 Fy fawr, a chdiwethaf i gyd yn y 7 ymgyrch i'r Gwladau Cymru yn 2017. Fy fawr, Iatom 5, yn gweithio i'r ffordd gyda Fylton MacGregor, a Iatom 5 yn gweithio i'r gweithio i'r gweithio i'r gweithio i'r Fy fawr, ac mae'r fawr yn gyntafol yn gweithio. Fy fawr, rydw i'r gweithio i'r Gwladau Cymru? Rydw i'r gweithio i'r gweithio i'r gweithio i'r gweithio i'r gweithio i'r gweithio i'r Asrwf, ddiwethaf o'r dd 까illai cyntafol agaf y g manipulatedau loyalty Men 싔ach, 27 oed oes cymaintol predictable i d 49...) oedd iawn cynnodd y d television nhw i dfosfawr gyda mynd diolch of the Chairman of the Scottish Land Court is already under the remit of the Lord President. The Scottish Land Court deals with cases involving agriculture, primarily disputes relating to agricultural tenancies and Crofts. As part of the on-going process of court reform, the policy intention has been to transfer the Scottish Land Court to the SCTS at an appropriate time. Following the passage of the Judiciary and Court of Scotland Act 2008 and the Courts Reform Scotland Act 2014, the SCTS now provides administrative support for both the courts and the Scottish tribunals. The Lord President is currently ahead of all the courts, other than the Scottish Land Court and the Scottish tribunals. While the main Scottish courts were administered by the Scottish Courts Administration even before the 2008 act put them under judicial control, the Scottish Land Court had always been administered separately. The Government has therefore consulted with the Lord President and Lord Mginish, the chairman of the Scottish Land Court, who agreed that the transfer should now take place. The SCTS has been working with the four members of staff of the Scottish Land Court who are due to transfer to the SCTS in terms of the terms and conditions that are being offered. The PCS union has also been consulted and has no concerns about the proposals. I consider therefore that it is now an appropriate time to use the order-making part in the judiciary and courts Scotland act 2008 to transfer the Scottish Land Court to the Scottish Courts and Tribunals service. I hope that you will be able to answer any questions. Are there any questions from members? Liam McArthur. Thanks very much. It is just a point of clarification. I think that you have set out very well Minister of the background to the bill. I suppose that the one potential concern from the outside looking in is that the land court itself has had a very specific role. I think that the feedback at a local level that I get is that it is a very accessible court, the way in which it functions in a sense that it may be seen as rather more sympathetic to the layperson. Is there an assurance that you can offer that the way in which the court itself will function and its accessibility will remain constant through this process and as a result of this transition? I bring the Land Court within the remit of the Lord President. The Scottish Courts and Tribunals service is intended to be part of the on-going process of court reform to which I refer, but it is not intended to change the day-to-day operations of the courts. For example, for the judicial officers of the Land Court in terms of the move to the Scottish Courts and Tribunals service, they will then be part of the Scottish o'r Ffudd, aelodau, dysgu sylwyr, dyfodolol, aelodau, ddigonwys, aelodau. Fy enw i'r mewn ddechrau aelodau, mae'r ddaf o'r gael y maen nhw. Felly mae'r ddweud o'r llyfr y mae'r ddweud o'r ddweud o'r ddweud, ac mae'n ddigonwys i'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud. who have appeared in terms of Solister firms and so forth before the land court and whilst we got three acknowledgements of our consultation, two from Solister firms and one from the fact of advocates, none of those three had any substantive comment to raise. So I hope that somebody assures us to the member. Any other questions? Do you wish to make any closing remarks? In that case, we move to agenda item number three, which is formal consideration of the motion in relation to their affirmative instrument. The DPLR committee has considered and reported on this instrument and had no comment to make on it. The motion is 03909 that the Justice Committee recommends that the judiciary and court Scotland act 2008 Scottish land court order 2017 draft be approved. Minister, can I invite you to speak and move the motion? Formally moved. Thank you. Are there any questions from members? No. There are no questions. I put the question that the motion 030909 in the name of Annabelle Ewing be approved. Are we all agreed? Yes. We are agreed. That concludes consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. Can I get the committee's agreement to delegate authority to me as convener to clear the final draft report? Great. Thank you for that. Minister, thank you very much and thanks to your officials for appearing before us today. I now suspend briefly. Agenda item number 4 is Limitation of Childhood Abuse Scotland. This is our second session of evidence taken on this bill. I refer members to paper 2, which is a note by the clerk, and paper 3, which is the spice paper. We have our first panel of witnesses before us today, and they comprise of Laura Dunlop, convener of the law reform committee, faculty of advocates, Kim Leslie, convener of the civil justice committee of the law society of Scotland, and Bruce Adamson, legal officer, human rights commission. You are all very welcome. We will just go straight to questions before we do. Can I thank you all for your written submissions, which you have been very helpful, and it will be good now to get some of that on the record. Can I start perhaps with a general question stating the obvious that the bill removes the three-year limitation period where the court action in question is about childhood abuse? Can I ask you to say whether or not you support the change and give you reasons for that view? We'd like to start. First, I would like to express my gratitude for being given the opportunity to give evidence this morning. I am the representative of the Law Society of Scotland, and I must say at the outset and underline this that the Law Society of Scotland is a broad church. It represents practitioners who represent, in turn, those who represent claimants who have been victims of childhood abuse, but it also represents the insurance industry or practitioners who represent the insurance industry and local authorities. It must be stressed at the outset to the committee that, although the Law Society has welcomed the bill in its response, it has to be stressed that it is from the claimants' perspective. There is not consensus, but today I will be speaking principally from the position of the claimants sector. I can say that we have broadly welcomed the bill. We have some comments to make, and no doubt that will be fleshed out today. The reason we have welcomed it from the claimants' perspective is that existing legislation is simply not giving access to justice to the assertion category of claimants. We appreciate the claimants' view, but there are other people affected by the bill, and it is the committee's duty to scrutinise all the aspects to make sure that, hopefully, we get the legislation right. Would anyone else like to add to that? If I could speak on behalf of the Faculty of Advocates. Before doing so, however, I will put on record that I have another hat that I am not wearing today, but I hold office as Procurator to the General Assembly of the Church of Scotland. I thought that it was just to put on record that I have never given any advice to the church in connection with any claims in relation to historic abuse. Thank you. Moving to the capacity in which I am here today, I have remarks to make which are similar to what Kim has said, that the Faculty 2 is a broad church. It's a smaller church than the Law Society, but we have about 450 practising members, and views are probably across the range of possible opinions on the matter. In its initial response to the consultation, the faculty took a position that was prepared, the mechanics of preparing the response to the initial consultation, where the Reparation Sub-Committee of the Law Reform Committee prepared the written response, and a line was taken by that sub-committee. People who serve advocates who serve on the Reparation Sub-Committee operate across the spectrum, so representing both insurers and pursuers in actions of this nature. They did take a particular line that was not revised, it was submitted because it had been prepared by a group of practitioners in the area. The position that the faculty takes now is as set out in its most recent written response, that we have obviously moved on from that. Everybody has moved on, the bill is here, and the faculty's position is that it offers whatever comments it can in an attempt to make the bill as good as it can be. I think that what I could say, conscious of the fact that, as I say, the faculty does, like the Law Society, have practitioners right across the spectrum in it, is that, from a law reform point of view, a welcome bill, because it is quite short and, I think, clarificatory, the position is perhaps subject to one or two points of detail, the position is clearer than it has been until now. The Scottish Human Rights Commission is a very small church of just four members, but with a very broad remit covering all human rights for everyone in Scotland. I think that the survivors who gave evidence last week set out the arguments more powerfully and eloquently than I will be able to today. I think that we are all sharing a common purpose, the most important function of the state is to keep children safe from abuse, and when we fail to do that, we need to ensure that there are practical, effective and accessible remedies available, and we need to adopt, adapt for the special vulnerabilities of certain categories of people to ensure that they do have access to justice. This bill is not the whole solution for survivors, but it is an important part of it. For a large number of survivors, an action for damages and personal injury is not going to be the best route for justice, but for some, the current law represents a real barrier for them accessing justice. It has been consistently cited as one of the serious concerns right from the beginning of the work on this. David Whelan and Harry Aitken, who gave evidence to you last week, have been at the forefront of campaigning and supporting other survivors to campaign, and this is something that constantly comes up. Working with the Government and care providers to develop the 2013 action plan on justice for victims of historic abuse, it set out two broad outcomes. One was acknowledgement and the other was accountability. The apology law that this committee considered in the last session, and I recognise your leadership there, was very, very important in terms of putting in place a meaningful apology without incurring civil liability. When the commission gave evidence to the former justice committee on that point, we said that it was very, very important, but that it wasn't all of the solution. This bill is the same. It adds something. In terms of moving accountability forward, we have the national inquiry, which is starting its work. We have further work being done on redress, which will provide another aspect of access to justice for survivors. What this bill will do is address a particular barrier. Removing that barrier in pursuit of the very legitimate aim that I think everyone agrees with will affect the rights of others. There has been some useful discussion in the last committee session, and I'm sure there will be today, on how we ensure that the interference, particularly with the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 of the European Convention, is only interfered to a level which is necessary and proportionate to the legitimate aim that we're trying to pursue and that a fair hearing is available to both sides in the civil case. The commission fully supports the general principles of this bill, and the last thing I would say in opening convener is that it needs to be seen as part of the wider work that's being done, and survivors need to be supported to understand the broad range of options that are opening up to them and need to be supported in making the choice as to whether this approach will be right for them, because in many cases it may not be. That's useful, and we'll be touching on it because there's been quite a lot of dialogue and concern and coverage about the numbers that may present, but I think that you make a good point that this isn't necessarily a solution for everyone. There will be different things that, depending on the person, will give them closure a different way around. John Finnie. Good morning, panel. Opponents of the ball, so for instance the Association of British Conservatives has suggested an alternative approach, and they have suggested that, for instance, guidance, whether that be statutory or in some other form, be provided to judges on how exercising their discretion under the 73 act could be dealt with alternatively. Could you comment on that proposal? Yes, but as part of the consultation process, one of the considerations was effectively adding in some statutory factors, but the consideration was that that simply would not go far enough and the burden would still remain with the claimant, the survivor in this case, to explain why they had failed to raise and focus would be put too much on the delay in raising proceedings. I think that that would naturally be an appropriate alternative, but it is one that, on balance, a decision has to be made that it is unlikely to go far in terms of removing that barrier for this category of claimant. The commission would agree with that. In terms of making a remedy effective and accessible and practical, we would have concerns that keeping the onus on the survivor to explain why the delay took place is unduly restrictive. One of the things that came out in some of the consultation was the feeling from survivors that they are in some way being blamed for not being able to bring the case forward. The commission strongly feels that, in terms of providing access to justice, it is the right thing to create a category of particular survivors, those that were children and those that were abused, that would be exempt from having to face that limitation barrier. Douglas Ross. Sorry, we haven't moved on yet. Sorry, I just wanted to add that if you are talking about guidance in the form of something non-statutory, there is an element of contradiction of terms about that in that judges don't get given guidance as to how to exercise a statutory discretion. I wouldn't be in favour of that because that's going down a wholly different route. If you are talking, as Kim mentioned, of a list of factors that have to be taken into account, that is, in my view, in its nature always a more complicated exercise because it raises a whole new batch of questions. Is the list comprehensive or is there to be some sort of catch-all, any other relevant factor to cater for the multiple different circumstances of people? And also the question of what weight is to be given to each factor. Are they all of the same weight and so on? So what I think you would do if you did that is perpetuate greater uncertainty. Douglas Ross. Thank the panel for their evidence so far. Can I ask not on the guidance element, because that would be a possible alternative, but looking at how we got to this situation, why do you believe that judges weren't using their discretion, which they have, because, as Kim Leslie said, existing legislation is not giving access, but there is that opportunity at the moment for judges to use their discretion and why aren't they doing that? If I may, Mr Ross, that's a very, very good point to raise at this juncture and looking and just turning to where we are at present with the legislation, where a person would be entitled, but for any of the provisions of this act the court may, if it seems to it equitable to do so, allow him to bring the action, notwithstanding that provision. So if it seems to it equitable to do so, so there exists at present, but evidence suggests that this category of claimant, despite efforts, have not been able to access justice. You ask for a reason. It may simply be that the natural conservatism of the Scottish judiciary in cases such as this, to allow cases to proceed after quite often a significant length of time. That is certainly an argument that would be advanced at a preliminary stage. What doesn't square with me is that there is no such time limit for a criminal prosecution, and so it's either we cannot prosecute after a lengthy passage of time, or there is no reason why we shouldn't be able to bring civil suit for this classification of individual. One can speculate, but the provision is there at present, but we can confidently say that there has simply not been the use expansively to allow this classification of claimant to proceed. I agree with what Kim is saying. I think that I would add only two points. First of all, you could perfectly reasonably hold the opinion that the discretion has been very sparingly exercised. I think that there is no question in this class of case, really very sparingly. In fact, I have only found one case which didn't involve an organisation or an institution. I think that's right. The other point, I suppose, is that the only material distinction between the civil and the criminal is that most of the civil claims are against the organisation or institution rather than against the individual because, arguably, it is more difficult for an organisation or an institution to answer a civil claim. By definition, it doesn't have the sort of knowledge that an individual who is being proceeded against will have of what they did or didn't do. I would agree with all of that. We're not speculating as to the reasons that individual judges took those decisions. One of the reasons that this act is before Parliament is that the legislature needs to give clear direction in terms of where that balance should be struck. Evidence in that clear instruction with the discretion, though. The discretion is quite limited. It's been interpreted as quite a high test. The opportunity that's before the Parliament at the moment would be to give a clear indication to the courts that this is a category of cases that should go forward. I'm sure we'll discuss the exception that might be built into that. Reflecting on, as other witnesses have said, the conservatism of the Scottish judiciary, not to widen that exception, may also in part be different to Parliament in that it's an option for Parliament to change this in order to set out that this is a category that should go forward. I might jump ahead to an issue that we'll discuss later on, but there is a provision where a case would not proceed under certain circumstances. Do you think that some of the conservatism that now two panel members have stated in response to using... Supplementary you're down on. We will be looking at that, but not exactly just now. There is an opportunity later on. Sorry, convener, this is the point that you made in the pre-meeting that we weren't going to rigidly stick to the numbered questions. If we are going to rigidly stick to the numbered questions... Yes, but there is someone else waiting with a supplementary and he's going on the point that you've just raised, Liam. Thanks, convener. It was in response to Kim Leslie's suggestion about the inherent conservatism of the judiciary. It was put to us, I think, by one of the panellists last week, that there is a risk with that, that the two areas where a case can be dismissed under the provisions in this bill could lead to the same interpretation and therefore the time bar in effect being applied, albeit through a different means. I think that my faculty of advocate actually drew on that in their own submission. I'd be interested to know what greater certainty there is for those proceeding that they will have access to justice under this and that they will not find that the courts will interpret the new section 17D in the same way as they have interpreted the discretion that they have at the moment. The one thing that I would highlight is that there is a reversal of the burden of proof there. At present, the burden lies with the individual bringing the action. The burden with the bill is reversed to the defender to effectively establish that they will not have a fair heeding or that they will be substantially prejudiced by the retrospective application of the act. Lord Adam Lop said about the difference in terms of the criminal and the civil in relation to an individual as opposed to the organisation. Is it not conceivable that they will continue to interpret either of both of those two areas of discretion in the same way as they have exercised the discretion that they have at the moment, i.e. to apply a time bar because of the retrospective nature? There is undoubtedly a risk, but I would suggest that the burden reversal will assist in terms of the expectation that you will be able to bring suit. It is then for the defender to do the heavy lifting effectively in persuading the court that it simply cannot. One of the things that has been raised in the explanatory note is that passage of time needs not to be an automatic bar to the proceedings being allowed to continue. It is a balance. I think that there would have to be something. My fellow witness may well have something to say in terms of the defender's convention rights, but one thing that I may highlight at this juncture for clarification. If we are looking at the childhood abuse actions previously litigated rights of action, one where there is mention of substantial prejudice, we have to make it very clear. Previously litigated, there may be a category of case that has previously settled without it ever being litigated. That type of claim has not, in my respectful opinion, been mentioned in this bill. I am going into the area that I have just stopped Douglas Ross going into, however, since we have started in this. Douglas, you want to come in later. In the written evidence, I think that the Law Society and the Faculty of Advocates expressed support for the new 17d to varying degrees. The Scottish Human Rights Commission took a slightly different view on that. Is that because the fear is that this will be interpreted in a way that could lead to similar barriers being put in place to access to justice? Is the short answer. The longer answer is that we would like to see some more clarity around this because they are certainly concerned from survivors given the experience to date that by switching the owners around still may lead to the same barrier being put in place. It also focuses the attention very much on the reasons for the delay in taking the case and that having to, even though the owners have switched around and it would be for the defender to bring this forward, we are concerned that it may in fact be an additional barrier given that the purpose of this legislation is to open this up, access to justice to a particular class of person. To then put another procedural barrier in place, we would need to make sure that it wasn't having an unintended consequence, albeit that we do need to be very aware, as Kim Leslie had said, of the rights of the defenders here in terms of ensuring that they are getting a fear hearing about the substantial prejudice that perhaps needs further clarification in terms of what factors would be taken into account. Is that feasible? The implication appears to be that future case law will set out the parameters of that discretion. Is there more that could be done in terms of the bill at present that could give a greater degree of clarity and certainty around how that might be applied? I think that there is certainly more clarity, particularly around the substantial prejudice element. The fear hearing point is something that we generally agree with that is already an obligation on the courts and we can foresee of instances where it might not be in the pursuer's interest in terms of a fear hearing to go forward as well. Certainly we would say that there is a need for some more clarity on it, but before we get to that stage, I think that there is a need to make the case for the necessity of having that in. The argument is that it goes some way to protect the rights of defenders, particularly around all of the things that we are aware of in terms of decay of evidence, and that it would allow a procedural mechanism to stop cases going forward and the expense to the system and the stresses that it puts on everyone of going through a hearing is no chance of success for the pursuer. However, what we would like to see is a clearer explanation as to the necessity of having that in to address the concerns of survivors that this might be another way where they would simply be restricted from actually being able to take their case forward and have it heard. I note certainly, as Kim said, that the reversing of the onus is a significant factor and I would expect that to make a difference. The defender is going to have to demonstrate substantial prejudice and I would be very surprised if general assertions will be enough. The defender will have to put forward something specific, some reasons why substantial prejudice is being generated and that seems to me to be a move away from the tenor of the case law to date, which has very much put the pursuer on the spot. The tone has been, why didn't you raise proceedings earlier? The spotlight is going to go on to the defender. There is no reference, in fact, to the need for an adequate explanation from the pursuer and I think that both that change and the reversal of the onus are almost bound to have an effect. The final point that I would make is that the system, the common law system, the judicial system does from time to time, particularly in personal injury, undertake a reboot. I think that it is obvious from the context of the passing of this legislation that a reboot is what is intended. I would be surprised if, in five, ten years' time, it has been business as usual. In some way, you do not believe that additional clarification of that is required beyond what will happen through, as you say, the rebooting of the system and the case law that will follow. Well, I suppose never say never. If somebody comes up with a neat additional piece of clarification, then by all means yes, but that would have to be, I suppose, selecting specific factors that are never to be taken into account or always to be taken into account or something like that. But there is a certain benefit in simplicity, so I think that I would probably be agnostic until I had seen whatever was being proposed as an additional provision. Thank you. Touching on that subject, Douglas, is there anything you want to say? Cover the points. Okay. Moving on, Ben. Thank you, convener. Good morning, panel. I just like to refer members to my voluntary register of interests as a non-practising member of the Law Society of Scotland. If, if passed this legislation, the new limitation regime would, of course, sit alongside the related area of law of prescription. As I'm sure you're aware, the Scottish Government has decided not to reform the law of prescription because it believes it's unable to do so without breaching the European Convention of Human Rights. The effect of this decision is that if the abuse occurred prior to September 1964, usually it will not be possible to raise a court action under the new regime. I'd be interested to get the panel's thoughts on whether they think the Scottish Government's approach is appropriate in this instance. I imagine there will be a certain classification of individual who would argue against that. However, I think that if the balance has got to be struck somewhere, the Law Society felt that the Scottish Government has struck the right balance. I would imagine that those cases that predated September 1964 in any event would or could fall within the exceptions discussed in terms of fair healing and, potentially, substantial prejudice. The survivors last week, I think, gave powerful evidence. I would always say that there's never going to be a perfect, neat solution that will please everybody, but if a line has to be drawn, we are supportive of this line being drawn where it has been. I would agree with that. I can see a potential challenge if the law of prescription was to be amended in that way to seek to resurrect claims that have actually been extinguished. It's important to note that the duty on the state to provide an effective remedy, including reparation, isn't extinguished by prescription. There are other things that we need to do, particularly for the category of survivors who, as the evidence last week touched on, are generally going to be older survivors in the most need and waiting the longest for access to justice. The challenge is that when the law was amended back in 1984, the UK Parliament took the decision not to re-institute the rights of those that were previously prescribed. To go back now, I think, would be incredibly problematic in terms of Article 1 of protocol 1, in terms of that proportionality that's provided. In the commission's view, this would be an incredibly challenging route to reopen and adding it into this legislation. I think that it would take us down a path that might actually frustrate the purpose of this bill, but that's not to say that the rights of those survivors who were abused before 1964 don't need to be taken very seriously and addressed, but there are other ways that we should look to do that. I think that the same point as well in terms of while this bill is very focused on children who were abused through that period, that shouldn't take away from the right to justice for those that were abused who weren't children or all the other categories of people that deserve access to justice. But for the purpose of this bill and this particular type of remedy, we think that the balance is about right. Thanks for that comment and analysis. OK, Mary. Oh, sorry. Oh, sorry, it's your next book, sorry. Thank you, convener. I really just like to focus now on the definitions of child and abuse that are in the bill. I know that the definition of child has been generally accepted and we seem to be OK, but it's really just about the term abuse. Now, when we took evidence last week, there was a suggestion that spiritual abuse should be included in that, and it's really just to get each of your opinions on do you think that it should be a definitive exhaustive list that is in the bill when it comes to the description of abuse or do you agree with the broader possible definitions there? I can say that if you are speaking to a practitioner who represents the claimant, it would be includes, and if you spoke to a practitioner who represented the defenders, it would be comprises or is. I'm afraid that that is something that you will not be able to get consensus on. Spiritual abuse, I would be happy to be educated, but one of the things that seemed to me was that there was quite a high likelihood that these types of abuse may co-occur, and if spiritual abuse could be defined clearly, I would have to see that definition before being able to comment fully, but I would simply put to the committee that that might be properly included in the term emotional abuse. I can't really add to that. I agree with Kim. So much of the deceptively short bill is about striking balances, and there is even a balance here in the selection of the word include. It is open to the courts to develop the concept, particularly of emotional abuse, to include some of the types of harm that were described last week. We would agree with that that there is room to improve that. I would make, if I may, one quick comment on the age categorisation. As you rightly said, there is general agreement that dating is right, but I would reiterate the point that that doesn't mean that those that suffered abuse over the age of 18 don't need to have more work done on their rights to redress and access to remedy, but because of the special category of being a child in the international standard of setting that at 18, we think that that's correct. In terms of the definition, the one thing that I would add to what's already been said would be the commission's view of not including neglect. This is focusing on a categorisation of things that occurred to someone, and it includes sexual, physical and emotional abuse, which will need to be considered and expanded upon, involving a number of human rights concerns. Even if we look at article 3 of the European Convention on Torture and Human Integrating Treatment, the European Court has found neglect can meet the standard of article 3. Article 19 of the Convention on the Rights of the Child clearly sets neglect alongside the things listed in the bill as something that needs to be protected against and to provide a remedy for. In our written submission, we cited the World Health Organization's definition, which again puts neglect alongside those other categories that are included. We also cite Sir Nigel Roddley, who's a great hero of mine and who sadly died just a few weeks ago, who was the UN special rapporteur on torture, and he said that neglect could certainly be cruel and inhuman treatment in relation to the UN standard, particularly in relation to younger children. The commission does have some concern about the removal of neglect from that list, which should be as broad as possible, bearing in mind that this is the test of a category of people that get past the procedural bar. You would still need to have an actionable case of all of the very difficult evidential process of winning the case. When we're defining the category of people that won't have to go through that procedural bar, we consider that neglect would be a useful inclusion. The neglect was going to be the next issue that I was going to ask about specifically. I really need to get the other opinions on this as well, because the way that it currently stands at the moment if neglect wasn't included, is that neglect wouldn't be considered as a form of abuse? Is there any case law there that might determine that? Are there any other examples that you can think of? As you know, the Law Society of Scotland, on behalf of the claimant practitioners, wanted neglect included in the bill. I cannot say definitively that there might be a category of abuse that wouldn't be covered by emotional abuse that would also be neglect. I think that that perhaps encourages the words includes so that that discretion can perhaps be given so that when something is presented, that is clearly abuse that can be included. I wonder about the definition of neglect. Do you feel that it would be strong enough, or would there be any concerns about taking in cases that might be looked at as someone's idea of neglecting? I'll give a frivolous example. Everyone else has designer-trainer shoes. My child hasn't. Am I neglected because of that? Am I a bad parent because of that? I appreciate that there was an intention to trivialise, convener. Certainly there's a very good understanding of what neglect means in terms of international human rights law. It's something that's been very well defined. Also, when the European Court has looked at the case law maps out the level of neglect required to meet that minimum standard of severity under article 3, so we aren't talking about trivial matters. In terms of the purpose of this bill, bearing in mind that what we're talking about is allowing a category of survivors of pursuers to get past the procedural barrier, the type of trivial case that you're talking about wouldn't actually get anywhere in terms of the personal injury action. I can't foresee a situation where someone would see this as any utility in taking a case forward on that basis. I don't think it's ever been tried before, but what we would be concerned about is that any limitation on the definition of use may exclude people. As others have said, perhaps this could be covered by the expansion of emotional abuse, but when the international standards are very clearly listed separately and there's a great deal of international evidence to go by, we think that not including that seems a little bit strange to us when it clearly could be included and I think the risk of those trivial cases going forward doesn't seem to be a real one given that even for very strong cases this is still not something that people would undertake lightly. This is a very challenging process that is only able to deliver monetary compensation in relation to that abuse, so I can't see a situation where we would open floodgates to trivial cases by including neglect. That was interesting and good to tease out Ben, sorry. Briefly, Laura Dunock, you said that the notion of emotional abuse would be developed through the courts, through the case forward system, but particularly in reference to international law or human rights law or indeed ScotSlaw. We had some concerns from a panel last week about the inclusion of emotional abuse and for clarity or expansion, would you be able to comment on your thoughts on the inclusion of emotional abuse and whether that will help to make the definition of abuse effective or whether it will create confusion or dubiety? I think and particularly listening to the discussion that we just heard about whether to include neglect as well, I would, I think, see this as primarily a drafting matter. We know where we're trying to get to and I suspect you want to avoid over defining. I would be dismayed if a case that involved the neglect to provide food to a child was not characterised as physical abuse. I would be dismayed if failing to offer love and affection to a child was not characterised as emotional abuse. As you've probably gathered from my earlier answer, I tend to favour simplicity. I think if you're going to include, at the moment you've got a sort of matching set of three concepts, if you're going to start and add to that to try and capture as it were sins of omission as well as sins of commission, I foresee some drafting problems. So I would be interested, I think, in the views of those who have drafted this and their thinking as to whether this is a robust enough list. I suppose another alternative would be to go with this and if it's producing results in the courts, which seem to be not applying to cases where there is a consensus that it should apply, then amendment would be possible. Thank you very much, that's very helpful. Can I just press a little more on the spiritual? Sometimes it was called religious. I think what they said last week was it was to cover indoctrination, where you were in a particular place of power and there was an indoctrination on the brainwashing of a child. That kind of abuse seemed to go or to be recognised in some quarters as going so much further in its extent. Almost someone said fundamental on messing with a soul. Now, not everyone will recognise that concept, but some people will. Can you maybe give your views a little more on that? I'm very aware of the answer that Harriet King gave when the committee asked this question in terms of saying, would not spiritual abuse be covered under emotional and being very respectful to Harry's view that he thought that there was a difference? I'm not really in a position to say that I think that there is. I think that the way in which emotional abuse has been treated by the courts to my mind would include the type of abuse that Harry was talking about. I think that anything that we can do to ensure clarity for survivors and this goes to the point that we were just discussing in terms of the term, the drafting that we use is important not just in terms of certainty for the courts, but in terms of those survivors that wish to take an action. They need to be very clear about what is included, but spiritual abuse isn't something that I'm overly familiar with as a distinct category that would need to be listed. Perhaps if I could just mention something that struck me when I was preparing for coming here today in this, I would be interested, I suppose, in what the other panellists think as well, that arguably the term that's missing is psychological abuse, but I'm not well enough qualified really to develop that, but it did strike me that there may be a difference between emotional abuse and psychological abuse. I don't know. That would seem to expand it a little bit and cover to an extent what was said. Kim? I need to have time to digest. It may well be that this is a drafting point that further consultation would be required, but certainly, when it turns to causation and what injury has been caused by the abuse, psychological harm is the natural injury that you would describe what injury has been caused, psychological harm. If psychological abuse could be expanded on and perhaps some more time spent on the drafting and further consultation taken to see where the delineation would lie between emotional and psychological, I would welcome that opportunity. Would that be your position, too? Yes, it would. I think that the more clarity we can give, the better. Earlier I cited article 19 of the Convention on the Rights of the Child, which uses to protect the child from more form of physical or mental violence, injury or abuse, neglect or negligent treatment. I think there are different ways in which we can phrase this. I think that what we need to ensure is that there's a clarity of understanding and particularly for survivors. Bearing in mind that what we're talking about here is just that category of people that won't have to go through that limitation process, you would still need an actionable claim and you'd still need to have the evidence to support that and go through it. That definition allows you to get through a procedural hurdle. It doesn't change the nature of the law under which you're seeking a remedy. Stuart Stevenson. Thank you very much. I want to look at the retrospection that comes with the insertion of section 17C. It's always an area that we need to tackle with very great care. If I may, I want to just make sure that we have a shared understanding of what 17C makes by short questions and short answers, please, before I ask a matter of substance. First, I'm looking at just what excludes previously disposed of by the court cases. I'm not sure they needed to be litigated, by the way. It says disposed of rather than litigated. The first barrier is 5, the very last part of 17C, which I understand to mean that if any of the money that the pursuer received was other than for their direct expenses, then that case cannot be reopened. My first question is that. Laman's understanding of what the drafters have sought to put on the bill correct. Right, thank you. That's what I want. Drafting is a particular art, and it can make it difficult for us lay people some. Then, moving on to 4B3, moving from the back upwards, where it will be excluded if the sum of money that was paid to the pursuer exceeded the pursuer's expenses in connection with bringing in setting the initial action. I just wondered what the pursuer's expenses means in that case. Is that a legally prescribed thing, or is that something that could be open to legal debate as to what they are at the time or where? It may not have mattered at the time, of course, to the extent that it might now matter. For clarification, previously disposed of rights of action, to be clear, that would include cases that had never seen a court door. I'm saying that that's my understanding. I'd be happy to hear it's yours too. All I would ask is that, as a point of principle, it should because, of course, there may be cases that are settled, disposed of pre-litigation without an action being raised. I think that my understanding in policy terms is that's the intention. That is the principle. Our duty is to make sure that the words in the page deliver that. I would understand, as a lawyer who would use this parlance, that expenses being my fees and any outlays incurred in the course of the case. For example, and this is just a hypothetical example, if the pursuer was resident in Australia and had to travel on several occasions to Scotland to pursue the previous case, would those be legitimate expenses? In other words, does the pursuer's expenses get included in that? They can do. Right. It means the amount of the auditor. That does not exclude that, is the bottom line. Right. The next thing, I suppose, is if the records that relate to a case, which might be as far back as 1965, for the sake of argument, are no longer available, where are we left by the way the bill was drafted? Very great difficulty in advising a client on prospects of success. I am purely meaning in relation to the settlement. In other words, we can establish the fact of a settlement, possibly because the bank would be likely to be able to provide bank records showing transfer of funds, but we might not have the evidence of the detail of the settlement, which would enable us to satisfy the requirements that the money only be paid to cover expenses. Where does the way that is drafted leave us, do you think? It may only be an opinion, rather than... I think that it would lie with the defender, I believe, to imagine that they would be the party who would seek to establish that a settlement was made, relevant settlement was made such that the claimant would be barred from raising fresh proceedings. That might be at a preliminary stage, a bit like a debate, so if you may raise your action, your client may not be clear on whether or not he or she has had a financial benefit. One of the things that I wonder if I might just touch is the principle that I understood that this section was seeking to establish, is that those who have been financially compensated in any way, it may be one pound, would be barred. What I ask the committee is, would an alternative solution be offsetting? Clearly, the principle behind that is that those claimants whose claims have been compromised because of the existing legislation are... Those who have tried and failed are in a worse position than those who have never tried at all. I think that I find it illogical that a person who at the time may have had nowhere with all that that £50 that the solicitor said, that's for yourself, I've taken an abatement on my expenses, would then at this time in Scotland prevent them re-raising an action. One thing that we can be certain on, whichever party you represent, is that once the act is brought into force, we want to be clear. That current section in its drafting could be looked at carefully, because if the principle is that those who have compromised their previous claims because of limitation, there may be an alternative that would be offsetting. For example, somebody has received that £50 and their claim is worth £10,000, and that evidence can be reduced, then that offset, I don't believe that they should be prevented from re-raising. Of course, making a policy point, which, by the way, I'm perfectly content to accept, is something that will need to pursue with the policy makers rather than with yourself, but just pursuing my final little legal point to make sure that I understand what this might mean, looking at 4b2, the pursuer entered into the settlement with the reasonable belief that the initial action was likely to be disposed of the court by reason of section 17. Do you think, with the passage of time, that there would be any sensible way that the pursuer could demonstrate that they had a reasonable belief in 1965 that they would be disposed under section 17? How would you demonstrate in legal terms for the court that you had that reasonable belief? Because that is a necessary condition for you being allowed to use 17C. A bit of a statement of the obvious, but section 17 doesn't arrive on the scene until 1973. Let's make it 74, then. I suppose for a start. No, I think that you make a valid point, if I may say so, because what we would have to read that reference as meaning is section 17 or its predecessor sections. I can't see any alternative to the pursuer having to be in a position to give evidence on that matter themselves. The pursuer would need to demonstrate to meet the test of being able to invoke the section at all that they, at some point 40 years previously, had a reasonable belief that it would have been disposed of under section 17 and have alternatively come to a settlement without the court coming to a view. I suppose they would have to be able to say, I settled my case because I thought it was too late and I was going to lose. Or I thought I was going to lose because I was too late. Something along those lines or I had missed the deadline or some kind of basic understanding about lateness. I'm sure that the pursuers' lawyers in the circumstances of today would proffer correct advice on that matter. Nora Brant, I think that I've probably covered all the things that I wanted to cover. Thank you, convener. Thank you, panel. First, there are some lawyers in our midst. We are lay people hoping to ensure that any law that's made is good law. I'm going to try and phrase a question in the context of some of the issues that Stewart raised. Standards of acceptable practice as to what could or couldn't be done to a child, for instance, and I'm thinking about chastisment. Would an individual be able to make a retrospective claim on the basis of something that is now unacceptable, albeit that it was acceptable at the time, and I'm thinking of corporal punishment, for instance, where we're still a way to go with our present legislation, obviously. It's often remarked, of course, that the European Convention is the living instrument, and in relation to things like slopping out, it's been possible to see that society has moved on in conditions that might have been tolerable or acceptable decades ago no longer are. Again, I'm stating the obvious, but this is an extra step because the right to damages if it exists is for an injury suffered at the time in the past when, according to the standards of that time, what was being done was not wrong. I anticipate that there will be debates about that. I don't know. Bruce, I think, has a far better command of what Strasbourg has said than do I. You may have specific examples of how Strasbourg has approached that particular problem, I don't know. I think that the question is well raised in terms of you need to look at the behaviour at the time against the standards of the time, but in terms of looking at the category of person that would be covered by this bill, we would need to look at the definitions that are included within it. The procedural element of the time bar, that's the retrospective bit. We're looking at a retrospective change in relation to the ability to get past the time bar, but the case itself would need to be judged on the law as it was in relation to when the abuse ceased. In terms of how the court would consider the procedural barrier that would be taken now, in terms of the Strasbourg jurisprudence on how our understanding of human rights principles develops over time, I think that the example that you give is a good one in terms of the protection from assault for children where there's been a very clear and progressive development of our understanding of what was appropriate. The cases that we're talking about here, though, in terms of those that would lead to damages in relation to personal injury, generally are going to relate to standards that haven't changed particularly and particularly the abuse that has always been covered, under article 3. What has changed in relation to article 3, the protection against torture in human integrating treatment, is our understanding of the minimum level of severity that is required to trigger that, not the core concept that there's an absolute prohibition on those things. So what has changed in Strasbourg jurisprudence over the course of the cases that will be considered possibly under this law, is that minimum level of severity in article 3, in terms of personal injury and whether you're able to show the case and show the damage. I think that we're generally talking about cases which would probably always have been covered. Kim, do you want to comment? Liam, I think that we've covered that here. Rona. Yes, can I move on? Good morning. Can I move on to the number of cases that have been estimated? The financial memorandum of the bill suggests that there will be 2,200 childhood abuse cases initially as a result of the bill. Scotland referred to a possible figure of 5,000 dating back to 1964. Can you comment on what you see to be realistic on the difference between those two figures? What impact do you see that any sort of number will have on our court system? I think that it's very difficult to predict how many cases will be taken forward. One thing that I suppose is important to make reference to at this time is that this is not a salve for every claimant. This is one hurdle, but there are a number of other hurdles. Even if this hurdle is removed, there are a number of other hurdles that any victim would have to overcome in order to have a successful claim. If the limitation is removed, that does not mean an automatic right to compensation if you fall within that definition. The burden of proof will remain with the survivor. Evidence will have to be established. Recoverability of asset. If there was no institution involved, the perpetrator is he or she a man of straw. There are other factors that perhaps were not considered when the modelling was done. I think that it would be imprudent to try and even predict at this stage the numbers that are likely to come forward. I can say that the numbers that come forward are not necessarily the ones that are going to end up in court. There may be opportunity for pre-litigation settlement. One of the things that the bill will do is take away a procedural hurdle that would almost inevitably be run by the defender, which is you out of time. We are going to try and block you. That is going to be court time that will no longer need to be taken. In terms of numbers, it is very difficult to predict. Mr Adamson, do you have a sense of... No, I wholeheartedly agree with that. We appreciate the obligation on this committee to consider the financial implications of this legal change and the budget to be provided accordingly in terms of legal aid, in terms of the court service. In human rights terms, it is not a factor in the decision making in terms of providing access to justice for survivors who are entitled to justice. I would very much echo what Kim Leslie was saying in terms of... This is not going to be the best approach for a great number of survivors. Even taking the upper limits of the numbers that have been used, it is a message of those that would be appropriate to take this approach. It is really important that the support and advice is given to survivors to ensure that they do not see this as the best option for all of them, that they are made aware of the other opportunities to seek justice, including possibilities for other redress. We certainly would not see this as a huge floodgates, but even if it was, we would still need to consider how we are going to make sure that access to justice for survivors was provided. I think that that would be the key point. I am getting the sense that, if you do not know the situation at the moment, it is really hard to say. I would say that one of the other things that came up very strongly through the interaction process and through the incredible work that brave and courageous survivors have done is levels of underreporting that anything that we can do to empower other survivors who have not been identified yet to come forward and to seek justice and seek help and support, anything that adds to that is a good thing. We should not be afraid of the numbers and the numbers going up. This is a good thing that more people are engaged in this process, but the support needs to be provided to see what the best route forward is. This is a very specific and limited approach in terms of seeking financial redress through quite a challenging process. Removing that barrier does not change the substantive law in terms of what you have to prove. Thank you. That is helpful. Douglas? You were suggesting rightly that people will need support through this process. Where do you think that support will come from? A lot of people will just look at the headline and see that the limitation has been removed and therefore believe that they have a right. How do we deal with the people who do not get to where they want to because a lot of the people they will turn to with support will understandably be trying as far as possible to encourage them to go down this route because they have not had the opportunity before. From your point of view, do you think that there is enough support in place for the people who will ultimately be disappointed at the end of the process? I will comment on the specific point around the motivations of lawyers in terms of that always giving good advice. I am not entirely convinced that the spurious cases would necessarily come forward, but perhaps that is a matter for the law society. What I would say is that the survivor support fund, which some of the survivors that gave evidence last week talked about that there are a number of agencies who are supporting survivors to understand the different options available to them. I think that is absolutely key. I think that ensuring that the legal profession is given the information around the alternatives that there are other ways forward and that litigating possibly is not the best option. I would hope that lawyers would give that good advice but perhaps need some additional support to be aware of the wider things in the action plan. Certainly what the commission would like to see and has been in discussion with Government is in terms of more support for survivors, those that are identified and those that may be aren't identified yet to understand the totality of this process. All of the different options under the action plan and support to make that decision. I think there is a bit of a gap there at the moment in terms of understanding when using things like the apology law or accessing the public inquiry or other things or accessing the redress system which I understand is being consulted on and I would hope eventuates understand what their options are and I think more work needs to be done in terms of ensuring that that's in place and it needs to be done now because I think you're entirely right that the publicity surrounding this legislation is when it passed mainly to raise the expectations from survivors and while the commission strongly supports the bill and knows that it would help some survivors and a great majority of survivors isn't going to be the right answer the process in terms of taking a civil action in terms of personal injuries as the committee is very aware is an onerous one and the evidential burden on these historic cases is going to be incredibly challenging and for great many survivors it may not be the right way forward if what they're after is an apology or if they can get the support they need to survive a support fund or if redress is available in another way then this probably wouldn't be the choice that they make but we need to make sure that they have the support to make that informed decision I do believe that support will be necessary and in part to manage expectations and that's very important what I would hate is somebody coming to my office jubilant and with expectation only to be dashed by me with the cold light of the burden still rests with you and the reality is there will be some individuals who have been able to get past this and will meet with you fully prepared with detailed notes however the vast majority will not be when one meets a lawyer it's quite intimidating at times coming into a formal setting telling your story it cannot be stressed how important that that process is carried out by practitioners who will understand their obligations and the forum in which we have to advance any claim and indeed their options in relation to anonymity and media reporting restrictions but it's to the survivor themselves that we would have to say you still have to give me the building blocks you still have to be organised to turn up to meetings you still have to be organised to come to me with details of witnesses, their telephone numbers their addresses the chronological order of things and for some survivors just that might prove problematic so that is where some support may be necessary for them to access the justice that we are hoping that this removal of this particular hurdle will advance any lawyer who has practised in reparation for any length of time can think of examples of people whose experience of trying to get damages for some injury they have suffered has not been a success and unfortunately that does happen across all of reparation law that sometimes as a practitioner you end up thinking that the process has actually done the person more harm than good I very much agree with what Bruce said about litigation not being the right solution for everybody and there are really I think weak areas where support is necessary one, in making that initial selection about which form of remedy from I hope a menu is suited to the particular individual and if they choose litigation making sure that secondly there is support for them as they undergo that experience Tugliff finished last line of questioning may thank you convener cos last suggested in the written submission that there could be benefits to hearing childhood abuse cases in a specialist hub of the personal injury corp which was established and set up in Edinburgh and there has over recent years been a drive across the judiciary to specialise do the panel members share that view and if they do what benefits would they see coming from a specialist corp only dealing with the childhood abuse cases specialisation is apparent in the profession and is developing in the judiciary I would have to have some more information to be able to comment more fully and of course it would have to be properly resourced but at present for there may be not a need for a specialist forum but a specialist which may be able to assess because clearly there will have to be great sensitivity around any litigation involving childhood abuse okay thank you my own view would be that you always need more than one judge or sheriff so if you can have a critical mass perhaps of three or more it depends entirely on the volume of cases you're talking about but so that you have a pool of people who are dealing regularly with a particular type of case and who can build up familiarity with some of the terminology and some of the landscape I think undoubtedly that brings benefits and also people, judicial figures working in that area regularly can think of improvements to processes and procedures which you would hope would benefit all concerned Bruce I would absolutely agree with that I began my own career in a specialist family court in New Zealand and there are certainly benefits in terms of building that expertise if you don't have specialisms then you would hope that all members of the judiciary pick up these abilities but as you know I think yourselves as members needing to be generalists but also perhaps sitting on committees or a number of committees you do build up expertise and the same is obvious for the judiciary the other thing that I would say and the steps slightly to the side of just the bill that's before you today is across the action plan on justice for survivors of historic abuse one of the central points is that survivors need to be central to the design of systems and the implementation of systems around this seeing comment on this particularly in relation to the inquiry where perhaps more could be done to support survivor involvement and how the system runs I think the same could be said in relation to civil litigation the advantage of ensuring that that experience of survivors informs the way in which the process works I think is always going to be a benefit there is also increased confidence that survivors would have in the court system if they could see a specialist hub but only dealt with childhood abuse cases and they would have more confidence that the system would deal with them sensitively and carefully and it would make them perhaps not more likely to go to court but it would make them feel better about the court process I think what we've seen in other parts of the action plan is the strong desire for survivors to actually be part of designing it in the specialisation and that that builds confidence and without it it can really destroy confidence quite quickly I think there are some challenges here if we go back to the specific nature of the personal injury law here and pursuing an idea of a specialist hub and there's a few steps that we would need to explore but in human rights terms ensuring that right to an effective and accessible remedy one of the key principles is that those that are affected need to be involved in the design and help build the understanding within that system otherwise confidence does very quickly get undermined Okay thank you Kim you mentioned the issue of resourcing is resourcing or lack of resourcing or back you would see to these specialist hubs As I say I think I would have to have more clarity as to what was going to comprise before I could properly commit to an answer to that What I can say is anything that promotes confidence would in the result or in the process and would develop a I suppose a drawback from the judiciary as to how the procedure could be changed to ensure that unnecessary barriers are removed can only be a good thing but as with anything comes down to the resources that are made available and that is a matter for those making the policies whether this is better to be assessed but it is one rather than the general forums that we have up present Any other panel members have any thoughts on potential drawbacks My last point I suppose would be that in terms of defenders I can't say that this would raise additional human rights issues in terms of a specialist court and a few hearings in terms of ensuring the rights of defenders I respect that a specialist hub wouldn't anyway prejudice the rights of defenders so just to be clear that I don't think that there's an issue there in terms of fair hearing I don't know whether I would characterise this necessarily as a drawback but one phenomenon which you do get sometimes in courts where the judge does a lot of a particular kind of work is the emergence of some ED feaks in this is how it's done and sometimes it's good to have a fresh person that's why I was trying to make the point about not just having one individual it can be good to have a fresh person coming in and perhaps spotting something where the person who's doing it all the time has become a little rigid Okay, thank you That concludes a line in question Can I thank you very much for what's been very worthwhile evidence in helping us look at some of the more challenging parts of the bill I'm now going to suspend to allow a change of panels Our next item of business in agenda number four is the second panel of witnesses and that comprises of Lauren Bruce Policy Manager with the Convention of Scottish Local Authorities Leslie Bowle QMP QPM Directive Detective Chief Superintendent Public Protection Specialist Crime Division Police Scotland Alistair Haugh Gosh, I'm getting these all mixed up Would you like to change your names for me? Alistair Haugh Acting Executive Director Communities and Families City of Edinburgh Council Scotland Val Val Demir Val Val Enti Is that right? Easy for some to say Principal Solicitor Midlothian Council Representing the Society of Local Authority Lawyers The committee is very grateful for everyone for the written submission and I understand that although there hasn't provided a separate written submission you do endorse the submission provided by COSLA, is that right? That's correct. We'll move straight to questioning and start with the general opening question that again for the benefit of the record can you indicate what impact do you think the bill will have on victims of childhood abuse and are there additional steps that should be taken to safeguard the health and wellbeing of victims who are affected by the legislation? Who would like to start? I'm quite happy to start. Please Scotland supports the broad policy intention of the Limitation Childhood Abuse Scotland Bill. Sexual abuse, which includes sexual exploitation, serious physical or emotional abuse neglect, are breaches of human rights. Anyone who has been subjected to such abuse or neglect has human rights access to justice and to effective remedy. I suppose that having worked in the area of public protection and child protection for a number of years like my colleagues in Police Scotland, local authorities, health and a range of support and advocacy services I am acutely aware of the horrific child abuse and neglect that has taken place in the past and sadly still takes place in Scotland today. Survivors of childhood abuse absolutely deserve access to a range of justice and reparation measures. Each survivor has or should have the ability to choose which element or elements they wish to access or progress. The ability to seek compensation has to be one of the elements. I think that we have heard last week and today there is clear indication that many survivors of non-recent abuse in Scotland have not been given that choice because of either lack of legal aid and or section 19a of the 73 acts or the discretionary powers not being applied. It is a disappointing to hear in the other parts of the UK that there has been a greater exercise of that similar discretion in relation to cases of non-recent child abuse. I suppose I do have a concern and that is to the potential financial and resource impact of the proposed that it might have on certain organisations. We heard last week or the committee heard last week that public liability insurance is not compulsory. Many organisations have been uninsured, self-insured or may not be able to trace insurance or the insurance no longer exists. My main concern is for the many third sector organisations who operate in a way that is diametrically opposed to how they operated 15, 20, 30 years ago and may be required to fund compensation claims from their own reserves. At this moment in time, many third sector organisations carry out enormous range of activities to improve the wellbeing of children and children's life often complimentary to and in partnership with the public sector. My concern is that it seems to me illogical if these vital support services and therapeutic services provided by the third sector organisations that I am talking about to children who have recently been abused or neglected or at a risk of abuse and neglect now. Their services are somehow adversely affected in relation to abuse that has happened many years ago. That is my own concern that Police Scotland is a supportive of the broad principles of the bill. Thank you. Thank you for the invitation today. Removing any barrier to justice for survivors of historical abuse is something that our members consider a positive move and causally strongly support the intent of the legislation. It is impossible to quantify the potential volume of claims because the impact of legislation on local authorities is likely to be extensive, complex and not limited to successful claims. There is likely to be a higher percentage of claims against local authorities because of the plethora of children's services that have been provided by them over the last 50 years. The impact is also likely to include support services that are offered directly by local authorities or which are commissioned through third sector organisations such as Rape Crisis and other abuse organisations. As claims come forward, victims will need supported and that support is often offered by local authorities or the services they commission. The method of implementation will have a significant impact on achieving the aims of the legislation as we heard earlier in the previous session but will also have an impact on responding organisations and the processes and procedures that they need to develop to be able to proceed in response. This is where, in the fuller submission and I am sure will come on too later, we would encourage the committee to think about access to justice as a broader perspective than necessarily and potentially other options that could be developed to help to support victims and witnesses while at the same time perhaps having a more proportionate impact on other organisations involved. Thank you. Or whichever way you want to do it. Thank you. I thank the committee for the opportunity to give evidence and Social Work Scotland would certainly support the comments that you have heard already Leslie and Lauren. For us, the specific nature of child abuse is in itself a reason for this legislation to move forward and I think that the support that will be required of potential victims will be both substantial but also individual. I think that, for example, some victims will require a great deal of help as they go through a process not just reliving past events but managing their lives into the future because of the damage of those past events. Equally, if compensation is provided for some victims who have very great challenges in their lives then they may too need some help to manage that very thing itself. There are very individual needs that need to be addressed but, nevertheless, there is no doubt that access to justice is overdue. The caveat, as someone who is responsible for a range of services and is constantly trying to prioritise really builds on the comments made by my colleagues on the left which is having some sense of what the outcome of this might be if one quick example I was looking at the Jersey experience in recent days in preparation for this morning and the Jersey went down a route which didn't involve courts and was an efficient and effective route of providing compensation and I'm sure we'll come on to this at some point in our discussion but if you scale up even what happened there to the Scottish saying you've got an average cost of around £40,000 and in Scotland that would involve about £200 million if we had the same kind of numbers which would be around £5,000 in Scotland so the scale of this even at its potentially lowest level is highly significant and we have to take into account what potential impact that may have on, as has been said on voluntary organisations that are currently providing the services that we need now and also on the local authority funds as well particularly in relation to issues of insurance which I think my colleague Vlad will come on to discuss so for me where my social work Scotland had I think it's absolutely essential that we rewrite some of these historic wrongs and that we do very much but I think that really serious consideration needs to be given to the best way of implementing support including the potential impact on essential services that we now have to run into the future You mentioned the jersey the jersey we have handling things which didn't involve court but involved solicitors so there would be quite a distinction between the approach and the bill and that's the bill are they really comparable? I think the approach that was taken in jersey could be an approach that's taken in Scotland that would complement what's in this bill I don't think it's either or and that's a discussion we may want to have it could be that that kind of the approach there essentially had a default position which was that if somebody was not satisfied with the outcome of the process they could then go to court I'm no expert in this but I think off the top of my head around 80 to 90 per cent of people in jersey accepted what the tribunal found and the offer that was made and that's led to an efficient approach which has satisfied the vast majority of people who were affected and I think it's something as I understand it that victims groups are generally in favour of so that might be a way in that would allow a proportionate approach that would give people recompense and recognition but wouldn't necessarily involve the stress and potentially the much much higher costs of civil court action Is there an element of formal recognition that would be lacking in that formal approach that it's court hearing, it's out there it's acknowledged which I'm sure is a huge part for people who have been abused I'm sure there'd be views on that and I think ultimately it would be for victims to determine that I think what would be important would be to get their views and really test out how satisfactory a resolution that might be for victims because on the plus side it's quick and effective and provides a recompense in a much less contested environment for some victims I'm sure they would want to be in an adversarial court situation having their day in court but my impression is that that's not the majority of them Lauren, do you want to come in that specific point before I bring the Vladimir in? The only thing I was going to add to that was in listening to some of the evidence and again I think we'll go into this in more detail later probably but something that came across quite strongly was that in some cases it is an apology that the victim wants and it's an acknowledgement of what happened and it's an assurance that it won't happen again and I think in that you would have to question whether that's something the civil court process can deliver the civil court process is designed to look at issues of civil law and not the issues on the fringes of that which would be the issues around apology and an assurance that something won't happen again and so that's potentially something quite strong that a model that's not the court system could offer to someone which the court system just can't deliver because that's the design of the court system First and foremost if it's easier usually what I'm referred to and obviously we've got the full name today second I just want to say thank you for the invitation to Solar the Society of Local Authority Lawyers and Administrators to provide evidence to the committee in terms of Solar itself our position is that we absolutely agree with that we need to meet the justice needs to be done in terms of those victims and survivors there's no question about that the question that we've got is more about what's the best method to achieve that outcome whether that's compensation or otherwise and we are thinking outside the box in terms of the jersey model that my colleagues have alluded to and the reason for that which might seem strange coming from a litigation lawyer but the adversarial system might not be the best place and I actually watched the last committee in which the survivors some of their comments were in regards to the tactics and antics of the lawyers involved the discrediting of victims and undermining their testimonies Bruce Adamson earlier mentioned the challenging process of court the adversarial system brings difficulties it's about gathering the evidence and challenging that evidence and I'm not certain that an adversarial system is the best outcome for all concerned it may well be the outcome for some and I think the jersey system as was alluded to earlier that would allow for a process to be had in terms of anffin element and if the survivor of the victim is unhappy with the outcome they can still have their day in court and that seems to me to provide more choice which is what was discussed at the last meeting in terms of what the victims want is more choice because one size does not fit all and that alongside the apology bill et cetera I think would provide a more comprehensive system that would also provide local authority perspective provide better outcomes in terms of the public purse because it would lower potentially some of the legal costs now in terms of the jersey experience as I understand I'm not an expert in that in their system but as I understand the jersey experience did allow for legal expenses in terms of formulating the applications and I if I don't misquote it I think it's about a million pounds or so that was spent in terms of legal expenses alone in helping the survivors and the victims put their cases forward but as I said ultimately they would have the final choice of where this ends up if it ends up in court that's their choice and I think this would certainly assist in some of the concerns that were raised about the adversarial process that's exactly where we're going to if we don't put anything else outside of that so this would be another approach to add to the choices you're not advocating that it's the first step before you look at the provisions of the bill that would obviously be a policy decision as to which way whether it's that you must go via this route first in terms of the jersey scheme or whether it's simply another choice which would assist survivors and victims so there's not taken a position on that so I can't really comment because I'm not really canvassed that with members but what I would suggest is that the jersey experience is very worthwhile exploring in terms of what the final outcome to those survivors and victims will want from the various processes moving on, John Finnie good morning panel and thanks for your evidence my questions are to Lauren and Leslie and we're obliged to consider the impact of the bill as you would understand and one of the aspects is the number of likely cases now this is in the financial memorandum it suggests a figure of 2200 I know both in Corsland Police Scotland's evidence there are figures alluded to there but they have been disputed by the Association of British Insurers last week indeed what do you think the accuracy of that figure in the financial memorandum can you comment on that please thank you for that Police Scotland mentioned figures in our written response I think that has been misinterpreted by some so if that has been confusing I apologise to the committee I suppose in terms of we have said that we think that the 2200 might be conservative because from the memorandum it was estimated using data I think it was in relation to proxy the number of police reports of sexual crime to children between 71 and 15 I'm conscious of the time but I think I've got a bit of information I do want to share with the committee that we're not going to come up with an answer that's going to say what we think the number is but I think it's important that maybe we can give you a bit of information that we have recently pulled together from Police Scotland so I suppose with Police Scotland the crime survey for England England and Wales between 2015 and 2016 asked adult respondents between age between 16 and 59 to experience a range of abuse when they were a child I'm conscious that I don't think those sort of questions are made in any of the Scottish surveys and the survey showed that 9 per cent of adults had experienced psychological abuse I think psychological abuse was mentioned as opposed to emotional abuse 7 per cent was physical abuse and 7 per cent was sexual abuse in addition for the information that was collected from the adults had survived sexual assaults by rape or penetration during childhood 3 out of 4 persons reported that they had not told anybody about that fact or reported it to the police so there's a bit of information there that might be interesting obviously the committee is aware in terms of the justice committee that Police Scotland has seen a rise in reports of non-recent rape over the last number of years since Police Scotland and we have been doing a bit of work in the last year or so so in 2014 Operation Hydrant was raised in the United Kingdom really as a result of the savel issues and that was a coordinating hub where all forces across the UK were committed to when we were investigating at this time non-recent sexual abuse involving and it's quite a narrow category involving persons of public prominence or where the abuse has been in an institution we will report Operation Hydrant so that if the individual is under investigation in another police force in the United Kingdom we can join the dots so that's Operation Hydrant and it's referred into the written response and maybe it wasn't clear what that was about so we've been doing that and then obviously since the Scottish Government published its intentions for the National Child Abuse Inquiry and then in May 2015 the announcement in terms of the terms of reference Police Scotland's tried to be prepared for that so we have had a resource we have had dedicated resources for the last year and we anticipate it's going to take another year or so to basically search and locate files to what we would call public protection files or it used to be called family protection files in their days mainly around sexual crime and child protection files to be able to identify those files that would fit the terms of reference for the Scottish Child Abuse Inquiry in the anticipation that we are going to be asked for information and discharge the Chief Constable's function under an act we have focused in the legacy Strathclyde area and just recently we have just finished the Strathclyde area so it's taken us a year to search, locate and find our old family protection files we have found 115,000 files not all child protection that will be sexual crime as well but files that are investigated from your old public protection family protection women and child unit type units that have been through the years the vast majority of these files that we found just go back to 2000 there are very few that predate 2000 which will probably fit in with our retention and policy rules and whilst the majority of them are from reports made 2000 forward the earliest abuse that we found in the file is 1936 so somebody had reported very historical abuse what we've done is that because we're under a bit of pressure with the child abuse inquiry we have identified those files that would fall within the terms of reference for the child abuse inquiry in care we've also cataloged those that if there were investigations now they would fall with an operation hydrant so there is a bit of a crossover in terms of care in institutions but the persons of public prominence we've cataloged them and because we're doing some sort of deconfliction work in Police Scotland and we have been for a wee while we've also cataloged clerical abuse that while that seems quite broad it does only take into account a small proportion of abuse because we're quite well aware that in terms of reports the vast majority of abuse is in the household and by people who have relationships some other forms of relationship so having done the Strathclyde area which is probably half of Scotland in terms of population etc we have found or we have cataloged for those specific types of terms of reference just less than 2,300 files that said we have 4,400 victims so an example was we had three different files all relating to the same institution and when you counted up the victims there was 57 individuals reporting child abuse in a care setting so that's where we are at the moment in terms of that bit of work the reference to we might have found about 5,000 files when we do that very narrow bit of work is what we anticipate once we get around the other seven legacy forces in Police Scotland that is not victims, that's files and there might be or there might be a number depending on the type of investigation that was done is that helpful? It's very comprehensive I would have a series of questions but I don't think I'd get away with them Can I just ask one though please Leslie and that is about retention policy because clearly that has to be is that something that's being looked at at the moment or does technology help with that does it make it easier because some of us all know from constituency work that there are challenges of historic things particularly with previous local authorities I suppose once we do that search, locate, cataloging review across Scotland we'll be in a better position as to retention across Scotland what we have retention policies what they were previously what they are now I'd have to say in terms of retention it's been very clear both from those inquiries that we're not disposing of anything that might fall within their terms of reference now but looking back it's difficult and it's difficult with paper records I think there's this image that we're going to be like Ikea or something that we can just type in a name and all of a sudden we'll be able to find something unfortunately that's not reality That informed estimate then isn't too far off the 2200 figure and I appreciate again that it could change on other people's point To be honest I think that the 2200 figure you know what we've got at the moment is very very narrow if the definition of if this bill is not just going to take into account children in a care setting or in an institutional setting if it is broader I would have to say that number that we might be talking about so we've got 4400 victims from from those terms of reference from the Strathclyde area you know you could say well do you double it for Scotland but we know that that is a small proportion of children who have been abused and neglected in Scotland across the years and I suppose that you know that is probably as far as we can go in terms of even the recent football abuse investigations that are on going just now again 140 referrals to Police Scotland 36 investigations raised well over 100 victims you know so even in terms of a small period of time vast majority have never been reported to the police before I'm just saying I think it's really really difficult to be able to put a number, an estimate number on what may be the potential and I absolutely get that there should be a range of options for survivors of child abuse and maybe you know litigation is not one or a small proportion but I think it's going to be really difficult in terms of a financial memo to try and say what the cost is going to be Thank you, the complexities I appreciate that, that's great Lauren In our submission we did think based on discussions with Police Scotland that the estimate would be conservative particularly given the large scale of what the bill covers but something that Rakhine emphasises that regardless of the number of claims that go forward the impact on local authorities will be bigger than that because of the number of information requests subject data access requests freedom of information requests that come in to try and help to establish who the defender in the situation actually is and going back over that period of time it could well be the case for example that a child had swimming lessons a swimming pool that was housed within a high school at the weekend but at that point in time the person providing the swimming lesson was an outside contractor where there was no relationship with the local authority but if the memory is that you went to the high school to have your swimming lesson then the information request that you submitted to try and figure out who the defender in the action is is likely to come to the local authority and so overall it's very difficult to predict how many cases there will be and will go forward but it's also very difficult to predict what the impact of that is going to be something that might give a slight insight into it is in terms of ombudsman it tends to be that only about 25 per cent of their inquiries overall make it to be a final complaint and there will be a huge variance in that but if we take that and apply it to the number of cases that go forward the impact in terms of information and figuring out who the defender is in the situation could be massive for local authorities Okay, thank you very much indeed Thank you Moving on Mary Thank you convener and the last question and your answers leads quite nicely to the question that I'm about to ask and it's about capacity and impact and Cosla have highlighted that there could be quite large administrative burdens when this legislation comes to pass and if I set aside the issue of the financial impact particularly in relation to local authorities I think that we all accept that the financial burden that they may have is potentially larger than any other organisation and both Leslie and Lauren spoke in quite detailed terms around the difficulties of investigating and the length of time it takes to investigate given how far back some of these claims are potentially going to go but I just wonder what impact do you think this will have on your capacity to fulfil your other obligations whether that's in the police, local authorities or in social work and do you have the capacity to deal with that without there being an impact on different services? Maybe if I could start on that more Clearly a lot of adult survivors are still receiving services at the moment from either local authorities directly or through voluntary organisations that we fund or that are particularly commissioned so it may be equally NHS-provided services to some people too so a lot of those people may well be in the system already and it may well be that for some people the process of getting some kind of recompense through a tribunal or judicial process actually provides them with a degree of closure or a degree of support that enables them to be in a better place at the end of that so it's a very difficult thing to quantify and certainly from my own experience where we've had in different areas of the country over the years reasons to look at historic files and historic cases like the police getting hold of information is extremely difficult and particularly when you get back before electronic records were kept a lot of it is on your hands and knees and it's literally people in warehouses digging out boxes of files and looking for what they're trying to find so the big unknown here really is the volume of requests that will come in not so much for the legal or judicial process however that may unfold but individuals looking through either as FOI requests or subject access requests through the data protection act getting information which then the local authority has to process and redact and share in particular ways and that's very time consuming so clearly there will be an administrative burden and it will be entirely dependent on the volume of what's generated what that is it's difficult to guess at the moment the other area where I think there's likely to be the biggest impact is where we get into situations of hearings and we're having to support staff through those processes either former staff, current staff or other people who are affected in that process and again that will be dependent on the numbers involved but the repercussions of the process go much greater than just for example the cost of any recompense that ultimately might be the outcome just briefly going back to the Jersey model around half the costs of the entire process were actually paid out in recompense the other proportion of the cost was all to do with administration and managing the process I suppose that the only thing to add really and I absolutely agree with what Alistair said the impact is not likely to be identical across the country because there have been several iterations of local government across the period that this bill covers there will be differences in the files that exist from building to building and that will depend local authority to local authority so it won't be one method that's developed to deal with it it will have to be a different method that's developed depending on the files that exist where they're kept and the resource and capacity within an individual local authority at a time and so even the response to this will not be a one size fits all model in terms of the impact I echo what's been said already in terms of the subject access requests and FOIs this would be a significant impact on local authorities in terms of the legal process which I guess is where I can probably input a bit more there will be impacts on the legal services across all local authorities in terms of assisting them through the subject access requests assisting our client departments through that and also in terms of mapping out the potential claims that may be forthcoming as well as assessing any claims that may come in once those that we go through that assessment process thereafter we enter into the realms of litigation and I would suggest that we are a broad church I think that that term was used earlier in terms of local authorities all local authorities will be geared with the legal teams to be able to cope with the level of claims that might be forthcoming some of them, some of those claims will obviously process and through to the court system some will be settled out with but either way there will be a significant amount of work that will fall on the legal departments across the 32 local authorities in terms of dealing with these claims from the very beginning right through to the actual litigation element I suspect that a lot of local authorities will have to make provisions for either hiring external services if they don't already have that or recruitment in terms of dealing with the volume of cases that may come albeit I acknowledge that the volume of claims is unknown at the moment and we obviously touched on that earlier what I would suggest is the last meeting of the justice committee in terms of what was alluded to that one firm in particular had about a thousand claims that they had on the books at the moment so that gives you an indication of what might be forthcoming Is there anything else? I suppose it's just exactly the same as it's been mentioned by Lauren and Vlad in that I think there will be requests to Police Scotland when an individual who is considering making or raising action has made any form of report to Police Scotland in any way whether that has resulted in charge report to the procreator fiscal conviction or otherwise so I think there is that bit about the whilst I'm hopeful in the next year we will be in a far far better position in terms of that search and recovery because we've done quite a lot of work in anticipation of the public inquiry there is still resource implications for locating, removing, redacting, reviewing information and in terms of legal services as well Information Management Department was in Police Scotland I think we would have resource implications without a doubt Can I be quite clear what your position is here? We don't exactly know the impact but we know it's likely to be quite significant Is your position that this should be adequately resourced knowing this in advance that there's likely to have an impact or are you saying it shouldn't be done because the resource implication is significant? From a solar perspective it would be the former so that it should be done but it should be adequately resourced and that's something that we haven't put into the COSLA submissions from the very beginning and I believe that some of the responses that you've had in terms of the consultation the initial consultation from local authorities did allot to the need for adequate resourcing of the implications on local authorities On perspective absolutely this should go ahead we think it should be done I would just reiterate that we should be able to put in one or two options that don't necessarily disdain a route of civil litigation in every case it would be very advisable for the committee to look at some of the options that have run elsewhere particularly Jersey where there's been very practical solutions that have actually satisfied the majority of people I think that we already know from the evidence that not everyone is going to go to litigation we're probably looking at the worst the case scenario just now but I do take your point it's way beyond the resources you have just now potentially Lauren From a COSLA perspective I would echo that we fully support the intent of the bill to widen access to justice and to achieve the aims of the bill there will have to be thought given to how those financial burdens can be met and managed in terms of resource because even with a Jersey model or even with an alternative model that won't stop the impact of things like data subject access request and freedom of information requests being well made on the reform and how you've gone redacting, all of that's being well made but while you support the intent would you go any further than that if it's such a resource are you saying that it's unmanageable that we can't have this legislation because of the resource or are you saying absolutely go ahead with it but there must be resources put in to deal with the effects of the bill there should absolutely be a move to widen access to justice given all of the unknowns around the bill it's very difficult to put a figure on the impact that it's quite clear that the bill here goes down a certain line we understand there'll be other ones as Jersey has been mentioned today but is your position that you support the intent or do you support the bill as being one of those measures in the full knowledge that you don't have the resources just now to deal with it and the resources would have to be made available to ensure you did I don't know that that question has gone past our membership in quite that form but in any in any financial burden we would welcome discussions with the Scottish Government about how costs can be managed so that we can continue to provide the services that we do with the knowledge that this burden could be significant Is that something you want to get back to the committee on then? We can, yes. A supplementary for Oliver and the Institute. I just wondered whether those additional costs would stretch into the awards made as well because I understand there are some local authorities because of how things have changed over time who maybe don't have insurance provision for the past and who would end up picking up the bill out of their kind of on-going financial pot. If I could come in I absolutely agree that the insurance provision is unclear as well for every local authority has to do their mapping exercise to ascertain what insurance was available if it was at the time what the terms of that insurance was and it's a contract and what if any excesses etc and any limitations to it so they might well be the case that some insurance companies are no longer in existence so therefore the local authority would have to cover those costs so yes absolutely the insurance element will bring about extra work in terms of mapping exercise and ascertaining who if any insurance was available and thereafter to the point in which we even enter into disputes with insurance companies in terms of the terms of the contract at the time so we may have double litigation as such one in terms of the actual claim and two in terms of having to discuss this with the relevant insurers and if we don't agree then we may have to take litigation against insurance companies so would you be looking for additional scenario where some individual councils were left with to find millions of pounds from current budgets would you be looking for additional support? I think as I mentioned earlier certainly so the last position is that it should be adequately resourced and if local authorities cannot meet those resources absolutely there should be extra funds available to cover that and it may well be circumstances in which local authorities did not have insurance and then you get a significant amount of claims coming in so that will be of serious and significant impact to local authorities It is just a little point about the information and indexing it so that you can dismiss or progress things right at the outset because if you are able to take things out at the beginning of the process and I just wondered if you'd done any attempt to estimate how much getting a decent index would be and I just highlight as a recent example my interest lifelong has been genealogy where the 1939 census has now been made available publicly in England and Wales about 30 million names addresses professions ages also cross-checked against the death index so that those who are still living are shown redacted and it appears that the commercial provider was able to do that for under one million pounds and I was much less than you might think it is and there are lots of other similar more complex more comparable things that are quite routinely done by archivists and I just wonder if you've got any sense of how much it might cost to get to a position where all those warehouses of paperwork and so on at least we end up with we know what's there physically where it is and what names are in it because there's a lot of work being done in other domains that does all that so this is not a new problem Maybe if I could take that first I mean local authorities where there's pure storage where those files are kept and you could roughly estimate the quantity the trouble is one box could actually be 100 files in one box could be one file depending on the history of the individual but the really the question about moving forward to what was going to start to cost significant money and where you might actually have an action depending on the nature of the evidence and the quality of that evidence and anything before the mid 1990s is going to be entirely based on paper records which have a very, very scattered history and obviously you go two through three iterations of different local authorities that's going to create difficulties too I think it may well be worth some discussion either with COSLA or through my own organisation I think that that's a very effective approach across authorities might help reduce some of that and that's something certainly I'd be more than happy to take back and have a look to see whether there was any scope for that We've spoken a lot about finance and how much it would cost to do this but glad we'll remember from this time in Murray council that often councils look to make savings in terms of people because that's their biggest cost and sometimes when it comes to councillors the legal services department is one that looks to be reduced How do you believe or what do you believe is the capacity not looking at how much it would cost but just the capacity in terms of the number of lawyers employed in local authorities to be able to deal with this potential increase in work If I could come in on that just to give you an example and I do emphasise the broad church element of the 32 local authorities there will be some local authorities who do most of their personal injury work in-house and they might be in a position and have mechanisms in place to deal with this However a small local authority in the middle of the council would not be able to cope and we've already done that exercise at the moment in terms of we would not be able to cope with the claims coming in because we would assist our internal clients in terms of the lead up to the claim assist them in the assessing process but thereafter the actual representation would probably need to be done by external solicitors which would be of significant impact to the legal costs of the council so in terms of there will be broad range teams across there in terms of all the local authorities some might be more capable to have the resources to deal with personal injury but I would suspect that as our workload being as it is they would require extra legal bodies to deal with these claims and the larger authorities will be even more impacted in terms of the wider areas and the more potential for claims that they will have I wonder if Kosla maybe have a view I would absolutely it's much more Vlad's place to represent the lawyer view than Kosla's in this instance but there will be councillors who are faced with their legal staff telling them actually you want me to do this committee report but I've got to do this work for this investigation so where will those priorities lie in terms of Kosla or across the country that actually there has been a reduction in legal staff employed by local authorities internally maybe if I can just pick up it varies entirely across the country some local authorities are outsourced by their legal services a lot more than others I work for the city of Edinburgh council and we buy in a lot of the legal support that we need from time to time it gives you a great deal more flexibility so in effect the thing is that as this starts to build local authorities may increase the size of their own house teams but they're much more likely to be commissioning work from external providers the question will be just how much of that expertise is available across the country and if laws of supply and demand would probably generate higher costs as that moves forward so it's something else that has to be factored in I just wanted to ask something you said earlier just for clarification I may not have understood it properly did you say that some local authorities are insured and some aren't? no sorry I guess what I meant was not currently I would suspect all local authorities are insured it's more about looking back in time and looking to see what insurance was in place and whether the company is still there and whether they were actually insured or not so it all depends on the terms of the contract with the insurance company at that point in time so it's quite a significant mapping exercise that we need to do and dig up records that we've got in terms of insurance does that help? yes it clarifies it Ben Good morning panel see me you may have heard me ask the question to the previous panel if past this new limitation regime to the related area of law of prescription which the Scottish Government has decided not to reform because it maintains that it's unable to do so without breaching the European Convention on Human Rights for clarity the effect of this decision is that if the abuse occurred prior to September 1964 usually it will not be possible to raise a court action under the new regime I wondered if any of you had any brief comment on whether you think the Scottish Government has been correct in this position If I could come in I have to say that I haven't canvassed that again with our members so I'll probably be speaking in terms of my own view on this and my own view I think that that is correct and particularly being in mind the earlier evidence that the committee has heard in terms of the Court of Human Rights commission in terms of article 6 and article 1 of protocol 1 in particular and I think that that would be just and fair in terms of moving forward and I think that that would be my view but as I said not necessarily so I have not been able to discuss it with them Very briefly in my own view I would accord with that, I think it's pragmatic I think that the section 17d elements would really kick in substantially in cases that are going before that time anyway so I think it's probably pragmatic Similar to Diolch yn fawr I canvassed it with members but I would agree with that view That's not something that we canvassed with members but I really agree with that view Thank you To be honest I looked at it in great detail because my understanding and my reading of all the previous documents was going to be a real, real difficult issue in terms of ECHR to go prior to that so it's sad that the position that the Scottish Government has taken is the pragmatic the pragmatic position Thank you Manny Just to get your opinions to ask a similar question to you is what I asked the last panel and the panels that we had last week too and it's about the definitions of child and abuse that are in the act as well I think that there's been a general agreement on the definition of child just about how abuse is defined in the bill We've had various suggestions from other panels suggesting that spiritual abuse is something that should be included that the list should be a bit more definitive in what it tries to look at but then we've had other opinions that say that it should remain fairly broad in what I was trying to describe so it's really just to get each of your opinions on that The issue of definition and I absolutely understand survivors want the broadest definition possible I also understand from quite a lot of the written submissions that maybe that might be unhelpful to some I do think the definitions which are currently within the Scottish Government's guidance for child protection in Scotland are helpful so sexual abuse is any act that involves the child in any activity for the sexual gratification of another whether or not it is claimed that the child either consented or assented physical abuse causing physical harm to a child or young person the physical harm may also be caused when the parent or carer feins the symptoms of or deliberately causes ill health to the child that they're looking after so that's the fabricated already or induced illness in terms of emotional abuse I think that this is quite in terms of the convener's example about designer shoes is quite clear emotional abuse is the persistent emotional neglect or ill treatment that has severe and persistent adverse effects on the child's emotional development and while some emotional abuse is present in all types of treatment of children it can also occur independently of other forms of abuse and I'll bring in the issue that I would like to raise is neglect because that is absolutely clearly within Scottish child protection procedures and policy at the moment it is child abuse and neglect so neglect is the persistent failure to meet a child's basic physical and or psychological needs likely to result in the serious impairment of the child's health and development in our response even going back to the 1937 act section 12 which we'll probably argue that it's a bit out of date now but even going back there it was quite clear that any person who had parental responsibility or had charge or care of a child who willfully assaults, ill treats neglects, abandons or exposes or causes or procures him to be assaulted, ill treated neglected, abandoned or exposes and I think neglect is actually seen as you know something different and Bruce mentioned earlier it was interesting the human rights commission written submission which considered that neglect should be explicitly included in the definition and bring in line with international human rights law which includes physical, emotional and sexual mistreatment of a child or neglect of a child so again it's seen separately we mentioned in our written submission at this present time and I know that we're looking for non-recent but neglect remained in 2011 neglect remained the most common reason for registration or initial category for those children made subject of a child protection plan we also know that by 2016 the two most common concerns identified in the child protection case conference for children who were subsequently placed on the child protection register were emotional abuse at 39% and neglect at 37% so we know that neglect is still an issue and was an issue previously I think our understanding of neglect is far better all the work that's been done predominantly at Stirling University Dr Bridget or Professor Bridget Daniels the work that she's been doing the child protection improvement plan which is on at the moment has got a work stream specifically looking at neglect in a number of three or four areas that are specifically focusing so online abuse child sexual exploitation and neglect so that's really Scottish Government's focusing on that from child protection and one of the representatives from the former boys and girls music warriors last week suggested that legislation would widen awareness and I think actually neglect if we don't mention neglect in the bill then there is a bit where maybe it is, you know, not seen it's not in the spotlight and I also think that and I know that legislation is not for this point but there is that suggestion that all forms of legislation which impose some form of sanction is one means of deterring behaviour and I'm not suggesting that this bill alone will deter individuals who so want to abuse or neglect children however if it does great so that's my submission in terms of neglect thank you some of the points raised last week about certainty there would be a policy question that I think would have to be asked in terms of if this goes forward into the court system will neglect then be interpreted within the meanings of abuse that are listed and if that is likely to be the case then should it be listed upfront before the bill is passed into an act instead of waiting for that to happen through the court process which can be long and would add to the uncertainty for victims my own view is that it's really important that neglect is there and as a category neglect isn't just a kind of sin of omission it can be fatal Declan Hainey case is probably a good example of that the reflecting on the previous discussion concepts of spiritual abuse or psychological abuse probably would fall into a category of emotional abuse if there was sexual abuse, physical abuse emotional abuse and neglect for me that covers it again if I come in from a solar perspective I don't think we particularly discussed that point of neglect however as someone who deals with child protection and child protection applications it would actually seem to fit nicely to have neglect within the bill simply because child protection in terms of children's hearing act I specifically mentioned neglect as one of the significant harms when we are applying for child protection orders so it would make sense from that perspective but as I said there's no solar position on this okay thank you that's very helpful I'm conscious of the clock so if the question and answer could be as succinct as possible that would be helpful to make sure we cover everything that we want with you Liam just again following up on an issue I've followed up now with each of the other panels I think all of you were silent in relation to the provision under section 117d and the discretion the courts would have assuming that unless you have violent views otherwise that you're generally comfortable with that but specifically Police Scotland referred in the submission to the situation where a civil claim may be raised but a criminal investigation or prosecution indeed is on-going it wasn't clear what specific point you were making there and what as a committee scrutinised in the bill we should be aware of or concerned about in that circumstance I suppose it was just highlighting the fact that if there are parallel criminal investigation or live proceedings and a civil process at the same time and I suppose this is maybe a better question for crime office procreate or fiscal service and you know civil aspect as opposed to police there is that potential for what takes precedence and the difficulty of contamination of evidence to a certain extent and I gave the example of child protection or MAPA significant case reviews whilst crime office procreate or fiscal service before were of the opinion that an SCR couldn't take place until a criminal case had concluded there's a bit more leeway there but there is the bit about the difficulty when there's two parallel processes who takes precedence and I know that there's been the conversation between crime office procreate or fiscal service and the Scottish child abuse inquiry in terms of what happens there so it was just a bit about the bill was silent we had a wee bit of a concern if we were dealing with a live investigation or there is a live prosecution what then happens when we talk about the civil process re-interviewing witnesses are they then disclosable and the whole issues that fall from parallel proceedings perspective this is something that sometimes pops up from time to time in local authority work in which there is a criminal prosecution and there might also be a civil case and generally because of subjudice issues the criminal prosecution has to take shape first and the outcome of that has to be had before the civil court proceedings can then continue because there might be as is mentioned earlier contamination of witnesses running of evidence that the procreate of fiscal might not particularly want to be heard in court until they get an opportunity to question that particular witness and I guess is a matter of decision making for the courts as to whether they wish to proceed with both running in parallel but I would suggest that the criminal element will always be heard first and thereafter the civil element simply in terms of ensuring that the right convictions had and thereafter civil process might actually help if you've got a conviction. And our last question from Mary. Yes, that's just on the hub. Oh sorry, I forgot about that. I do apologise. Sorry. I do apologise. I've moved on. Sorry, I'm up to speed now. COSLA's written submission has suggested that there would be benefits to abuse cases being heard by a specialist hub of the personal injury court. Are there any benefits and drawbacks? Part of the difficulty which we've explored already will be in terms of responding organisations like local authorities knowing what will be required of them in terms of a civil case and forward. In terms of some of the issues that are being dealt with here in Valhadol, I'll be able to go into more detail. Some of the time limits will be unprecedented. Victim or witnesses may well be untraceable. The institutions which existed at the time may well not exist anymore. There will be a degree of specialism that would help with the cases to be able to develop a system around the cases. A benefit for victims could also be in that model and, like with domestic abuse courts that are going on. The sheriffs who are involved in those courts are especially trained on issues around domestic abuse. There could be benefits all round in terms of flexibly developing a process around those cases that will be unique in terms of personal injury actions if that goes into the personal injury court setting. We would definitely encourage that that was not the only thing that was thought of. A system like what has been mentioned in the jersey model that has commonalities with the criminal injuries compensation authority would be something that we would be keen to see explored as well. It would increase the confidence that victims would have in going to court and going through that court process if there was a specialist court that dealt with it. I do not know that that is for COSLA to answer but from a personal perspective and from work that I have done in the past in terms of access to justice I would say that to know that you were going into a setting where the sheriffs had an understanding of not just the very strict case in front of them but other issues and elements that might have impacted on your life that could make quite a big difference in terms of the process overall but that is a personal opinion and not one across them. I might have an answer to the question that I am about to pose. The previous panel raised not a concern but made the point that you cannot just have one specialist hub you would need to have more than one because there is always I suppose a danger that if it is only one unit that is doing it it almost becomes it's done by rote so allowing I suppose the variability of having more than one hub and sharing expertise across perhaps three different units could perhaps be a benefit. You prompted my answer really. Lauren Dunlop mentioned that I guess that the disadvantage is to having a specialist system the advantage is uniformity in terms of dealing with the applications some of the disadvantage is that potentially you get set in your ways and that's the only way and I think that Lauren developed that point very well having more than one hub a specialist hub more than one specialist hub may assist in that process in terms of ensuring that all the hubs are co-ordinated but they must be able to talk to each other absolutely. I suppose just to clarify my understanding is that those cases will be typically above the value of what's now a simple procedure but below the value of court of session they will go to the personal injury court which will be based in Edinburgh so they won't be raised in different sheriffs throughout the country they will go to the personal injury court in Edinburgh and so I think one hub but with different sheriffs participating. Stuart Statham has a question which he's not going to ask just now, the clerks are going to write to you with it and if you could get the responses back that would be helpful because we have run out of time can I thank you very much for your evidence which has helped tremendously not only just to look at what must be in the bill but what must be catered for and thought about in order to ensure that the bill actually works when or if and when it's passed attending we suspend now and go into private session the next meeting of the justice committee will be on the 7th of March when our main item of business is our first evidence session on the railway and policing bill and if I could ask everyone to vacate very quickly because we've only got a couple of minutes before we have to leave