an exemption to the waiver at the point of the award or, indeed, to explicitly point that out to the individual. Ultimately, I am asking whether redress Scotland should have an overarching duty to act in the best interests of the applicants, because this is not a judicial process—it is not a process that finds fault, and it is not an adversarial process. Indeed, in many ways, we could regard it as an investigative process that seeks to establish facts. Therefore, I think that it would be perfectly legitimate for it to do that, and that would be one other possibility.

Finally, I understand Mr Swinney’s point that it is about making sure that the scheme works—that it secures contributions from providers. In essence, he has alleged that, without those contributions, the scheme simply would not work at all. My simple point to him is this: we are dealing with people who were placed into care at the behest of the state, and it is ultimately a state responsibility that we are seeking to set up a compensation scheme for. Although providers might have provided that care and might be culpable or responsible for what happened thereafter, it is ultimately a state responsibility and that is explicitly part of the bill. I absolutely understand that it would be preferable for the providers to take part and make financial contributions to the scheme. However, that being the case, ultimately, the state should be underwriting the scheme and should be making sure that, if applicants come forward, they receive compensation regardless of whether we secure the participation of providers. That is the bottom line.

I accept that the participation of providers would be preferable. However, ultimately, I do not think that it is necessary for the scheme—albeit that, if they did not take part, the scheme would come with a higher price tag for the Government.

Ross Greer (West Scotland) (Green)

Like Mr Johnson, I thank the Government for the extent of its engagement in the process and its very sincere attempts to find a resolution to some really tricky issues.

That being said, with the waiver included, the scheme simply will not achieve its objectives. The waiver directly infringes the rights of survivors, and many survivors have made it clear to us that they will not engage with redress Scotland if the waiver is retained.

Last month, we heard that the main organisation for survivors of Quarriers homes has told the organisations not to bother contributing if the waiver is there. That calls into question the viability of the whole scheme and of the bill. Organisations that have engaged with the committee, including Quarriers, have made it clear to us that a waiver is not a condition of their participation. Those organisations that spoke to me were far more concerned about the imposition of a cap on contributions and the formula that will be used to calculate contributions. To the Scottish Government’s credit, those concerns seem largely to have been addressed.

Insurers have submitted evidence explaining that the inclusion of the waiver does not change the likelihood of their paying out. If there are organisations whose participation is dependent on the waiver, they have chosen not to engage with the committee or with the Parliament, and we can proceed only on the basis of the evidence that is in front of us.

One other issue at play in the waiver debate, which Mr Johnson just touched on, is the extent to which the Government will end up paying the costs. I understand entirely the Scottish Government’s reluctance to confirm that it will end up covering a significant amount of the costs if doing so might give some organisations less incentive to contribute. However, that is the reality.

Survivors have clearly told us that it is not important to them that the organisation that was responsible for their abuse should make the majority contribution towards their payment. In some cases, they explicitly do not want that organisation to contribute, because they believe strongly that, as the state carried ultimate responsibility for their welfare, the state should recognise that by making financial redress itself.

The evidence that was submitted to the committee at stage 1 was overwhelmingly clear, and our recommendation was unanimous: the waiver must be removed. No evidence has since been submitted to change that, and, throughout the process, survivors have made it clear how devastating the waiver’s inclusion would be to them. If we cannot respond to the clearest message that survivors have given us, we, as a political class, risk failing them once again. I cannot countenance that, so I will vote for the amendments in Iain Gray’s name.

Jamie Greene (West Scotland) (Con)

Good morning to colleagues and to the cabinet secretary. Where do we start with this? The issue has been a conundrum for the committee. Reflecting on the words of Daniel Johnson, I think it is about striking a balance. The whole bill is about striking a balance between the technicality and the morality of it, which is what we have struggled with.

As others have said, this is a state-operated scheme. The Government of the day made a political and policy decision to set up the scheme, which I think we all endorse. The scheme will go ahead irrespective of the inclusion—or otherwise—of the waiver and contributions from providers. The question on our minds is how we can ensure that the scheme balances the rights of survivors—which have been discussed in great detail—with being workable and maximising contributions from the providers under which much of the abuse occurred. I do not agree with the point that, if no providers contribute to the scheme, it will still meet its purpose. I will comment mostly on that, because it is imperative that providers financially contribute to the scheme in order for it to close—[Inaudible.]—its intention.

Although I know that it is an emotive subjective, the waiver is a technical issue. As the Government has argued throughout—although not always particularly well—the premise of the waiver is that it will secure contributions from providers. However, as others have said, very few of those providers have been forthcoming, privately or publicly, to state that link in the great terms in which the Government has stated it. That has created an issue for the committee. Nonetheless, it remains the case that, if the waiver is removed, there will be significant challenges for the Government in securing contributions from organisations.

I do not think that the scheme is designed to replace court action for many people. Indeed, I think that many of the people who will best take advantage of the redress scheme would rarely seek benefit from court action. However, there may be those in the higher echelons of the payment scales—whatever we agree those are at the end of this process—who may well benefit from court action. Therefore, I fully expect the scheme to signpost and direct people to all the options available to them.

We have come a long way since we started this process. Some of the amendments that the Government has lodged move us in the right direction in relation to the legal advice that will be on offer and its associated costs, the length of time that people will have in which to consider the options available to them, and, as we have discussed, some of the issues around what would happen if contributors refused to participate in the scheme.

I have lodged other amendments that will put on the record the levels of contribution that we expect contributors to make in order to improve transparency. If survivors feel that those organisations have withdrawn from the scheme, I would welcome there being further flexibility on the issue of the waiver. As we have heard, the waiver has many drawbacks, not all of which are moral—some of them are technical. However, we must be clear that no credible alternative has been offered, and it is not the job of the committee to come up with alternatives; that is the job of the Government. It has been fairly forthcoming on all options throughout this process, and I am not convinced that a credible alternative proposal has been offered at this stage. I am also acutely aware that the Parliament will dissolve in a few short weeks, and I would like to see the bill come to fruition. Indeed, there is an obligation on us to ensure that we get the scheme under way and do not push it into the long grass of the next Parliament.

I was never convinced that the Government had not explored all the options; I do not think that the waiver is in there for the fun of it. I have never believed that the cabinet secretary or his legislative team have it in there for no reason, because of all the difficulties that it comes with.

The view of the survivor community has been extremely forthcoming on the matter, but we have to separate the morality of the issue from the technicality of what we are working with. I want a scheme that contributors pay into—it is quite simple. If the bill provides the way to achieve that, it will offer a scheme that is fair and just. I will talk about “fair and meaningful” and “just” in more detail later.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I largely agree with what Jamie Greene has been saying. What he just said is crucial: I, too, want a scheme that contributors pay into. The proposed scheme has pros and cons, and the issue is a difficult one—it is a balancing act. On balance, we should consider the positives and the fact that the scheme provides an avenue for the pre-1964 survivors. The waiver is not perfect, but, on balance, it has to stay.

The bill is crucial—it has to be enacted—and the amendments that the Government has lodged to mitigate some of the concerns, including the point that Alex Neil made about further evidence that may be forthcoming, will go a long way to reassuring survivors that the proposals represent the best way forward. For those reasons, I do not support Iain Gray’s amendments.

The Convener

The hybrid system makes it a bit difficult to have a debate, but I am conscious that there were some direct questions for the cabinet secretary in members’ contributions. Does Mr Swinney wish to address any of those questions before we go back to Mr Gray to wind up on the group?

John Swinney

Thank you, convener. I am grateful to you for giving me the opportunity to contribute again. I will make two observations on the comments that colleagues have made, in addition to my earlier remarks.

First, Mr Johnson made some further remarks about what could be the perspective of redress Scotland or the obligation put on it. We need to explore further the question as to whether there are further duties or obligations. I am mindful of the grouping of amendments in your name, convener, that we will come to later, which set out the ethos of the scheme, if I may describe it in that fashion. We perhaps need to address some similar issues regarding redress Scotland that are not addressed in today’s Government amendments, and we could consider those at stage 3. I am certainly happy to engage with Mr Johnson and other colleagues on that.

Turning to my second observation, I appreciate that the committee has received a range of evidence, both oral and in writing, on the question of the waiver. Evidence has been put to the committee on the necessity of having the waiver to establish the case for provider contributions. Such evidence was submitted by CrossReach, to name but one organisation that provided written evidence that the committee has considered. The committee has also heard from the Convention of Scottish Local Authorities on the matter.

Although I acknowledge that some survivors are strongly opposed to the concept of the waiver—and I understand their concerns—there are also survivors who believe that the waiver is a necessity for ensuring one of the fundamental objectives of survivors: that the providers that failed them—as the state failed them—make a contribution. That is enabled by the presence of the waiver. The state will, of course, make contributions to the scheme—that is an absolute given—but Mr Greene pointed out the importance of ensuring that providers, too, make contributions. In my view, the waiver is an essential ingredient in making that possible.

I am grateful for the opportunity to reflect on some of the points that committee colleagues have made.

The Convener

I invite Iain Gray to wind up and to press or withdraw his amendment.

Iain Gray

I will address some of the issues that have been raised—in particular, some of the cabinet secretary’s points. He spoke about the consultation that happened during preparation of the bill and pointed out that the survivors who responded to that want the organisations that were responsible for the abuse to contribute. That is absolutely true. However, survivors also made it clear that they did not want to give up any right to take civil action.

In the evidence that the committee took, organisations that work with survivors made it clear on several occasions that the consultation made no link between the waiver and contributions. Therefore, I do not think that survivors made the choice that the cabinet secretary is suggesting they did. He said that the idea of the bill is to give survivors a choice between the less onerous redress system and the potentially far more onerous civil justice system, which is correct. He also said that it is not about giving up rights but about giving a choice, but the choice that we are asking survivors to make is to give up their rights. That is the fundamental point.

With regard to securing financial contributions, the cabinet secretary said that major contributors have said that they must have the waiver in order to be able to contribute. Nevertheless, there are potential major contributors who did not say that when they gave written or oral evidence on the record. For example, the cabinet secretary referred to CrossReach, which said in its early written evidence that it was in favour of the waiver. However, in oral evidence it made it clear that that was not a red line. That was not the critical issue that would decide whether it was able to contribute.

One major contributor that has been consistent in its support of the waiver is the Convention of Scottish Local Authorities. It communicated with the committee late last night and reiterated that position. However, an examination of its case shows that its desire for the waiver is driven by a desire to reduce the costs to local government of providing redress, and that is not the strongest of arguments in terms of the moral obligation that we have to respond to survivors.

As the cabinet secretary and others have said, significant concessions have already been made on the waiver and further significant concessions are likely to be made if the amendments that are before us, concerning the contributions, are agreed to—a cap on contributions, for example. Significant concessions are being made by the cabinet secretary to the contributors; my argument is that we need to make a concession to the survivors as well, which would be to remove the waiver.

I acknowledge that significant changes have been made and that the cabinet secretary says that he will make further changes before stage 3. I will look closely at those. However, for me, the basic circle that requires to be squared has not yet been squared. For that reason, I will press amendment 1.

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division. In the chat box, please type Y or “Yes” to vote for the amendment, N or “No” to vote against the amendment, or A to abstain.

May I prompt Mr Gibson to cast his vote? It does not seem to be recorded in the comments.

Kenneth Gibson (Cunninghame North) (SNP)

I cast my vote earlier, convener. I am happy to have it counted twice, if that helps.

The Convener

I am afraid that it did not come through, Mr Gibson—it is easy for that to happen—but it has been recorded now.

For

Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Greene, Jamie (West Scotland) (Con)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)

The Convener

The result of the division is: For 4, Against 7, Abstentions 0.

Amendment 1 disagreed to.

Section 1 agreed to.

Sections 2 to 5 agreed to.

Schedule 1—Redress Scotland

The Convener

The second group of amendments is on redress Scotland’s chief executive. Amendment 34, in the name of the cabinet secretary, is grouped with amendments 35 and 36.

John Swinney

The establishment of redress Scotland—a new non-departmental public body—will deliver the independent decision making that is essential for survivors and others to have confidence in the redress scheme. I recognise that building that confidence involves ensuring the good governance of redress Scotland in a transparent way.

Redress Scotland will be subject to a number of statutory duties and other obligations that will ensure its good governance without compromising its independence. Although the bill allows redress Scotland to appoint staff, it does not require the appointment of a chief executive. It was initially considered that that would not be required, because of the organisation’s relatively small size. However, having considered the matter further in the light of the committee’s stage 1 report, and as I outlined in my response to that, I am of the view that requiring the appointment of a chief executive will help to provide further assurance on the good governance of redress Scotland. Amendment 34 provides for that, and amendments 35 and 36 are consequential amendments.

I move amendment 34.

Daniel Johnson

I welcome the amendments. The separation of the chief executive and the chair is important. Although redress Scotland will be a relatively small organisation, its sensitivity—and, more important, its complete independence from the Government—means that we need the best levels of oversight and of scrutiny and good governance. It is a well understood point of principle that the separation of the chief executive and the chair is an important way of ensuring that, so I welcome the amendments and thank the Government for lodging them.

John Swinney

I take the opportunity to reflect slightly more on what Mr Johnson said in the debate on the first group and to welcome the comments that he has just made. I absolutely accept the critical importance of redress Scotland’s independence and the clear separation of the exercise of its functions from those of the Government.

I will remain open to the fact that it is important for us, between stages 2 and 3, to consider further whether the character of redress Scotland is absolutely correctly set out in statute. In the earlier discussion, Mr Johnson raised a number of points that have merit, and, if the committee believes that we should consider other issues, I will be open to doing so as part of preparation for stage 3. I conclude my summation with those comments.

Amendment 34 agreed to.

Amendments 35 and 36 moved—[John Swinney]—and agreed to.

Schedule 1, as amended, agreed to.

Sections 6 to 11 agreed to.

After section 11

The Convener

I hand over the convening to the deputy convener, Daniel Johnson.

The Deputy Convener (Daniel Johnson)

Thank you. I ask for the committee’s co-operation, and I hope that I do not make the convener regret handing over the chair.

Amendment 20, in the name of Clare Adamson, is in a group on its own.

Clare Adamson (Motherwell and Wishaw) (SNP)

From the comments that members have made today, there is no doubt that we feel the responsibility on our shoulders to do the very best that we can to ensure that victims and survivors have confidence in the redress Scotland bill. In its stage 1 report, the committee recommended that

“the Scottish Government considers including a statement on the face of the Bill recognising these qualities and the need for them to be applied across each element of the redress scheme.”

In response, the Scottish Government agreed with

“the Committee’s acknowledgement of the importance of these values”

and committed to considering further how the aim could be achieved.

The redress scheme has been designed with victim and survivor needs and expectations at its forefront, and it aims to ensure that applicants are treated with dignity, respect and compassion throughout the process. Incorporating a statement in the bill will demonstrate the importance of that and the commitment to victims and survivors in following a trauma-informed approach. The amendment places the duty not only on the Scottish ministers and redress Scotland but on scheme contributors and others that perform functions under the duties that are in the bill. I trust that it will give victims and survivors confidence in the legislation.

I move amendment 20.

John Swinney

I thank the convener for lodging this important amendment, following her interest in this potential addition to the bill during the stage 1 evidence sessions. I share the convener’s view, which the committee supported, that all who are connected with the redress scheme should be fully committed to treating survivors with dignity, respect and compassion.

I fully support amendment 20, which will express that commitment in the bill as a clear demonstration of the scheme’s survivor focus and trauma-informed approach. It will ensure that everyone who is involved in the provision of the scheme, including those that contribute to it financially, is committed to its values when carrying out functions under the act. The amendment also provides us with the opportunity to reflect further on some of the issues that you have raised, deputy convener, and the Government will engage constructively in that respect.

Amendment 20 agreed to.

The Deputy Convener

I hand back the chair to the convener.

Section 12—Scheme contributors

The Convener

The next group is entitled “Scheme contributors: acknowledgement of harm”. Amendment 21, in the name of Daniel Johnson, is the only amendment in the group.

Daniel Johnson

In many ways, this amendment follows on from amendment 20, as it is concerned with establishing the clear intent and principles that lie behind redress Scotland.

From the beginning of our examination of the bill, I have wrestled with the fact that we are not talking about a judicial process and that, explicitly, redress Scotland will not find liability or specific fault. That raises a practical point and a point of principle, which I feel require remedy in the bill.

The point of principle is that, by taking part and making compensation settlements, the providers have to acknowledge their responsibilities in terms of the harm that has been caused to the individuals who are receiving compensation. That is an important point of principle, and, although I understand the reasons why redress Scotland will not find formal liability, I think that it is important to accept liability.

The practical point concerns the fact that the way in which the scheme is currently configured means that it would be possible for providers to participate in the scheme and pay into it to make compensation settlements to individuals and yet be able to claim that they did nothing wrong. It is important that that is made absolutely impossible. Participation in the scheme must require an acknowledgement of the harm that was done and the wrongfulness of that, and an admission of responsibility. That is what the amendment intends to achieve.

I will listen to the contributions that are made in the debate, as I understand that there are complexities around the form of words that the amendment uses in relation to the broad acknowledgement of wrongfulness.

I might choose to withdraw the amendment at the close of the debate if the Government is willing to work with me to find a more suitable form of words, but I will press it if the Government feels that the wording is adequate. I will be mindful of that as I listen to members’ contributions.

I move amendment 21.

The Convener

No members wish to contribute to the debate. I call the cabinet secretary.

John Swinney

I thank Mr Johnson for lodging amendment 21. I absolutely agree with him on the sentiment behind it and share his determination that the scheme provide tangible acknowledgement of the harms of the past and the failings that led to those harms. Although I envisage some difficulties with the detail of his amendment, I hope that he will agree to work with me in lodging amendments at stage 3 to address the issue to the same effect.

The acknowledgement of the role of providers in looking after children at the time they were abused underpins the concept of provider contributions to the scheme. The organisations that participate in the redress scheme must do so with integrity and the understanding that a fair and meaningful contribution is one that acknowledges the harm that arises from historical child abuse in the care settings.

Participation in the redress scheme is more than a financial transaction. That sense of acknowledgement—of facing up to the past with honesty and candour—and a willingness to apologise are essential to the commitment to the national collective endeavour that the scheme represents. It is those fundamental principles of participation that, I believe, Mr Johnson has sought to reflect through amendment 21. I share that objective.

The redress scheme deliberately does not seek to establish liability. The approach that we have followed allows providers to participate in the scheme by making fair and meaningful contributions without legal consequences beyond the redress scheme itself. It allows them to participate in a process that follows different rules from those that are followed in court, where providers would have the opportunity to examine and challenge the evidence against them, because the consequences of redress determinations are different from determinations made by a court. For applicants, that approach allows a faster, more survivor-focused and trauma-informed path to redress than is found in the civil courts.

The risk with amendment 21 is that the making of a contribution could be interpreted as meaning that organisations accepted legal liability, which would have consequences beyond the scheme itself and leave those organisations with greater exposure to litigation. Ironically, the amendment might mean that the organisations that are the most interested in contributing would find themselves at the most risk of litigation costs, which would, in turn, reduce their ability to contribute.

I ask Mr Johnson not to press his amendment at this stage, on the basis that he and I will work together in the coming weeks to further explore what can be done to meet an objective that is common not only to us both but, I think, to all members of the committee. I want to ensure that contributions are given and received in the right spirit for the benefit of survivors, and I am certain that we can find a suitable way to address this critical issue in advance of stage 3. I commit myself to doing so in the weeks to come.

Daniel Johnson

I thank the cabinet secretary for his constructive remarks. I agree with his broad points, and I understand his specific points on the issues with the amendment as drafted. I look forward to drafting an amendment that adequately addresses those points in the coming weeks.

Amendment 21, by agreement, withdrawn.

The Convener

The next group is on “Scheme contributors: amount of contribution (publication, affordability, and use of charitable funds)”. Amendment 37, in the name of Jamie Greene, is grouped with amendments 39, 41, 42, 46, 47, 4, 49, 50 and 105.

Jamie Greene

The amendments in this group largely fall into two categories. The first deals with the publication of financial amounts, and the second deals with affordability. I will start with the first.

It is important that the scheme that the bill establishes is as transparent as it can be. The list of contributors and a statement of principles underpinning the scheme are essential aspects, but the bill should go further and offer clarity about the nature of the contributions that are made to the scheme.

Survivors must be given all the information necessary for them to be able to make an informed decision about whether to apply to the scheme and, if they do, whether to accept a proposed payment. There is merit in including in the bill an explicit requirement to publish contribution amounts, which would give survivors a greater understanding of how the organisations that are relevant to them have committed to contribute to the scheme, or, indeed, confirm that those organisations have not committed to contribute to the scheme. That is an important point, as such information might be more necessary than ever if it affects issues around the waiver, which we have discussed.

The publication of contribution amounts will demonstrate an organisation’s commitment to work in the spirit of the scheme.

Amendments 37, 39, 41 and 42 aim to enhance confidence in the scheme among survivors and organisations that are looking to play their part. Different organisations will contribute different amounts, depending on the nature of the organisation and its historical legacy. I am reassured that the Government will look to ensure that organisations make contributions that address their legacy with fairness and proportionality. Publishing the amounts that are committed to the scheme will demonstrate our commitment to ensuring that the scheme is as open and transparent as it can be.

The second category relates to the scheme’s affordability, which is an important issue. The committee took evidence on the affordability of contributions, which was a key concern for many provider organisations and will be one of the deciding factors in whether they choose to participate in the scheme. We have to bear in mind that the scheme is not compulsory and the Government cannot mandate any providers or organisations to contribute, so the scheme must be workable in order to maximise contributions.

The committee reflected those concerns in our stage 1 report, in which we suggested that the Government should consider the issue further. I thank the Government and its team for working with me to develop wording that reflects the concept of contributions that are fair, meaningful and affordable.

As we have discussed, this is a crucial issue. The scheme will operate irrespective of contributions from organisations. Organisations had difficulty with the proposed levels of contributions being asked of them—we do not know what the numbers were, but we have to take at face value the fact that organisations were uncomfortable. Therefore, my amendments seek to ensure that ministers consider the affordability of payments when negotiating contribution amounts.

That is important because the history of care in Scotland is very wide ranging and complex. Indeed, the nature of the organisations is also varied and complex. Some are religious organisations, some are public sector bodies and some are small charitable trusts. Some do not exist any more. What those that are still in operation have in common is that they face significant financial challenges—challenges that have been made worse by the pandemic over the past year. I want to ensure that providers participate in a way that does not threaten their viability as going concerns, but which still results in payments that are fair and meaningful for survivors. It comes back to balancing fairness for both sides.

The matter of affordability should never diminish the commitment of organisations to the redress scheme, but nor should we make survivors feel responsible for the financial circumstances of the organisations that previously caused them such harm.

Organisations have a moral obligation to face up to the harms of the past. Equally, as many survivors have told us, participating in the scheme and facing up to that moral obligation should not be to the detriment of anyone who uses the services of that organisation. Getting that balance has not been easy. The Office of the Scottish Charity Regulator flagged concerns to us that significant contributions that came from reserves or restricted funds would put charities in an extremely difficult position.

I look forward to hearing members’ contributions. I ask them to consider supporting my amendments so that affordability is considered as a factor when the Government negotiates the amounts that providers will contribute.

I move amendment 37.

Iain Gray

In evidence, we heard a great deal about contributions and the concerns of charities that wish to contribute. They recognise their moral obligation to contribute but fear that they would not be able to do so given the size of contribution required of them, because it is not clear what “fair and meaningful” means.

Other amendments deal with various aspects of that issue, including Jamie Greene’s amendments, which I will support. However, amendment 4, in my name, makes it absolutely clear that one of the criteria should be the sustainability of the charity, particularly where it continues to provide valuable care or other services today.

Simply put, in seeking to right the wrongs of the care system of the past, we should not destroy the care system of the present. The combination of amendment 4 with other changes to the bill, such as a cap on contributions and the maintenance of reserved or restricted funds, should make it much more likely that the trustees of a charity will be able to recommend participation in the scheme, while not jeopardising their legal duty to protect the charity’s interests.

The amendments in this group go a long way towards making participation in the scheme more likely on the part of many charities.

John Swinney

I am grateful to Mr Greene for lodging amendments 37, 39, 41 and 42. I share his call for contribution amounts to be understood in context, which is, after all, an important part of our redress work. How can we understand what a fair contribution should be if we do not understand an organisation’s past and present? No figure should be thought of as too high or too low without that understanding. I would like to work with organisations to provide the best possible information on why a contribution is “fair and meaningful” for survivors.

Our work on redress shows us that abuse has taken place in care settings that were run by a wide variety of organisations. Some were small and some were large. Some are still providing services for children and others today, and some have completely different roles. The redress scheme will provide each organisation with the opportunity to play its part in redress in a way that is right for it and, importantly, for survivors.

The approach to “fair and meaningful” contributions must be consistent and principled. Survivors have been clear on the importance of openness and transparency throughout the process. I therefore support Jamie Greene’s amendments.

Turning to amendments 46 and 47, I share Mr Greene’s focus on encouraging organisations’ participation in redress for survivors in ways that do not risk the important functions that many of them undertake today. It has always been the intention that fair contributions would be affordable and manageable for the organisations involved. Amendment 46 provides clarity that that will be the case.

Many charitable organisations find themselves in challenging financial circumstances, particularly in relation to the pandemic and its impact on charitable giving. Many of our discussions with organisations are focused on how contributions can be made meaningful while being manageable in organisations’ operating context and while reflecting the needs of their service users. Amendment 46 will assist in creating the conditions for organisations to participate in the redress scheme through making fair and meaningful contributions that are manageable and affordable over time.

We also recognise that the issue of responding to historical child abuse in care through financial redress is characterised by uncertainty, as the time periods involved and the sensitive subject matter make application rates difficult to predict. It is therefore important to consider how that uncertainty can be addressed. Following stage 1, I proposed changes to our approach to contributions. I have made a number of significant changes that I believe will give organisations greater clarity and certainty when considering whether to contribute to the scheme.

I will introduce a cap for contributions based on the best available evidence on potential applications, which will give organisations some certainty in their financial planning. I will also increase the Government’s proportion of the contribution for each individually assessed redress payment to one third of the total payment or £10,000—whichever is the higher amount. I believe that those changes make fair and meaningful contributions more manageable for organisations, and provide the certainty to enable financial planning in these very uncertain times. Crucially, the changes will do so while ensuring that contributions remain at a level that is meaningful in redress payments for survivors.

Organisations have told us that they wish to support the redress scheme but might struggle to do so. Amendment 46, alongside other measures that are being pursued alongside the bill, will go a long way towards addressing that concern. It is in everyone’s interest to facilitate contributions so that providers can face up to their moral responsibilities; so that, for the taxpayer, the state alone does not shoulder the cost of redressing harms; and, most important, so that survivors receive meaningful payments in tangible recognition of the abuse that happened.

I thank Mr Gray for focusing on affordability for potential contributors to the scheme that are charities. Creating the conditions to facilitate a collective approach to redress is an important aspect of the work. As I have already described, I have been carefully reviewing the approach to contributions in the light of the committee’s stage 1 report and representations that were made by potential contributors that are charities.

Addressing the issue of affordability must take into account the circumstances of the organisation and should not risk its current services. I believe that we are all in agreement on that point. However, addressing affordability should not be to the detriment of survivors who apply for redress. Survivors of historical abuse are not responsible for the financial functioning now of the organisations that caused them harm, and they should never be made to feel that way.

We have put together a package of measures that maximises opportunities for organisations to participate, while not compromising the ethos of the redress scheme that we want to establish. The amended approach to contributions is complemented by amendments 46 and 47, which have been lodged by Mr Greene. They seek to ensure that affordability is given appropriate consideration and that organisations are supported to contribute in manageable but meaningful ways. Mr Greene’s amendments will secure that necessary consideration in the context of the scheme that we are seeking to create.

In contrast, I have reservations about amendment 4, which has been lodged by Mr Gray. It would apply only to charities and not to the full range of organisations with which we are seeking to engage. Section 14 is designed to enable charities that want to make a contribution to do so. My concern with Mr Gray’s amendment is that it would introduce an unnecessary limitation and, potentially, a further barrier to contributions, which will, in any event, be sought on a voluntary basis. The amendment risks being perceived by charities as an extra barrier in law and an extra risk to their making a contribution. Mr Gray’s amendment would place decisions in relation to affordability on charities themselves, but I argue that existing charity law is sufficient to ensure that charities take all relevant considerations into account in making a decision on whether to contribute.

From the outset, I have spoken about the need for collective national endeavour. In no area is it more crucial that we take a collective approach than the making of contributions. We must seek to create conditions that allow organisations to join in order to demonstrate their integrity and commitment to survivors. We must not create excuses, dilute the response or make it easy to withdraw from moral obligations.

I acknowledge colleagues’ responses to the important matter of affordability and I am encouraged that we all share the view that contributions should be both affordable for those who make them and sustainable, so that important services can continue. Having considered—

The Convener

I am sorry to interrupt, cabinet secretary, but Mr Gray has indicated that he would like to intervene on the point that you have just covered. Are you willing to take that intervention?

John Swinney

Of course.

Iain Gray

On the point about the relationship between affordability and the ability to continue to provide services, I hear what the cabinet secretary says and I realise that affordability of contributions is covered in other amendments, but the very specific point about the capacity to continue to deliver services being an element of affordability is important. I am willing not to move amendment 4, but I would be grateful if the cabinet secretary would consider whether there is any way that the matter might be made explicit at stage 3.

John Swinney

I am happy to explore further the possibilities in that respect. As I said, Mr Greene’s amendments substantially address the matter, but I will, once we see what alterations are made at stage 2, be happy to engage in further dialogue with Mr Gray and other colleagues to determine whether more needs to be done. I encourage the committee to support the amendments that Mr Greene has lodged. Mr Gray has said that he might not move amendment 4, on the basis of willingness to engage further. I happily commit on the record to that engagement before stage 3.

I turn to amendments 49, 50 and 105, which are in my name. I have listened to concerns about what the bill says about use of charities’ restricted funds. Although section 15 was intended to empower organisations and remove barriers to their contributing, in the stage 1 debate I accepted that it has not been welcomed by organisations and committed to lodging an amendment to remove that provision from the bill. Amendment 50 will do so, and amendments 49 and 105 are consequential to that.

Removal of section 15 will mean that there will no longer be a mechanism in the bill whereby charities would be permitted to use restricted funds to make a contribution to the redress scheme. I hope that, with amendment 50, the provisions in respect of contributions to the redress scheme from charitable organisations are such that those who look to play their part for survivors can do so.

Daniel Johnson

I will briefly elaborate on the point that Mr Gray made in his intervention. Although I acknowledge that Jamie Greene’s amendments are a substantial step forward, there is a clear distinction between affordability and sustainability—in particular, sustainability of services. They are related but different concepts. If we take a broader understanding of charities’ financial requirements in managing their profit and loss accounts and balance sheets, we can see a number of circumstances in which contributions might seem to be affordable but would make it difficult to maintain their current level of services, either in whole or in part.

I acknowledge that the detail of the interpretation of affordability might allow such considerations to be taken into account in assessing fair and meaningful contributions from providers, but it is important that sustainability of services is made explicit in the bill, so that we ensure that such considerations are taken into account.

I am encouraged by the cabinet secretary’s having said that he will work with Mr Gray before stage 3. Sustainability is an important concept that should be in the bill.

The Convener

I invite Jamie Greene to wind up and to press or seek to withdraw amendment 37.

Jamie Greene

I thank members and the cabinet secretary for their contributions. I will keep my comments brief.

The main point that I have taken from our discussion is that although my amendments 46 and 47 go some way towards improving the provisions on affordability, they perhaps do not go the whole hog, which I accept. I appreciate the cabinet secretary’s willingness to work with members. Contributions should be not only affordable—a concept that relates to a point in time—but sustainable in relation to the future activities of organisations, whether they be charities or otherwise.

Therefore, I, too, would like to work on augmenting my amendments ahead of stage 3, either through the Government working with me and other members, or doing so itself, to ensure that we take cognisance of the sustainability of organisations that want to do the right thing.

I will add a brief closing point on this important area. It is entirely right that organisations face up to their past and that they do so not only with honesty but with confidence in the scheme. Equally, however, it is right that survivors know which organisations are contributing and to what extent. It should be a point of pride that organisations are facing up to a very difficult past and will play their part by participating in the scheme, which should recognise those that want to do the right thing. However, there should also be no reputational risk from participation. I would go as far as to say that perhaps questions should be asked of those that choose not to participate.

I will press amendment 37.

Amendment 37 agreed to.

Amendment 38 moved—[John Swinney]—and agreed to.

Amendment 39 moved—[Jamie Greene]—and agreed to.

Amendment 2 not moved.

Amendment 40 moved—[John Swinney]—and agreed to.

Amendments 41 and 42 moved—[Jamie Greene]—and agreed to.

Amendment 3 not moved.

Amendments 43 and 44 moved—[John Swinney]—and agreed to.

Section 12, as amended, agreed to.

Section 13—Statement of principles in relation to contributor list

Amendment 45 moved—[John Swinney]—and agreed to.

Amendments 46 and 47 moved—[Jamie Greene]—and agreed to.

Section 13, as amended, agreed to.

After section 13

Amendment 48 moved—[John Swinney]—and agreed to.

Section 14—Financial contributions by charities

Amendment 4 not moved.

Amendment 49 moved—[John Swinney]—and agreed to.

Section 14, as amended, agreed to.

Section 15—Financial contributions by charities: restricted funds

Amendment 50 moved—[John Swinney]—and agreed to.

Section 16 agreed to.

Section 17—Meaning of “abuse”

The Convener

The next group is on “Eligibility: abuse”. Amendment 51, in the name of the cabinet secretary, is grouped with amendments 22, 52, and 53.

John Swinney

During stage 1, evidence was heard about the fact that the definition of “abuse” in the bill is different from the inclusive definition in the Limitation (Childhood Abuse) (Scotland) Act 2017, the legislation that removed the three-year limitation period for court action for damages for personal injury arising from childhood abuse.

The current definition in the bill provides that “abuse” means

“sexual abuse ... physical abuse ... emotional abuse”

and

“abuse which takes the form of neglect”

rather than that it includes those things, as in the definition in the 2017 act.

We always intended our definition of “abuse” to cover all the forms of abuse that survivors might have suffered, and our view was that the very broad categories set out in the bill achieved that. However, during stage 1, concerns were expressed that it was possible that some types of abuse might be excluded by the bill and would therefore not be eligible for redress. I have listened to those concerns and am persuaded that, for the sake of clarity, consistency and reassurance for survivors, there is merit in aligning the definition in the bill with that in the 2017 act. Amendment 51 therefore substitutes “includes” for “means” in section 17(1).

Ms Mackay’s amendment 22, which is on corporal punishment, also relates to the definition of “abuse”. I am happy to support the amendment and I welcome the additional clarification that it brings. Potential applicants to the scheme should be in no doubt that abuse was abuse, whether or not it was disguised as corporal punishment, and all survivors of abuse in care must know that the scheme is there for them. The committee recommended that

“the Scottish Government should consider how best to instil confidence in ... survivors that the excessive use of corporal punishment will be covered by the scheme.”

I believe that Ms Mackay’s amendment appropriately and directly addresses those concerns.

My amendment 52 provides additional reassurance that the regulation-making power in section 18(4), which allows us to modify the definition of “residential institution”, will be used only to widen eligibility for the scheme. Some of those who gave evidence at stage 1 said that they were concerned that the power could be used to narrow eligibility, with the effect that eligibility requirements as to the care settings covered by the bill could change over the lifetime of the scheme and that a person who anticipated being able to apply now may no longer be able to do so in the future. I reassure survivors and the committee that that is not the intention. The power in section 18(4) is already intended to be used to widen eligibility, not narrow it. That power is separate from the power of ministers under section 21 to create exceptions to eligibility where that is necessary, and it is consistent with the underlying purposes of the scheme. Similarly, that power could not be used to narrow the settings that come under the scheme. However, it may be used to exclude specific circumstances or arrangements that led to the child being cared for in the setting—for example, short-term respite care may be excluded.

We have the power in section 18 in order to ensure that the definition of “residential institution” can be adjusted in due course should that prove necessary in the light of experience gained during the lifetime of the scheme. We must remember the complexity of the care setting landscape over the period in question. It is important that we keep a level of flexibility available for any necessary amendment, even though we may anticipate that the power would rarely be used. The future exercise of the power in section 18(4) will already, quite properly, be subject to the Parliament’s approval under the affirmative procedure. However, we have considered whether the power could be amended to reinforce the intention that its exercise should result in no detriment to survivors. Amendment 52 provides reassurance on that.

Amendment 53 is a technical amendment to make it clear that abuse that occurred on trips outside Scotland will be covered by the scheme. Section 20 already provides that

“A reference to being resident in a relevant care setting includes a reference to being absent from the care setting while under the care of”

that setting or a person authorised by it. The effect of the amendment is to clarify that it does not matter whether the child was within or outwith Scotland during such a period of temporary absence from the care setting. That means that potential applicants who experienced abuse outwith Scotland in those circumstances should not be deterred from applying because of doubt on that point.

I move amendment 51.

Rona Mackay

At stage 1, many of those who gave evidence expressed concern about the bill’s current treatment of corporal punishment. The bill states that, where corporal punishment was permitted by law in force at the time that it was administered, it will not constitute abuse eligible for redress.

In their evidence, a number of stakeholders argued that, although corporal punishment was legal in the past, its application could have been, and often was, highly abusive. The scheme must encourage those who were abused to come forward. The committee heard that excluding corporal punishment, when it was lawful, from the definition of “abuse” could deter victim survivors from applying, either because it is difficult to know what was lawful at the time or because they might feel that the Government had somehow sanctioned assault. I appreciate that abusive corporal punishment is not excluded under the bill as it stands, but there would be a benefit in setting out in more positive terms for survivors that such behaviour is excluded. I am therefore pleased to have lodged amendment 22, which would reverse the emphasis in section 17(2).

Amendment 22 sets out more clearly the circumstances in which corporal punishment would not have been lawful and, therefore, when it constitutes abuse for the purposes of the scheme. In accordance with the wording of the amendment, corporal punishment that was “excessive, arbitrary or cruel”, “administered for an improper” use or not “permitted” by the law for any other reason will constitute physical abuse and therefore satisfy the abuse aspect of the eligibility criteria under the scheme.

I urge members to support my amendment 22.

John Swinney

I am grateful to Rona Mackay for lodging amendment 22, which relates to corporal punishment. I hope that it and my amendments on the definition of “abuse” and the use of regulations in the future will provide reassurance on the approach that is to be taken through the redress scheme. Today’s discussion shows the care that all members have taken to improve this important aspect of the bill where necessary.

I invite members to support the amendments in the group, which will strengthen the bill by providing further clarity on corporal punishment and other aspects of abuse.

The Convener

I will pause before putting the question on amendment 51. One of our members has left the meeting temporarily, so we will give him time to come back.

We seem to be having some difficulties, so I suspend the meeting—a little earlier than I normally would—for a comfort break. We will resume at 10:30.

The Convener

I welcome everyone back to the committee. We have completed the debate on amendment 51, so I will put the question on it.

Amendment 51 agreed to.

Amendment 22 moved—[Rona Mackay]—and agreed to.

Section 17, as amended, agreed to.

Section 18—Meaning of “relevant care setting”

Amendment 52 moved—[John Swinney]—and agreed to.

Section 18, as amended, agreed to.

Section 19 agreed to.

Section 20—Meaning of “resident”

Amendment 53 moved—[John Swinney]—and agreed to.

Section 20, as amended, agreed to.

Section 21 agreed to.

Section 22—Eligibility to apply for a next of kin payment

The Convener

The next group is on eligibility: next-of-kin payments. Amendment 54, in the name of the cabinet secretary, is grouped with amendments 58, 23 and 24.

John Swinney

An important part of our collective response to the harms of the past is recognising those survivors who did not live long enough to be able to apply for financial redress. At stage 1, the committee heard powerful and moving evidence about the importance of recognising the experience of survivors who are no longer with us. Iain Gray, in his earlier remarks, made the point that it has taken a formidable amount of time for the Parliament to be able to legislate to address issues such as redress and for the inquiry to take its course.

Provision for next-of-kin payments is, therefore, an important part of the redress scheme and is aimed at acknowledging the experience of survivors who are no longer with us. In particular, it seeks to recognise that some of those survivors may have formed a reasonable expectation that a redress scheme was to be established and that they would meet the eligibility criteria but that, sadly, they died before the scheme opened, before their application could be fully considered.

The bill as introduced provided an eligibility date for next-of-kin payments of 17 November 2016, which was the date on which I announced to Parliament a commitment to formal consultation on redress. However, I have reflected on the recommendation that was made by the committee and the evidence that was given during stage 1 that that date would unreasonably restrict access to the redress scheme for next of kin. Indeed, I have heard how that would exclude the next of kin of some survivors who themselves had fought and advocated tirelessly for a redress scheme.

Amendment 54 delivers on the commitment that I made during the stage 1 debate and proposes a change to the cut-off date to ensure that families of eligible survivors who passed away on or after 1 December 2004 can access redress. That aligns with the date that is used for survivors who apply for redress, whereby abuse must have occurred on or before 1 December 2004. As the committee notes, that is the date of the then First Minister Jack McConnell’s apology. I consider that it represents an appropriate date for the forming of a reasonable expectation of eligibility for any future national scheme aimed at providing recognition and redress to survivors of historical child abuse in care in Scotland. It is right and necessary that we remember the experience of those who are no longer with us and their perseverance in ensuring that we reach this point.

My other amendment in the group is a technical amendment concerning the next-of-kin provisions. Amendment 58 clarifies the rule about prioritisation of applications when there is or was both a spouse or a civil partner and a cohabitant. The decision about which of those is to be treated as the partner for next-of-kin purposes is intended to be a final one. After that, if the partner dies without making a claim, the right passes to the survivor’s children. The amendment clarifies that the subsequent death of the partner after the death of the survivor does not change matters in the determination of which partner is the specified next of kin.

I am grateful to Ross Greer for identifying the provisions around eligible cohabitants that would benefit from further consideration and for lodging amendments 23 and 24, which the committee will deal with today. I support Mr Greer’s amendments, which will provide a clear and consistent approach across next-of-kin applications, as well as being in line with other legislation, when it is considered appropriate to require a minimum period of cohabitation.

I move amendment 54.

The Convener

I invite Mr Greer to speak to amendments 23 and 24 and to the other amendments in the group.

Ross Greer

I will not repeat the cabinet secretary’s remarks about the value of including next-of-kin payments, but I certainly associate myself with them. They are very much reflective of the committee’s conclusions in our stage 1 report. Next-of-kin payments are a powerful example of how we have committed to listen to survivors throughout what has been a long process.

As the cabinet secretary said, the purpose of my amendments is to ensure consistency. At the moment, the bill has two hierarchies for eligibility when it comes to receiving a next-of-kin payment: one between a spouse or civil partner and a cohabitant, and another between the children of the survivor and a cohabitant.

When there is both a spouse or civil partner and a cohabitant, the cohabitant must have been living with the survivor for at least six months prior to the survivor’s passing for them to be eligible ahead of said spouse or civil partner. That is a demonstration of the fact that they were the survivor’s partner at the time of their death. There is no six-month requirement in the bill as it currently stands for the cohabitant to be eligible ahead of a survivor’s children. Essentially, the moment that someone moves in with a survivor and cohabits with them, they immediately become eligible ahead of that survivor’s children. There is no clear rationale for that inconsistency, and I think that we can all see the potential for conflict to arise there. The purpose of my amendment is to require that any cohabitant must demonstrate six months’ cohabitation with a survivor immediately prior to their passing in order for them to be eligible to apply to the scheme. So, the term “cohabitant” would, if the amendments were agreed, be defined as a cohabitant of at least six months’ duration. That means that, if a period of cohabitation was less than six months, the children of the survivor, if there were any, would be eligible to apply, not the cohabitant. That would ensure a clear and consistent approach to the operation of section 26, and it would be a means of evidencing the stability of the relationship by reference to its duration.

I thank the Government for its support for the amendments, and I support the amendments in the cabinet secretary’s name.

John Swinney

I thank Mr Greer for his engagement on this important subject. I encourage the committee to support his amendments and those in my name.

Amendment 54 agreed to.

The Convener

The next group is on previous payments. Amendment 55, in the name of the cabinet secretary, is grouped with amendments 56, 102 and 103.

John Swinney

Amendments 55 and 56 are technical amendments that ensure consistency in the terminology that is used in the bill when it refers to redress payments that have previously been paid to a survivor. They adjust the provisions that provide that eligibility for a next-of-kin payment does not arise when the deceased survivor had already received a redress payment before they died.

Amendments 102 and 103 are also technical in nature. They provide that, in the interpretation of provisions of the bill that involve considering whether a person has previously received a redress payment, account is taken of any redress payments being paid “in instalments or otherwise” that are still in the process of being paid. The amendments do not affect a person’s right to receive any payments that are due to them; they simply provide that, when it is necessary, the entitlement to the whole redress payment is recognised even if the payment has not yet been made in full.

I move amendment 55.

Amendment 55 agreed to.

Section 22, as amended, agreed to.

Section 23—Eligibility to apply for a next of kin payment: exceptional circumstances

Amendment 56 moved—[John Swinney]—and agreed to.

Section 23, as amended, agreed to.

Section 24—Review of determination made under section 23

The Convener

The next group is on extending time periods. Amendment 57, in the name of the cabinet secretary, is grouped with amendments 85 to 91, 93, 96 and 98.

John Swinney

The committee’s stage 1 report highlighted the significance of the decisions that applicants are asked to make within the redress scheme, the complexity of those decisions and the range of factors that have to be considered before, during and after applying to the scheme. The report raised concerns that the time periods that are provided in the bill for applicants—in particular, survivors—to make those decisions are too restrictive, given that legal advice and other support might be needed to reach an informed decision.

In response, I committed to lodging amendments to increase the periods of time that applicants have in which to make key decisions under the scheme. My amendments in this group propose to extend the 12-week period that applicants have in which to accept an offer of a redress payment to six months and the four-week period in which they may request a review of any matter to eight weeks. The period that is given to nominated beneficiaries to allow them to take over an application or that is given to people who want to make representations about reconsiderations is also extended, from four to eight weeks.

I fully appreciate the significance of the decisions that applicants—survivors, in particular—will make in connection with their redress application, and I do not wish them to be under any pressure when making those decisions. Accepting a redress payment has emotional significance and a symbolic meaning. Survivors must not feel rushed. They must have the time that they need to obtain independent legal advice and access any other support that they require in order to carefully consider the options that are available to them.

As I have said, for some survivors, redress provides a route to financial payment that they might not otherwise be able to access. However, for others, there will be a choice to make between pursuing their case in court and accepting redress under the scheme. The scheme has been designed to support and empower survivors to make the right choice for them, based on the right level of information and advice. These amendments will strengthen that approach and ensure that applicants are given the time that they need.

I move amendment 57.

Amendment 57 agreed to.

Section 24, as amended, agreed to.

Section 25—Outcome of a section 24 review

Section 25 agreed to.

Section 26—Meaning of “specified next of kin”

Amendment 58 moved—[John Swinney]—and agreed to.

Amendments 23 and 24 moved—[Ross Greer]—and agreed to.

Section 26, as amended, agreed to.

The Convener

That ends the first day of stage 2 consideration of the bill. The committee will resume its stage 2 consideration on Wednesday 17 February. Any further amendments to the remaining provisions of the bill should be lodged by 12 noon tomorrow, which is Thursday 11 February.

I thank the cabinet secretary and committee members for attending this morning.

The Convener

Item 5 is day 2 of our consideration of stage 2 amendments to the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. I confirm to members that I intend to pause for a comfort break between 10.00 and 10.30. If members wish to break before that, they should indicate that by entering “break” in the chat function.

I welcome the Cabinet Secretary for Education and Skills, John Swinney, to the meeting and move immediately to consideration of the bill.

Section 27 agreed to.

Section 28—Cases where more than one application permitted

The Convener

The first group of amendments is on second application in light of new evidence. Amendment 59, in the name of the cabinet secretary, is grouped with amendments 108, 67, 74 to 76, 78, 80, 82, 83 and 94.

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

Good morning. In speaking to these amendments, I acknowledge last week’s contribution on the subject from my colleague Mr Neil, who raised his concern about the need for further options for survivors should additional information come to light after they have already accepted a redress payment and signed a waiver. I thank Mr Neil for raising that concern and, although I think that the amendments that I have lodged in this group take significant steps to address it, I reiterate my commitment to consider further options to address it in advance of stage 3. If more can be done to strengthen the safeguards for survivors, we will certainly aim to do that.

Throughout stage 1, I listened to the concerns that survivors and representatives of the legal profession have raised about the challenges that can be faced in evidencing an individual’s abuse in care. I want to ensure that survivors get a redress payment that properly reflects their experience. That means ensuring that, should new material evidence become available after they have made an application and received a redress payment, they will be able to make a further application based on that new evidence and might be awarded a further redress payment.

The amendments that I have lodged are to address the committee’s concern that survivors are asked to take decisions on an all-or-nothing basis, solely relying on the evidence that is available at the point at which the redress payment offer is made, with no opportunity to seek a further payment should new evidence come to light. The principal amendment in this group, amendment 59, will allow a survivor, in the light of new evidence, to make a further application to redress Scotland, which will decide whether that evidence is sufficient to move the determination from one payment level up to another. To maintain the appropriate rigour of the scheme, redress Scotland will require to be satisfied that there is a reason why the new evidence was not provided previously and that that reason justifies a further application.

I do not consider that the need for survivors to rely on that provision will be a common occurrence in the scheme, as the inclusive design and approach to evidence will mean that it should rarely be necessary for a survivor to submit new formal evidence in order to have their experience fully recognised by redress Scotland and reflected in their redress payment. However, it is important that the scheme is flexible and can adapt to the changing landscape of knowledge and evidence that relates to historical child abuse.

The other amendments are consequential to amendment 59 and ensure that the consequences of an application for a further payment are reflected, as appropriate, in other provisions of the bill. These amendments further strengthen the survivor focus of the scheme and illustrate that the process and outcomes of redress are different from those that are available through litigation where it can be difficult to revisit awards or settlements.

I invite committee members to support the amendments.

I move amendment 59.

The Convener

Thank you, cabinet secretary. No member has indicated that they wish to contribute to the debate on amendment 59.

Amendment 59 agreed to.

Amendment 108 moved—[John Swinney]—and agreed to.

Section 28, as amended, agreed to.

Section 29—Application period

The Convener

The next group of amendments is minor and technical. Amendment 60, in the name of the cabinet secretary, is grouped with amendments 113, 115, 119, 130 and 101.

John Swinney

This group consists of a number of technical amendments on various provisions of the bill. Amendments 60, 101 and 130 ensure that, for consistency throughout the bill, references to the term “application period” will have the meaning that is provided for in section 29, which sets out the application period for the redress scheme.

I also, separately, lodged substantive amendments to section 29 concerning the anticipated duration of the scheme, which will be debated later.

Amendments 113 and 115 simply ensure consistent references in provisions of the bill concerning nominated beneficiaries who may take over redress applications when the original applicants have died.

Amendment 119 amends section 85, which concerns the provision of support to persons in connection with an application. It clarifies that those support provisions apply to those who have applied for redress as well as to those who may still be in the process of preparing or considering an application.

I move amendment 60.

The Convener

No member has indicated that they wish to contribute to the debate on amendment 60.

Amendment 60 agreed to.

The Convener

The next group of amendments is on the period for submission and prioritisation of applications. Amendment 109, in the name of the cabinet secretary, is grouped with amendments 110, 111 and 62.

John Swinney

I thank the committee for raising the issue of scheme duration in its stage 1 report, and I am in whole-hearted agreement with its conclusion that the duration of the application period should not represent a barrier to redress for survivors. Amendment 109, along with amendment 110, amends section 29 so that the application period will last either for five years or for two years beyond the lifetime of the Scottish child abuse inquiry—whichever is the longer period. Although the amendment provides for potentially longer application periods, under subsection 29(2) there will still be scope to make regulations to extend the application period beyond that, which would be subject to the Parliament’s consideration and approval under the affirmative procedure.

Amendment 111 places a new duty on ministers to review the length of the application period that is set out under amendment 110. That must be done 15 months before the period is due to end unless steps have already been taken to extend it. Furthermore, amendment 111 requires that the findings of the review be published and laid before the Parliament.

I believe that those changes will instil confidence that the question of whether to extend the application period will be given thorough and timely consideration and that there will be transparency around the decision-making process. Subject to the Parliament’s approval, regulations could subsequently be made to extend the application period in line with the conclusions of that review.

Although the bill as introduced provided that the redress scheme would be open for a period of five years and gave the Scottish ministers power to extend that period by way of regulations, the amendments that I ask the committee to support today will make sure that the scheme remains open for applications for a substantial period after the Scottish child abuse inquiry has concluded and produced its final report. That is to ensure that those who might be encouraged to come forward—or who, as a result of the inquiry’s findings, ask for an earlier award to be reviewed—will have the opportunity to do so. Also, by providing that the scheme will remain open for a sufficient length of time to take account of potential changes to the evidence that is available to survivors, we will ensure that survivors will have the time that they need to fully explore other options that are available to them. The scheme will be open for long enough for survivors to pursue a civil action in the first instance, if that is their preference, and to apply to the redress scheme if they are unsuccessful in the court action or if the outcome is a financial award that is lower than what they might receive by way of a redress payment.

Amendment 111 will also guarantee that there is proper consideration of whether the application period should be extended beyond the period that is being set today under amendment 110, with appropriate transparency around that.

Amendment 62 relates to the requirement that redress Scotland must have regard to an applicant’s age and state of health when determining which applications are to be prioritised. The amendment strengthens what is currently provided for in section 32, ensuring that action is taken around ill health when that is disclosed later in the application process, including after an application has been submitted to redress Scotland. I hope that members will support those amendments.

I move amendment 109.

Daniel Johnson

I should say at the outset that I welcome these amendments. It is important that we maximise the opportunities for survivors to make applications. However, especially bearing in mind that it can take many people a number of years to come to terms with their experiences and even to acknowledge them to themselves, let alone to others, and given the length of time that has passed, could we go further than the amendments that are in front of us? My simple question to the cabinet secretary is this: why does there need to be a finite period at all for applications to be made? I acknowledge that we would expect the bulk of applications to come forward in the early years, but I am not entirely clear, at least in principle—I recognise that there may be practical reasons—why there should be any time limit whatsoever. Will the cabinet secretary set out the logic and thinking behind that?

John Swinney

There is no absolutely precise answer to that question; it is a matter of judgment. The thinking behind the timescale has essentially been that it provides an opportunity for applications to be made. We have extended the timescale beyond the duration of the reporting of the Scottish child abuse inquiry to provide adequate opportunity for individuals to come forward. There is also provision in the bill for ministers to extend the timescale should they judge that to be appropriate.

I suppose that there is an argument—I accept this point from Mr Johnson—that we might never know the moment at which an individual will find it possible to address the issues. That might not be within the timescale that the bill prescribes; it might be some time afterwards. I take Mr Johnson’s point that somebody might be able to face up to the issues long after the timescale that is set out has formally been reached, and I suppose that they would have just as much right to have their circumstances addressed as anybody else.

I am happy to reflect further on that point in advance of stage 3. There are provisions in the bill to allow the timescale to be extended, but not, I think, in the fashion that Mr Johnson highlights—in the scenario in which, some years later, an individual is able to face up to all the issues and wishes to pursue them. I am certainly prepared to give the committee a commitment that I will consider that point in advance of stage 3 in addition to the proposed changes in this group of amendments.

Daniel Johnson

I thank the cabinet secretary for those remarks.

Amendment 109 agreed to.

Amendments 110 and 111 moved—[John Swinney]—and agreed to.

Section 29, as amended, agreed to.

Section 30 agreed to.

Section 31—Withdrawal of application

The Convener

The next group of amendments is on initial determinations. Amendment 61, in the name of the cabinet secretary, is grouped with amendments 65, 68, 77, 79, 81, 92, 95 and 99.

John Swinney

Last week, I said to the committee that I want to make sure that the operation of the waiver is fair to survivors. Some of the views that the committee heard at stage 1 and that the Government has heard throughout the engagement with survivors indicated that the provisions in the bill on interim payments could undermine that objective. In particular, there was a concern that some survivors could choose to sign a waiver before knowing the final outcome of the individually assessed redress application and, crucially, whether they are satisfied with that.

Although the option to receive an interim payment was only ever intended to increase survivor choice, given the concerns that have been raised and the commitment that I made in the stage 1 debate, I have lodged amendments that will remove the concept of interim payments in relation to individually assessed applications.

The principal amendment, which is amendment 68, will remove section 36, which is the source of redress Scotland’s duty to make an initial determination. The other amendments in the group make consequential adjustments to the other provisions of the bill that refer to initial determinations, including the provisions on the waiver. The amendments will mean that survivors who apply for individually assessed payments will only ever be asked to sign the waiver when they know the final outcome of their application and the full details of any redress payment that they are being offered.

As I have said before, the process of redress is intended to be faster than civil litigation and is intended to feel different from traditional court-based processes. That will be uppermost in our minds as we progress with scheme design and build capacity to deliver. We will make sure, in all respects possible, that the processes and timescales to consider and assess applications deliver a swifter, more accessible, survivor-focused and trauma-informed alternative to court proceedings.

The bill also provides that redress Scotland must prioritise applications, having regard to the age and health of applicants. That will allow the elderly and those with significant health issues the opportunity to have their applications determined properly and to receive their full individually assessed payments as quickly as possible thereafter. The amendments are part of a package of stage 2 amendments that are designed to enhance—[Inaudible.]

The Convener

Mr Swinney, we lost your connection there, so we missed the last few sentences.

John Swinney

Okay. The amendments are part of a package of stage 2 amendments that are designed to enhance the protection for survivors. I ask the committee to support the amendments in the group, for the reasons that I have set out.

I move amendment 61.

Amendment 61 agreed to.

Section 31, as amended, agreed to.

Section 32—Prioritisation of applications

Amendment 62 moved—[John Swinney]—and agreed to.

Section 32, as amended, agreed to.

Section 33 agreed to.

After section 33

The Convener

We move on to determination of applications. Amendment 25, in the name of Daniel Johnson, is grouped with amendments 63, 112, 104 and 104A.

Daniel Johnson

It is a fair reflection of the evidence that the committee took and the discussions and deliberations that the committee carried out in public and in private that the most sensitive and delicate issue in relation to redress Scotland and the way that it is proposed to work is the determinations of individual payments that it will make.

In essence, we are asking redress Scotland to determine the veracity and, indeed, the seriousness of the testimony that it will receive from survivors. Clearly, that is a very delicate and sensitive matter. Determinations need to be carried out with that in mind, but they also need to be carried out in a robust and understandable manner. Therefore, understanding of the burden of proof that will be applied to applications and of the evidential requirements for the testimony and information that is provided by applicants to the process is critically important.

As it stands, the way that such matters will be determined will be subject to guidance. I and the committee questioned whether that was robust enough for the purposes of redress Scotland. I understand that the intent behind it is to provide sufficient flexibility, which is important given the difficult nature of the subject matter and the time and complexity surrounding it. However, although I recognise that, we have to bear in mind the independence of redress Scotland in carrying out its work. Once the body is up and running, it will do so very much independently of Government, which is right and correct. It is therefore important that we set out in the bill the principles that it will work under in relation to evidential requirements and the burden of proof. However, it is also important that we continue to have flexibility.

Amendment 25 sets out a number of principles under which applications will be determined and the burden of proof that will be applied. Those are important in order to provide clarity for people who are applying so that they understand what will be required of them and how things will be understood, as well as for legal robustness; having in the bill the principles under which those decisions will be made means that they can be scrutinised and legally challenged if required. Those principles will be expanded and made more substantial through regulation, which is important in providing the flexibility that was initially sought and in recognising that these issues are complicated and therefore require more substantial elaboration than is provided for in the bill.

I will explain some of the detail. Subsection (3) of amendment 25 sets out key principles, which I acknowledge are complex and untested. However, I seek through the amendment to provide key principles by which redress Scotland could sensitively but coherently assess the evidence that it receives from survivors. It is important that we do not have principles that may put undue stress on individuals. It is therefore important that we have an assumption of coherence regarding evidence; that is, that we move away from ideas of consistency, which is sometimes problematic for survivors. Given the stress and trauma that they have endured, they may not necessarily have given consistent accounts over time or even in a specific period. What is important, therefore, is that evidence is assessed as to whether it is coherent in the broader context of the experiences that they endured and whether it fits within the pattern of other survivors’ evidence and the information that we know about the broader context in which they may have endured the abuse that they suffered. That is why paragraph (b) states that

“evidence of the experience of an applicant may be inferred from”

other accounts. It is also important that there is a presumption that applicants are to be believed, in relation to which I note Alex Neil’s amendments later in the group.

Subsection (3)(d) of amendment 25 is about how it is important that the overarching responsibility to establish the facts of the application falls on redress Scotland rather than the individual applicant. The process will be traumatic and difficult, and if we are seeking a process that is substantially different to going through court, it is important that there is an obligation on redress Scotland to seek to establish facts itself in partnership with the applicants, and not to be a passive body that simply receives evidence on behalf of applicants.

Indeed, it is also important that we do not ask survivors to produce evidence or give testimony when they have done so elsewhere. That relates to quite a powerful, personal representation that was made to me following our initial evidence taking, that many survivors give their stories time and time again, and, every time they do so, they relive their experience, which is traumatic. Therefore, when that evidence has already been provided—in particular, to the inquiry—it is important that that is taken into account and used as a primary source, and that we do not require survivors to retell their stories when they do not have to because they have already told their stories elsewhere. It is also important to establish that the standard applied should be no higher than the balance of probability.

I hope that that sets out my logic. I apologise for having gone on at some length, but this is a complicated area. I recognise that an awful lot of these principles are untested and that there will be significant legal complexity. Therefore, these are probing amendments and I am minded not to press or move them when we come to that point. However, I would like to establish with the cabinet secretary and other members whether they think that principles along these lines may be appropriate. I certainly think that the bill must set out more substantial principles than are currently set out or that would be provided for in the other amendments in the group. It is important that we have legal robustness and that we have clarity for those seeking to make applications to redress Scotland.

I move amendment 25.

John Swinney

I thank Mr Johnson for lodging amendment 25. I agree in principle with elements of the approach that is set out in the amendment, some of which have been included in my amendment on the standard of proof and in Mr Neil’s amendment on the presumption of truth.

We all want the redress scheme to operate with integrity and robustness but without placing unduly onerous burdens on survivors. On that point, I agree very much with the sentiments that Mr Johnson has expressed and in no way wish further trauma to be inflicted on survivors by the application process that is envisaged under the bill. Indeed, my contention is that we are trying to minimise that trauma where we possibly can through the approach that we are taking. We must make sure that individuals are able to obtain redress without the trauma that Mr Johnson refers to.

However, there are a number of practical and technical issues with Mr Johnson’s proposal, and I welcome the fact that he told the committee that his amendments are probing amendments, because, once the committee has disposed of these sections of the bill, I would be happy to reflect with Mr Johnson on whether there are any further outstanding issues that need to be addressed to take into account the legitimate points that his amendments raise.

There is a judgment to be made—it runs through a number of the comments that I could make in relation to this area—about just how much detail to put in the bill and how much should be left to the guidance that we put in place. However, I would be happy to engage further with Mr Johnson on those points once the committee has expressed its view on the various amendments in the group.

I will sum up my observations by saying that I share Mr Johnson’s commitment to a trauma-informed approach and that I want to apply the proposed test to the provisions of the bill once the committee has completed its scrutiny in advance of stage 3.

On the presumption that applicants are to be believed, I am committed to delivering a scheme that tells survivors from the outset that we believe them. That is important when, so often in the past, they were not believed. I give my support to amendments 112 and 104A, lodged by Mr Neil, which call for a presumption of truth in the bill. I thank Mr Neil for amendment 112, which maintains the integrity of the scheme by selecting the presumption of truth as the starting point, while leaving the panel the flexibility that it requires to ensure that decision making is robustly credible. That supports our non-adversarial approach to all aspects of the redress scheme, it recognises the challenges for individuals having to disclose abuse and it underlines our commitment to a trauma-informed approach and to providing practical and emotional support to applicants throughout the application process and beyond.

Turning to Government amendments 63 and 104, I have heard the evidence from the committee and have reflected on calls from survivors and organisations for greater clarity as to the standard of proof that will apply in determining redress applications. I lodged amendment 63 to apply the civil standard of proof “on balance of probabilities”, which means that something was more likely than not to have occurred. Survivors have asked for a standard of proof that provides clarity for the applicant and safeguards the integrity of the scheme. Organisations need to be confident that their contributions will relate to redress payments that are determined by the panel in accordance with a clear and consistent standard of proof; amendment 63 provides the clarity that is sought.

Although the standard of proof that is applied by amendment 63 is the same as the civil standard, that does not mean that the process would be the same as in a civil court. Civil court rules on admissibility of evidence are not applied to the redress scheme by the amendment or otherwise, and the matters that require to be demonstrated apply only to eligibility, not to liability. Adversarial processes that are raised to establish liability have no place in the redress scheme.

The practical measures that are put in place through the design of the scheme will more broadly support survivors to access redress by helping them to access, so far as is possible, any and all available information and evidence to support their application in meeting the desired standard of proof. It was always intended that redress decisions would be taken to a clear and consistent standard. It is vital to ensure that all of us—including survivors, organisations and others—have confidence that decisions on redress applications will be based on a clear and appropriately robust standard of proof. The balance of probabilities provides that confidence.

I therefore ask the committee to support my amendments 63 and 104, as well as Mr Neil’s amendments. I invite Mr Johnson not to press amendment 25, and I give the undertaking that I will engage constructively with him and the committee on what further steps need to be taken to address any outstanding issues that he has raised in amendment 25.

Alex Neil (Airdrie and Shotts) (SNP)

I thank Daniel Johnson and the cabinet secretary for their supportive comments in relation to amendment 112 and consequential amendment 104A.

As we all know, survivors of abuse in care have campaigned with dedication and perseverance to access justice—[Inaudible.]—and redress. There have been too many times in the past when survivors have taken the brave step to disclose abuse experience, but have not been heard or, indeed, believed. Like everyone else on the committee, and like the cabinet secretary, I have heard from survivors. They have stated that being heard, being believed and having their abuse acknowledged are important elements in accessing justice. For many individuals, those things are vital in helping them to move forward.

In response to those calls, I lodged amendment 112 to place a presumption of truth in the bill. It will mean that applicants will be in no doubt that, when they apply to the redress scheme, the default position will be that they are believed. The amendment forms part of an unwavering commitment to listen to survivors and to act with dignity, respect and compassion in acknowledging and accepting the truth of the abuse that they suffered in care.

The presumption of truth will work alongside the standard of proof. Together, they will reinforce the supportive and trauma-informed approach to survivors and to the robust review of applications, with each element promoting confidence in the scheme. Survivors can be assured that they will be believed, and that will be in the text of the bill.

Jamie Greene

I have two brief comments on the amendments in this group. One is on the evidence threshold. In theory, we would have supported Mr Johnson’s amendment, on the basis of principle rather than technical precision—I appreciate that there are some difficulties with the wording. The idea that the evidence that is provided must be proportionate to the award that is made is a fair principle, and I hope that the Government will consider that.

The only issue that I have with Mr Johnson’s amendment concerns the provision that those who participate in the schemes should not have to present evidence that has already been given. In theory, that is ideal, but in reality the situation will not always be ideal. There might be cases in which it is necessary for the panel that is making the award to request evidence or information that would be a fair ask of participants in the scheme. Again, however, I come back to the first principle of the proportionality of the evidence that is required, given the nature of the scheme, which is very different from civil action. We should, and could, avoid that situation in almost all cases, but the scheme needs to be given the flexibility to empower the panel—and its members themselves—to make reasonable and rational decisions around what they think is required of them in order to allow them to make an overall decision. What might seem quite easy in theory, and what might look practical in the text of a bill, might be quite difficult in reality.

I look forward to seeing how Mr Johnson and the cabinet secretary progress the matter. The Scottish Conservatives would support any measures, and any future amendments at stage 3, to make the process as easy as possible for those who come forward.

Oliver Mundell (Dumfriesshire) (Con)

Like Jamie Greene, I support Daniel Johnson’s approach while recognising that there are technical issues with his amendment. I am keen to see what progress is made ahead of stage 3.

However, I draw the attention of Mr Johnson and the cabinet secretary to Alex Neil’s comment in relation to the interaction between the presumption of truth and the standard of proof that is required. What concerned me at stage 1, and what continues to concern me, is how those who cannot provide documentation or hard evidence will be treated when they can nonetheless provide circumstantial evidence and other compelling information that would, in the view of most reasonable people outside the court process, meet a balance of probabilities test. For example, will a sworn statement or previous remarks to the inquiry be taken as being enough evidence? What happens when documentation does not exist? How do those two principles interact when they are both in the bill? I am keen to get a better understanding of that from the closing remarks.

The Convener

Mr Mundell, the cabinet secretary has requested to intervene.

Oliver Mundell

I am happy to take the intervention.

John Swinney

I am grateful to Mr Mundell for accepting the intervention—I do not have the opportunity to sum up in this debate, so it gives me a chance to respond to the legitimate points that he has raised.

I hope that members conclude that the support that I offer to Mr Neil’s amendment 112, which proposes that there be, in essence, a presumption of truth being told by applicants, combined with the standard of proof applied in my amendments on the balance of probabilities—meaning that something was more likely than not to have occurred—provides a framework that addresses the points that Mr Mundell raises. I accept that documentary evidence is unlikely to be available in every circumstance to a level of certainty that would satisfy other tests within the judicial system.

It is interesting to reflect on the Scottish child abuse inquiry’s approach, in which it has felt to me, as a layman, very much as though survivors presenting evidence have been believed from the outset. That has enabled the inquiry to produce such powerful reflections on the issues about which we are all troubled. I have tried to reflect some of that thinking in the amendments that the Government has lodged and the amendments that Mr Neil has lodged, which I am happy to support in relation to the points that Mr Neil has raised.

I hope that that goes some way to addressing the points that Mr Mundell has legitimately raised, which I acknowledge he raised at stage 1, as well.

Oliver Mundell

That is exceptionally helpful. I am grateful to the cabinet secretary for that, as I know that it will provide a lot of reassurance to survivors and victims, as will the amendments. Thank you.

Daniel Johnson

I thank the cabinet secretary and committee members for their comments on the amendments to this section. I acknowledge that the amendments proposed by Alex Neil and the Government will move us forward. However, the comments by Jamie Greene and Oliver Mundell point to the fact that there is at least the scope to look at whether we could move further. It is a simple fact that many survivors will struggle to provide documentary evidence and that they will have provided evidence elsewhere. We need to be mindful of the fact that redress Scotland will not just determine whether testimony is true but will establish the extent of the trauma in the particular circumstances of the applicant, because it will have to discriminate between different payment levels. Obviously, we will come on to that when we deal with section 38.

It is therefore a question of establishing not just whether abuse occurred but the extent to which it did. Because of that, we require to elaborate on the valid ways in which redress Scotland can substantiate testimonies, which is the point that Oliver Mundell was getting at and very much the point that I sought to probe through the principle of inferring evidence from the accounts of other applicants or the wider context.

However, it is important, as Jamie Greene pointed out, that redress Scotland seeks evidence that might be available elsewhere. I acknowledge the complexity here, so I will not press amendment 25. I urge committee members to support the amendments in the names of John Swinney and Alex Neil.

Amendment 25, by agreement, withdrawn.

Section 34—Determination of applications

Amendment 63 moved—[John Swinney]—and agreed to.

Amendment 112 moved—[Alex Neil]—and agreed to.

The Convener

The next group is on findings of fact. Amendment 64, in the name of the cabinet secretary, is grouped with amendments 66 and 97.

John Swinney

A fundamental aspect of the redress scheme is its non-adversarial nature. It is intended to be an alternative to a court-based process, and its purpose is not to determine liability for abuse in a way that a court would or in a way that would have legal consequences outside the redress scheme itself. Rather, its purpose is to provide tangible recognition of abuse and a survivor-focused, non-adversarial route to redress.

Thus, section 34(3) states that redress Scotland,

“When determining an application ... must not ... make a determination on any issue of fault or negligence”.

Further, section 34(6) provides:

“Neither the offer of a redress payment nor the failure to make an offer”

is to be construed as a finding that a person named in an application acted in a particular way.

In the evidence that was received at stage 1, concern was expressed that those provisions might prevent redress Scotland from determining whether abuse actually took place. That is certainly not the intention. Indeed, making such determinations is obviously essential to the performance of redress Scotland’s functions. In our view, it is entirely possible for redress Scotland to make a determination that abuse occurred without having to make a specific finding as to whose fault or negligence led to that abuse. However, it is clear that the concerns that were raised relate not to the principle of the provisions but only to how they are expressed. I am content to present the three amendments in this group to clarify our intention.

Amendment 64 amends section 34(3) to provide that redress Scotland has no power to

“rule on, and has no power to determine, any person’s civil or criminal liability”

when considering a redress application, as that would be the role of a court. The intended effect is to make it clearer that, while redress Scotland has no power to do those things, it will nonetheless be able to make determinations on the key question of whether or not abuse took place for the purpose of offering a redress payment.

The purpose of amendment 66 is to put it beyond doubt that neither the offer of redress nor the failure to make such an offer can be relied on in other court proceedings as evidence that the acts complained of occurred. That was already the intention, but the amended wording of the provision puts it beyond question that we are talking about how the outcome of a redress application is viewed in other proceedings.

For the sake of consistency, I also lodged amendment 97, which amends section 72(6). That provision contains similar wording to that of section 34(6), but in the context of a reconsideration of a determination where there has been a possible material error. Similarly to amendment 66, amendment 97 is intended to put it beyond doubt that, for the purposes of other proceedings, nothing done under a reconsideration is to be taken as a finding that someone acted or failed to act in a way suggested in the application for redress.

I move amendment 64.

Amendment 64 agreed to.

Amendments 65 and 66 moved—[John Swinney]—and agreed to.

Section 34, as amended, agreed to.

Section 35—Assessment of amount of redress payment

Amendment 67 moved—[John Swinney]—and agreed to.

Section 35, as amended, agreed to.

Section 36—Applications for individually assessed payments: initial determination

Amendment 5 not moved.

Amendment 68 moved—[John Swinney]—and agreed to.

Section 37 agreed to.

Section 38—Individually assessed payment

The Convener

The next group is on payment amounts. Amendment 69, in the name of the cabinet secretary, is grouped with amendments 70, 26, 27 and 71 to 73. I draw members’ attention to the pre-emption information that is shown in the groupings. If amendment 27 is agreed to, I cannot call amendments 71 to 73.

John Swinney

Before discussing the amendments in the group directly, I would like to acknowledge the sensitivity of this part of our debate. It is one of many difficult topics in the context of redress. I know that committee members have said that they are uncomfortable with drawing lines between experiences of abuse and attaching a monetary value to each level; I share that discomfort and I must say again that we know that no amount of money can adequately reflect the reality of abuse and the harm caused. Nothing that we discuss here should be considered to diminish any abuse experienced by any survivor, but if we are to provide individualised payments, as survivors have asked us to do, this is a discussion that we must have.

The work on the assessment framework will continue, so that survivors have clarity when they are considering applying for redress. We must recognise that not all experiences of abuse are the same, and therefore it is right that the redress scheme provides for those distinctions in a way that is fair and makes sense for survivors. The matter of payment levels is therefore critical but sensitive.

I have considered carefully the evidence that the committee heard during stage 1. I want to provide fair payment according to a fair structure that is sensitive to the needs and circumstances of those who apply to the scheme. I have revisited the level of the increase between the different payment levels and lodged amendment 71 to introduce a new £60,000 payment level to address concerns that the gap between the current £40,000 and £80,000 payment levels in the bill is too great. Amendment 72 is consequential to amendment 71.

I have also considered the evidence that the committee heard during stage 1 that, for some cases, redress payments might be lower than would have been awarded by the courts or provided by some other redress scheme. The redress scheme is an alternative remedy for survivors. It does not follow the same rules and procedures as courts and it is not designed to achieve the same outcome. The redress scheme is driven by the needs of survivors and is designed to operate in a supportive and non-adversarial way, while still providing contributions from the organisations responsible.

It is important that the redress scheme offers choice in the form of a meaningful alternative. Having listened to the evidence, particularly the views of survivors, I have also lodged amendment 73, which introduces a new top-level payment of £100,000. A revised financial memorandum will be published to set out what impact that will have on the anticipated cost of the scheme, if the amendment is agreed to today. Amendments 69 and 70 are further consequential amendments.

Those payment levels will allow survivors’ experiences to be further differentiated and the application process to be further individualised.

Mr Johnson’s amendments 26 and 27 would also amend payment levels. Although I agree with the need to increase the top-level payment, I believe that his suggestion that there should, in effect, be no upper limit presents a number of challenges. The biggest challenge is that the lack of clear parameters around the payments available would lead to a lack of transparency for survivors, either in advance of applying, or once they have received an offer of a redress payment. There would also be difficulties in seeking contributions from providers worried about affordability if payment amounts had no upper limit. That could undermine other measures that we have considered and debated previously that seek to ensure the affordability of financial contributions for providers and to secure their contributions.

We should provide clarity for survivors wherever we can. Mr Johnson’s amendments would, instead, provide uncertainty around the payment levels available and how decisions are made. They would also likely increase the number of requests for a review of decisions, which would slow the settlement of applications and the capacity for the redress scheme to help survivors move swiftly through what is undeniably an emotional process.

I listened to the points that Mr Johnson raised previously about the survivors whose experience might take them to the highest level of redress payment available. As with all applicants, and perhaps even more than others, it is right that those survivors have the opportunity to access independent legal advice, that they know the options that are available to them and that they can carefully consider whether pursuing court action would instead be in their best interests.

Supporting survivors to make the right choice for them would, I suggest, not be helped by failing to provide clear levels of the redress payments that are available. However, a matter that could be further explored is how the scheme ensures that survivors are adequately signposted to the alternative paths available to financial redress. For some, those paths might result in a higher settlement than those that can be afforded by the redress scheme.

I note Mr Johnson’s previous powerful contributions on the matter and I want to see what more can be done, whether by stage 3 amendment or otherwise.

I have listened to the concerns that were voiced to the committee about payment levels. As I have set out, I have lodged amendments to introduce further individually assessed payment levels at £60,000 and £100,000. I believe that my amendments strike the right balance and respond to the concerns that we have heard while still ensuring that there is certainty and transparency. I therefore ask Mr Johnson not to move his amendments today.

I move amendment 69.

Daniel Johnson

I acknowledge that the cabinet secretary’s amendments in this group move us forward substantially. The £60,000 payment level removes the large jump between the £40,000 and £80,000 payment levels, which is important. I also welcome the introduction of the £100,000 payment level, which, again, is useful.

However, it is important to acknowledge two critical issues. There may well be people who come forward whose experiences are very serious and who may well be successful if they pursue the matter through the courts. Indeed, their experiences might be such that, if the matter was successfully pursued through the courts, it would attract a much more generous payment than would be currently available through redress Scotland.

I fully acknowledge that it is people’s choice to pursue a particular avenue, whether that is making an application through redress Scotland or taking the matter through the courts. However, it is still problematic—certainly for me—that we could have a scheme that would knowingly settle claims in such a way that those individuals would have no further possibility of pursuing their claims through the courts and that they could receive substantially less through the scheme than they might receive through the courts.

It is critical that redress Scotland acts in the best interests of survivors, both in the way that it handles their claims and in the awards that it makes. The intention behind my amendment was to remove the upper limit so that redress Scotland could make larger payments on an exceptional basis. I acknowledge that that would require further fleshing out, but it is an important consideration.

During last week’s consideration of amendments, I made the point that there might be circumstances in which individuals were able to receive higher claims and that redress Scotland would need to act in their best interests. I ask the cabinet secretary to consider whether there should be provision in the bill for exceptional payments, with whatever caveats may be deemed warranted, so that in circumstances where it is clear that large awards could be achieved redress Scotland is able to make such awards on an exceptional basis.

John Swinney

I acknowledge the points that Mr Johnson has made. I addressed a lot of them in earlier comments, so I will not rehearse them again. Mr Johnson raised the specific scenario of the provision of payments in truly exceptional cases. The difficulty is that such provision would conflict with the aspiration to have transparency within the system, which is essential so that all applicants know where they stand—so that they know the available parameters of the scheme and what they are making a judgment about. That enables them to make a judgment as to whether the scheme is for them or they wish to reserve the right to pursue civil litigation, which lies at the heart of survivor choice.

I am happy to give further consideration to the points that Mr Johnson has put on the record today. I acknowledge the issue that he raises, but I would be concerned that it could undermine the transparency of the scheme. I give the committee an undertaking that I will reflect on it further and I will be happy to discuss the issue with Mr Johnson in advance of stage 3.

Amendment 69 agreed to.

Amendment 70 moved—[John Swinney]—and agreed to.

Amendments 26 and 27 not moved.

Amendments 71 to 75 moved—[John Swinney]—and agreed to.

Section 38, as amended, agreed to.

Sections 39 to 41 agreed to.

Section 42—Deduction of previous payments: further provision

Amendments 76 to 78 moved—[John Swinney]—and agreed to.

Section 42, as amended, agreed to.

Sections 43 and 44 agreed to.

Section 45—Waiver

Amendments 79 to 84 moved—[John Swinney]—and agreed to.

Amendment 6 not moved.

Section 45, as amended, agreed to.

Section 46—Form and content of waiver

Amendment 7 not moved.

Section 46 agreed to.

Section 47—Period for which offer valid

Amendment 85 moved—[John Swinney]—and agreed to.

Section 47, as amended, agreed to.

Section 48—Acceptance of offer and making of payments

Amendments 8 to 10 not moved.

Section 48 agreed to.

The Convener

It is approaching 10 o’clock. I suggest that the meeting be suspended for seven minutes or so before we move on to the next group of amendments.

Section 49—Payments to vulnerable persons

The Convener

We move to payments to vulnerable persons. Amendment 28, in the name of Kenneth Gibson, is grouped with amendments 29 to 31.

Kenneth Gibson (Cunninghame North) (SNP)

Good morning to colleagues and the Deputy First Minister.

In its stage 1 report, the committee raised concerns about section 49, stating that the section is unnecessary due to existing legislation that was designed to protect vulnerable people. It therefore recommended that section 49 be removed from the bill. The committee’s concerns related primarily to the fact that the Adults with Incapacity (Scotland) Act 2000 already provided sufficient safeguards. Although I realise that section 49 is well intentioned, I agree with the concerns that the committee raised. For that reason, I propose that the paragraphs referring to adults with incapacity and to people whose capacity “is otherwise impaired” be removed from the bill.

However, I think it important to consider the other group of vulnerable applicants who are included within the scope of section 49. In certain circumstances, children will be able to apply to the scheme, as next of kin. Some might receive significant payments, as nominated beneficiaries, should a survivor unfortunately pass away prior to their application being fully determined and a payment being made. In those circumstances, we must consider the impact that a large lump-sum payment might have on a child—in particular, one who might be dealing with additional vulnerabilities such as having experienced trauma, being at risk of exploitation or dealing with bereavement.

For that reason, I suggest that the committee take an approach that is similar to that of the Criminal Injuries Compensation Authority, whereby redress Scotland would have the power to make directions on payment and management of an applicant’s award, when the applicant is under the age of 18. As we know, that is the age at which the bill draws a line between children and adults. That power would mean, for example, that a payment could be made in instalments or retained until the child turned 18.

In the group of amendments, I have also reflected the criminal injuries compensation scheme’s approach by including a subsection that would allow a child to request a payment advance—for example, when the applicant lives independently or to assist with their education costs. In any event, amendment 31 would guarantee that once the applicant reached the age of 18, the whole of the redress payment or the balance would be paid to them, as it would be paid to an applicant who is aged over 18.

I feel that the group of amendments to section 49 would deal with the committee’s concerns about treatment of vulnerable adults while ensuring that appropriate safeguards and protections for children remain in place.

I move amendment 28.

Amendment 28 agreed to.

Amendments 29 to 31 moved—[Kenneth Gibson]—and agreed to.

Section 49, as amended, agreed to.

Section 50—Review of direction made under section 49

Amendment 86 moved—[John Swinney]—and agreed to.

Section 50, as amended, agreed to.

Section 51 agreed to.

Section 52—Right to a review

Amendment 87 moved—[John Swinney]—and agreed to.

Section 52, as amended, agreed to.

Sections 53 to 55 agreed to.

Section 56—Period for which reviewed offer valid

Amendment 88 moved—[John Swinney]—and agreed to.

Section 56, as amended, agreed to.

Section 57—Withdrawal of review request

Amendment 89 moved—[John Swinney]—and agreed to.

Section 57, as amended, agreed to.

Sections 58 and 59 agreed to.

Section 60—Review of a section 58 determination

Amendment 90 moved—[John Swinney]—and agreed to.

Section 60, as amended, agreed to.

Sections 61 and 62 agreed to.

Section 63—Nomination of a beneficiary

Amendment 113 moved—[John Swinney]—and agreed to.

Section 63, as amended, agreed to.

Section 64 agreed to.

Section 65—Review of determination made under section 64(3)

Amendment 91 moved—[John Swinney]—and agreed to.

Section 65, as amended, agreed to.

Section 66 agreed to.

Section 67—Applicant’s death after offer accepted

Amendment 92 moved—[John Swinney]—and agreed to.

Section 67, as amended, agreed to.

Section 68—Invitation to nominated beneficiary to take over application

Amendment 93 moved—[John Swinney]—and agreed to.

Section 68, as amended, agreed to.

Section 69—Application taken over by nominated beneficiary

Amendment 94 moved—[John Swinney]—and agreed to.

The Convener

We move on to legal fees. Amendment 114, in the name of the cabinet secretary, is grouped with amendments 117, 120 to 126, 131 to 133 and 136 to 139.

John Swinney

Funding for applicants to obtain independent legal advice is a key element of the redress scheme. It is essential that we give survivors a meaningful opportunity to obtain all the support and advice that they need to allow them to make fully informed decisions when they are considering an offer of a redress payment.

However, as the committee commented in its stage 1 report, there is a need to manage legal costs. We are learning lessons from other redress schemes in which legal costs have escalated and which have been subjected to criticism. We do not want that for this scheme; we want the majority of the money to go to survivors, so we need to respect the importance of independent legal advice for survivors, while providing to those who provide the advice clarity about the arrangements that will apply.

In the evidence that the committee heard, there was criticism of what some felt to be the complex nature of the legal fee provisions in the bill. There was concern that the approach introduces an unnecessary bureaucratic burden on solicitors in applying for legal fees, and on redress Scotland in assessing them. A desire was also expressed for greater certainty as to what payment solicitors would receive for their work.

After reflecting on that evidence, I have lodged stage 2 amendments to introduce fixed fees for legal advice. The new provisions are more straightforward and will give more surety about legal spend. Furthermore, the new approach will mean that there are simplified processes in which, rather than all fee requests being passed to redress Scotland for assessment, only those that require an element of judgment and decision making will be forwarded. That will cut administration costs further, and will allow redress Scotland to apply its expertise and to focus on assessment of redress applications, rather than on assessment of legal fees in every case.

At the same time, the provisions will retain an element of flexibility. Although the amendments provide for fixed fees, solicitors will still be able to apply for a bespoke assessment to be carried out in cases in which there are exceptional or unexpected circumstances that the solicitor believes might justify payment of an additional sum.

The bill as introduced provides that legal advice that is paid for under the scheme would not include advice on whether to pursue litigation as an alternative to making a redress application. We have heard criticism of that approach. My amendments recognise that giving notice of civil litigation as an alternative to the redress scheme can legitimately be funded by the scheme, to the extent that the advice is part of other work on making an application. Where advice is essentially about deciding whether or not to sign a waiver, that is covered.

However, it will still be the case that the amount at which the fixed fee is set will not be based on the expectation that extensive advice on civil litigation will form part of the process. That type of advice can often involve significant investigation by the solicitor, and expert reports and opinions from various professionals—for example, from counsel or medical experts.

Although complex and thorough legal analysis can be necessary in civil litigation, the redress scheme is deliberately designed to remove some of the complexities. Existing funding routes, including legal aid and no-win, no-fee arrangements, are in place to assist people who wish to pursue a civil case. I encourage survivors who have an interest in exploring potential litigation to take legal advice on that and to use the existing available funding options. If a survivor is unable to do that prior to submitting their redress application, or if they decide that they want to explore that after they have submitted their redress application, the redress scheme will allow them to pause their redress application.

My officials will continue to work with the Law Society of Scotland and other stakeholders, and to learn from other redress schemes, in order to ensure that the fees that are paid by the scheme are reasonable, and that applicants can access good-quality legal advice without unnecessary or excessive costs being incurred by the scheme.

I am grateful to Mr Gibson for lodging amendment 124, which will prevent solicitors from being able to top up the fee that they receive from the redress scheme and to recoup further fees from applicants. I fully support the amendment, which will provide survivors with reassurance that they will not have to top up the scheme’s legal fees from their own funds or their redress payment.

I move amendment 114.

Kenneth Gibson

Survivors should have the security that they will not face legal fees in addition to those that are paid for by ministers under the redress scheme, and I want to ensure that solicitors who obtain fees under the scheme cannot bill their clients for the same work. They cannot do that under the legal aid system, so they should not be able to do it under the redress scheme.

Amendment 124 will offer protection to survivors by assuring them that the scheme is designed to pay all reasonable legal costs in connection with redress applications. Survivors should fully expect to keep the entirety of their redress payments without more legal fees being deducted; amendment 124 will ensure that that is the case. The legislation cannot be a dripping roast for lawyers, as appears to have been the case in Ireland, so I therefore warmly welcome the Deputy First Minister’s amendments.

Amendment 124 also recognises that survivors might receive some advice on civil litigation prospects as part of the advice and assistance that they receive in connection with the application process—in particular, with regard to signing a waiver and choosing to accept an offer of redress, rather than going to court. That will be paid for under the redress scheme. However, if a survivor decides instead to pursue the court route, and commissions extensive legal advice on that, the solicitor should not be prevented from billing them or from receiving legal aid funding for that work.

I urge committee members to support amendment 124, which will add clarity to the provisions on legal fees and provide reassurance to survivors and those who advise them.

Jamie Greene

I thank the cabinet secretary and Kenny Gibson for their important amendments. I flagged the matter as an area of concern in the early days of the bill’s proceedings.

I am, however, unsure about the net effect of the amendments. Could they result in a scenario whereby, if an award were given to an individual, that individual would retain 100 per cent of the award, come what may? I ask that in order to establish whether there is any technical opportunity under the bill, and through the amendments, for a solicitor, who has been appointed by an individual to act on their behalf, to deduct, through fees or some other means, a portion of the award money that is paid? Are we 100 per cent sure that the effect of the amendments will be that, even if they have had third-party help from an organisation, including a solicitor, applicants will keep 100 per cent of the money that has been awarded by the panel, regardless of whether the money is paid directly to them or through a third party?

Daniel Johnson

I begin by reminding the committee that my wife is a practising solicitor. At the outset, I state that I agree whole-heartedly with the sentiments and intent behind the amendments from the Government and Kenneth Gibson.

In particular, Kenneth Gibson is correct in saying that we must ensure that legal compensation is not used by solicitors to, in essence, unduly gain compensation through the scheme. We must learn the lessons from such schemes in other jurisdictions.

However, could some clarity be provided? I am concerned about unintended consequences of the amendments—for example, where an application is made and an individual subsequently seeks clarity. It is possible that mistakes could be made and clarification sought, and decisions and awards that have been made by redress Scotland could then be challenged legally.

Amendment 124 is very understandable and important, but I would not want people to be barred from getting legal advice as a result of the amendment, if they legitimately seek to clarify or, potentially, to challenge decisions. The ability to do that is an important principle in a democratic society and is, I believe, a requirement under human rights law. I seek clarification that the amendment will not restrict people’s ability to get legal advice and to seek legal redress.

The Convener

I am conscious that this platform makes debate quite difficult. There were some direct questions from Mr Johnson and Mr Greene. Would Mr Gibson like the opportunity to address those?

Kenneth Gibson

Yes. Solicitors will not be able to top up the fee that they receive from the redress scheme and recoup fees over and above those that are paid by the scheme in relation to an application. Therefore, crucially, the approach that is proposed in amendment 124 will not impact the final sum that is received by the applicant. However, it does not restrict applicants from pursuing additional legal advice, which would, I hope, be paid for through legal aid. For example, a survivor could pursue the court route and commission legal advice from a solicitor. The solicitor would not be prevented from billing them, and that would be paid for by legal aid work. Therefore, there should be no impact on the redress payment, which I believe is what Jamie Greene and Daniel Johnson are most concerned about.

John Swinney

I am grateful to colleagues for their comments on this group of amendments. In response to Mr Greene’s point, there is no opportunity in the redress scheme for a solicitor to secure payment beyond the legal fees that are envisaged from the sum awarded to a survivor. A survivor could conceivably make a private arrangement with a solicitor, but that would be outwith the scheme. Within the scheme’s provision, the point that Mr Greene raised is assured. However, as he has raised it, I will undertake further scrutiny of the issue before we get to stage 3.

I think that Mr Greene wants to make an intervention. I would be happy to accept it.

Jamie Greene

Thank you, cabinet secretary. That is the power of the chat box.

I want to probe the cabinet secretary on the issue ahead of stage 3. If there is any benign loophole in the system, it is that the people who might apply for assistance are perhaps those who are most likely to be vulnerable. I think that the cabinet secretary knows where I am going with this. Private arrangements might well be legal and bona fide, but that does not necessarily make them morally right. Will the cabinet secretary work with members on the issue?

John Swinney

I take that point on board. Although I am giving what I hope is a reassuring response to Mr Greene, I want to take the issue away once we have settled stage 2 and consider, in the cold light of day, whether there are any other such loopholes. If necessary, we will take steps to address them, and I will happily discuss that with Mr Greene and colleagues in advance of stage 3.

In relation to Daniel Johnson’s point, there is flexibility for solicitors to seek sanction to increase the fixed fee, so cases and survivors would not be prejudiced in that process. A rigid shape is in place to enable survivors to access independent legal advice in connection with the scheme, and those who are providing that advice know what arrangements for fees will apply. The provisions provide certainty to everybody involved—survivors and providers of legal advice—and we acknowledge in the bill the importance of individuals having access to independent legal advice to enable them to make appropriate decisions for their circumstances.

I invite members to support the amendments in this group.

Amendment 114 agreed to.

Amendment 11 not moved.

Section 69, as amended, agreed to.

Section 70—Nominated beneficiary’s death etc

Amendments 115 and 95 moved—[John Swinney]—and agreed to.

Section 70, as amended, agreed to.

Section 71—Liability for payment made in error

The Convener

We move to the group on error. Amendment 116, in the name of the cabinet secretary, is grouped with amendments 118, 127, 128 and 134.

John Swinney

This group of amendments is concerned with the approach that is set out in the bill to payments that are made as a result of an error. By that, I mean both when an administrative error has occurred in the making of the payment—such as payment of an incorrect amount or payment to the wrong person—and when an error has led to the decision to make the payment having being made incorrectly, or its having being made correctly but on the basis of incorrect or misleading information that materially affected the decision to make the payment. That covers fraudulent information, for example. The bill as introduced contained provisions to allow for the recovery of redress payments in those circumstances. That is an appropriate financial control and ensures that the scheme has the powers that it needs to deter fraud or to effectively deal with the consequences of fraud, should it arise.

Amendment 127 is the main amendment in the group. It ensures that errors can be addressed properly in all aspects of the redress scheme while allowing for the recovery of other payments that are made in connection with applications for redress payments. As I mentioned, the recovery of redress payments is already covered by sections 71 to 75 of the bill. The payments that are covered by amendment 127 are all other payments under the bill: payments to people providing support to survivors before and after they apply; payments for professional reports; fees for legal work; and other costs and expenses that an applicant for a redress payment might have incurred.

A person who has been paid for any of that work, either directly or indirectly, might have to pay the money back if there has been an error in the making of a payment. The error must relate to the payment that has been made and not, for instance, to any redress payment with which it is connected. For example, if a redress payment was initially made due to fraud, the provisions would not allow for the recovery of the legal fees connected with that application if the solicitor was unaware of their client’s behaviour.

However, I want to be clear that amendment 127 would not allow for the recovery of a payment made due to error from a survivor. Instead, the amendment allows for the recovery of payments made due to error to be recovered from those who benefit from the error—that is, from the professional who was, for example, overpaid for support services or legal work, or from the expert who fraudulently invoiced for assessments that were not carried out or reports that were not submitted.

Amendment 128 would insert a regulation-making power into the bill so that further detail about how recovery of payments made due to error can be set out. Section 75 contains a similar provision in relation to the recovery of redress payments.

Amendment 134 is consequential to amendment 128. Amendments 116 and 118 make minor technical changes to the sections on the recovery of redress payments that have been made as a result of error.

I hope that committee members agree that it is essential that the scheme has the power that it needs to ensure that any error in payment can be effectively dealt with separately and in addition to any criminal or professional sanctions.

I move amendment 116.

Amendment 116 agreed to.

Section 71, as amended, agreed to.

Section 72—Reconsideration of determination where possible material error

Amendments 96 and 97 moved—[John Swinney]—and agreed to.

Section 72, as amended, agreed to.

Section 73—Review of reconsidered determination

Amendment 98 moved—[John Swinney]—and agreed to.

Section 73, as amended, agreed to.

Section 74 agreed to.

Section 75—Power to make further provision about reconsiderations

Amendments 117 and 118 moved—[John Swinney]—and agreed to.

Amendment 12 not moved.

Section 75, as amended, agreed to.

Sections 76 to 78 agreed to.

After section 78

The Convener

The next group of amendments is on “Information: access by applicant”. Amendment 32, in the name of Daniel Johnson, is grouped with amendment 33.

Daniel Johnson

The amendments relate to an issue that I raised at last month’s additional evidence session. It is the very sad situation that many survivors simply do not know precisely what happened to them. They did not necessarily know where they were, who placed them there or the reasons and rationales for that—or about other such circumstances relating to their time in care.

Amendments 32 and 33 seek to establish the survivors’ right to gain information that might be in the possession of redress Scotland. It is very likely—it is certainly possible—that redress Scotland, during its activities, will gain access to evidence to which the survivors have not previously had access. The amendments seek to establish their right to have access to that information through the course of their application. That right cannot contravene any pre-existing data protection legislation, as amendment 32 seeks to clarify. Amendment 32, which is straightforward, is important to a number of survivors who are keen to establish that right.

I move amendment 32.

John Swinney

I thank Mr Johnson for lodging amendments 32 and 33. I agree that we should do all that we can to maximise survivors’ access to their records and ensure—as far as is possible within existing legislation—that applicants are aware of the form and contents of evidence relating to their application that is submitted by others to redress Scotland.

Amendments 32 and 33 represent a positive addition to the scheme, but there are some points of detail that require to be looked at further and that will need adjustment at stage 3. On that basis, I am pleased to support the amendments today. I will work with Mr Johnson to make the necessary technical proposals for Parliament to consider at stage 3.

Daniel Johnson

I am keen to work with the cabinet secretary to make any corrections or adjustments to the amendments at stage 3. I press amendment 32.

Amendment 32 agreed to.

Sections 79 to 82 agreed to.

Section 83—Confidentiality of information

Amendment 33—[Daniel Johnson]—moved and agreed to.

Section 83, as amended, agreed to.

Section 84—Power to share information with third parties

Amendments 13 to 15 not moved.

Section 84 agreed to.

Section 85—Provision of support to persons in connection with an application

Amendment 119 moved—[John Swinney]—and agreed to.

Section 85, as amended, agreed to.

Section 86—Provision of support to certain persons eligible for a payment etc

Amendment 99 moved—[John Swinney]—and agreed to.

Amendment 16 not moved.

Section 86, as amended, agreed to.

Section 87 agreed to.

Section 88—Duty on Scottish Ministers to pay certain legal fees in connection with applications

Amendment 120 moved—[John Swinney]—and agreed to.

Section 88, as amended, agreed to.

After section 88

Amendments 121 to 123 moved—[John Swinney]—and agreed to.

Amendment 124 moved—[Kenneth Gibson]—and agreed to.

Section 89—Assessment of amount of payment

Amendment 17 not moved.

Amendment 125 moved—[John Swinney]—and agreed to.

Section 90—Notification and review of payment

Amendment 126 moved—[John Swinney]—and agreed to.

After section 90

Amendments 127 and 128 moved—[John Swinney]—and agreed to.

Before section 91

The Convener

The next group of amendments is on “Advance payment scheme: report”. Amendment 18, in the name of Iain Gray, is grouped with amendment 19.

Iain Gray

These amendments are designed to reflect evidence that the committee heard not about the redress scheme but about the advance payment scheme. The point was made quite strongly to us that, in the circumstances of the pandemic, there is a case—I think that a case was made—for reducing the qualifying age for applying to the advance payment scheme. Currently, that age is 70; the suggestion was that it should be reduced to the normal retirement age, which is now 66.

The evidence that the committee heard on the advance payment scheme, particularly on the way in which it had dealt with the evidence and testimonies of survivors, was almost entirely very positive. The proposals are in no way a criticism of the advance payment scheme. We are in a very particular circumstance, and they would be a way of recognising that in line with the fundamental purpose of the scheme, which is to allow redress for those who may not have a great deal of time to wait for it.

The advance payment scheme was set up by separate legislation, so it is quite difficult to amend it in the bill that we are considering. I also recognise the fact that the redress scheme that we are legislating for is to replace the advance payment scheme. We are therefore really talking about the potential for a change in the window between now and when the new redress scheme comes into play, which I hope will be very soon.

The amendments are designed to allow for some consideration of that circumstance. It is suggested that, immediately after the bill receives royal assent, ministers should lay before the Parliament a report that sets out the timetable for the introduction of the new scheme, which would give members the opportunity to state whether any changes should be made in the admittedly brief period up to the introduction of the advance payment scheme and, in particular, whether any changes should be made in response to the pandemic.

I move amendment 18.

John Swinney

I am grateful to Mr Gray for lodging these amendments.

I understand the need for clarity and transparency in relation to when survivors can expect redress Scotland to be established and, more important, when they can make an application to the scheme and receive their redress. I am determined to deliver redress to survivors as soon as possible following parliamentary consideration of the bill, and I am grateful to members from all parties who have made clear their commitment to redress. Survivors have waited long enough. We have all put that point on the record.

It would be unusual to enshrine in parliamentary legislation such a short-term commitment as is proposed. That said, I understand the importance of survivors and others having an early update on implementation.

An election is scheduled. We obviously do not know what the outcome will be, but, should the Government be re-elected, I am happy to commit to updating the Parliament before the summer recess on the matters that are set out in amendment 18. I will do that by laying a report, if that is the preference. Indeed, I fully expect to provide more of an update to Parliament at stage 3 on the scheme’s implementation. I therefore ask Mr Gray to accept the commitment that I have given and not to press amendment 18.

It is important to bear in mind that the advance payment scheme was set up on the grounds of urgency, using exceptional common law powers. I can confirm that the current minimum age for the advance payment scheme is 68—we reduced it from 70 in the original scheme—and that any changes to the scheme will have to be consistent with the legal powers underpinning it. The advance payment scheme was always intended to be a precursor to the main statutory scheme. Our priority now is to ensure that the development and implementation of the statutory redress scheme continues at pace and that redress Scotland is established and begins to assess redress applications from survivors as quickly as possible.

We regularly monitor the effectiveness of the advance payment scheme, and, where minor changes to improve the scheme can be made in a way that respects the legal basis and purpose for which it was set up, we welcome the opportunity to consider those changes. I will further consider what options are available to me, while being mindful of the limited nature of the powers under which the advance payment scheme operates. If the Government is re-elected, I commit to updating the Parliament on that before the summer recess.

The Convener

I invite Mr Gray to wind up and to say whether he will press or withdraw amendment 18.

Iain Gray

I appreciate the cabinet secretary’s response. On the basis of the commitments that he has given and in the certainty that he will remember, when we get to stage 3, to make those commitments again on the record, I will not press amendment 18.

Amendment 18, by agreement, withdrawn.

Sections 91 to 93 agreed to.

Before section 94

The Convener

We move to the issue of a survivors’ forum. Amendment 129, in the name of Daniel Johnson, is grouped with amendment 135.

Daniel Johnson

One of the issues that the committee has grappled with while scrutinising the bill is what the appropriate involvement of survivors should be in redress Scotland. That issue is difficult not just for us, because there are a range of views among survivors as to what is appropriate. Some views state that survivors should be involved not just in the scheme overall but in the panels; others think that that would be entirely inappropriate. However, what is important is that there is a role for survivors in the scheme’s operation and that that is a provision in the bill.

Amendment 129 flows directly from representations that were made to me by survivors and seeks to establish provision in the bill for a survivors’ forum and to set out the broad functions of that body—that it should seek to improve the scheme, to provide scrutiny and assessment of how it operates, and to ensure that it operates overall in a trauma-informed way that is sensitive to survivors’ needs and requirements. I think that amendment 129 would provide clarity for survivors about the role that they will have in the functioning of redress Scotland.

I move amendment 129.

John Swinney

I am grateful to Mr Johnson for lodging amendments that would include provision in the bill for a survivors’ forum, and I am happy to support them in principle. As you know, we are already fully committed to establishing the forum. I share Mr Johnson’s intention that survivors should play a key role in improving and enhancing the delivery of the scheme throughout its lifetime. It will be invaluable to have the forum’s feedback and perspectives on survivors’ experiences of the scheme. We need to know whether applicants feel that they are being treated with dignity, respect and compassion, and whether more could be done to support them and to make the application process as straightforward as possible.

I believe that Mr Johnson has sought to reflect those principles through his amendments. I share those objectives, and I hope that he agrees that we might work together to introduce technical improvements at stage 3 to the specific wording of the provision. For example, we might want to make it slightly more flexible in order to make it possible for family members of survivors, such as next of kin, to be forum members, too. It might also be helpful to provide—

The Convener

I am sorry to interrupt, cabinet secretary, but I think that Ross Greer would like to intervene. Can you confirm that, Mr Greer?

Ross Greer

Yes, convener. I am sorry—I should have typed I rather than R in the chat box.

John Swinney

I am happy to give way.

Ross Greer

Thank you, cabinet secretary. With regard to your point about further changes at stage 3 to improve the provision, I have been contacted by a number of survivors who, although they understand the principle behind the forum, have a significant concern—as you and committee members will be aware—about perceived hierarchies in the survivor community, with some voices being heard more than others. I simply urge that, in the process of developing potential amendments for stage 3 and in the further process of setting up the forum, there is extensive consultation with survivors to ensure that those who are sceptical and concerned about the forum have their voices heard in addition to those who are already confident that the forum is required.

John Swinney

I am happy to give an assurance that there must be consultation with survivors on all these issues. That principle runs through all the steps that the Government has taken to design the scheme, and I want it to characterise all our remaining actions. It is vital that we build confidence around these arrangements in the survivor community, as that confidence has not always been present. I am wholly committed to that objective, and I am happy to give that assurance to Mr Greer and to survivors.

With regard to possible changes at stage 3, it might be helpful to provide flexibility so that others who are not survivors themselves can nonetheless contribute to the forum—potentially to chair it, to support the survivors or to represent a supportive organisation. My commitment to Mr Greer is that we will tread with care and openness to ensure that we get the detail correct.

We might want to look at whether regulations under the new provision would always require to be subject to the affirmative procedure or whether there should be some degree of flexibility in the exercise of those powers—for example, if we were simply amending provisions on levels of forum members’ expenses in the light of inflation.

We would also want to consider carefully the proposed functions of the forum. For example, the bill refers to a process of offers rather than awards. In addition, we need to be careful about what is said about scrutiny. Given the confidential and independent nature of the decision-making process, the idea of providing feedback may be more appropriate.

Although some points of detail will need further refinement, I will support these amendments today, and I propose to work with Mr Johnson on those points of detail with a view to lodging further amendments at stage 3.

Daniel Johnson

I thank the cabinet secretary for those constructive remarks. I am happy to work with him and with others to modify the amendment at stage 3. I certainly have no objections to the details that he raised in his remarks.

I also thank Ross Greer for his remarks. He is absolutely right: although the forum is vital for redress Scotland, it is clear that there are sensitivities regarding its composition and functions, and I understand and recognise the concerns that he has voiced.

Amendment 129 agreed to.

Section 94 agreed to.

Schedule 2 agreed to.

Section 95—Dissolution of Redress Scotland

Amendments 130 and 131 moved—[John Swinney]—and agreed to.

Section 95, as amended, agreed to.

Section 96—Interpretation

Amendments 101, 132, 102 and 103 moved—[John Swinney]—and agreed to.

Section 96, as amended, agreed to.

Section 97—Guidance

Amendment 104 moved—[John Swinney].

Amendment 104A moved—[Alex Neil]—and agreed to.

Amendment 104, as amended, agreed to.

Amendment 133 moved—[John Swinney]—and agreed to.

Section 97, as amended, agreed to.

Section 98—Regulation-making powers

Amendments 105, 106 and 134 moved—[John Swinney]—and agreed to.

Amendment 135 moved—[Daniel Johnson]—and agreed to.

Amendment 107 moved—[John Swinney]—and agreed to.

Amendments 136 to 139 moved—[John Swinney]—and agreed to.

Section 98, as amended, agreed to.

Section 99 agreed to.

Section 100—Commencement

Amendment 19 not moved.

Section 100 agreed to.

Section 101 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. The bill will be reprinted as amended at stage 2, and the amended version will be published tomorrow morning. The Parliament has not yet determined when stage 3 will be held. Members will be informed of that, along with the deadline for lodging stage 3 amendments, in due course. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.

I thank everyone for their input in our stage 2 deliberations and previously. I thank the clerking team and the bill team for their support during the process, and I thank Professor Kendrick for his advice to the committee at stages 1 and 2. Finally, I thank once again all the victims and survivors who engaged with the bill process. We could not have achieved what we have today without their input and their willingness to come forward.

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that I will sound the division bell and suspend the meeting for five minutes when we have the first vote. All votes will last for one minute. Any members who wish to speak in the debate on a group of amendments should press their request-to-speak buttons as soon as I call that group.

Section 1—Overview of Act

The Presiding Officer

The first group of amendments are minor and technical. Amendment 1, in the name of John Swinney, is grouped with amendments 2 to 4, 6, 11, 13 and 33.

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

The first group consists of minor and technical amendments in relation to various provisions of the bill. Amendments 1 to 4 and amendment 33 are minor amendments to ensure that the overview section of the bill and the long title properly reflect the substantive content of the bill following amendment at stage 2.

Amendment 6 expands the categories of people who are to be treated with dignity, respect and compassion to align those provisions with changes that were made to section 85 of the bill at stage 2. The categories include people with on-going applications, people who have made applications in the past, people who have decided to make an application and people who are, or may be, considering making an application.

Amendment 11 updates the list of conditions that have to be met under section 22 of the bill for a person to be eligible to apply for a next of kin payment, where the survivor died after making an application for a redress payment. That is simply to reflect the changes that were made at stage 2, which mean that initial determinations will no longer be made. Therefore, subsection (3)(b)(iii), which the amendment will remove from section 22, is redundant.

Finally, amendment 13 ensures that, for consistency, references to what may accompany an application for redress are to “information or evidence”.

I move amendment 1.

Amendment 1 agreed to.

Amendments 2 to 4 moved—[John Swinney]—and agreed to.

After section 8

The Presiding Officer

The second group of amendments is on the provision of and reporting on scheme information and guidance. Amendment 5, in the name of Jamie Greene, is grouped with amendments 5A, 12, 17, 27, 48, 28, 31, 51, 32 and 32A.

Jamie Greene (West Scotland) (Con)

This is the first amendment that we will debate, and I want to thank the cabinet secretary and his bill team for assisting my office, and other members from across Parliament, in the preparation and development of many of the amendments. Many of us have been on a difficult but sensitive journey through the passage of the bill. It is an important bill to be working on in our final weeks in Parliament. I thank everyone involved, including members of the Education and Skills Committee, the clerks and our adviser, who have done an excellent job.

I tried to improve the bill at stage 2 and I am trying to do so at stage 3 so that we reach a place where it commands cross-party support and consent. That is important, given the gravity of the bill’s subject matter and approach. There might be issues that we will disagree on this afternoon, but I hope that we can disagree respectfully and debate the issues accordingly.

What I have tried to do with my set of amendments in group 2 is to respond to some of the concerns that I have raised throughout the process around what information will be available to survivors as they go through the journey. The new scheme will be starting from scratch and it will inevitably have teething problems. We should ensure that the bill addresses and pre-empts as many of those as possible.

For example, I have raised concerns about the risk of applicants for redress payments entering fee-paying arrangements with legal advisers that will be neither covered nor funded by the scheme and having to pay the resulting legal fees from any redress payments. Some of those issues have been addressed but, in my view, applicants should be encouraged to make informed decisions and to get independent legal advice on their decision making.

That is important because it will give them the autonomy that they need to make decisions for themselves on all aspects of the redress scheme as they go through the journey. Whether that is achieved through people choosing their own solicitor or through people accepting an offer of assistance from the Government, there is a balance to be struck between wanting and encouraging applicants to make use of the support of independent advice that is available under the scheme and helping people to make informed choices that are best for them.

I respect the fact that, ultimately, those choices are for individuals to make, but many of them will be in vulnerable situations, with traumatic experiences to recount and recall. The very experience of going through the scheme might be difficult for many.

My amendments in group 2 will place a duty on the Scottish ministers to use their best endeavours to ensure that all individuals who are applying to the scheme or are considering doing so will make informed choices with regard to their applications.

Amendment 5, which is the principal amendment, is fairly lengthy, but it is self-explanatory. It will require ministers to prepare and publish a “summary of options”, or statement, that sets out information on which options are available to individuals in connection with their specific applications; the support and assistance that is available to them, including the funding for legal advice that is available under the scheme; and any alternative routes that are available to them outside the scheme. That approach is similar to the approach in the “Victims’ code for Scotland”, which has proved to be very helpful in our criminal justice system. Further amendments in the group will ensure that the information is available to applicants at each step of the process.

The statement must detail the options and the support and assistance that are available to people, and it must give guidance and advice on making, pausing and withdrawing an application; on accepting an offer of a redress payment, including the timescales for doing so; importantly, on the effect of signing a waiver, which we will come to later; and on requesting a review of a determination by redress Scotland in the event that someone is unhappy with the offer that is made. The statement must go on to state the importance of obtaining independent legal advice, specifically before the applicant accepts the offer of a redress payment or signs a waiver.

I hope that my amendments in the group will improve the information on the choices and support that will be available to applicants.

Amendment 31 will place a duty on the new organisation that will be set up—redress Scotland—to include in its annual report an assessment of whether it believes that applicants have had ample opportunities to make informed choices.

Amendment 32 will create a power for redress Scotland to make specific recommendations in that regard that future Governments must have regard to. The Scottish ministers will be under a duty, when reviewing the summary of options, to have regard to recommendations that redress Scotland has made in its annual report.

Amendment 28 will require the Scottish ministers to have regard to such recommendations when updating or amending the scheme. Amendments that we will discuss later address how we will review the scheme and tidy up as we go.

Taken together, my amendments in group 2 should reduce the risk that applicants will make decisions without obtaining proper independent advice and support that is provided either by the scheme or elsewhere.

I move amendment 5.

The Presiding Officer

I call Daniel Johnson to move amendment 5A and to speak to it and the other amendments in the group.

Daniel Johnson (Edinburgh Southern) (Lab)

I associate myself with many of the things that Jamie Greene said. The bill is inherently complex and the subject matter has been difficult for many of us to deal with, but it is hugely important. It has been remarkable that we have had robust and thorough examination and, indeed, criticism of elements of the bill. However, throughout the process, the approach taken by all members and, in particular, the Government has been constructive. That has been welcome, and I have no doubt that the bill is better for it.

Jamie Greene’s amendments are very important. Given that the waiver is likely to stay in place, it is critical that, in seeking compensation through the scheme, individuals are fully informed. Jamie Greene’s amendments are important for establishing that that will be the case for all applicants.

Likewise, at the bill’s various stages, I had concerns about two key aspects. First, many survivors have been through the ordeal of telling their story many, many times. It has been a long and arduous journey for them, and, wherever possible, we should seek to avoid retraumatising those individuals. My amendment 5A seeks to ensure that individuals who have already provided evidence do not have to do so again. Similarly, it is important that there is clarity regarding the length of time for consideration of applications, which is dealt with by my amendment 48. Lastly, amendment 51 would require redress Scotland to take account of and make clear the accessibility of evidence that individuals might have.

Overall, one of the key important elements of those amendments is that they provide clarity about the information that individuals will need in order to make an application. In its stage 1 report, the committee raised the issue of evidential requirements and burdens of proof. In many ways, I would have preferred provisions on those matters to have been set out clearly in the bill. However, the improved detail—on the requirements for the guidance and information that redress Scotland will have to provide and on the reporting on those matters—provides the required clarity and represents an important addition to the bill.

I move amendment 5A.

Sandra White (Glasgow Kelvin) (SNP)

I am not a member of the Education and Skills Committee, but I thank committee members and the clerks for speaking to me when I was pursuing an issue.

I will speak to amendments 5 and 5A. Daniel Johnson referred to the need for clarification, and I am pleased that Jamie Greene has addressed that by lodging amendment 5, which is really important. I seek clarification. Both amendments refer to evidence, informed choices and options. I will give an example: the case of an older constituent who is in the process of making an application to the advance payments scheme has come to a standstill. He cannot provide the evidence, because the children’s home and the health board records no longer exist. Would those amendments cover the case of my constituent and older people generally who are affected in that way when their records are not available?

The Presiding Officer

I invite the cabinet secretary to speak.

John Swinney

I thank Mr Greene for lodging his amendments in group 2 to support informed decision making. I am happy to support them. I share Mr Greene’s concerns about survivors having to use their redress payments for legal fees that will not be funded by the scheme. It has always been the intention that survivors should receive and retain the entirety of their redress payments without having to use any of them to cover any costs related to their applications.

Although we cannot take away a survivor’s choice to enter any such agreements, we can ensure that survivors have all the information available to them to help them to make informed choices about that and other decisions to be taken in connection with an application to the scheme. That is the fundamental point that Mr Johnson has made in his comments and throughout our debates on the issue. It is crucial that we make survivors aware of their options under the scheme and of all the support and assistance that the scheme has to offer them, which includes funding for legal advice.

I am grateful to Mr Greene for lodging his amendments, which take all of that into account. Signposting applicants in a tangible way to all the available options in connection with their applications will help survivors to make informed choices without depriving them of the right to make those choices.

Placing a duty on the Scottish ministers to produce and provide that information to applicants, as well as placing a duty on redress Scotland to assess the practical effects of that, will ensure that the information is routinely given at material points in the application process and that the information provided is both relevant and helpful. Moreover, the Scottish ministers will be able to take on board any recommendations that redress Scotland has made when they review the scheme guidance.

The amendments are a practical solution to an important issue. The operation of the scheme will include further means by which we can reinforce those messages to applicants and start conversations where there are concerns. I know that Mr Greene has already spoken to Scottish Government officials to start a discussion on what mechanisms might be appropriate and could be taken forward in the scheme design. I fully support Mr Greene’s amendments in the group.

I also thank Mr Johnson for lodging his amendments on guidance for survivors on the types of evidence that might be provided with an application for redress and on assistance with how to obtain that. As I said at stage 2, I want to ensure that the design of the redress scheme incorporates practical measures that will support survivors by helping them to access, as far as is possible, any and all available information and evidence to support their applications.

I am happy to support Mr Johnson’s amendments, which will ensure that the guidance on evidential requirements is fully accessible to applicants. The reporting requirement on redress Scotland will help to ensure that it is both relevant and helpful. I am also grateful to Mr Johnson for lodging his amendment 48, on the issuing of guidance that sets out timescales for determinations on redress applications. That will contribute to transparency in the scheme and I am happy to support it.

In relation to the point that Sandra White made, I note that redress Scotland will have the discretion that it needs to account for a challenging evidential landscape. That is one of the issues that the advance payments scheme has wrestled with. We appreciate that there is most definitely not a perfect evidential context for all of these decisions to be made.

The reassurance that I can give Sandra White is that, to date, the advance payments scheme has not turned down a single application due to a lack of evidence. I hope that that provides assurance that a significant approach of the benefit of the doubt has been taken in relation to applications so far in the advance payments scheme. My expectation is that that flexibility will also exist as redress Scotland pursues applications to the main scheme, assuming that Parliament legislates for it this afternoon.

I hope that that provides the reassurance that Sandra White was looking for. If she wishes to write to me with particular concerns about her constituent’s circumstances, I will ensure that the issue is addressed expeditiously.

The Presiding Officer

I invite Jamie Greene to wind up on the group.

Jamie Greene

I thank members for their kind comments on my amendments and I thank the cabinet secretary for his clarification. I should have said earlier that we will support Daniel Johnson’s amendments 5A and 51.

One of the comments that the cabinet secretary made goes to the heart of the amendments in the group. The applicant should make informed choices at every stage of an iterative process, but that could be difficult when they are faced with the situation that they are in. No one should be in a position where they feel forced or obliged to accept an offer of payment in a certain band or level, or indeed be unhappy with the result and feel that there is no recourse for them, given what has been offered by the scheme.

Everyone should be guided through the process, irrespective of the band that they are in or the level of payment. When they get to the final point, they should be confident that the Government and the scheme have helped them to make informed choices, whether that help has come from advocacy groups, third sector organisations, family, friends, partners, next of kin or indeed third-party solicitors and external legal counsel.

I do not have a problem in principle with solicitors or legal advisers helping people throughout the process. However, a genuine worry arose during the bill’s passage that third parties would approach vulnerable people or encourage them to come forward, and then accept legal fees from their payments. No one should lose any of their payment. The Government has come a long way in the interest of securing that, and I appreciate that it has been technically difficult.

Sandra White shared a valid anecdote. Elderly people will come forward who have no records, no access to records and no idea of where to get information to support their case. However, what lies at the heart of the scheme—we have been keen to stress this as a committee—is the fact that there is no test of the balance of doubt. The concept of putting the victim first must lie at the heart of the redress panel and the awards, so the threshold of evidence that is required throughout the scheme is much lower than many would face in civil litigation proceedings.

That is important, because the scheme is designed to provide redress—financial or otherwise—for those who need it, and to do so in the simplest and least traumatic way. Because that lies at the heart of the scheme, people such as Sandra White’s constituent will be met with a sympathetic ear. We have changed the bill to include at section 11A the principles of dignity, respect and compassion, which must lie at the heart of the scheme.

I thank members for supporting my amendments.

The Presiding Officer

I invite Daniel Johnson to wind up on amendment 5A, if he wishes to add anything.

Daniel Johnson

I do not have anything to add.

Amendment 5A agreed to.

Amendment 5, as amended, agreed to.

Section 11A—Principle of dignity, respect and compassion

Amendment 6 moved—[John Swinney]—and agreed to.

Section 12—Scheme contributors

The Presiding Officer

Group 3 is entitled “Scheme contributors: acknowledgment of harm”. Amendment 7, in the name of Daniel Johnson, is grouped with amendment 8.

Daniel Johnson

I should probably have said in my comments on previous amendments that I am grateful to the Scottish Government and the bill team, in particular, for their constructive engagement and assistance in drafting a number of my amendments, particularly the two in this group.

It is clear that implicit throughout the scheme is acknowledgment of the real and devastating harm that has been done to individuals in the name of the state and by organisations. That is, fundamentally, what the bill seeks to redress. It seeks to correct or, at the very least, to acknowledge and compensate for those historical wrongs. However, it is not a court process and the scheme will not find strict legal liability or legal fault with organisations relating to such individuals.

Although I have no doubt that the overwhelming majority of contributors will take part in good faith and will acknowledge the role that they played in historical wrongs, I am concerned about the theoretical possibility of contributors taking part in the scheme and making payments but, because it does not include strict liability, being able to turn around and say that they did nothing wrong.

Amendment 7 seeks to provide a general acknowledgment of the historical wrongs and an acknowledgment that all of us must make of what happened, so that it cannot happen again. I lodged amendments to that effect at stage 2; I recognise that there were difficulties with them, so I am grateful that we have been able to come up with a form of words that will have the effect that I have just set out, which is to acknowledge historical wrongs and make sure that organisations that contribute make that acknowledgment.

I move amendment 7.

Jamie Greene

I commend Mr Johnson for the approach that he has taken.

I have sympathy with amendment 8 specifically. It would help to clarify ambiguity in amendment 7, but I still believe that amendment 7, in its own right, might inadvertently attribute liability to a contributing organisation.

By default, organisations that choose to contribute financially to the scheme—it should be borne in mind that the scheme is not mandatory—will be invited to take responsibility for their historical actions. We will discuss the matter later. We hope that many organisations will do so, but there are no guarantees that they will. We must therefore make it as easy as we can for them to do so without introducing an element of accepting liability outwith the scheme. Participation in it is clear acceptance of wrongdoing in the past.

I therefore worry about the wording of amendment 7, but would be happy to support amendment 8. I am keen to hear what the cabinet secretary has to say on the matter.

John Swinney

I am grateful to Mr Johnson for lodging amendments 7 and 8 on acknowledgement of harm. Participation in the redress scheme must be about more than money. It is right that those who contribute to the scheme acknowledge the harms of the past, so I am happy to support amendments 7 and 8 today.

During the stage 2 debate, Mr Johnson agreed not to press his amendment on the topic and, instead, to work with the Government to develop amendments at stage 3 that will provide the appropriate acknowledgement of harm that we seek from contributors, while avoiding the unintended consequence that, in making a contribution to redress, the organisation has, in some way, accepted legal liability. That explanation, which is at the heart of our assessment of amendment 7, addresses the point that Mr Greene raised. He quite rightly wants to avoid the construction of an additional obstacle to participation by a contributor. That is an objective that I share; such an obstacle is not in any way enabled by the terms of amendment 7.

I whole-heartedly accept the need to acknowledge, and to provide tangible recognition of, the significant and enduring harm that was caused to children who were abused in care, and it is only right that that recognition be reinforced at the point at which the contribution or agreement to contribute is made. The scheme offers contributors the opportunity to be part of a national collective endeavour that is built on compassion, integrity, fairness and respect.

Amendments 7 and 8 complement the wider approach to redress. Section 91 of the bill, for example, requires contributors to the scheme to report on the action that they are taking to redress the historical abuse of children, which will further demonstrate the organisation’s commitment to the national collective endeavour of redress.

I am pleased to support the amendments that have been lodged by Mr Johnson, which will, along with other provisions of the bill, help to deliver a redress scheme that provides survivors with the acknowledgement that they have fought tirelessly to attain.

The Presiding Officer

Mr Johnson, do you wish to say anything further by way of winding up?

Daniel Johnson

I have nothing to add.

Amendment 7 agreed to.

Amendment 8 moved—[Daniel Johnson]—and agreed to.

Section 13—Statement of principles in relation to contributor list

The Presiding Officer

Group 4 is entitled “Scheme contributors: sustainability”. Amendment 9, in the name of Iain Gray, is grouped with amendment 10.

Iain Gray (East Lothian) (Lab)

I have lodged amendments 9 and 10 to the bill to ensure that the sustainability of services that are provided by organisations that are hoping to participate in the redress scheme will be a factor that is taken into consideration when ministers are assessing what amounts to a fair and meaningful contribution from those organisations.

At stage 2, I lodged an amendment that stated that the making of a financial contribution must not jeopardise the current services of a charity, but I did not press that amendment, and I am grateful to the cabinet secretary for his continued engagement on finding something that will achieve a similar effect. I hope that the amendments that I have lodged today effectively address that issue, with which various different types of potential scheme contributors are grappling.

Amendment 10 seeks to allay a concern that has been raised by potential contributors and by some survivors. The concern is that organisations that want to do the right thing, by participating in the redress scheme, will have to make a choice between contributing to the scheme and being able to continue to deliver the services that they currently provide. There are fears that organisations that make contributions to the scheme might not be able to continue because of the financial implications of that fair and meaningful contribution. Some survivors echoed that view in their evidence at stage 1.

As we will hear later, when we discuss and debate the waiver, securing contributions is crucial in ensuring that the scheme functions as a collective response to the wrongs of the past, but that should not be to the detriment of services that are delivered to children and vulnerable people in society today. Organisations will be more likely to contribute to the scheme if they know that that factor will be taken into consideration by ministers. Amendment 10 requires that the Scottish ministers must take into consideration the “sustainability” of services.

It is important to say that I do not see my amendments as a way of giving organisations a discount on their contribution simply because they deliver services today; rather, the amendments seek to ensure that the payment of contributions is fair, manageable and sustainable. In turn, that will allow organisations that are covered by the circumstances that are set out in the bill’s principles to maintain their current services. That is a proportionate approach.

Amendment 9 is simply consequential to the more important amendment 10.

I ask members to support my amendments.

I move amendment 9.

John Swinney

I thank Mr Gray for lodging his amendments. The substantive issue that he pursued at stage 2 and which he has raised in today’s debate is very important. I am grateful to him for highlighting the issue, which very much aligns with Mr Greene’s stage 2 amendment on consideration of the affordability of contributions.

Today, as he did at stage 2, Mr Gray has made the point that there must be an assessment of an organisation’s ability to contribute to the scheme while maintaining its current services. That is an important element that should be weighed up by ministers, so I am very happy to support his amendments. The formulation that Mr Gray has advanced through his amendments to section 13 strikes the correct balance in how ministers should make that assessment.

Amendment 10 will require ministers to consider the “sustainability” of an organisation’s services. Ultimately, the Scottish ministers must decide whether a financial contribution is to be considered fair and meaningful.

I have spoken often about the need for a collective national endeavour—indeed, I did so in the debate on the previous group. Amendment 10 supports a collective approach to provision of redress. We have listened to providers’ concerns, and the amendment will help to create the conditions that will allow them to participate in the scheme and to demonstrate their integrity and commitment to survivors. However, it will also add another consideration for ministers so that the correct balance is struck. I agree with Mr Gray that the amendment makes it more likely that organisations will contribute to that collective national endeavour, which is the objective that we are all pursuing.

For those reasons, I support the amendments that have been advanced by Mr Gray.

Amendment 9 agreed to.

Amendment 10 moved—[Iain Gray]—and agreed to.

Section 16—Eligibility to apply for a redress payment

The Presiding Officer

Group 5 is on eligibility. Amendment 34, in the name of Daniel Johnson, is grouped with amendments 14 to 16.

Daniel Johnson

I should say at the outset that I am inclined to treat amendment 34 and my amendments in the next group as probing amendments. I will listen carefully to what the Government says in response to them, given that I understand the issues that might be involved.

Throughout the passage of the bill, there has been concern about the rights that might be set aside through the waiver and the interactions that there may be between accepting compensation through that scheme and a person’s ability to take a case to court.

What I am keen to make explicit—I believe that it is implied—is that, if an individual has previously taken matters through the civil courts but failed, that would not render them ineligible for an application or, indeed, compensation through the scheme. Amendment 34 simply seeks to make that clear and explicit in the bill. I recognise the legal technicalities, and I therefore feel that a clear statement to that effect in Parliament would most likely satisfy the requirements, given the legal implications that such statements in Parliament have.

I move amendment 34.

John Swinney

Before I speak about amendments 14 to 16, I will talk about the issues with Mr Johnson’s amendment 34. I am grateful to Mr Johnson for lodging it, as it provides me with the opportunity to address any concerns regarding the ability of those who have previously tried to hold organisations responsible for their abuse to account in the civil courts to apply to the redress scheme.

Let me stress—and, indeed, state on the record—that survivors who have previously brought a relevant court action in respect of their abuse and who have been unsuccessful in that litigation will be able to apply for redress through this scheme under the bill as it stands, including when the litigation was brought against the Scottish ministers or any scheme contributor.

We recognise that success in a court of law is dependent on a number of factors, many of which are outwith a survivor’s control, such as establishing liability, meeting evidential standards and withstanding challenge and cross-examination of their account. The approach of the redress scheme will be entirely different. It will be more compassionate and trauma informed, and it will support survivors to obtain evidence. It therefore does not follow that failure at court should prohibit an application for redress or provide an indication that such an application would be unsuccessful. There is nothing in the bill as it currently stands to suggest that that should be the case.

Although I unreservedly support the principle of amendment 34, as I outlined, I think that it is unnecessary. There are also some technical issues that mean that it could be problematic and not actually provide the assurance that is intended. I therefore ask Mr Johnson not to press the amendment on the basis that he and the other members present are, I hope, reassured by the remarks that I have made in the chamber today. I place them on the record as a source of reference at any stage in the future.

I commit to ensuring that that principle is reflected in other material, such as the explanatory notes that will be published to accompany the act, so that there can be absolutely no doubt about the issues that have been raised. We will also ensure that it is reflected in any statutory guidance that will be produced for applicants.

Jamie Greene

For the purposes of clarity, if somebody is made an offer under the scheme and chooses not to accept it—specifically in relation to my amendment 5—then pursues a case outside the scheme and fails in that case, will they be eligible to come back to the scheme and benefit from it at a future date if the scheme is still running?

John Swinney

If they are still within the timescale, then yes, they will be able to do so. In the scenario that Mr Greene has painted, there will be no impediment to an individual taking that course of action. They will be free to exercise that judgment about an offer that has been made to them and to pursue a court action, and, if that fails, to come back to the redress scheme—provided that the scheme is still in operation. There are issues and timescales that we will come to.

Let me turn to the amendments in my name. Amendments 14 to 16 add to the list of circumstances in which more than one redress application may be made. The bill already provides that new evidence might allow redress Scotland to permit a second application. The amendments address the scenario of individuals who have either previously had their redress application rejected or who received a more limited redress payment because a particular institution was not covered at the time of their first application. When, after an individual’s original application has been dealt with, regulations are then made under section 18 to bring that institution within the relevant care settings covered by the scheme, a further action may be permitted by virtue of amendments 14 to 16. That is part of my commitment to ensuring that we take account of any relevant changes that might allow an applicant to receive a higher award. I ask members to support the amendments in my name.

Daniel Johnson

I thank the cabinet secretary for his remarks, which clarified the situation on which I sought clarification. More important, his comments regarding the nature of the scheme meaning that it will have compassion at its heart and be a much more straightforward and easy process for survivors to navigate were very welcome. On that basis, and given that those remarks are on the record, I seek agreement to withdraw amendment 34.

Amendment 34, by agreement, withdrawn.

Section 22—Eligibility to apply for a next of kin payment

Amendment 11 moved—[John Swinney]—and agreed to.

Section 27—Application for a redress payment

Amendment 12 moved—[Jamie Greene]—and agreed to.

Amendment 13 moved—[John Swinney]—and agreed to.

Section 28—Cases where more than one application permitted

Amendments 14 to 16 moved—[John Swinney]—and agreed to.

Section 29—Application period

The Presiding Officer

Group 6 is on the application period: duration of scheme. Amendment 35, in the name of Daniel Johnson, is grouped with amendments 36 to 38.

Daniel Johnson

My amendments in the group arise from an interaction that I had with the cabinet secretary at stage 2 regarding the duration of the scheme and the reasons why it should be curtailed on any basis. I accept that, for practical reasons, that must be the case. However, the issues that we are dealing with are complex. It takes many people decades to come to terms with the experiences that happened to them, albeit many years ago, and some people never come to terms with them. Therefore, given that the scheme is of a strictly limited nature, I have concerns that it might close before many people have had the opportunity and found the personal ability to deal with the issues.

I acknowledge that the bill has been improved by the amendments that were lodged by the Government at stage 2 and the fact that the scheme will now remain open for five years, or for two years after the closure of the inquiry. That is an important improvement. However, my amendments seek to turn the situation by which the scheme is brought to a close on its head. At the moment, by default, the scheme will close unless the Government brings forward statutory instruments that will prolong the scheme for a further two years. My amendments seek to put that around the other way so that, by default, the scheme would continue, unless instruments are brought forward that would bring it to a conclusion.

I recognise that the situation is complex, so I will listen carefully to what the cabinet secretary says. In particular, I am keen to understand the steps that the Government will take to establish whether survivors have come forward in sufficient number and as expected.

I am also keen to understand what assessment the Government will make in relation to the scheme and how it will establish that it is satisfied that the scheme will not close prematurely. Moreover, I seek assurance that the Government will have a low threshold for continuing the scheme, if it deems that to be necessary, so that the overwhelming majority of survivors who should be using the scheme for seeking compensation do so.

I move amendment 35.

Jamie Greene

I thank Daniel Johnson for lodging the amendments in this group. I am hugely sympathetic to what he is trying to achieve. The very idea that someone arriving late to the scheme would be unable to participate in it for various reasons is wrong, particularly given the complexity of some of the cases that might come forward, especially those relating to the higher payment band. However, although I know what the amendments seek to do, the question is whether they achieve that, and I am keen to listen to the cabinet secretary’s view on that.

We definitely support the concept behind the amendments, but, as drafted, we are probably minded not to support them. However, like Daniel Johnson, I am looking for reassurance from the Government that it has a solution to his valid conundrum.

John Swinney

I thank Mr Johnson for lodging these amendments relating to the duration of the scheme. I agree with him that the duration of the scheme should not be a barrier to survivors accessing redress. However, I believe that the issue was examined comprehensively and addressed by the committee in the amendments that were passed at stage 2.

That said, I want to put more remarks on the record, which I hope can address some of the points of significance that Mr Johnson and Mr Greene have raised.

It is vital that there is sufficient time for survivors to explore fully the options that are available to them. In that respect, Mr Johnson raises a valid point, which will have a bearing on ministers’ decisions in due course. None of us can fully understand at what moment an individual finds it in themselves to address the abuse that they have suffered and then do something about it. From my experience of discussions with survivors, many people have harboured the issues that have arisen from that abuse for many years and have been unable to confront them. Therefore, I understand Mr Johnson’s substantive point.

Following the committee’s recommendation at stage 1, we amended the bill at stage 2 to ensure that the scheme would remain open to applications for five years, or a period of two years after the Scottish child abuse inquiry has concluded and produced its final report, if that is longer. An application does not have to be concluded during that time; it simply must be submitted in that window.

Brian Whittle (South Scotland) (Con)

I seek clarification on a matter. As the cabinet secretary knows, I have been working with a constituent who has only recently confronted her trauma from four decades ago and is now taking her case to court. How would the bill aid my constituent in that circumstance?

John Swinney

I think that Mr Whittle’s example highlights the point that I was trying to make in addressing Mr Johnson’s remarks. There are individuals in our society who have harboured an experience personally and privately for a very long time. As a society, we are now confronting all of that more openly. Mr Whittle’s constituent was not living in an environment in which such issues were openly addressed and confronted.

The Scottish child abuse inquiry is shining a very bright spotlight into areas of the country’s past. I hope that the transparent process that Lady Smith is leading will assist individuals in seeing that the country—the state—is facing up to the failures of the past, which might prompt individuals to have greater confidence in and assurance about coming forward to address their own experience.

The formulation in the bill has the application process open for a five-year period, or two years after the Scottish child abuse inquiry has concluded its hearings. I will not prescribe when that will be, because I want Lady Smith to properly conduct the investigation that we have asked her to do for as long as it takes to do so. It is important that it is done once and properly. I hope that that will create a sufficient opportunity for individuals to come forward and be able to make their applications.

Brian Whittle

That still creates a question in my mind. I totally accept that the cabinet secretary is saying that we are trying to create an environment in which those who suffered this kind of trauma are confident in their ability to come forward, because they will be given a fair hearing and have a decent chance of redress. However, that still does not answer the question of what we do with those who have carried that trauma for the length of time that my constituent has. How do we help them?

John Swinney

We help them in one way, which is by openly confronting all those issues and by having the inquiry, which in my view is operating very effectively and is operating on the principle of the experience of survivors. If members look at the case studies that have been published by the Scottish child abuse inquiry, which I know Mr Whittle will have done, they will see the formulation of language in those thorough and detailed papers that, in essence, comes to the conclusion that it is more likely than not that certain abuse has taken place. The inquiry is, in essence, saying to individuals in our society “We believe you.” I hope that that is a significant factor in persuading individuals to be able to come forward—the window has been created for that to happen.

However, I suppose that the alternative to that is that we have to have a scheme that is open for ever. I think that Mr Whittle would understand that the Government feels that we have to put some parameters around the application process so that we can try to resolve the issues that are coming forward.

In relation to the committee evidence at stage 1, we introduced amendments at stage 2 to place a statutory duty in the bill requiring the Scottish Government to review whether it should exercise its power to extend the application period unless it had already taken steps to do so, because there is provision in the bill for extensions to be undertaken. Those amendments imposed a requirement to lay the findings of the review before Parliament for its consideration. The 15-month time period for the review is long enough to ensure that the review can be thorough and that regulations can be passed by the Parliament that can take account of the specific outcome of the review.

In my view, what the bill currently provides for is right and will give people sufficient time to explore which option they wish to pursue. It ensures that the scheme will remain open long enough for survivors to pursue a civil action in the first instance, if that is their preference. It also ensures that those who may be encouraged to come forward by the inquiry’s findings will have the opportunity to do so; and it guarantees that there will be a thorough consideration of whether the application period should be extended, with appropriate transparency around that process.

In relation to the point raised by Mr Johnson, I also want to be clear that the intention is to set a very low bar when reaching a decision about whether there are—I use this word with care—enough potential applications still to come, so that it is right to extend the application period further. Of course, Parliament will have the final say in approving any proposed exercise of that power. We want to ensure that those entitled to redress have an opportunity to apply, so ministers must take account of that factor in determining what is the right thing to do in relation to potential extensions to the scheme beyond what is already provided for in the arrangements in statute.

I hope that those assurances will address the points that have been raised by Mr Johnson. I ask members to accept that, as amended at stage 2, the bill achieves what is necessary in this area. On that basis, I invite Mr Johnson not to press his amendments in this group.

Daniel Johnson

I will be brief. I thank the cabinet secretary for setting that out so clearly. His clarification, both on what is in the bill, as amended at stage 2, regarding the winding up of the scheme and, more important, on the context within which that should be viewed and carried out by ministers at the appropriate time, is helpful and certainly satisfies me at this point.

On that basis, I will withdraw amendment 35.

Amendment 35, by agreement, withdrawn.

Amendments 36 to 38 not moved.

Section 34—Determination of applications

Amendment 17 moved—[Jamie Greene]—and agreed to.

Section 45—Waiver

The Presiding Officer

Group 7 is on the waiver. Amendment 39, in the name of Neil Findlay, is grouped with amendments 40 to 43, 18, 19, 19A to 19C, 20, 44 to 47, 49 and 50.

Neil Findlay (Lothian) (Lab)

I will address only the amendments in my name in this group, which are amendments 39 to 41 and 45. I was approached by constituents and campaigners who explained to me their frustrations about the situation with the waiver and sought that I should lodge the amendments.

Over many years, and on an entirely cross-party basis, the Parliament has taken very brave and positive steps to support and protect survivors of historical abuse and to provide a means of securing justice for them—most notably through the Limitation (Childhood Abuse) (Scotland) Act 2017. In doing so, it has built up a degree of trust among the survivor community. The general principle and intention behind the redress scheme represent another positive step forward. We have heard that in the debate from members who have been involved in every stage of the bill’s progress, which I have not. It has been reassuring to listen to their contributions.

However, people feel that the bill is undermined by the insistence that the redress scheme should include a waiver that requires a survivor to make an invidious choice between accepting a redress payment and leaving open the option of pursuing a civil damages claim. I do not think that there should be any waiver at all, and nor do they.

I understand that in its stage 1 report, the committee unanimously asked the Scottish Government to consider alternatives, but there was no movement on that. I also understand that the Government is supported by the Conservatives in its application of the waiver. It is sad to note that, for the first time, the Parliament’s approach to supporting survivors might divide members down party lines. That is very regrettable.

The only option left to members is to lodge amendments to ameliorate the worst effects of the waiver, which is the purpose of the amendments that I have lodged. I hope that members will view them for what they are: an attempt to do the right thing by survivors.

If the waiver in its current form remains in the bill, the cross-party work that has been done will be somewhat undermined. The waiver is viewed by a large number of survivors—who, we should never forget, have experienced some of the most heinous abuse—as a form of high-pressure sales tactic, which serves only to save the Government money in the long term. In the eyes of some, it is seen as collusion with the institutions where abuse happened in the first place, to save those institutions and organisations money.

The provisions on the waiver—and others, too—have caused distress to survivors. I have to ask what legacy the Parliament aims and aspires to deliver in relation to survivors of historical abuse in care. If the waiver remains unchanged, its legacy will be that of a Parliament that built up a lot of trust and hope among the survivor community only for that to be dashed at the final step. If the bill is amended, the legacy can be one of progress, empathy and compassion.

The amendments in my name seek to treat the two types of payments differently. The fixed payment is designed to provide the survivor with a quick, simple and efficient way of receiving what is a very modest payment of just £10,000. It should be recognised that that is very different to the process involved in obtaining an individually assessed payment, which could be as much as £100,000. There is no need for a waiver to be signed to receive the fixed payment, given the sums involved. The amendments will allow the survivor to receive a fixed payment and then take the time that they need to fully consider their options in respect of seeking an individually assessed payment or pursuing civil damages. It effectively converts the fixed payment into an interim payment, which I believe is a fair and reasonable approach.

Amendments 40 and 41 seek to introduce a redress payment as an alternative to a blanket waiver. The policy objective is to provide an applicant with greater flexibility in respect of the choice that they currently require to make between a redress payment or civil damages. The amendments aim to vary the waiver so that the applicant has three choices if they accept a redress payment: abandon an on-going civil damages claim, confirm that they will not bring a civil damages claim in future, or continue with or bring civil proceedings. In the latter circumstances, the applicant would repay the redress payment if the civil damages claim was successful.

That will prevent the survivor being forced to make an invidious choice. It will also allow the Scottish Government, if it approaches the matter fairly, to achieve the purpose that it says that the waiver is there to serve. I think that these are sensible amendments that give victims choice and, most importantly, the respect that they deserve, without undermining trust.

I move amendment 39.

Ross Greer (West Scotland) (Green)

I will make quite a substantial contribution, due to the number of amendments that I have in this group and the substantial change that they would represent. I do not intend on making as lengthy a contribution at any other stage in proceedings.

There is no element of the bill and the redress scheme more controversial than the waiver. It has been thoroughly considered at stage 1 and debated at stage 2, so I will not rehearse those fundamental arguments now. I accept, with regret, that the majority of the committee did not support Iain Gray’s efforts to remove the waiver entirely. However, it is clear that everyone was concerned—that was the motivation behind the unanimous stage 1 recommendation to remove the waiver that Neil Findlay just mentioned. There was—and I hope that there still is—a clear desire across Parliament, and certainly from survivors, to limit the scope of the waiver to the greatest extent possible. It is with that in mind that I will move amendment 42.

Amendment 42 would remove the waiver requirement for those seeking redress from the state, specifically from either the Scottish ministers or local authorities. Legitimate concerns have been raised by the Scottish Human Rights Commission about the waiver’s compatibility with rights of survivors in the European convention on human rights, given that the state is essentially awarding itself immunity.

However, my primary motivation in lodging amendment 42 is that it reduces the scope of a waiver provision that we are all uncomfortable with while preserving it for the purposes outlined by the Deputy First Minister and Scottish National Party and Conservative colleagues at stage 2: namely, to ensure that organisations that are expected to contribute will in fact do so. We have been told that the waiver provision is essential to secure the contribution of private organisations. That is not an argument that I agreed with, but I accept that it is supported by the majority—that debate has been had. Therefore, I make this constructive proposal, which would maintain the waiver for that purpose but remove it as a requirement when the survivor is seeking redress from ministers or local authorities—that is, from the state.

Given the state’s ultimate responsibility to protect children, which it has historically failed to fulfil—that is why we are here—a number of survivors have communicated to me that a proposal such as mine would not only increase the likelihood of their engaging with the scheme but send a powerful signal that Government is not trying to avoid its responsibilities. We are all profoundly uncomfortable with the waiver, but if we are to compromise and accept that it will play a part in the scheme, we should look to ensure that it applies only when it is fulfilling a clear purpose. Amendment 42 is by far the most significant of my amendments and I hope that members will be able to support it.

Amendment 49 is consequential to amendment 42. It provides that the negative procedure should apply to the power to introduce a list of state bodies by statutory instrument. It is not my intention to make the process onerous for the Government.

Amendment 43 adds an additional condition to the waiver: that the survivor must have taken advice from a solicitor. The amendment is designed to ensure that applicants have taken legal advice, enabling them to make an informed decision. Waiving the right to take future legal action is a significant and potentially lifelong decision. It is paramount that survivors are well informed. The key factors that survivors must take into account when weighing up whether to take a redress payment with a waiver or to take civil action is how likely any civil action is to succeed, how much they might be entitled to and how long or difficult the process might be. Those are complex questions that clearly require the advice of a legal professional.

By comparison, under employment law, a settlement agreement that is agreed between an employee and employer that involves a payment and includes the employee signing away their right to take future action is binding on the employee only if they take legal advice on it and it is countersigned by a solicitor. A lower threshold than that for abuse survivors seems hardly justifiable.

My amendments set out that the Government must, by regulation, specify the information that the solicitor must provide. That is designed to ensure that any legal advice is high quality, as the waiver would not apply if those conditions are not met. Amendment 50 specifies that the regulations would be subject to the negative procedure. It is not my intention to make this process onerous for the Government; I am simply trying to narrow the scope and to strengthen the rights of survivors.

Amendment 19 does not seek any immediate changes to the operation of the scheme. However, I believe that it is critical if we are to reflect as best we can the serious concerns that have been raised about the waiver’s effect on survivor participation. Remember that at stage 2, the representatives of the former boys and girls who were abused at Quarriers homes told Parliament that if the waiver remains, they would urge Quarriers not to contribute to the scheme and instead to put its money to other worthy causes. In common with other survivor groups that we heard from, they made it clear that they did so because many of their members simply will not engage with a scheme that requires them to sign such a waiver.

However, as I said, we are where we are with the waiver. Therefore, in amendment 19, I have proposed a review mechanism whereby the Government must assess the impact that the waiver has had on survivor engagement with redress Scotland and present to Parliament any actions that it intends to take as a result of that review’s findings. I dearly hope that our concerns are unfounded and that the waiver does not have a significant negative effect on survivors accessing redress payments. However, given what we have been told by survivors, it is the responsibility of Parliament and the Government to, at the very least, check whether that turns out to be the case.

Amendment 19C, which is also in my name, adds that the report should cover instances in which an applicant, had they taken civil action, might have received a higher payment than the redress payment. That reflects concerns that have been raised by Daniel Johnson and others at previous stages of the bill.

Amendments 19A and 19B, from the cabinet secretary, and amendment 20, from Brian Whittle, seek to do the same thing: to mandate an assessment of the waiver’s impact on encouraging organisations to become scheme contributors. That is absolutely the right thing to do, given that the likelihood of organisations contributing is the key argument for the inclusion of waivers in the bill at all. Given that those amendments seek the same outcome, we will be supporting amendments 19A and 19B, from the cabinet secretary. Should they be agreed to, I presume that Mr Whittle will withdraw amendment 20. Otherwise, we will end up with a rather comedy requirement to conduct, essentially, the same review twice, but on different and slightly overlapping timescales. If, for whatever reason, amendments 19A and 19B are not agreed to, I would encourage Mr Whittle to press amendment 20.

Returning to my amendments, amendment 44 amends section 47, on the period for which an offer of redress payment is valid. It does so to add that the redress will remain valid for the duration of any civil proceedings that are brought by an applicant. That will ensure that applicants are not timed out of receiving a redress payment due to having launched civil actions. The amendment is designed to ensure that applicants are not put under time pressure to accept a redress payment while a civil claim is on-going. It addresses situations in which survivors have launched civil action and made an application for redress payment. Without the amendment, an organisation that is defending a civil claim could be incentivised to drag out and delay a civil case, knowing that a survivor has a finite period of time in which to accept an alternative redress payment.

I welcome the other amendments in the group. For reasons of time, I will not go through them all in great detail. Amendment 18, in the name of Alex Neil, is particularly important in addressing the concerns that were raised by me, Oliver Mundell and others at stage 1. In many cases of institutional child abuse, evidence, witnesses or other survivors might only be identified long after the abuse has taken place. It would be deeply wrong for a survivor to sign a waiver on the basis that they did not have a strong enough case for civil action at the time of their redress Scotland application, only for such evidence to later emerge, leaving them in a situation in which civil action would likely succeed were they not prevented from undertaking it by the waiver. If we are to accommodate the waiver, such a provision is essential. It would address the core ethical concern that we have had throughout the process.

Alex Neil (Airdrie and Shotts) (SNP)

I will not take too long. The committee was determined to do two things. First, along with the cabinet secretary, we were determined to get to a stage to allow the legislation to pass before we finish up for the election. The survivors have waited long enough for the legislation, and we did not want to do anything that would hamper the timetable for getting the bill through before 25 March.

Secondly, there has been very broad consensus in the committee on a whole range of issues. There has also been broad consensus between the committee and the Government, in particular the cabinet secretary. The one issue of contention, almost from day 1, has been the waiver. Ross Greer has already made some of the points, but I want to emphasise them. It is fair to say that the majority of the committee were extremely concerned about the principle of the waiver. We would be asking survivors, in return for participating in the redress scheme, to give up their right to civil litigation. That is of concern in principle, and it is of even more concern because the committee got evidence that the waiver provision could contravene human rights legislation. However, that is a matter for the courts to decide at a later date.

The other issue is that the evidence that the committee got was overwhelmingly against the waiver. We got very little evidence that the waiver would incentivise contributors. Even the Government’s evidence on the matter was more assertion than hard evidence. That led the committee to its conclusion in the stage 1 report that the Government should consider getting rid of the waiver. For reasons that the cabinet secretary has outlined, the Government was resistant to doing that. Although I do not agree with the Government, I accept its position, and I understand where it is coming from. Therefore, at stage 2, we did our best to accommodate the Government’s position by mitigating potential ill effects or unintended consequences of applying the waiver. Much to his credit, the cabinet secretary lodged substantial amendments at stage 2 that mitigated a number of impacts of the waiver. The amendments were very welcome, and they were all passed easily by the committee.

The purpose of amendment 18 is to further mitigate the potential impact of the waiver, particularly for people who sign the waiver in good faith but who at a later date—sometimes years later—get hold of or become aware of evidence and proof of their abuse that is strong enough for them to undertake civil litigation and win damages that are much greater than even the maximum award under the redress scheme. We had witnesses from other jurisdictions who said that that has happened in other countries.

I am not claiming for a minute that there would be many such cases—the evidence showed that those occurrences were rare. However, it is the duty of the Parliament to accommodate rare occurrences, particularly with something as fundamental as compensation for abuse. There is never compensation for abuse in that sense, but where financial compensation at least might be available, I believe that we owe it to the survivors to include a provision in the bill under which they can go to court and argue their case in those rare circumstances. If they win, the court can then decide whether to offset the redress amount or whatever—it does not need to be laid down in law. The key point is that, in those circumstances, the survivor would have the right to go to court.

To take away that right is a mistake. Finding new evidence is a very particular but very important circumstance. Given the evidence that the committee got and given that we have compromised with the Government in retaining the principle of the waiver in the bill, I believe that we should accommodate that point and ensure that the impact of the waiver is mitigated in such circumstances. That is what amendment 18 does. The other amendments in my name are all entirely consequential and would come into play only if the chamber passed amendment 18.

I thank the other members of the committee, the cabinet secretary and everybody who has co-operated on the bill. It is not an easy subject to deal with and nobody has a silver bullet for getting everything right but, in this case, we should try to ensure as far as we can that the people who find themselves in these terrible circumstances have an opportunity for a successful civil litigation, should they have the ability to pursue it.

John Swinney

Forgive me, Presiding Officer—I suspect that you probably know what is coming. I will have a lot to say on this section, and I would be grateful if I could be given the appropriate opportunity to do so.

I acknowledge at the outset of this group that the issue of the waiver is by a great distance the most sensitive one in the bill. It is the issue on which I have spent the largest amount of time as I have tried to address the points that the committee has raised at different stages and to get to the best possible position. I know that all members, regardless of their politics, share a desire to get the bill, and the scheme that it will deliver, correct for survivors.

The waiver issue is central to the bill and it is right that Parliament debates it today. Unfortunately, different views exist around the question of the waiver. I have tried to navigate a course that puts in place a scheme that will be fundamentally correct for survivors. One of the points that survivors have made to me, which is fundamental to the nature and composition of any redress scheme, is that organisations that have been responsible for the unacceptable behaviour and conduct that survivors experienced must make a contribution. I want to ensure that we deliver the contributions that survivors seek, and that the nature of those contributions holds organisations accountable to address the failures of the past. Those that are responsible must contribute fairly and at scale. As I have tried to address this issue, which is at the heart of the bill, I have concluded that waiver is the only way in which that approach can happen.

The scheme is designed to secure collective participation and to say to survivors that a range of organisations are facing up to the past. Although I acknowledge the seriousness of the issues that have motivated members to submit them, all the amendments in this group, which come from a number of different perspectives, would—in my view—dilute the collective endeavour that is being put together to secure contributions at a meaningful scale from organisations to address the suffering that has been experienced by survivors. My concern is that a number of the different propositions that have come forward, which I will go through in detail, could lead to a situation that would disadvantage survivors by discouraging the contributions from organisations.

Waiver encourages those that are responsible for the past to actively play their part now for all survivors who apply to the redress scheme. Diminishing the value of the waiver removes that encouragement and might return us to a place where those who are responsible for care in the past fold their arms, sit back and wait to see how many survivors take them to court.

I know that it has been a difficult topic for everyone to deal with, but if we are to gather contributions now, at the level that survivors rightly seek and deserve, in order to deliver a national collective redress scheme, my view is that the waiver needs to be part of that scheme.

A number of key amendments in the group fundamentally undermine the waiver provision, and I will deal with them in turn, but my principal objection is that, if one or all amendments are successful today, it means that redress is not an alternative to court; that endangers contributions and profoundly changes the nature of the redress scheme. That point is crucial because, in the way in which it is designed, redress is an alternative to court. If we make these changes to the waiver, I believe that it is undermined. We are trying to provide a scheme that is relevant to all survivors, and they are free to exercise a judgment about whether it works for them or whether they wish to pursue court action.

First, I address Mr Findlay’s amendments. Amendment 39 would mean that the waiver applies only to individually assessed redress payments and, under amendments 40, 41 and 45, only where a survivor chooses for it to apply. Doing even one of those things would severely restrict the level of contributions that we can secure, because providers would continue to face litigation and would need to keep reserves to pay for it.

Amendments 40, 41 and 45 amount to the same as having no waiver in the scheme at all, because providers will have no way of knowing how many survivors will choose waiver rather than repayment. Those amendments create a complex hybrid model that, while potentially offering more choice to those who are already able and willing to go to civil court, does nothing for survivors who are unwilling or unable to pursue that path. I consider that it diminishes the effectiveness of the only option that is available to them.

Waiver maximises contributions from organisations, charities, trusts and local government, because it allows them to plan their financial affairs and contribute to payments for survivors now rather than waiting for litigation.

Neil Findlay

If the cabinet secretary is right, why do survivors, campaigners and the people who work with them advocate such a scheme?

John Swinney

The point that I make to Mr Findlay, which is a point of reflection on the debate, is that different views about that are held within the survivor community. Mr Findlay properly started his contribution by saying that he has had representations from constituents who are survivors and who act on behalf of survivors. I acknowledge that but, equally, Mr Findlay will appreciate that there are different views on those questions within the survivor community. Some of the survivor community have taken a pragmatic view of the waiver. I do not think that any survivor is saying that it is their first and greatest choice to see in a bill, but they accept the pragmatic argument for it being there in order to elicit contributions from organisations. That is the best way I can respond to the point that Mr Findlay fairly makes to me.

As we have heard, the decision-making bodies of organisations have duties to consider on the responsible use of their funds and the protection of their current services, which is the point that Iain Gray has fairly made. What I am trying to say is that the waiver plays a part in providing some quantification of the degree of financial risk to which organisations are exposed and, therefore, provides greater certainty while enabling those organisations to acknowledge the failures of the past. It may be almost impossible for those bodies to responsibly use charitable or public funds to make a contribution to redress when they have no duty to do so without the assurance that doing so would reduce their risk of future litigation. Our model of waiver, which extends to all payments that will be made under the scheme and which makes the scheme an automatic alternative to litigation, provides that reassurance.

Introducing an option to forgo the waiver in favour of a commitment from a survivor to make a repayment to the redress scheme offers no protection from litigation nor indeed from the costs that come with that. Providers would be more inclined to pay nothing now and wait until they were compelled to pay by a court. For survivors, that would mean that only those who had successful outcomes in court would be able to receive a financial contribution from those organisations that were responsible for them at the time of the abuse. I do not believe that that is fair or is what a redress scheme should seek to do.

As with all the key amendments in group 7, the loss of contributions would unquestionably impact most significantly on those who cannot—for example the pre-1964 cases—or those who do not want to go to court.

I move on to the amendments that Ross Greer has lodged, beginning with amendment 42, which seeks to remove the effect of the waiver for the Scottish Government and local government. The Scottish Government and our colleagues in local government recognise the need to contribute to the scheme. The Scottish Government has committed to funding all set-up and running costs of the scheme. That includes establishing and staffing redress Scotland—the division of the Government that is required to support the scheme—fees for applicants to obtain independent legal advice, and the cost of practical, emotional and therapeutic support to survivors. We will also pay a contribution to every redress payment and, where the relevant provider has not contributed, we will pay the costs of the redress payments in full. That is a significant financial commitment from the Government on behalf of the people of Scotland. Sadly, it reflects the nature and the scale of the abuse that has taken place.

As with third-party organisations, it is appropriate that the waiver applies to the Scottish Government, in order to provide assurance on the financial probity of and accountability for, in this case, public finances. Waiver is the mechanism that delivers the responsible use of public money, allowing for recognition and acknowledgement of the harms of the past while appropriately reducing the risk of future litigation against the Government.

Local government has been a major provider of care for children in Scotland, whether through the direct provision of care or through a role in the placing and safeguarding of children. In the interests of transparency, Presiding Officer, I advise members that the Convention of Scottish Local Authorities has written to me to make an offer on behalf of Scotland’s local authorities of a collective contribution of £100 million to the redress scheme. However, it has been clear that that offer is made on the basis of the proposals that are contained in the bill, which include the waiver. Naturally, any change to the waiver would therefore necessitate a review of that offer, with the implication that that would involve a substantial reduction in the commitment that is made. The removal of the waiver for local government would directly jeopardise that substantial offer, which I unreservedly welcome, from local government.

Finally on this point, I remind members of the other steps that the Government has taken to respond to survivors of historical abuse. Those include the establishment of the Scottish child abuse inquiry, the passing of the Limitation (Childhood Abuse) (Scotland) Act 2017, and the setting up of Future Pathways. We are absolutely confronting our responsibilities to survivors. The redress scheme is an example of that commitment.

Moving on to amendment 43, on legal advice, I appreciate what I believe may be the intention behind the amendment, which is to encourage applicants to obtain independent legal advice before signing the waiver. Indeed, in developing the bill, we considered whether we should make it mandatory for survivors to do so. Ultimately, however, we were not persuaded that compelling survivors in that way was appropriate or trauma informed. Survivor choice must be empowered and respected, and we cannot force survivors to engage and disclose deeply personal and sensitive matters to a solicitor as a prerequisite for redress.

In practice, amendment 43 would mean that a waiver signed by a survivor would have no effect if legal advice had not been taken by that survivor. Far from ensuring that survivors have had meaningful legal advice before signing the waiver and accepting payment, the amendment provides a strong disincentive to their doing so. Survivors may decide that it is in their best interests not to seek legal advice, so as to keep the option of civil litigation open, and those who do not obtain advice might end up receiving less from the redress scheme than they ought to because they have not had the benefit of legal advice throughout the process.

Jamie Greene

Who will be the ultimate arbiter of whether consideration has been given to whether a survivor has had sufficient independent advice or is in the best position to make an informed choice and decision at the time? Will it be the panel that makes the award, or will there be some other process? Ultimately, that protection must lie somewhere, otherwise there might be individuals who feel that they have done the right thing but who have not.

John Swinney

The best way that I can answer that question is by saying that, ultimately, the decision must rest with the individuals themselves as to the course of action that they take, because they must satisfy themselves either that pursuing a redress claim and exercising the waiver is the right thing for them or, alternatively, that they should pursue a civil action. The Government will undertake to ensure that every option is available for those individuals to take the necessary advice or to have access to the support that enables them to take the necessary advice, to ensure that they are making the wisest decision in their circumstances. We would, of course, encourage people to take legal advice, because that would help them to formulate a judgment about whether whatever course of action they were proposing to take was, in fact, the right course.

Amendment 43 would create an inequality between those who took legal advice—as they would be bound by the waiver and unable to pursue legal damages—and those who did not. Ross Greer’s amendments might also risk survivors being encouraged by others not to seek legal advice. Instead, they could make an application for a redress payment as an initial step before seeking damages in a civil court. That raises the possibility of creating an industry of people without legal training offering to assist survivors with their applications in return for a percentage of their redress payment. The amendments and the uncertainty that they would bring over which waivers could be relied on would significantly undermine the effectiveness of the waiver for organisations that were considering making a contribution. I therefore cannot support those amendments.

I believe whole-heartedly in the importance of funded legal advice for applicants. Indeed, the amendments that Jamie Greene has lodged, which set out a requirement for the scheme to provide accessible information on that to applicants at material points, provide the correct approach, in my view.

I move on to the amendments concerning reporting on the effectiveness of the waiver, including the amendments lodged by Brian Whittle. I have lodged my own amendments to Ross Greer’s amendment 19, to incorporate the crucial element of Brian Whittle’s important proposal, so that we can create one consolidated reporting requirement. I am grateful to Mr Whittle for the points that he has made, but I want to create a consolidated provision that enables us to strengthen the reporting requirements.

It is important that we consider the effectiveness of the waiver in relation to the impact that it has had on securing contributions from organisations, as that is the key driver for including the waiver as an element of the scheme. I am very appreciative of Mr Whittle’s consideration of the issue, and it is fundamental that his proposal is included in any report on the effect of the waiver. However, it makes sense for there to be one report rather than two, considering the factors that have been advanced in amendments 19 and 20, and I feel that the shorter timescale in amendment 19 might be preferred by Parliament. As I have sought to incorporate that aspect of Mr Whittle’s amendment into Ross Greer’s amendment 19, I ask Mr Whittle not to press his amendment, but instead to support amendments 19A and 19B.

I support Mr Greer’s amendment 19, but I do not support amendment 19C, which seeks to include in the report whether there is evidence to suggest that applicants would have been awarded a higher amount of damages or compensation by a court had they pursued relevant civil proceedings, as that could not reasonably be accomplished. We cannot make assumptions about damages that might have been awarded. Such assumptions would always be inaccurate due to the individual consideration of the facts and circumstances in a court process, as well as the fact that many cases are settled out of court, and the information would be subject to non-disclosure agreements. We have said many times that we know that the payments that are offered under the redress scheme might, in some cases, be lower than some of those that are offered in successful civil court cases. As I have said, the redress scheme seeks to offer a distinct non-adversarial and trauma-informed alternative to the court process, as well as offering funded legal advice and access to non-financial redress. Therefore, it is not necessary, appropriate or workable to include that requirement in amendment 19.

Amendment 44, which was also lodged by Ross Greer, seeks to ensure that, when an applicant has commenced civil proceedings, offers of redress should remain open until those proceedings have concluded. Following stage 1 recommendations, at stage 2, I lodged amendments to increase the standard period of acceptance from 12 weeks to six months, and I stress that the decision-making panel already has the power under section 47(3)(b) to extend that standard period of six months when it considers that there is good reason to do so. That power could be used in circumstances in which there was an on-going court action. I therefore regret that I cannot support amendment 44.

Although I whole-heartedly agree that applicants should have the time that they need to decide whether to accept an offer, I believe that section 47 combined with the duration of the scheme already achieves that. Further, amendment 44 could create several difficulties for the scheme. Court proceedings are not clearly defined in the amendment, so it could potentially apply to matters wholly irrelevant to redress. Moreover, proceedings can last for long periods, especially if they are sisted. If offers had to remain open throughout, it could make it impossible to wind up redress Scotland at the end of its natural life. In addition, contributors might not know for many years whether an offer was going to be accepted and what the extent of their liability would be under the commitment to pay a fair and meaningful contribution to the redress scheme. There is no similar extension offered to those who have had their offer reviewed, in which case it is section 56 rather than section 47 that determines for how long the offer is open. I would not wish to do anything to deter applicants from seeking a review. For those reasons, I cannot support amendment 44.

I turn to the amendments lodged by Alex Neil. Amendment 18 seeks to provide that, when there has been a change in circumstances or when new information has been obtained, an applicant may apply to have the waiver that they signed disapplied. The issue was raised at stage 2 by Mr Neil, and the Government has considered it very carefully. I have met Mr Neil to discuss the issue. I have looked at it in great detail and I am not without sympathy for the position that Mr Neil takes. However, the thorough exploration of the issues that I have undertaken has led me to the conclusion that there is no way to introduce the amendment as lodged by Mr Neil without acutely jeopardising the financial contributions to the scheme that survivors want. Although I understand Mr Neil’s intention in lodging the amendments, there is no doubt that being able to seek to set aside the waiver in such a way would significantly undermine its effectiveness.

Amendment 18 is drawn very widely and would apply such subjective grounds that it would generate significant uncertainty and would likely be unworkable. It would also fundamentally alter the functions of redress Scotland, which is intended to focus primarily on the determination of applications in a non-adversarial way, in contrast to alternative civil remedies that might be open to applicants outwith the scheme. The introduction of a new process, which could lead to the reopening of civil remedies, could impact on organisations that, in good faith, have agreed, made and continue to make fair and meaningful contributions to the scheme in reliance on the waiver.

We want survivors to choose redress only if they are satisfied that they have fully explored the option of civil court actions and have decided that redress is right for them.

Daniel Johnson

I am grateful to the cabinet secretary for his explanations. However, he said at the beginning of his remarks that some of the amendments in the group would fundamentally undermine the waiver provision. Will he clarify on what basis that is? Is it a legal basis, or has he had direct communication with potential participants who have said that, if the provisions were to be included in the bill, they would not or could not take part? Or is that a speculative conclusion at which the Government has arrived? On what basis does the cabinet secretary think that the amendments will undermine the waiver more generally? When new evidence comes to light that was not available to an individual at the time, I think that we should be open to reopening the process, because, intuitively, that seems to be the fair thing to do.

John Swinney

I will make two points in response to Mr Johnson’s fair question. The first is on the general design and purpose of the waiver, which is to provide certainty to providers and contributors. In making a contribution on the basis of a waiver having been signed—I rehearsed all the arguments around that earlier in my contribution—a provider organisation has financial certainty of the exposure to risk that it faces. That is one point in the assessment.

The second point relates to the scope of Mr Neil’s amendment 18, which casts the net rather widely regarding the circumstances that might change. The wording of the amendment is subjective and broad, and I do not think it would provide the narrowness that would result in even a small number of cases presenting in that fashion. As a consequence of that, the financial certainty that comes with the waiver—which was my first consideration—would be undermined.

Mr Johnson asks on what basis I make those observations. My team of officials is doing good work in dialogue with contributors. I have been very open with the Education and Skills Committee about that dialogue, and it is after listening to that dialogue that I have formed my judgment. Can I say to Mr Johnson that I have absolute certainty on that point? In the interests of the transparency of this debate, I cannot say that. It is my judgment, and it is based on the dialogue that we have had with the contributors.

The scheme is designed to ensure that, when a survivor signs a waiver, they have been supported to obtain evidence and legal advice, they are clear on the consequences and they are content with their decision to pursue redress rather than litigation. Therefore, we do not expect circumstances to change often in a way that requires matters to be revisited. The bill was amended at stage 2 to ensure that, if new material evidence is found, any applicant who has received a redress payment below the maximum can apply to have it reconsidered and a higher amount awarded if appropriate.

On balance, my view is that, in trying to find a solution to a problem that might affect only a small number of survivors, Alex Neil’s amendments could mean the loss of financial contributions from organisations, which would be to the detriment of all survivors.

Iain Gray

The cabinet secretary has just argued that the circumstance of new information coming forward would affect very few survivors or cases. However, he is simultaneously arguing that the proposal would completely undermine the operation of the waiver. How can that be true?

John Swinney

I cannot be certain that only a small number of cases would be affected, so it would undermine the certainty of the entire scheme. That is the point that I am making.

I have detained Parliament for a long time on this group, for which I apologise.

The Presiding Officer

Cabinet secretary, I am going to interrupt you for a second. Members will not like this, but I am afraid that the BlueJeans connection has been lost in the past few minutes. We are sitting in a hybrid meeting, so, in essence, we have lost half the chamber. We are making an effort to restore the connection. We can see all the members, but they cannot see or hear us. I will therefore suspend the meeting for a few moments. I am sorry to prolong matters, but I hope that the suspension will be for only five minutes.

Clare Adamson (Motherwell and Wishaw) (SNP)

On a point of order, Presiding Officer. Given that we have gone right through since 12 o’clock today, it would be helpful if you could say whether the suspension will be for five minutes or whatever.

The Presiding Officer

That is a very good idea. We will suspend until 5 o’clock, which is a 10-minute suspension.

The Presiding Officer

Colleagues, we are back in session. Apologies for the technical break.

I ask the cabinet secretary to finish his peroration.

John Swinney

Parliament will be encouraged to hear that the next words that I will utter are to conclude on this group.

Although I understand the concerns that have been raised, I believe that the waiver is an essential provision at the heart of the bill. I believe that it is the only means of securing contribution at scale, while providing a credible alternative to court that is non-adversarial and is trauma informed.

The design of the scheme will ensure that survivors will have all the information and advice that they need to make an informed choice between the redress scheme and civil court. Those decisions can and should be respected and upheld once they have been made.

Parliament, and the Education and Skills Committee in particular, has contributed a great deal to the bill, not least a number of survivor-focused amendments that strengthen safeguards and improve the waiver for survivors.

I ask that members support amendments 19, 19A and 19B on reporting on the waiver to ensure that its effectiveness is monitored once the scheme is open but to resist the amendments that seek to alter the basic function of the waiver.

The redress scheme is designed as an alternative to justice and accountability for survivors. We must deliver for those who cannot and do not want the ordeal of a court case. They must not feel that their provider has escaped facing up to their responsibilities.

The Presiding Officer

I call Brian Whittle to speak to amendment 20. Four other members still wish to contribute on this group.

Brian Whittle

As we have recognised over the past 45 minutes to an hour, the Government’s insistence, throughout the bill’s passage, to retain the waiver has caused much debate and concern, not least among some of the survivor communities.

We know that the waiver is included to try to assure public authorities, voluntary organisations and other persons who might contribute to the redress scheme that a victim will not be able to take their case against them to the civil court should they accept a redress payment.

However, the current system allows for a payment to be made by the Criminal Injuries Compensation Authority under a situation similar to the redress scheme, but the law allows the victim to take their case to the civil court at a later date should they so wish, with any compensation awarded in civil court requiring the CICA compensation to be deducted.

Having listened to Alex Neil, I want to be able to support his amendment, and, having listened to Neil Findlay, I want to be able to speak up against the waiver. However, given that I and other members have been unsuccessful in persuading the Scottish Government to remove the waiver, my amendment would require it to assess whether the bill has had the intended result of getting a voluntary contribution from those organisations and individuals who it wants to encourage to participate, which I think is entirely reasonable.

I think that the next Parliament will have to look again at the bill and amend it accordingly. Therefore, it is reasonable to allow for an evaluation of a contentious part of it, which would allow the Parliament to consider amending it accordingly, should that be required.

I do not think that that ask should be contentious. I hope that members will consider that and accept the opportunity for a future Parliament to scrutinise the effectiveness of the bill.

I was pleased to hear the cabinet secretary say that he will support Ross Greer’s amendment. It is fair to say that, if his amendment is agreed to, I will not move amendment 20 in my name.

I will stop there, Presiding Officer, given the length of time that the discussion on this group is taking.

The Presiding Officer

Thank you very much, Mr Whittle—that is appreciated.

Iain Gray

I start by agreeing with the cabinet secretary; it is certainly true that survivors want contributions to be made to the scheme by the organisations that are responsible for the abuse that they suffered. That was very clear in the evidence that the committee took.

The problem is that the method of doing that—the waiver—is seen by many survivors as an abrogation of their rights, because they are required to give up their right to civil justice in order to benefit from the redress scheme. Therefore, the danger is that in trying to achieve one thing that survivors want, the cabinet secretary undermines their trust in the scheme itself. That has always been the core of the problem.

The cabinet secretary’s argument—which he has marshalled again today—is that potential contributions will not be made by those providers unless the waiver is in place. The problem is that during the whole course of consideration of the bill he has been unable to provide evidence from potential contributors, with the exception of COSLA, which I will come to, who are willing to say that that is the red line—the critical factor in whether they will be willing to make a contribution. Indeed, they have said—

John Swinney

I understand the point that Mr Gray makes, but I invite him to reflect on all the evidence that the committee heard. In written evidence, a number of organisations made the point, which I have made during the debate, that the waiver gives them financial certainty about the risk that they have to manage.

Iain Gray

That is true of the written evidence that was given to the committee. However, when a number of those organisations gave oral evidence to the committee they said that if the waiver was there they were happy to have it, but that it was not the thing that they needed to ensure that they made a contribution.

That is why I lodged amendments to remove the waiver at stage 2. Those amendments were not supported by the committee; that is certainly the case. As Ross Greer said, we are where we are, and where we are is with a group of amendments, all of which, in different ways, mitigate the effect of the waiver. For that reason, they are all supportable and would improve the bill.

The cabinet secretary made the fair point that by providing an additional choice to those accessing the redress scheme, Neil Findlay’s amendments essentially remove the waiver. They would also ensure that if a person were successful in a civil case they would have to pay back what they had received from the redress scheme. Therefore, although we will support Neil Findlay’s amendments for the sake of consistency, I have to accept that, given what happened at stage 2, those are not likely to succeed.

Ross Greer’s amendments remove the waiver in the particular circumstance when the claim is against the state—either the Scottish Government or local government. It seems that if anybody should be persuaded by the moral imperative to participate in this contribution scheme in response to their responsibility for what happened to survivors, without the financial incentive of the waiver, surely it is the state. The state should not need a financial incentive to see out its obligation to contribute to the scheme.

I say to the cabinet secretary that if I were a survivor watching this debate and I heard him say that COSLA has offered £100 million but that it is contingent on the waiver, I would hear an argument that the waiver is required to save money and reduce the cost of the contribution of the public purse. I have to tell him that if I were a survivor, I would be very angry.

Ross Greer’s amendments would remove the injustice of the waiver in respect of a provider that should not need that financial incentive to participate in the scheme. In my view, where it is the public purse that is going to pay redress, survivors do not mind which bit of the public purse—whether it is local authorities or the Scottish Government—it comes from. They want other providers to make a contribution—that is absolutely true.

Ross Greer’s amendments would accept the cabinet secretary’s core argument with regard to non-state providers, but they would remove the waiver for state providers. That would be an improvement to the bill.

However, if the waiver remains, that brings us to Alex Neil’s amendments, the key one being amendment 18. We started our consideration of the bill today by all agreeing with each other—in relation to Jamie Greene’s amendment, I think—that those who are accessing the redress scheme must be able to take decisions with all the important and relevant information available to them. However, under the scheme, where they make a decision with all the information available to them and then, at a later date, new information, which they could not have known would appear, appears, they will be stuck with the decision that they took in the first instance. That is simply unfair.

As the cabinet secretary said, there will not be numerous cases in which new information comes forward that casts doubt on the decision to sign the waiver in the first instance. The argument that the amendments would somehow fundamentally undermine the waiver does not, therefore, hold much water.

The truth is that, with regard to the bill, the most important thing is that we sustain the trust and support of survivors in the scheme that we are setting up. We have in the bill a measure that threatens to jeopardise that, and we have before us a series of amendments that would mitigate that circumstance and rebuild the trust of survivors in what we are trying to do, which would be to the benefit of all. For those reasons, I argue that we should support the amendments in the names of Neil Findlay, Ross Greer and Alex Neil.

Jamie Greene

I will cover much of what I want to say on this topic in the debate on the bill, after we have finished our consideration of amendments, but I feel that it is important to talk about the matter in the context of the debate that we are having now. I hope that members will forgive me for that.

I commend all members—including Neil Findlay, Ross Greer and, from the Government side of the chamber, Alex Neil—who have lodged amendments in group 7. From the outset of the bill process—to go back to a point that was made earlier—although we may sometimes have disagreed along party-political lines, none of the positions that anyone has taken have been political decisions. That is important. The committee approached the bill collectively and respectfully, and there was no politics in it whatsoever.

Members have lodged the amendments in group 7—rightly—in response to the many valid concerns that have been raised. I am no flag waver for the waiver. I have no ideological attachment or opposition to it, and I have approached the bill, and the amendments today, on the basis of the scheme’s merits, the technical application of it as drafted and, accordingly, the amendments themselves.

However, the concept of the waiver remains in the scheme as it is presented to us in the bill at stage 3. Disaggregating the moral and ethical arguments around the waiver—which are valid—from the technical aspects is a challenge that the committee faced. I feel that the cabinet secretary has given technical responses to an emotional issue.

I am sympathetic to some of the amendments in the group, but I want to make a few important points. The amendments that have been lodged by Brian Whittle and Ross Greer would introduce provision for an important review of the efficacy of the waiver. That is a new concept that we have come up with, as a Parliament, at stage 3, and I am glad that the Government has taken that on board. That is important because, if the proposed waiver, which the Government has argued is needed, is not working, we will see and know that very quickly.

I have also had conversations with COSLA, with individual local authorities and with potential contributors, directly about the waiver. They have not all said that their contribution is entirely dependent on there being a waiver. In fact, many have been forthcoming in saying that, if the waiver were to be removed, they would still participate, so it is not a given that removal of the waiver would detract from contributions. However, they are sure that none of their insurers would cover the cost of participation in the scheme, and they were all concerned about potential liability in relation to their sustainability as organisations.

Iain Gray

The argument that organisations’ insurance companies would not cover the contribution to the scheme and that, therefore, the waiver is required, does not really make sense, because if their insurance companies would cover liability in civil actions, that is an argument for not participating and for waiting to see survivors in court.

Jamie Greene

As I said, I am not defending the concept of the waiver. I agree. I can say only what I have heard from my conversations. The insurers have been clear that there is a risk of liability in any civil proceedings. That risk will not go away even if organisations participate in the scheme. Participation in the scheme will not provide immediate protection against civil litigation. Many organisations will still be sued by individuals. Blanket protection will not be afforded by contributing to the scheme, because those who choose not to go down the redress-scheme route will, of course, have the option of pursuing a civil case anyway. I am making the point that people to whom I have spoken have said that there is a perception that insurers will cover their backs financially, but that that is not the reality. That is an important point.

Another important point is that, as I said earlier, participation in the scheme is not mandatory. I want the scheme to work and to go ahead. I do not want us to pass a bill that is full of legal holes. I want contributors to participate in the scheme. I fear that if they do not, we will lose not only their financial contributions, but that symbolic participation. The reality is that, even if not one local authority, faith organisation, charity or care home contributes a single penny to the scheme, three things will still be true. First, the scheme will still be launched. Secondly, it will still make awards. Thirdly, the amount that is paid through the awards will not be altered, differ or disappear in any way depending on the contributions that are made and who makes them.

I want to make another point about some of the amendments that are before us. With respect, I say to the cabinet secretary that, if they had been lodged at stage 2, I would probably have supported them. I would have created an almighty headache for him and his team, because the members who have lodged them make valid points.

If the waiver remains part of the scheme in a bill that the Government has created, disapplication of the waiver is a completely valid concept. Again, I say that I would have preferred to have had that debate at stage 2. There are scenarios that are not covered by the bill, but which would lead to the very scenario that Alex Neil talked about. I have no answer to the question what would happen if someone signed a waiver, but substantial evidence was brought forward down the line that made them feel that they had made the wrong decision. I do not know what the cabinet secretary or redress Scotland would say to those people. I do not know how to fix that conundrum, but nor do I think that the approach that Alex Neil proposes, through the specific technical wording of his amendments, would enable the problem to be resolved. Those who are most at risk of falling into that category are perhaps those who should not be signing a waiver or, indeed, accepting payment at all. That underlines the importance of my amendments, which will ensure that we maximise choice and options, and that people can take informed decisions.

I have never thought that the waiver is in the bill for the fun of it. The good people in the bill team who have designed the scheme have nothing to gain from keeping the waiver without good reason, so it is with huge reluctance that I accept their informed judgment on the matter. However, if we are happy to remove the waiver and to have no contributions from anywhere other than the public purse, I am fine with that, too, but that also goes against the grain of the scheme.

I regret that I will not support a number of amendments in the group.

Daniel Johnson

I had not initially intended to speak on the group, but I feel that Alex Neil’s amendment 18 is critical to the bill. Let me explain why.

Like Iain Gray, I completely agree with the cabinet secretary that we have to maximise participation of contributors to the scheme, because it is not simply a case of financial contribution or imperative. It is about moral imperative, because, frankly, in order for the scheme to be successful, it has to maximise inclusion of the people who are ultimately responsible for perpetrating abuse of the individuals who will be seeking redress through it. Without that participation, and regardless of what financial compensation individuals manage to obtain from it, if those organisations do not participate, there will be many applicants who, despite being given compensation, will feel that justice has not been done because of lack of acknowledgment and participation by those organisations.

I understand that and it is hugely important. Everything that we do must ensure that we maximise that participation. That is why I understand why the waiver is in place. I have never misunderstood why it is there. I have simply questioned two keys things: whether in practical terms it will deliver what has been claimed—that is an argument and a discussion for another time—and, critically, whether the balance is right in terms of securing that moral requirement of maximising participation, as set against people having to give up their rights.

This is fundamentally about a balance between those two moral considerations and it is a point of principle. That is where I have to disagree with Mr Greene—it is not an emotional point, although emotional things connect to it and there are undoubtedly emotional consequences. It is a point of principle—a series of principles that are quite easy to understand.

Let us be clear: this is about maximising access to justice. Again, we can agree on that point and with the cabinet secretary. The scheme will provide a route to justice for many people who have no other route, because it is difficult for those people to obtain evidence and it is traumatic for them to relive their circumstances. Those two points alone will, for many people, mean that the civil courts are unavailable to them.

What happens if those things change? What happens if the circumstances arise in which the person can face court and face those issues? What happens if the evidence is available and could be pursued but the person has already taken payment and has therefore set aside those rights and so is unable to pursue things?

There is not simply that point of principle in relation to changes of circumstances, because this is a scheme that is limited in scope in two fundamental and very important ways. It is limited in terms of what the compensation payments will compensate for, because it will not cover all aspects of injury and will not cover aspects that might be covered in a civil court. The scheme will compensate only for the seriousness of the actions that were perpetrated on the individual and will not take account of their impact or consequences. Critically, it will not compensate people for loss of earnings, which would occur if they pursued a case through the civil courts. Compensation is therefore limited to £100,000—that is the maximum payment that can be obtained.

It stands to reason that there will be circumstances in which an individual will discover new evidence—an archive box is discovered or a book is found on a bookshelf that establishes beyond doubt that something happened that somebody would have struggled to establish in a court of law previously.

There can be circumstances that will affect an individual for the rest of their life, impacting on their earnings and harming them to a far greater degree than £100,000 of compensation could acknowledge or make up for.

It is not hard to imagine that a person might have close family members who believe so strongly in the institution that perpetrated the harm upon them that they would feel unable to pursue a claim against that organisation through redress Scotland. When that person’s relatives have passed away, their circumstances would change and they might feel able to pursue a claim. Their injuries might be such that they could gain far more than £100,000.

A person’s trauma might be such that its full consequences might become clear only later in life, after they had obtained compensation through redress Scotland, at a time when they were unaware of what that later impact would be and did not know they would have received far more than £100,000 if they had pursued their claim through the civil courts.

Those reasons about changes of circumstance, or new evidence or a person’s ability to take their claim through the civil courts, mean that the scheme, as it is currently constituted with the waiver in place, threatens not to provide easier access to justice. It is not a scheme by which someone can more easily obtain compensation. Instead, it might perpetrate further injustice against individuals who have already been badly harmed by the institutions that were meant to look after them.

Alex Neil’s proposal is not unrealistic; it is not outrageous or too broadly framed. It is a modest proposal that simply seeks, when someone’s situation changes, to allow them to apply, through ministers, to have the waiver disapplied. It is important to note that that is what his amendment requires. It is not a random process. People would have to apply through ministers and the course of action would have to be approved by redress Scotland. As the cabinet secretary has already acknowledged, there will be a limited number of people who go through such changes in circumstances.

I understand the cabinet secretary’s point about certainty. It is important that, if we are to seek contributions, we provide contributors with as much certainty as possible. However, that certainty will never be cast iron or absolute. Even within the terms of the scheme, it is not possible to predict the level of individually assessed payment that an applicant will get. We do not know how many people will apply or how many of them might be able to reapply. That certainty is not there; it does not exist in the way that the cabinet secretary asserts it exists.

At the moment, the bill has the potential to seriously disadvantage a person when new circumstances arise or new information comes to light. In so doing, it runs the risk of meting out new harm to that individual, which is the last thing any of us would want. That is my real concern.

Brian Whittle alluded to this. If such circumstances do obtain, and if even a handful of people find themselves with new evidence or information and know that they would have made a different decision if their circumstances had been different, Parliament will have to revisit its decision. It will have to pass new legislation to remove that waiver for those individuals. That is why I think that we should pass amendment 18 today. We should be improving access to justice, not meting out new injustices to people who have already been so badly harmed.

Clare Adamson

I would have intervened on two earlier speakers instead of making a speech, but it was not possible to intervene as those were remote contributions.

I apologise to Ross Greer if I misheard him, but I think that he said that the committee was unanimous at stage 1 in asking for the waiver be removed. I want to clarify that. We had a lot of discussion about the waiver, but at no point did the committee in its stage 1 report recommend that it be removed. We sought further clarification from the cabinet secretary as to how the mechanism was intended to work.

The extensive work that has been done on the waiver at stage 2 and now at stage 3 is very important. It comes down to the principle of whether the waiver should be there. I look to the international comparators and see that, with one exception, in Western Australia, every other redress system that has been put in place by a legislature has had a waiver.

In relation to the point at which someone makes the informed decision whether to take the redress payment that is on offer or to pursue the issue in the civil courts, and in relation to the duty on providers and the state to help people to find the evidence that they need for their case at that point, I believe that the work that has been done and the amendments that have been made today will absolutely make the choice an informed one for survivors.

The Presiding Officer

I ask Neil Findlay to wind up and to say whether he wishes to press or withdraw amendment 39.

Neil Findlay

It should not be me who is winding up on this group, Presiding Officer, because I have not been invested in the issue in the same way as other members have, so it would be more appropriate if they wound up. However, I understand the protocol.

There have been excellent contributions on the issue—those from Daniel Johnson and Iain Gray were outstanding. They completely understand the impact of the waiver on people who are the victims of historical abuse.

I listened to the contributions from Brian Whittle and Jamie Greene, and they sounded remorseful. I think that they do not believe the position that their party has taken. If they were true to themselves, they would vote for all the amendments in the group—I hope that they will consider that when we come to vote on them.

If the waiver is to remain, we have to ensure that it works in the interests of victims and not the institutional abusers. To me, the waiver looks as though it puts the corporate or institutional entity at the centre, rather than the abused.

In debates, we all sometimes argue that those on our side of the debate who agree with us are the people who speak for everyone involved—in this case, the victims—and that everyone who does not agree with our case is on the other side of the argument and is wrong. That is what the cabinet secretary has done. However, if we asked those who have been victims, “Do you want a waiver to be in place?” my perception is that, overwhelmingly, they would say no and that we should take it away. That would put the victims at the centre. It would put them in control. It would give them options as to what they do next.

John Swinney

In my response to Mr Findlay’s intervention earlier, I was not in any way casting aspersions or doubting points of view that are different from mine; I was simply saying that there is a diversity of opinion.

The point that I want to make in this intervention—forgive me for advancing this detail—is the fundamental one that this is an incredibly difficult part of the bill. I acknowledge that. It is about trying to create the right balances that address the interests of survivors in as wide a respect as we can.

A lot of survivors—and definitely those whose abuse took place pre-1964—have no court option available to them, and the redress scheme opens up a route for them to get redress. For others, evidential requirements, other barriers and the fact that they would find it difficult to confront the issues make it impossible for them to go to court. Therefore, we are providing a route for them. For those who have the evidence and the ability and capacity to face a court action, that option is still available. We are also trying to address the fact that we want a contribution from providers. Survivors tell us that they want providers to be in the frame to make a contribution.

What I am trying to say in this rather lengthy intervention on Mr Findlay—as he correctly says, he is closing on this group, but I am trying to respond to some of the issues that have been raised—is that there is an agonised balance to be struck to try to create a route for as many survivors as possible. Is it perfect? I am not going to suggest that it is; nothing in all of this is perfect. This is about trying to create as reliable a route as possible for as many people who currently do not have that route as possible. However, it is also about leaving open the choice for those who wish to pursue civil action, having been properly informed with advice about what the scheme can offer. I hope that that helps to capture some of the dilemmas.

Neil Findlay

That was a lengthy intervention, and I think that it was helpful.

However, the amendments in the group that have been lodged by various people from different parties seek to make the scheme even better. That is the intention: no one put forward any of those amendments to make the situation for victims worse. They were all lodged with the absolute best of motivations and intentions and in consultation with those who have been wronged, with the aim of making the situation better for them.

John Swinney

I am grateful once again to Mr Findlay for giving way. I unreservedly accept the point that he has just made—that members have lodged amendments in a difficult area to try to, as they see it, enhance the scheme. Equally, the Government is trying—as it tried at stage 2—to do exactly the same thing, but in different ways to those put forward by those members.

Neil Findlay

I do not question the cabinet secretary’s sincerity or motivations; I just disagree, and others who lodged these amendments disagree. I believe that if, in a quiet moment, all members reflected on what is on offer, many of them would disagree with it.

Brian Whittle

This is an unbelievably difficult concept to get around, in a bill that is unbelievably difficult to understand. We are talking about a redress scheme for financial compensation in which there is a waiver that would prevent people from pursuing a civil action. We are talking about that in terms of finance, but I wonder whether Neil Findlay agrees that it is not just about financial compensation. For the person who suffered the abuse, receiving financial compensation might not satisfy the emotional redress that is required and, to do that, they might, at a later date, need to seek some sort of civil court case, so it is not just about finance.

Neil Findlay

Absolutely. Much of my time in the Parliament has been spent dealing with campaigners who seek justice in different campaigns. Money has no relevance to them. For the overwhelming majority, it is about getting recognition for their lives being wronged, wasted and destroyed, whether by corporations, Government or other institutions. It is first about justice; financial elements come much later.

To the cabinet secretary, I say lightly that he was in his weakest territory when he started to talk about the Government having to be careful with public money—particularly today, when we have just poured another £4.5 million down the drain on further delays to the ferries contract. I make that only as a small barb, because we look at the amount of public money that is being wasted on a whole range of policy areas, whether on delayed discharge in hospitals—

The Presiding Officer

I wonder whether the member could draw his remarks to a conclusion.

Neil Findlay

The cabinet secretary is on shaky territory there. When members come to make decisions, I hope that they think carefully about that issue, because it is fundamental. I hope, too, that they will make the right decision and vote the amendments through.

The Presiding Officer

The question is, that amendment 39 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. We will suspend for five minutes to allow members to be called to the chamber or to access the voting app.

The Presiding Officer

We go straight to the vote on amendment 39.

The vote is now closed. Please let me know if you were not able to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 29, Against 89, Abstentions 0.

Amendment 39 disagreed to.

Amendment 40 moved—[Neil Findlay].

The Presiding Officer

The question is, that amendment 40 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were not able to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 29, Against 89, Abstentions 0.

Amendment 40 disagreed to.

Amendment 41 moved—[Neil Findlay].

The Presiding Officer

The question is, that amendment 41 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were not able to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 29, Against 89, Abstentions 0.

Amendment 41 disagreed to.

After section 45

Amendment 42 moved—[Ross Greer].

The Presiding Officer

The question is, that amendment 42 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were not able to vote.

The Minister for Local Government, Housing and Planning (Kevin Stewart)

On a point of order, Presiding Officer. I could not connect. I would have voted no.

The Presiding Officer

Thank you, Mr Stewart. You would have voted no. I will make sure that that vote is added to the list.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 28, Against 88, Abstentions 0.

Amendment 42 disagreed to.

Amendment 43 moved—[Ross Greer].

The Presiding Officer

The question is, that amendment 43 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were not able to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 29, Against 89, Abstentions 0.

Amendment 43 disagreed to.

Amendment 18 moved—[Alex Neil].

The Presiding Officer

The question is, that amendment 18 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were unable to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 31, Against 87, Abstentions 0.

Amendment 18 disagreed to.

After section 46

Amendment 19 moved—[Ross Greer].

Amendments 19A and 19B moved—[John Swinney]—and agreed to.

Amendment 19C moved—[Ross Greer].

The Presiding Officer

The question is, that amendment 19C be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were unable to vote.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

On a point of order, Presiding Officer. I did not hear you. I think that you said amendment 19C, but it did not come up on my voting app. I would have voted no.

The Presiding Officer

Thank you, Ms Hamilton. You would have voted no. I will make sure that your vote is added.

Alexander Burnett (Aberdeenshire West) (Con)

On a point of order, Presiding Officer. No vote appeared on my device. I would have voted no.

The Presiding Officer

Thank you. You would have voted no to amendment 19C. That will be added.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 28, Against 89, Abstentions 0.

Amendment 19C disagreed to.

The Presiding Officer

I ask Ross Greer to press or withdraw amendment 19, as amended.

Ross Greer

I will press the amendment.

Amendment 19, as amended, agreed to.

Amendment 20 not moved.

Section 47—Period for which offer valid

Amendment 44 moved—[Ross Greer].

The Presiding Officer

The question is, that amendment 44 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were not able to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 29, Against 89, Abstentions 0.

Amendment 44 disagreed to.

After section 51

Amendment 45 moved—[Neil Findlay].

The Presiding Officer

The question is, that amendment 45 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were not able to vote.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 29, Against 89, Abstentions 0.

Amendment 45 disagreed to.

Section 52—Right to a review

Amendments 46 and 47 not moved.

After section 64

The Presiding Officer

Group 8 is on information: access by applicant. Amendment 21, in the name of Daniel Johnson, is grouped with amendments 22 to 25.

Daniel Johnson

I will attempt to be brief, which I am sure will be welcomed by members. The amendments in this group relate to a simple and understandable idea, which is that many survivors simply do not know what happened to them, why it happened or even by whom it happened. My amendments seek to ensure that, where information is obtained by redress Scotland, it is made available to applicants so that they know as much as they can and no information is held by redress Scotland that is not available to the individual applicant. That has come from situations that survivors have reported to me in which useful information has been obtained by the inquiry. My amendments seek to ensure that any such information that is obtained by redress Scotland is provided to survivors. That will obviously be subject to the information laws that exist; none of what is proposed will supersede any of that pre-existing legislation. However, what is proposed is a simple but important idea. I thank the Government and the bill team for their co-operation and help in drafting the amendments.

I move amendment 21.

John Swinney

I thank Mr Johnson for lodging these amendments and for his constructive engagement with the Government, following stage 2, in connection with this issue. The amendments will enhance the survivor focus of the scheme by providing proactive reassurance that those who apply to the scheme will have the right to access information and evidence that is held by redress Scotland or the Scottish ministers as part of that person’s application. The amendments reinforce transparency, which is such a critical aspect of the scheme, in order to command the trust and confidence of survivors. I echo Mr Johnson’s comments and I ask members to support the amendments in this group.

Amendment 21 agreed to.

Section 78A—Applicant access to evidence

Amendments 22 to 24 moved—[Daniel Johnson]—and agreed to.

Section 83—Confidentiality of information

Amendment 25 moved—[Daniel Johnson]—and agreed to.

Section 93A—The Survivors Forum

The Presiding Officer

The final group is group 9, which is on a survivor forum. Amendment 26, in the name of Daniel Johnson, is grouped with amendments 29 and 30.

Daniel Johnson

Again, I will attempt to be brief. It is important that redress Scotland does its work in conjunction with survivors, mindful of their perspective and experience, and that it does so in a trauma-informed way. The survivor forum will provide important insight to redress Scotland. It will provide survivors with the ability to oversee, comment on and provide input into the working of redress Scotland. It is important that that is placed in the bill; I note that it was always the Government’s intention to establish a forum, but giving it the strength of statute will strengthen its work and underline its importance.

I add an important note that that oversight and assistance is very much in general terms. There is a specific exception in the bill that the survivor forum will not oversee individual cases; it will involve the broad and general working of redress Scotland. Again, I thank the Scottish Government bill team and the cabinet secretary for their co-operation and assistance in drafting amendments 26, 29 and 30.

I move amendment 26.

Jamie Greene

Briefly, I welcome Daniel Johnson’s amendments 26, 29 and 30. I am very pleased that he has lodged them and, more so, that the Government will support them.

Many elements of the bill have been contentious and we have had quite a robust debate. The creation of a survivor forum is, I think, a fundamental part of redress Scotland as it launches and starts to accept applications, and it is important that the voices of survivors lie at the heart of any future changes and alterations that the next Parliament has to make to the scheme, if required. In conjunction with some of the review clauses that have been added, the amendments are welcome. Those are important reviews of the scheme and I thank Daniel Johnson for putting them into the bill rather than relying on their taking place down the line. I will be pleased to support them.

John Swinney

I thank Daniel Johnson for lodging his further amendments on the survivor forum, and I am happy to support them. I share his intention that survivors should play a key role in improving and enhancing the delivery of the scheme throughout its lifetime.

We have long been committed to the establishment of the forum but had chosen not to provide for it in legislation, so as to ensure maximum flexibility as to its functions and how it would operate. A fundamental principle of the forum is that it will be survivor led, and we wish to give survivors as much choice as possible in what the forum does and how it does it. We have begun a process of engagement on the forum with survivors and others. What we provide for in the bill needs to be capable of adapting in the light of that on-going engagement. I am satisfied that the revised version of section 93A will allow for that development.

There are issues around the confidentiality of information that is supplied by applicants, which should not be passed to the forum. I am confident that the provision that is already in the bill at section 83 provides adequate protection and reassurance to survivors. I will, however, make sure that that point is reflected in the explanatory notes that will be produced.

I am pleased to support amendments 26, 29 and 30.

Amendment 26 agreed to.

Section 96—Interpretation

Amendment 27 moved—[Jamie Greene]—and agreed to.

Section 97—Guidance

Amendment 48 moved—[Daniel Johnson]—and agreed to.

Amendment 28 moved—[Jamie Greene]—and agreed to.

Section 98—Regulation-making powers

Amendment 29 moved—[Daniel Johnson]—and agreed to.

Amendments 49 and 50 not moved.

Amendment 30 moved—[Daniel Johnson]—and agreed to.

Schedule 1—Redress Scotland

Amendment 31 moved—[Jamie Greene]—and agreed to.

Amendment 51 moved—[Daniel Johnson]—and agreed to.

Amendment 32 moved—[Jamie Greene].

Amendment 32A moved—[Daniel Johnson]—and agreed to.

Amendment 32, as amended, agreed to.

Long Title

Amendment 33 moved—[John Swinney]—and agreed to.

The Presiding Officer

That concludes the consideration of amendments.

As members might be aware, at this point in the proceedings, I am required under the standing orders to decide whether, in my view, any provision in the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill relates to a protected subject matter—that is, whether the bill modifies the franchise or electoral system for Scottish Parliament elections. In my view, the bill does not, and therefore it does not require a supermajority to be passed at stage 3.

The Deputy Presiding Officer (Linda Fabiani)

The next item is a debate on motion S5M-24338, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

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

It is my privilege to open the debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. It has been a very challenging bill on an immensely painful and difficult subject for all of us in Scotland and particularly for the survivors of historical child abuse, whose courage, tenacity and determination to see justice have brought us to our national Parliament today.

I thank the Education and Skills Committee and its members for the careful and thoughtful scrutiny that the bill has received, and I thank all those who gave evidence to the committee to inform and improve the content of the bill. The scrutiny by all members has undoubtedly strengthened the bill that I introduced to Parliament. The principal group who gave evidence are survivors and I address them directly at the outset of my remarks.

When I became education secretary in 2016, I promised survivors that I would listen with care to all that they said to me. As I listened, I began to understand the depth of pain and hurt that they had endured. I use the word “began” because I doubt that I will ever be truly able to comprehend their anguish. What I can do is fulfil the commitment that I made to survivors the day that I met them in the summer of 2016. I promised them that the Government would establish an effective inquiry, with judicial leadership, that would forensically investigate the awful experiences of children in the care of the state. That is now happening. I promised that the Government would legislate for a redress scheme, and we now find ourselves at the moment when that scheme will pass into law. It will be a redress scheme enhanced and improved by the engagement of members of Parliament from across the political spectrum. I am immensely proud that we have reached this moment and I thank survivors for their tenacious efforts, which have made this moment possible.

Across the political spectrum—members of Parliament know that I am a combative member of Parliament in every respect—we have seen constructive engagement on a number of intensely complex and sensitive issues. The process has given us a better bill and will give us a better redress scheme, of which Scotland can be proud.

The bill is for survivors. It is for Scotland’s children of the past, who suffered such cruel abuse and torment, and for the adults who they are today.

As a society, we are still coming to terms with the scale of the horror of abuse and the impact that it had—childhoods devastated, innocence stolen, trust betrayed and lives made heavy with burdens that no one should ever have to bear. We are also coming to terms with our inaction as a society, which exacerbated, perpetuated and prolonged that abuse. Children were neither heard nor believed. The structures and systems that we all rely on to protect us, promote our wellbeing and help us to thrive failed some of our fellow citizens when they were vulnerable children and needed our protection the most. For that, we are sorry. The Government is sorry, and I say to survivors that this should not have happened to them, and it was not their fault.

We will not let inaction characterise what we, as a nation, do now in respect of this acutely painful chapter in our past. Although we know that we cannot make up for what happened, we do not accept that it is a historical fact on which nothing can be done. We endeavour to record, investigate and learn from what happened, and the Scottish child abuse inquiry continues its crucial work.

We are supporting survivors to achieve their potential through future pathways and the survivors of childhood abuse support fund. Today, we will pass Scotland’s redress scheme into law and add it to that response.

We have developed a bill that will establish a survivor-focused route to redress. Survivors will now have a choice that did not previously exist to apply to the redress scheme for payments of up to £100,000. For survivors who were abused before 1964, that will, in fact, be their only option. They have no avenue for seeking payment through the courts. Redress applications, assessments and reviews will be swifter, more trauma-informed and more transparent than existing routes. The scheme offers a non-adversarial alternative to court. Liability will not have to be established, and survivors will be given practical support to obtain evidence and emotional support throughout the process, should they need it.

Funding for independent legal advice will be made available to all applicants throughout the entirety of the process. Under the scheme, survivors will be entitled to keep 100 per cent of their redress payment. They will not have to worry about having to pay hefty legal fees or other costs from their redress payment.

Crucially, our aim is to deliver redress not only as a Government scheme, but in a way that recognises the historical care landscape and the involvement of myriad public, religious and charitable bodies. Survivors have told us that that is important, and I consider that all those who have a responsibility for the feelings of the past have a responsibility to do the right thing today. The scheme sets out to be a national collective endeavour. Redress payments will reflect fair and meaningful financial contributions from organisations that were responsible for the care of children at the time when they were abused.

We know that, sadly, some survivors are no longer with us to apply for redress. They and their families have not been forgotten. The scheme makes provision for applications from next of kin when the survivor died on or after 1 December 2004.

Iain Gray (East Lothian) (Lab)

The cabinet secretary has just commented on some survivors who are now elderly. The Government has already introduced the advance payment scheme, and at stage 2, we had some discussion about that and whether it could be improved in the short time before the introduction of the new scheme that will replace it. The cabinet secretary said that he would come back to me on that.

John Swinney

To date, the advance payment scheme has made 560 payments to elderly and terminally ill survivors. It will remain open until the statutory scheme can accept applications. I am pursuing an aggressive timetable for the establishment of the statutory scheme, which I hope will address the issue that Mr Gray is legitimately concerned about. We will open the scheme for applications as soon as possible before the end of this calendar year. We will begin the public appointments process and we will advertise for a chair of redress Scotland before the end of this month, and we will advertise for a chief executive in April.

The advance payment scheme was set up on the grounds of urgency in the public interest under common-law powers, which limits the scope of any changes that we can make to it. I will provide an update about that, and about progress towards the statutory scheme opening, before the summer recess if this Government is re-elected, but I will take steps immediately, before royal assent, to begin the preparations, assuming that Parliament will support the bill later this evening. I hope that that provides reassurance to Mr Gray.

I said at the time when the bill was introduced that there was no doubt in my mind that it was one of the most important pieces of legislation that the Scottish Parliament would consider in its lifetime. Since then, as the bill has progressed and as we have heard powerful and moving evidence, that belief has only strengthened.

Today is about actions, not words; it is about deeds, not promises. Today, we must fulfil our duty to our fellow citizens who have suffered. We must vote to pass this seminal piece of legislation into law.

Today, as individuals, as a Parliament and as a nation, we have the opportunity to stand with survivors, to see them, to hear them and to walk alongside them in a way that no one did during their childhood. Today, without compulsion and without agenda, I do that to fulfil the commitment that I made to survivors when I was appointed to my role in 2016. I know that that determination is shared by all members in the chamber, across the political spectrum.

We now have the chance to do something historic. Today, I hope that we will agree together, as a united Parliament, to take our next step in facing up to this dark chapter of Scotland’s history, to show survivors that we are now building on our words of sorrow with action. I suggest that we vote unanimously to do exactly that.

I move,

That the Parliament agrees that the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill be passed.

Jamie Greene (West Scotland) (Con)

I pay tribute to members of the Education and Skills Committee, which I joined only last year, to its convener and to our clerks and our adviser, for their help. I also pay tribute to the Deputy First Minister and his officials for their work in drawing together what is an immensely difficult and sensitive piece of legislation. I acknowledge the respectful and constructive way in which we are concluding that journey together.

I also put on record my thanks to the many organisations that gave evidence to us throughout the passage of the bill, and, more important, to the survivors of historical abuse: those who are already known to us and those who are unknown and are yet to come forward, who will, I hope, benefit from the scheme—they are those whom the scheme is aimed to assist.

To be honest, I have always had concerns about many aspects of the redress scheme, but I believe that the bill has come on a long journey. Is the bill that is before us, having been amended after today’s debate, now perfect? I do not believe so. Is that a reason not to support it? I do not believe so.

Mr Swinney and I have had some very robust exchanges in this place, and we might spar on many issues, but I respect the fact that he has spearheaded the bill throughout the process and has kept his commitment to the survivors. I am thankful for that.

I pay tribute to Mr Iain Gray, a member of the Education and Skills Committee who, I believe, may be making one of his last contributions in the chamber today. He has given many years of service to his Parliament, to his party and to politics. He entered this place when I was only 19—I hope that that does not make Mr Gray feel old—but I have sat here in the Parliament and in committee and listened in awe to his forensic analysis and his fair and effortless contributions, which we can all learn from and aspire to. I wish Mr Gray all the best in the future.

We have heard today that there are aspects of the bill that people are unhappy with. Whatever product we have come out with today—and it has been a difficult journey—I believe that we have been able to legislate for a scheme that will provide some victims, although not all, with both financial compensation and meaningful redress that, I hope, will go some way towards righting the wrongs of the past.

Back in the stage 1 debate, I said that the stark and very sad reality is that there is little that we can do to fully compensate those people. We cannot ever bury the memories of abuse that continue to haunt people—the people we deal with in our case work and the people we heard from throughout the bill process. No amount of money will ever undo that horror. For many people, this has never been about financial redress, although that might be welcome for some. It is about the symbolic step that Parliament has taken to right those wrongs, or to help right those wrongs. This is an important first step for many, but it will not be the end of that journey.

We should also be honest with each other. This scheme will not be for everyone, and it will not benefit everyone. I say that because, at the heart of the scheme and by its very nature, there are those organisations that participate in it, and that participation is required to validate it.

That takes me to the controversial points in today’s debate, which include the waiver, although that is not the only one. I believe that the scheme is not just about delivering financial compensation, although many pages in the bill are precisely about how money is paid, the circumstances for its being paid, the evidence threshold for that, and so on. It is not only about the money but about where the money comes from. It is about the fact that the contributions are meaningful, voluntary and forthcoming. Of course, the Government will have to underwrite much of it. I understand that the Government is funding the operational costs and the first tranche of payments up to £10,000. I understand that it is not a mandatory participation scheme. However, we needed a scheme that allowed individuals, authorities and organisations to come forward and make a meaningful contribution as their acknowledgment of their role in past abuse.

I also believe that, on the whole, organisations have approached the bill with enthusiasm, although not all of them have. As controversial as it might be, some have been more readily accepting of their role in historical abuse than others. I will not name and shame any of them, because we probably all know who they are. What is important is that we have a robust, reliable, fair and compassionate scheme. We cannot ignore the fact that organisations would be hesitant to come forward if it meant a blanket acceptance of liability, nor the fact that many of them are still going concerns that do great work in our communities.

I have had many sleepless nights over many of the issues with the bill. I sought to amend it in any way that I could to strengthen the rights of survivors as well as the responsibilities of the scheme to offer options and transparency to those survivors. I also tried to ensure, for the contributors, that we would never legislate for something that would undermine or affect their sustainability and that we would legislate in a way that ensures that their contributions are fair and meaningful.

Those are the terms that we have heard throughout—“fair and meaningful”, as well as “terribly difficult”. I will never forget the words of a survivor who gave evidence to us:

“Abuse never leaves a person. It is like a human shadow”.—[Official Report, Education and Skills Committee, 28 October 2020; c 29.]

It was a devastating response.

Let everyone who has contributed to the scheme’s formation, whatever we have agreed or disagreed on in this journey, hold our heads up high, because we have tried our best. We now pass the baton to those who will operate the scheme. We pass the product of that to those who will benefit from it. We offer them redress, and I hope that we offer them closure. If nothing else, we should hold our heads high, knowing that, whatever the petty or party politics that await all of us in the coming weeks, we never forget that the people who form the shapes around us on the walls of this chamber are the people we are here to protect, to support, to make amends to and to say sorry to.

The Deputy Presiding Officer

I call Iain Gray. I understand that this is, indeed, likely to be his last speech in the chamber.

Iain Gray (East Lothian) (Lab)

Thank you, Presiding Officer. I speak in support of the bill, which finally promises some redress for people whom we collectively let down so badly for so long. As children, they looked to us for care and we delivered them up to hurt, terror and torture, sometimes for years. Then, as the cabinet secretary said, for decades we refused to listen to them, but, in their courage, they would not be silenced.

The bill has taken too long to achieve, and it could have been better. I wish that we had removed the waiver on rights to civil justice, but the bill is a substantive acknowledgement—at last—of survivors’ suffering and our responsibility for it.

As Jamie Greene indicated, this is my final speech. He will be too young to know that it is actually not the first time that I have made a final speech in the Parliament. The difference is that, the last time, I did not know that it was my final one. [Laughter.] It is better to make that decision ourselves than to have the electorate make it for us.

I am glad that my final speech is about righting a wrong of the past. I am privileged to be one of the class of ’99, as I believe that, over 22 years, we have put right many such wrongs. I helped to take through the very first act of this Parliament—the Adults with Incapacity (Scotland) Act 2000—which supported families who had been stymied in their care for loved ones by cruel incapacity laws, some of which were 400 years old. We abolished a feudal system that, for 1,000 years, had excluded the people of this country from vast swathes of their own land, and we opened it up to all. We closed down the long-stay hospitals in which our brothers and sisters with learning disabilities had been imprisoned for generations. It has been a privilege to be just a small part of all of that and of so much more that the Parliament has done when it has been at its best.

On that unforgettable opening day in 1999, Donald Dewar said that the Scottish Parliament is about “how we carry ourselves”. I do not believe that he meant how we strut on the world stage or swagger along the corridors of power. He meant how closely we are willing to walk alongside those who need us most and how willing we are to stand with those who are hungry, who are hurting or who have no hope—not craving the limelight, but rather braving the darkness that it is our duty to try to dispel.

We have not always succeeded, of course. There are plenty of present-day wrongs that I will be looking to those members who come back in May to put right. After all, we opened up access to our land, but it is still owned by a tiny, wealthy, powerful elite. We liberated people with learning disabilities from long-stay hospitals, but into a social care system that fails them again and again. There were precious few food banks back in 1999. What were we doing that so many came to depend on them? Child poverty is rising. Drug deaths are Scotland’s shame. The Parliament’s best days are the days when we refuse to accept that we cannot change those things and we believe in our power to do that.

The Parliament that I leave is not the one that I entered 20 years ago. Following the Smith commission, on which I had the privilege of serving, it is one of the most powerful devolved legislatures anywhere. I know that many members will continue to argue for its sovereignty, and that is their right. However, I sincerely believe that the pandemic has demonstrated the power of devolution, taking our own decisions here—some of which I agree with, others which I do not—about public health measures, schools, the national health service and how we support business. However, we do so while we are underpinned by being part of a bigger economy with a broader tax base, more borrowing power, greater research funding and greater purchasing power for vaccines and personal protective equipment. In any case—pandemic or not—our daily obligation is to use every power that we have, with all the urgency that we can muster, to right those wrongs of poverty and injustice.

I turn to that Donald Dewar speech again:

“A Scottish Parliament. Not an end: a means to greater ends.”

A noble end—like today: a measure of justice at last for survivors of abuse. It has been a privilege to be part of that.

It has been an especial privilege to represent East Lothian for the past 14 years, so let me place on record for the last time that East Lothian is the best constituency, the best county and the best part of Scotland in which to live or work. [Laughter.]

I could not have been part of any of that without the support of so many staff in Parliament, the Labour researchers and the staff in my local office—currently Chris, Ryan and John, but many others over the years, not least Pat and Simon, whom we miss.

Above all, my thanks go to my family, especially to my wife, Gil. I would never have been here without her encouragement nor have survived without her holding my hand through the ups and downs.

This bill is an up. It is a good bill—some light in a terrible darkness. We will support it this evening, and that will be me loused. Thank you. [Applause.]

The Deputy Presiding Officer

I call Beatrice Wishart.

Beatrice Wishart (Shetland Islands) (LD)

I am not quite ready, Presiding Officer—I was quite taken by Iain Gray’s speech.

The bill has been a long time coming. The journey so far has been long and slow, and I am grateful for the perseverance of all those involved in working hard to reach this point.

As I said at stage 1, the responsibility to get the bill right weighs heavily on us all. The bill deals with a range of sensitive and complex subjects. We heard from witnesses at committee and from people who contacted us individually, and I hope that those who engaged with us during the process feel that their voices and their concerns have been heard. I and other members of the Education and Skills Committee care deeply that applicants are treated and considered with respect and dignity.

Daniel Johnson made the key point that it is important that survivors are not retraumatised by the redress Scotland process, and I very much share that view.

As we look ahead to the processes that will now begin, it is vital that we ensure that all who engage with the non-adversarial redress scheme are able to make informed choices, to make sure that their voices can stay strong.

In evidence to the committee, Helen Holland from In Care Abuse Survivors said:

“Survivors have waited a long time for this coming and—quite frankly—many have already made that choice for themselves. We have members who are going down the civil court route; equally, we have members who are patiently waiting for the redress scheme to open. It will never suit everybody”.—[Official Report, Education and Skills Committee, 27 January 2021; c 12.]

Therefore, this afternoon I was happy to support Jamie Greene’s amendments that strengthen the duty on the Scottish ministers to ensure that survivors have the opportunity to make full and informed choices.

During the bill process, the issue of the waiver was one of the most difficult to reconcile—this afternoon’s debate has highlighted that, too. As others have pointed out, based on the evidence that we heard, there are fundamental difficulties with the waiver. However, I appreciate that many have thought hard about how to square the circle, and I very much recognise the work of the Deputy First Minister and his team, who continued to engage with the committee about it.

Although I have listened carefully to all the views expressed, I continue to have reservations about the waiver. However, I believe that the scheme as it now stands, with its ability to ensure that survivors can reach a full and informed position ahead of any decision about a waiver, will help.

At stage 1, I noted that organisations cannot and should not be expected to provide an open cheque book for payments. That would not be productive or practical. This week, providers sent a briefing to members in which they sought assurances from ministers about sustainability and that there would be no detriment to their financial viability and present-day care services.

Organisations that are doing good work now should have a way to continue that work, and Iain Gray’s amendments offer protection to participating organisations for the sustainability of their services when they make fair and meaningful contributions. However, it is imperative to properly and honestly acknowledge the past. Financial redress will play a critical part in that but, as we heard repeatedly in evidence, a full, proper and sincere apology might be more valuable.

At the centre of the work on the bill are people—people whose lives were shattered during their childhoods. That experience has shaped their lives and life opportunities and, in many cases, has affected the lives of their families, too.

Victims/survivors have waited a very long time for this historic redress bill and I know that many will find great relief in its passing, so I am very pleased to confirm the Scottish Liberal Democrats’ support for it.

Ross Greer (West Scotland) (Green)

I will not tell Iain Gray how old I was when he was first elected to Parliament, but I thank him for how much I have learned from him, particularly on the Education and Skills Committee over recent years.

I turn to the bill. At stage 1, I said that the bill was always going to be a painful experience for many survivors, even if they—rightly—wanted it, and that has proven to be the case.

I pay tribute to the survivors—groups and individuals—who fought so hard and for so long to bring us to this point, and to those who shared their experiences and relived their trauma in the process of explaining why redress is so necessary. Their bravery and dignity have been astonishing, and their contribution to the process has had a profound impact on the bill. I know that the scheme is not exactly one that survivors would have chosen—it is not what I would have chosen either—but it is far better for their engagement over recent months and years.

We all support the bill’s principles, but I will be honest: I seriously considered whether I could vote for it in its final form. I was never going to vote against it, but I struggled with the question of proactively approving a bill that contains a waiver scheme that I know causes so much anguish. I spent our unplanned technical break on the phone with colleagues and those we have worked with throughout the process, weighing up what the right choice would be.

It is not so much a question of effective public policy making as it is a question of ethics. At every stage of the process, I have argued for the principle that the scheme should not restrict survivors’ right to pursue justice through civil proceedings, and I am bitterly disappointed that the amendments that would have addressed that were rejected. However, for the sake of avoiding doubt being cast on the scheme, the Green MSPs will all vote for the bill at decision time tonight.

I am not angry at colleagues in Parliament or Government for how the bill has turned out. I am deeply frustrated, but I appreciate that it was never going to be easy, and I thank the Government in particular for the sincere effort that it has made to work with us to explore alternatives and for the collaborative approach that it took to the bill as a whole.

I reserve my anger for some, however. Although a number of potential contributors, such as Quarriers, engaged consistently and constructively with Parliament throughout the process, others chose not to. Parliament is supposed to take decisions on the basis of the evidence that is submitted to us, but the process has been accompanied by the strong implication that the organisations that might end up being significant contributors to the scheme are the most insistent on the inclusion of a waiver, without those organisations being willing to go on the record and make that case. That is cowardly behaviour and, if it is by those that I suspect it is, it is absolutely no surprise. If it becomes known that those organisations decide not to contribute to the scheme, despite the waiver’s inclusion, I intend to use the privilege that this Parliament affords—and which I hope still to have—to name them. For now, I am content to trust the Government and its sincere efforts to ensure that fair and meaningful contributions are made.

Nothing that we ever do can right the wrongs of child abuse. No effort of Parliament or Government today can reverse the failings of our predecessors, but, as the cabinet secretary said, we can and should do all that we can to bring some modicum of justice to survivors.

The scheme represents one avenue through which we will do that. The parliamentary process has made the redress scheme more trauma informed, more supportive of the needs of survivors and more accessible, including to survivors’ next of kin. I am proud to have played a small role in that.

I finish as I started, with my profound thanks to the survivors and their supporters, who have worked with us to make the bill, at the end of the process, better than it was at the start.

The Deputy Presiding Officer

We move to the open debate, with speeches of up to four minutes, please.

Clare Adamson (Motherwell and Wishaw) (SNP)

I, too, pay tribute to Iain Gray. He and I share convenership of the cross-party group on science and technology, and one of the highlights of that was a visit to CERN a few years ago. That appealed to the geek in me, but I know how much Iain enjoyed the experience, as a former physics teacher and physicist. I wish him many more adventures of that type in future.

At stage 2, I moved amendments to put the principle of dignity, respect and compassion in the bill. I thank all committee members for the dignity, respect and compassion that they have shown in their approach to the bill process, which has been evident in the debates that we have had today.

The burden of responsibility as a committee convener has rarely weighed as heavily on my shoulders as it has done in our deliberations on the bill, and rightly so. As MSPs, committee members and citizens, the duty to do right by those who have been affected by childhood abuse at the hands of those who should have been their protectors, nurturers and the ones to care for them is of paramount importance. That applies not just to the Government and the Parliament but to our whole country.

Nothing that we do today can take away the pain that has been endured over decades, but I hope that the victims/survivors can reflect that, today, their voice was heard, listened to and acted on. As members have said, the bill has been a long time coming, from the acknowledgement and apology by the then First Minister Jack McConnell to the establishment of the Scottish child abuse inquiry, which was set up by Angela Constance with the involvement of the cabinet secretary.

As the convener of the Education and Skills Committee, I extend my thanks to the victims/survivors who, as individuals and as victim/survivor groups, engaged with the committee. Their submissions and evidence were incredibly brave and compelling and were vital to our consideration of the bill. I also thank Professor Andy Kendrick, whose experience in the area was insightful. He was direct and informative in our deliberations throughout the process and we really appreciate his involvement.

I know that not everyone will be content with all the elements of the bill. It gives the only redress that is available to victims/survivors for whom the abuse happened before 1964; it gives compensation without the need for court proceedings; and it will offer a new choice for many victims/survivors for whom the court is not an available option or is not one that they wish to pursue. Victims/survivors are at the heart of the bill, and their tenacity, perseverance and resilience are admirable and incredible, given their experience of being disbelieved and having doors shut in their faces as they pursued recognition of their life experience and what they had endured, and the data and evidence to support that. They are to be commended.

I will finish with the voice of one contributor. It is the person who Jamie Greene quoted earlier, so they obviously had the same profound effect on him as they had on me. They said:

“Abuse never leaves a person. It is like a human shadow: sometimes it is behind you, and you can forget that it is there for a little while and get on, but then it moves to the side, at eye level, and you are conscious that it is there, so it starts to have an impact. However, there are other times when that shadow is right in front of you and, no matter how strong a survivor you are, you cannot ignore it and you have to deal with it.”—[Official Report, Education and Skills Committee, 28 October 2020; c 29.]

Nothing that we do today will change that for survivors, but I hope—and they trust—that it is a great marker for Scotland that we pass the bill today.

The Deputy Presiding Officer

Johann Lamont is next. This will be Ms Lamont’s final speech in the chamber.

Johann Lamont (Glasgow) (Lab)

Thank you, Presiding Officer—just when you have heard from one former Labour leader, another one pops up to say goodbye. We would have quite a lot of them if we put them all in a row, I guess. It has been a great privilege for me to work with Iain Gray and to see his commitment and passion in every moment of public service that he has given. I do not aspire to a speech of the quality of the one that he has just made, but I recognise that we should all aspire to that scale of commitment to tackling injustice in our communities.

The bill is an important piece of legislation. I have to say that I am very disappointed that it falls short of what it might have been, but some progress has been made, and that should be welcomed. I note John Swinney’s commitment. I am not like John Swinney—I am not combative—but I recognise that, in this area, he has tried as hard as he can to work with people across the Parliament who want to make a difference.

In this debate, we should remember the suffering, abuse, neglect and fear that lie behind it. The bill represents historic failure—failure to understand the vulnerability of young people who were put into care; failure to understand the predatory nature of some adults; failure to understand the lengths to which predatory adults would go, and still go, to access vulnerable children; and failure over many years to listen and understand.

The bill also represents hope, because it reflects another stage in the journey of this Parliament and our country towards understanding the nature of abuse, its prevalence, its impact and its lifelong consequences. The bill represents a challenge to us, as a country, to be alert, to be determined, to do all that we can to protect young people and to expose those who would do them harm.

Although the bill focuses on the horrors of in-care abuse—the state delivered into the hands of abusers young vulnerable people who were unable to challenge those who stole their childhood from them, and then it refused to listen to those who dared to speak up—we must also understand the scale of abuse that is visited upon young people in their own homes and communities. We must remember the adults who live with the consequences right now, and we must remember that the support that they need is still under pressure.

If this Parliament is about anything—if politics is about anything—it must be about giving a voice to those who are denied it. It must be about understanding the truth and the reality of the barriers placed in front of people that deny them their potential. It is about understanding inequality in all its forms. Seeing that is the main purpose and focus of politics.

In considering the bill, we see that process in action. It was in 2000 that Anne McDonald, on behalf of Kingdom Abuse Survivors Project, lodged a petition in Parliament that asked that we understand the psychological and health needs of adult survivors of child sexual abuse, and that there be a national strategy for survivors that recognised the importance of raising awareness and ensured that services were provided. That was followed by the establishment of a cross-party group on adult survivors, and my friend Marilyn Livingstone, who was an MSP at the time, showed great passion in driving that work forward, along with Anne McDonald and others.

In 2002, a petition was lodged by Chris Daly that sought a public inquiry in order to raise the issues of survivors in care. That revealed the horror of how poorly served and poorly understood in-care survivors were. Progress in legislative terms, in policy terms and in investment terms followed on from that—not least the public inquiry, the testimony from which is still shocking.

Progress has been made, and that should be celebrated, but none of it would have happened without survivors finding their voices and without the Parliament having a route, through the Public Petitions Committee, for real access. We owe a debt of thanks to survivors and to those who have made it their life’s work to support them. We should celebrate the work of the Public Petitions Committee, and it has been my privilege to be its convener during this parliamentary session. The people of this country determine the committee’s agenda—no one else. The work that has been done through that committee has been powerful, and I know that that will continue to be the case.

Critically, those voices were challenging and difficult. Those who had direct experience demanded more from all of us. That is a lesson for us, too. We should celebrate the difficult voices rather than circumvent and silence them, even if that would make life easier.

As I face the final period in my time as a politician, I recall the aims that the Labour Party, my party, had for this place: to bring power closer to people, to protect people, to see a real sharing of power and to ensure that the priorities of people in our communities were reflected in the work of Parliament. I speak as a Glaswegian and as a Glasgow islander in saying that I recognise that the centralisation of power, which we have seen over the last period, is not our friend, and that needs to change.

This will be my last speech here, unless something winds me up before 23 March—[Laughter.]—and it feels fitting to be in a debate, regardless of my reservations, that reflects what I feel is at the very root of good politics and at the very heart of the purpose of politics. Politics should be about the heavy lifting of understanding problems and then addressing them. I was so proud of my party in legislating for this Parliament and for being strong on women’s representation, which allowed me to be a candidate. I would not have been here otherwise. I am proud beyond measure, as a Labour and Co-operative member, to represent Pollok and my city and to play my part in speaking up for my constituents, Labour values and co-operative solutions. I am proud of the work of my staff, particularly Celine Lauter, who has worked with me from the very beginning, and of all that they have done to connect our politics directly to what is happening to constituents in our communities.

I thank my party, my colleagues, my staff and my friends, including colleagues across the chamber—those with whom I agree and those with whom I disagree. Please believe that I do not reserve my argumentative nature for the opposition. I thank my husband for all his support, despite his continued belief, as a councillor, that all of us in here are equally culpable for the decisions that have seen councils stripped of the funding that they need to deliver the services that people need and must have.

I thank my children, who I think feel more than a little duped by my persuading them as children that attending surgeries at the Labour rooms in Cardonald was actually a treat. I am grateful to all my family members, who have kept my feet on the ground.

However, it is different now. We are now in terrible times and fearful for the future, and the consequences of these times, although largely unknown, will, I am sure, amplify the inequality that people in our communities already suffer. Survivors and others who seek support are often told that we cannot afford it. These people will often say that there is always money for some things. My plea is that, in the next Parliament, those with the privilege to make decisions understand that and meet the exhortation of the American politician who said:

“Don’t tell me what you value, show me your budget, and I’ll tell you what you value.”

Now, more than ever, politicians must not settle for signals. This Parliament must be the place to test all the good choices. It must not settle for the ones that look best on a leaflet but make choices that will match in people’s lives the aspirations that brought me and my fellow 99ers to this place. That would be wonderful. It has been a privilege. Thank you. [Applause.]

The Deputy Presiding Officer

The last contribution in the open debate is from Rona Mackay.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I congratulate Johann Lamont and Iain Gray on their very moving speeches. It is not an exaggeration to call them titans of the Labour movement. I wish them very well.

The bill that we are debating today is life changing for people who were abused in childhood. Those of us who have not experienced vile abuse will probably never understand what the bill means to those who have.

The bill is not just about money; it is about much more than that to survivors of abuse. It is recognition that the institutions in which they were abused owe them a debt, and that many had their childhood innocence taken from them violently and their future prospects and relationships ruined: their lives were ruined.

The bill is the result of the brave and tireless advocacy of survivors of historical child abuse in care, and is a reflection of the Government’s and the cabinet secretary’s absolute commitment to address properly what they experienced.

As a member of the Education and Skills Committee, I can say that the evidence that we heard was harrowing and emotional. Every brave survivor who spoke out somehow found the strength to speak up for themselves and for those who could not, in order to ensure that what happened to them will not happen to anyone else.

Of course, as we have heard, there were contentious issues—in particular, the waiver. There was a good debate on that today, which I will not attempt to rehearse, other than to say that I was sceptical about the waiver at first but now associate myself with comments that were made by Jamie Greene and the cabinet secretary on it.

I will cut my speech short, because it has been a long day.

Amendments that were lodged by my colleagues and which we have passed today are helpful and add considerably to the bill. My amendment at stage 2 has ensured that anyone who suffered corporal punishment, albeit that it was legal at the time, will be eligible if excessive force was used, as it often was, and that each case will be judged individually.

The Scottish Government committed to introducing legislation that would be passed by the end of the parliamentary session. With the support of Parliament at decision time, that is what we will do. As others have said, redress is not a magic bullet, but if it gives survivors some comfort by way of an apology and recognition from the institutions that violated them, we should all be pleased to vote for the bill.

The Deputy Presiding Officer

We now move to closing speeches.

Daniel Johnson (Edinburgh Southern) (Lab)

In summing up the debate, we can all start from the position that was well outlined by the cabinet secretary, Jamie Greene, Iain Gray, Johann Lamont and others, which is that the bill is motivated and driven by a profound sense of the need for justice, and by an extreme emotional connection to the very real harm and abuse that was done to so many people.

I will broadly repeat remarks that I made when I spoke in the stage 1 debate. We are dealing with a situation in which there were children who needed care and families who needed help. The state had to step in, but rather than delivering that help and care, the state delivered children into the hands of abusers who tortured them. In many cases, those children were delivered into the hands of the state by parents who did so willingly because they felt that the state could do a better job than they could, which only makes that horrific set of circumstances worse.

The state let them down, so we, as a Parliament, have a duty to provide some form of justice—albeit that it can never be a truly adequate form—for the people who suffered in that horrific way. The bill is undoubtedly an important step towards that. I associate myself with the cabinet secretary’s remarks and with the aim, which is largely being delivered by the bill, of providing people with a straightforward and flexible route to gaining the justice that they would not otherwise have. For many people, that justice would otherwise be unobtainable.

That is not to say that the bill is perfect. A number of issues have continued, but it has undoubtedly been improved by the work of the Parliament. I note the remarks of many members, including Iain Gray and Ross Greer.

However, I am not entirely convinced that the waiver will achieve what it sets out to achieve. In previous stages of the bill, we debated whether it will provide the financial certainty and assurances that might be required because of how insurance works for many organisations.

I also believe that the caveats in the reporting mechanisms that have been added improve the bill. The clarity that is provided for applicants and the requirements to inform applicants of the nature of what they are undertaking make the bill better. Ultimately, improved oversight and accountability, in relation to separation of the chief executive and the chair, and the survivors’ forum being put on a statutory footing, undoubtedly improve the bill.

However, we cannot treat this as finished business. We must continue to listen to survivors and respond to their needs as and when they identify them, and we must recognise that there is limited scope for the bill; it merely deals with the state. There are many situations in which other institutions encouraged or coerced children into care, then abuse was done. Those situations are not covered.

Likewise, there are situations in which parents voluntarily offered their children to institutions, such as mental institutions, when today those children would be considered as simply having additional support needs, and they suffered for years. I speak—I wish that I could go into more detail—informed by the experiences of a close family member. That is an injustice that the bill cannot address, but I hope that future Parliaments will.

Ultimately, this has been a case of Parliament doing its job as it should. There has been robust scrutiny, the Government has responded and we have done our job well. However, I question whether that will always be the case. We are about to have a new Parliament; elections will bring a new composition to the chamber and we must question whether Parliament is well enough structured to provide the robust scrutiny that is needed to make better legislation.

I realise that I am slightly over my time, but I must acknowledge the contributions of my colleagues Iain Gray and Johann Lamont, both of whom spoke very well for themselves, and both of whom I have known for a long time. I came to know them as a young Labour activist. Iain Gray was my MSP when I was the youth and student officer for Edinburgh Pentlands constituency Labour party, and I got to know Johann Lamont subsequently.

There are a great many things that make becoming an MSP fulfilling and a great thing, but something that I did not expect was that one comes to know as colleagues and friends people whom one had previously regarded only as political figures. That is undoubtedly the case with Iain and Johann. Despite the fact that we will no longer be colleagues with offices on the same corridor—I hope to be re-elected, but this will hold even if I am not—I hope that they will continue to offer their good guidance and counsel. I thank them both, not only on my own behalf but, I hope, on behalf of all Labour members, for their years of service and their contributions, both to the Labour Party and to the Scottish Parliament. We all owe them a great deal of thanks.

The Deputy Presiding Officer

I have been very lax with the timings tonight. Please do not take advantage, Mr Whittle. You have up to five minutes.

Brian Whittle (South Scotland) (Con)

I am pleased to have the opportunity to speak in the debate on what is a very important bill. We have tackled some extremely difficult topics in the lifetime of the Parliament. Over the past couple of days, we have considered the Hate Crime and Public Order (Scotland) Bill. Another recent one was the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, in which we looked at the medical examination of people suffering from sexual abuse and now we are looking at the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. This is not to say that I think that the bills are without flaws, but it is a credit to the Parliament that we have not shied away from debating and tackling such issues very passionately.

I say at the outset, for the record, that I struggled with some of the votes today. It struck me that we were debating financial redress and not paying enough attention to emotional redress that might require a civil action after accepting a redress payment. We get marshalled lists and I was sometimes uneasy with the way in which we were considering voting. Today’s debate was not political. I recognise the desire of everyone in the chamber to get this incredibly important bill absolutely right. I do not think that we have done that and the bill will need to be changed again in the next parliamentary session.

Sexual abuse, specifically child sexual abuse, has been swept under the carpet for far too long, leaving victims without the support that they so desperately need. As many of my colleagues are aware, I have been working on the issue with a constituent over a number of years. It is fair to say that my understanding of the trauma suffered by my constituent over a prolonged period of time as she seeks justice and redress means that my discomfort and disquiet about the way that victims are retraumatised and open to suffering secondary abuse continues to rise.

Organisations that have been brought into question include local government, the education authorities, the police, the church, support services and the Scottish Government. We should not shy away from scrutinising any of the actions that those organisations were involved in. I have asked the Cabinet Secretary for Justice for a meeting on that topic and he has agreed. I hope that we will get the opportunity to have that meeting prior to the dissolution of the Parliament, so that at least we can have some notes to take forward into the next parliamentary session.

The Criminal Injuries Compensation Authority already has a redress scheme in which the decision is based on the balance of probability. That is different from a criminal court, which decides on the basis of something being beyond reasonable doubt, and means that victims do not need to wait for the outcome of a criminal trial if there is already enough information with which to make a decision on the case. The bill requires that the victim waive their right to future civil action. Any payment from a civil action taken after the CICA award, however, requires that the CICA payment be reimbursed. I contend that the bill is flawed in that respect and that it should not have imposed a ban on future civil action. Why would a victim not just approach the CICA? That will be a matter for future Parliaments to address.

Furthermore, I contend that many of the support organisations for survivors are too close to the Government in that they receive their funding directly from central Government, potentially impacting their ability to be autonomous. As I have said before, record keeping is woefully inadequate, especially in local authorities—there does not seem to be any requirement for them to record potential cases of abuse in local authority-run facilities.

However, in conclusion, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, along with the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, is welcome and long overdue. We are trying to ensure that it is the best that it can be for all those who have been victims of such a horrendous crime and have to carry that burden throughout their lives, but I fear that the bill will need to be amended. Financial redress will not heal the wounds but will perhaps give them the comfort that their voices have been heard and that there is an acceptance that they have been victims.

I finish by recognising Iain Gray’s contribution to the Parliament. I have always enjoyed his speeches in the chamber. I have not always agreed with him, but he has always been thoughtful and I know that he will be missed, as will Johann Lamont, who also gave her final speech. It has been a privilege to serve on the Public Petitions Committee under her stewardship. I really enjoyed the occasions when we managed to be a tag team on certain petitions, especially in challenging the Scottish Football Association—that was particularly fun. She leaves here having delivered a passionate speech with as much fire as she ever has had. Both Iain Gray and Johann Lamont will be sadly missed.

John Swinney

I am grateful to colleagues for their engagement on the bill and for the recognition that the Government has tried to engage constructively on all the issues. Much credit goes to the bill team who have supported me superbly during the passage of the bill. It is an immensely complex bill with difficult issues and I have been fantastically well served by the civil servants who have acted on my behalf and engaged in a great deal of dialogue with members.

Members have commented on the fact that the bill has been improved since its introduction. Daniel Johnson commented that Parliament has exercised properly and fully its effective functions in the scrutiny of the bill. I accept that point: the bill is stronger as a consequence of the challenge of the committee’s stage 1 report, the robust scrutiny at stage 2 and the decisions that we have made today.

If I were to select one part of the bill that has been strengthened, I would pick section 11A, which was introduced at stage 2 by a proposal from the convener of the Education and Skills Committee. The bill was drafted and we did not include some important words on the face of the bill, because we thought that it probably did not need to be said. Section 11A is entitled “Principle of dignity, respect and compassion”. The convener asked us to include those words in the bill, recognising that any individual who comes into contact with redress Scotland—I do not know why it is restricted to redress Scotland—

“should be treated with dignity, respect and compassion”.

We can all sign up to that. I am grateful to the convener for that enhancement to the bill.

I am also grateful to Ross Greer, Beatrice Wishart and Jamie Greene for their remarks in the debate. They have acknowledged that the bill does not contain all the provisions that they would have liked to see in it but, despite that, they will support the bill because of what it does to address the issues and concerns of survivors. I acknowledge that that might be particularly challenging and difficult for Ross Greer, and I am grateful that he has signalled his support for the bill this evening. That will matter, because it will ensure that the bill commands confidence within the survivor community.

I have thought long and hard about the issues that are involved in the bill. I have been prompted to do so on many occasions, but I was particularly prompted as I prepared to give evidence on behalf of the Government to the Scottish child abuse inquiry, which is chaired by Lady Smith. That forced me to look back at the history of the Parliament and its actions in the past 22 years. The moment that we reach tonight started with one important contribution, which was a product of the Parliament’s arrangements that were legislated for in the Scotland Act 1998 and the work of the consultative steering group—the public petitions process. That is where it all started and it is incredibly fitting that Johann Lamont makes her final speech tonight as convener of the Public Petitions Committee, which she has led, as she has led everything that she has done, with tenacity.

The public petitions process sums up for me one of the biggest differences between the two Parliaments in which I have served. At 10.30 at night in the House of Commons, if a member of Parliament wanted to present a petition, they stood up, presented it and read it out, then walked down to behind the Speaker’s chair and dropped it in a bag behind the Speaker’s chair. Nothing more was ever heard about it. Here, we bring petitions in the front door, people such as Johann Lamont get unleashed on them and what happens? Over the course of 20 years, people whose voices were never heard have been heard. I pay tribute to Johann Lamont for that. She mentioned Marilyn Livingstone, who was an equally tenacious champion of the survivors of historical abuse. Frankly, they believed the people concerned and made sure that their voices were heard.

When people criticise this Parliament and say all the things that they do about the place, they have to remember that it has embraced the petitions process, which started with an early petition on this subject, which not many people had been willing to encounter or engage with, and we have made big progress.

Former First Minister Jack McConnell stood where I stand now and gave a remarkable apology on behalf of the people of Scotland to recognise the suffering of individuals. It was not perfect; Lord McConnell would accept that it was not perfect, but members of Parliament of all persuasions over the past 22 years have made sure that these historical injustices were addressed.

Iain Gray made his concluding speech tonight. I am feeling slightly off the hook, but there are education and skills questions on the final day of term if he feels like having an extra finale—I would not like him to pass up any opportunity to challenge me on any of the issues. Iain Gray said that all this could have been done sooner, and he is right. That was one of my other reflections when I was preparing to give evidence to Lady Smith. I have served in government for 14 years, and I look back and think that this could all have been done sooner. I regret that it was not done sooner.

What Parliament has heard tonight in the contributions of Iain Gray and Johann Lamont are two quite exceptional speeches, not surprisingly. It is not surprising because of their contributions to Parliament and because they are both long-serving, experienced and distinguished members of Parliament, who have served the people they represent with distinction. It is a particular pleasure for me, as a member who was elected with them in those heady young days of 1999, to pay tribute to them this evening for their service and to commend them for all that they have done in their long and distinguished service in this Parliament.

As I draw my remarks to a close, I am struck by something that we may have become accustomed to by now in the parliamentary chamber, a year into Covid. Something is missing—there are no members of the public in the gallery. Jamie Greene made reference to the symbols of the people that are around us. Tonight, the gallery should have been full of members of the public who have suffered. They should have been here tonight to hear and see the Parliament doing what it is about to do: putting into law a scheme that, in the terms of Brian Whittle’s argument, addresses some financial issues but is also part of what, I would contend, the Parliament has done for more than 22 years, which is to face up honestly to the darkest bit of the history of our country. Members of all political persuasions have faced up to it honestly and have said that we have to rectify that wrong.

Tonight is a landmark moment in that process. There have been many others, such as Lord McConnell’s apology; the first time the Public Petitions Committee heard from the petitioners on the subject; the moment when we passed the Limitation (Childhood Abuse) (Scotland) Act 2017; and Angela Constance’s announcement of the Scottish child abuse inquiry. Those are all landmark moments, but they happened because this Parliament, for all its critics, was prepared to face the darkness of our country’s past.

Members of the Scottish Parliament—those who are planning to come back after the election and those who have given distinguished service to make these events possible—should be rightly proud of what has been achieved. However, the people who should be proudest, I hope, are watching online—survivors, in their homes, understanding that this moment has happened only because of their bravery, their courage, their tenacity and their determination to say to their democratic Parliament, “We need you to shine a light into the darkness of this country’s past and to confront it.” I am so proud that our national Parliament has done that.

The Presiding Officer (Ken Macintosh)

That concludes our debate on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. There are a few items before we turn to decision time.

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-24322, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill, be agreed to.

I do not want to suspend Parliament, as most members will already have voted today, but I urge members to refresh their voting apps, to ensure that we are ready to vote. I will just pause for a moment, to make sure.

Some members who are online are looking for the PIN. I was going to read it out, but I was not sure how high security that would be. It is now online, in any case. For members joining us online, the PIN for the voting app is in the BlueJeans chat box. Any member who is not able to access the voting app should let me know, please.

We are mostly on board, so we will go straight to the vote, as it is for legislation.

I repeat: the question is, that motion S5M-24322, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill, be agreed to. Members should cast their votes now.

The vote is now closed. Please let me know if you were unable to vote.

Gil Paterson (Clydebank and Milngavie) (SNP)

On a point of order, Presiding Officer. I was unable to vote; I would have voted yes.

The Presiding Officer

Thank you, Mr Paterson. I will ensure that your yes vote is added.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Abstentions

Findlay, Neil (Lothian) (Lab)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
Neil, Alex (Airdrie and Shotts) (SNP)

The Presiding Officer

The result of the vote on motion S5M-24322, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill, is: For 82, Against 32, Abstentions 4.

Motion agreed to,

That the Parliament agrees that the Hate Crime and Public Order (Scotland) Bill be passed.

The Presiding Officer

As the motion is agreed to, the Hate Crime and Public Order (Scotland) Bill is passed. [Applause.]

The next question is, that motion S5M-24338, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, be agreed to. Members should cast their vote now.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the vote on motion S5M-24338, in the name of John Swinney, on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, is: For 118, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill be passed.

The Presiding Officer

As the motion is agreed to, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is passed. [Applause.]

The next question is, that motion S5M-24333, in the name of Margaret Mitchell, on the Scottish Biometrics Commissioner appointment, be agreed to.

Motion agreed to,

That the Parliament nominates Dr Brian Plastow to Her Majesty The Queen, for appointment as the Scottish Biometrics Commissioner.

The Presiding Officer

I congratulate Dr Brian Plastow on his appointment.

The next question is, that motion S5M-24340, in the name of Graeme Dey, on approval of a Scottish statutory instrument—the Community Orders (Coronavirus) (Scotland) Regulations 2021 [draft]—be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division on motion S5M-24340, in the name of Graeme Dey, on approval of an SSI, is: For 88, Against 30, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Community Orders (Coronavirus) (Scotland) Regulations 2021 [draft] be approved.