 Fy fawr, ddweud i'r Cymru, sefydliadau 6 mwythgyn nhw, 2017. Fy fawr ymlaen i'r clywed o'r Llywodraeth Cymru, Scotland Bill, a'r ysgrifennu i'r cysylltu i'r clywed o'r pwysig, ond yn y clywed o'r clywed o'r pwysig, ac yn y pwysig o'r pwysig. I'm particularly pleased to welcome our panel members for the first panel today. We have two panels, the first panel being Graham Garrett, Solister Association of Personally Injured Lawyers, David Whelan and Harry Akin, both representing former boys and girls abused in courier's homes, Sandy Brindley, national coordinator of rape crisis Scotland and Laura Baxter, operations manager with Victim Support Scotland. I think we'll move straight to questions and if I could perhaps start with a kind of general question and stating the obvious that the bill removes the three-year limitation period where the court action in question is about child abuse with retrospective effect. So could we start maybe by asking the panel members to put on record their views about this proposed change and also what impact they think the new law would have on survivors? Anyone would like to start? Absolutely, Mr Whelan. Thank you. I'm a victim of abuse. There was a criminal conviction in my case and then there was a civil case, which was time-barred. So the benefits of this bill, when we commend the Scottish Government for bringing this bill forward and it has the support of the survivors, the benefits will be injustices of the past will be righted. It will enable us—there's an absurd position in Scotland where you have a criminal case and you have a criminal conviction, but when you go into the civil court process, that is actually time-barred. What has happened in those cases—I just want to give you a little bit of personal background because I think it's important that the committee really understands this to have a view of what's actually happened in the past—quarriers and their insurers and their legal teams have actually tried to use the criminal jury process by the tactics and antics that they've used in the civil processes. So what they've done is they've made people like myself go and see so-called false memory experts such as Dr Janet Bolx. They've actually challenged the testimony that I gave in a criminal court, which was upheld by a jury, which was upheld by an appeal court. What they've done is they've further damaged it and harmed the victims in those cases by not actually addressing the original harm. The law needs changing. The civil process is also antiquated as Victorian. Lady Smith made some comments in relation to my case about the issue of me not coming forward and why I didn't come forward. I was never asked to come forward or give evidence in the criminal court justice process to explain that delay, so that to me is a major fault in the civil court process. If I was able to go and actually personally speak about that delay, I am sure that that would have been helpful to Lady Smith, who incidentally happens to be the chair of the Scottish child abuse inquiry. I hope to start with, but I definitely feel that there is the anomaly where in criminal cases there is no time bar, but in civil there is. The bill would write that anomaly. We believe that it would do. The definition in the current time bar legislation is too narrow, and it's a bar to progressing cases through the civil courts. The definition needs to be widened. The insurers are a vested interest organisation. They will challenge what wants to be done here, but justice needs to be done and delivered for the survivors. My organisation strongly supports the bill because we feel that for the past 50 years victims of abuse have been denied our voice. They have seldom been in the position of being able to say in open court what happened to them. That is because limitation has operated as a brick wall that they have come up against. The bill is not a panacea, because victims will still face a number of significant obstacles before they can be awarded compensation, but it is a very important step, we believe, in giving victims a voice. That is helpful. Mr Eakin? Yes, just to support something that David said. David and I have been on this journey together for 15 years. This is the first time that I have ever exposed myself to the cameras. Because it is so important that I felt that today I had to come out into the open, I have a public face as well as a private face. That public face I have tried at all times to defend and protect, but today, because of the importance and the significance of the dimension of access to justice for survivors, I wanted to come here and speak to you. I support this bill. I support it on a number of grounds, primarily because, at long last, after all our campaigning and our discussions across the spectrum of cabinet ministers, MSPs, Scottish Human Rights Commission, SELSAs up at Strathclyde University, all of those agencies, we have spoken to them all about our fundamental requirement for survivors and the fundamental right of survivors. That is access to justice. So many barriers have been placed in the path of survivors that it has been a diabolical disgrace to the people of Scotland. Their rights have been infringed. Every impediment has worked to the detriment of the survivors. It seems quite easy for a care provider to lodge a plea of time bar and then leave it to the courts to deal with. When the survivors themselves, the prejudice to the survivors under that situation, is tantamount to further abuse. David referred to Dr Janet Bokes. She absolutely abused the people who had been in the court, had gone through all the child abuse, re-traumatised them, and it caused so much consternation in the minds of survivors and the community that very, very few of them have come forward since that time. However, we have 1,000 people, 1,000 survivors on the books of Cameron Fife, a Glasgow lawyer, who at that time were prepared to come forward when they thought there would be an opportunity for access to justice. But as soon as the legal aid provision was removed, that 1,000 people were abandoned. So far as the time bar is concerned and the discretion of the judiciary, 40 years since 1973, not one case from a historical abuse situation in residence was the discretion of the judge in vote. Not one case, that was from 73 until 2013. Lady Smith presided over eight cases lodged by former quarriers residence and in every case they were refused the discretion. Four of them had already been proven in the criminal court, they secured a conviction for their abuser and still they were refused the discretion. It was only until 2013 when Lord Conclavean saw the light and he said, this is the time when the discretion must be invoked, that is my power. He gave the opportunity to a case which is well known, it was a police, an uncle versus a niece and there was child abuse in the home. So that was a kinship care abuse situation, not a residential care situation. But Lord Conclavean said, there is sufficient evidence from the criminal court to proceed with this case but more than that there will be no prejudice to the defendant. There was no prejudice to the defendants that we had to face in our cases and yet Lady Smith, she presided over these eight cases and not one of them were allowed to proceed. So we recommend, we advise it, we recommend it and we support it and the impact it will have, it will have a dramatic impact on the lives of survivors, the thousands of survivors in this country who suffered the most terrible, horrific abuse and they are still suffering that abuse to this day. It demonstrates itself much more evidently as we get older. Every person as they grow older loses resilience, the loses resource and the effects of the trauma they suffered in childhood surfaces and they have tried at all times to protect their families, protect their friends and relations but ultimately it surfaces. Do you know what happens to them? They end up in many cases in hospital, the criminal justice system in prison and the worst of all is friends of ours who have suffered so badly, they take their own lives. I just say that we are very pleased. It takes a lot of courage to come before a committee, to come into the public domain and give evidence so can I say that outside, we very much appreciate all the panellists coming forward to that basis. If I could perhaps paraphrase a little bit Mr Eakin then, it's not a panacea the bill but it's certainly a major step in removing some of the barriers that you've very eloquently described in your testimony. To go a little bit further, you're probably saying that while the discretion was there in the courts to remove the time bar, it hasn't been really used to anything like it. Never been involved, not once in 40 years. That's very helpful. Anyone else? The first thing that I'd like to say is that I think it's to the credit of survivors who have had the bravery to fight for this change and I think what justifiably has seen as an injustice and a barrier to justice. I think the nature of child abuse or child abuse in general is that it can take people a long time to feel able to speak so the time bar disproportionately affects child abuse survivors in a way that my organisation definitely sees is unjust. I think that the bill is welcome. I echo the comments about it not being a panacea but it will improve access to justice and I think that that is to be supported. Thank you very much. First of all, we would also victim switch Scotland warmly welcomes and supports the bill and we know that there's numerous reasons why victims of child abuse are unable to speak about it within the three-year time limit and that, in fact, does give them the voice, allows them to be heard and recognised for what they've actually been through. I just met the gentleman here this morning and I have to paraphrase what Sandy said really very courageous to come forward and speak about things in the campaign that they're doing, very, very impressed with the work that they're doing as well, but we would warmly welcome this bill. Thank you very much. Rona. Yes, good morning everyone. When the Scottish Government consulted on the impact of those proposals, some respondents said that there could be a possible issue with the bill and that that would be that survivors would still have to revisit the traumatic events with lawyers and with the court system. Do you think that that's a valid concern and do you think that the benefits outweigh the disadvantages for survivors that they would have to relive some very traumatic events? I would like to do that, Mr Peeley. I've already given that answer by publicly coming out, by publicly campaigning for the last 15 years for a change in the law and actually the survivors' wantness. The survivors who are able to come in front of you today, we are stronger than the other survivors, we're able to articulate what possibly the benefits will be to the bill and everything else, but we represent many vulnerable people and have done for many, many years, many more vulnerable than ourselves. They've already spoken, they've spoken in the media, they've come out, they're speaking at the child abuse inquiry, they spoke through the national confidential form, the quarriers' victim survivors spoke through time to be heard. It's false to say that people wouldn't come forward if there was a change in the law, people would take the full benefit of the change of that law. Do you think that that represents the majority of survivors? I definitely do. The significance of it is that, at long last, they will have the choice. And this element of choice has been denied them until now. They are well aware and we will make it aware to them, anyone that we speak to, and we speak to them quite frequently across the whole of the nation, sometimes in England and wherever they come from. The point about it is this, although we have already heard that it will be a difficult task for them to go forward to the courts, they will have to have a robust case, it will be cross-examined and it will have to stand up to the normal practices of the legal system. However, having made that choice themselves and having the courage to go forward, I believe that that will fortify them and give them an opportunity in their lives to demonstrate that they saw it through to the end, they were not oppressed or suppressed by the system, which we all have been, from our childhood right through. At long last, the Scottish Government has given them that opportunity, so the impact on survivors will be dramatic, it will be positive and it will enlighten and enrich their spirit. Thank you, that is very encouraging, thank you. Douglas, you wanted to come in with a just a small supplementary on this and I am grateful to the evidence that we have heard so far. While I can understand that victims are prepared to give evidence and some have done it in a criminal case before, is there a concern that with the vast numbers that could potentially come forward and are already stretched justice system that not just giving evidence could be a barrier to some who do not want to give evidence, but actually when they see this bill, if it passes, they then get a peak, they think that this is great, I have now got an opportunity, but because of the numbers there is a huge delay in some people actually getting their day in court. How do you think survivors would deal with potential frustrations that they now have the opportunity to go to court, but because of the pressures of the court system, they are not getting their place in court immediately? I come in there on the issue of vast numbers because, as I said in my opening comment, there are still a number of pretty serious obstacles facing anyone who wishes to seek compensation for historic abuse. The first is that many victims will have been abused not in institutions, but by individuals. You have to have someone who is worth suing before you can seek compensation. Foster carers are likely to be a particular difficulty. Of course, the age of many of those cases means that the evidence may simply not be there. I think that what I am trying to get through with the cases that do come to court, is that they will be complex cases by their nature. They will take time to go through the process. If you are in the first tranche, you will hopefully get the satisfaction of having your evidence presented in court and potentially the correct outcome. However, if you are waiting for other cases to be heard before your own, I wonder how survivors who have waited so long to get to this stage will face the frustration of having to wait longer, while cases and the justice system potentially struggle to deal with any increasing cases. That is what I would like to hear. I think that it is scaremongering about the vast numbers about who is going to come forward. It is scaremongering by the insurance companies to stop the Scottish Government from bringing the bill forward. It is just another tactic that is being used. Clearly, we have already said that robust evidence will be required and that it will need to be scrutinised. If there is a preliminary hearing on that case, it may not proceed to the next process, but what we are saying is that the issue for us is that we have to bring the victim forward to be able to give that testimony personally to the first hearing and to explain if they are able to do that, to explain that. Now, about delays in the court system, with all due respect, that is not our issue. That is probably the committee's issue to deal with. The court should facilitate the process of justice and it should do it in a proper and expedient manner. I echo that point, but I think that there are resource issues for the court service as a result of the bill, but I do not think that that should be used as a reason not to improve access to justice. I think that that is an issue for the Government to consider if there are resource implications as a result of the bill. There is an opportunity to move forward. That has been covered quite well. I am going to move on to the next question, John. On this point, Stuart Stevenson. It is a relatively small point that can be answered concisely. I just wanted to be clear that you are satisfied that where the victim themselves might not be able to act because their intellectually disadvantaged would be an example, and there may be others. That act will allow others to act on their behalf. Yes, of course. Clearly, victims will have legal representation if the bill is enacted and they will be there to support them. I am not making a legal point. I am making a point that is a carer for somebody who has been used. Yes, of course. Whoever the person nominates to represent them, the bill should still assist those cases. I am sorry, I am going to be very precise. Some people may not have the capability of making such a nomination. That is the point of getting at. I am not trying to open that up too much, just to make sure that when we talk about victims, we are not restricting to victims who have the ability to make all the decisions in their lives for themselves. I am just seeing if you are satisfied that we are covering that group. Clearly, we would want every victim of child abuse who has a case to proceed no matter what their disabilities are or are incapacitated. Many survivors would have been within the mental health system because of what happened to them. I think again that it would be an indictment on the system if they were not allowed to be heard. That is helpful. We have that on the record and that is what I wanted to convene. Probably. Are we speaking about advocacy too? The person brings it, but someone is the advocate for them, not in the legal sense but necessarily, but someone who is able to maybe articulate their case better than the victim perhaps could. Can I call you Margaret? Yes, absolutely. Margaret, I think that that has been happening in the past cases where people have advocated, I think that people like Sandy's organisation and victim support have advocated for survivors in the past. That would continue as far as we would wish that to continue because we are dealing with some of the most vulnerable people in society whose society is actually let down and where the state has failed in the duty of care. We have a number of questions, so we will move on unless it is particular. That is a practice that we have used for some years now. It is also strengthening in Scotland because we have just established the survivor support fund. That has 26 partners, all with expertise in the different domains of trauma and the requirements that survivors have. There will be the opportunity across the spread in Scotland for people to have an advocate and for people to have support, which they already do, whether it is children's files going to court, looking at meeting with any panel that they have to meet. That has already happened. That is embedded in the system now. It works extremely well because we have very proficient and very sympathetic and understanding support workers who do that for us. I do not see the one thing that I would like to pick up on that I meant to say, Douglas, was that the first tranche, if it was really well organised, would be the frail, the infirm and the elderly. Going through that process helps them. They may die happy. Sorry to be so blunt, but that is what we feel about it. Watching the outcome of that first tranche, then there might be an impetus, a further swell of others coming forward. That is easily supported by the evidence from across the world, Australia, Ireland and Canada. All this has happened, so we do have a good bank of information that will support us in understanding these processes. I do not see any real problem if a person is at long last given the choice to make their own mind up whether they want to go for the court system or they want to wait until they get redress and take their case through that process. After all, we still have to deal with the 1964 issue that may crop up in your questioning today. We know survivors who are in their 70s, 80s and 90s are still living today, and they will be, I hope, the first people to be exposed to that opportunity. The methods that are in place, I think, will suffice. They will work well as they have done up until now, and I see no impediment to them getting access to whatever means of support or outlet that they want. You will be aware that the bill enjoys a lot of support, and I support it myself, but there are critics, too. If I could pick up on one of the points of criticism, I welcome your comment, and that is that, where the bill to proceed in the new regime would have cases decided on poor quality or limited evidence, and, further, the new regime would draw what is seen as scant resources away from other areas. Can you comment on that, please? The resources that would be required to support the regime would be directed from other valuable areas. Can I deal with that one first, please? Yes, I understand that, but there is evidence from across the world, and we have to look outside Scotland to see, because we have fallen behind, but we are catching up quickly. Fifteen years is not a long time in the life of a survivor compared with the times that other people have had to wait in other jurisdictions. With regard to the posity or the lack of evidence, that has been debunked in many cases, where people have been able to come forward to the criminal courts and present their case, and on the basis of the evidence that is available, they have been able to be successful. Not in every case, because I do agree that it is very difficult, but if you take into account the kinds of obstacles that we have to confront, the loss of children's files, the deliberate destruction of children's files, which Tom Shaw and his systemic review reported, all of those matters can be taken into account. However, sufficient evidence to support a robust case has been done in other jurisdictions, and we are happy to hear that. With regard to drawing resources away from other elements of society, that does not really bother us. It is not our concern because we are all taxpayers. Also, is not it time that the jurisdiction of Scotland shows and demonstrates what they really mean when they say that they will support the survivors and the poor people of Scotland and the vulnerable people of Scotland? Those resources could be quite easily allocated to deal with it. With regard to the numbers, we have come up with a figure—this is the Scottish Government's figure—of 2,200 survivors coming forward. Only 10 per cent of them will go forward to the courts, and that is taken from their own figures. It is not a monumental task, it is an important task. If we do believe in the rights of our people in this country, after all, the defender's rights are very well protected with article 6 and article 1 of the convention. The rights of the individual in many cases across the years have been flaunted and ignored. If the Scottish Government is serious, I am sure that it will find a way to support the system and get us through the process. John, can I just comment about resources? Your streets are littered with the damage that is being done to the victims and the resources that have to go into the NHS, the resources that have to go into the voluntary groups, the resources that have to go into other areas to address and actually repair the damage that is being done. I think that another amount of resource to finish that and ensure that justice is delivered is a resource that is well spent. Thank you. It is important to address the critics, and it is helpful to get that on the record. One alternative approach to the bill, and it has been suggested by some of the opponents to the bill, would be to provide greater guidance, whether that is by statute or in other means, to judges on how they should exercise their discretion under the 1973 act. Mr Wraith, have you already commented on the judge's ability to use their discretion? I do not know perhaps if you want to make any additional comments on that before the rest of the panel comment on what they think of that proposal. Just to confirm what I said, they were advised, they were always advised, they knew the substance of the act, they understood their discretionary powers, and do not forget that it comes in terms of unfettered full discretion. That is the language that is used, and they still did not see it in their judgment to allow cases to proceed. In many cases, and I have read very carefully the judgment made by Lady Smith in particular, with the quarrier's case, in some cases, I am a layperson, I would have seen and did see the opportunity for Lady Smith to invoke her powers. She did not do that, and that is not to get at Lady Smith, she just happened to be the person who presided over these cases. That is not something that I think will bother us in the future, simply because the robustness of the system, the way that is defined by the Scottish Government right now, is that you have to have a case, and it has to have the evidence, and it has to be robust, and it will be tested in court. If the limitation element is removed, so also the strength of the court case system will predicate on the effectiveness of that survivor's case going further. My understanding is that the bill will widen the awareness test and will, in a sense, whether judiciary has been very conservative in, as Harry says, one case in all those years. That demonstrates that. The judiciary has to take responsibility for the judgments that they have passed down in those cases, and they cannot just pretend that they are somewhere up there and they do not exist and they are not accountable to the people, but they are accountable to the people. Our understanding is that the awareness test will be widened in the legislation that should enable the judiciary to not have an excuse to time bar a case, and it will be widened to the effect of what child abuse is, what effects are, etc. The definition being widened should support the judiciary to make the right decisions at the second time round. The benefit to legislating, rather than relying on discretion, is that it gives greater certainty to survivors about what the legislative framework is and what the options are. I do not think that the evidence tells us that we can rely on an approach that is based on discretion. I absolutely think that we need to legislate in this area and give greater certainty to survivors in these really difficult circumstances. You do not give survivors any confidence. I do not think that it would give any certainty about what the approach is likely to be, and I can completely understand that survivors, based on past experience, would not have confidence in that approach just because it has been used so infrequently. In fairness, I think that the judiciary is a completely different legislative framework that we are now talking about, and I think that that is the right approach to take. You certainly need certainty. It needs to be clear. The law needs to be clear, because clearly it is unclear. I think that one of the lords said that there is a mystery in the legislation that needs to be addressed. I cannot remember exactly who said that, but that is clearly what needs to be addressed here. With regard to the opportunities that the survivors can avail themselves of and this awareness test, it is proposed by the Scottish Government in the bill that the awareness will be looser in its interpretation, and I think that that is something so important, because Celsus Strathclyde University have found, through the research, that the average of 22 years before a survivor discloses their abuse is longer for men than it is for women. The point about it is that if that was allowed and there is much more flexibility in the court system under this new proposal, then the awareness of their knowledge of abuse and what their rights were could be dealt with, and the other element is this. They also recommend that other factors be added, and an exhaustive list of factors will be considered in the case of a survivor coming forward. For example, I can give you two things that I remember during consultation. One was what did the care home or the management do when cases of child abuse were reported? What did they do? What protections did they put in place? What investigations did they undertake? What actions did they take if anything was proven? That is the first one. The second one is that, as a child leaves care homes and leaves the care system, they have a right to be informed of their rights, and it has been suggested by survivors that those rights extend to any possibility of complaints that they may have of their care system experience. That is dramatic. That is the first time that it is a radical approach, and I believe that that would be that it would then place the incumbents and the owners on the care system of Scotland to protect their youngsters after they leave care, so that one would help. The bill is shaping up to have a lot of great things in it for survivors, which will help them in every dimension of their lives. The rights of the defenders will still have the right to challenge every single case, and we recognise that right. The bill will not remove that right, but what we recognise is that you challenge it properly, not trying to discredit the victims, not trying to undermine the testimonies that were given in criminal courts. If you want to place a challenge, we recognise that challenge. You have that right to place that challenge, but it should be done properly. The Scottish Civil Law, the notions of limitation and prescription stand alongside each other, and the focus today is about access to justice for survivors. The new proposed regime for limitation is about enhancing that. In terms of the related area of prescription, the Scottish Government has decided not to reform this, deeming it that it is unable to do so, or that it would be inappropriate to do so, because that would create a breach of the European Convention of Human Rights. The effect of this decision is that the abuse occurred prior to September 1964 will usually not be where it will be possible to raise a core action under the new regime. I just wanted to get thoughts from the panellists on that, and whether the Scottish Government's decision on prescription was appropriate. I think that you know previously that my understanding is that I am a lay person. Can I just place on record that I want to thank Eleanor J Russel, who did the research into these historical abuse cases that I was able to submit to the committee? Clearly, we would like every case to be enabled to go forward, but we recognise the difficulties in the 1964 case. We recognise that through the Scottish human rights interaction, which we undertook over 18 months with the Government and all the other parties. We were in discussions with the Scottish Government, as are our survivor groups in other parties, about the commencing of a discussion around redress. We have particularly focused on initially the pre-1964 case, because we recognise that the law may not be able to be changed as much as we would like it to be changed for every single survivor. We recognise that there is an issue around the SNHRC and European rights, so the law may not be able to be changed. In fairness to the Government, it has explained that to us in clear terms. Again, I want to thank the Scottish Government, because in the past two years ministers have taken the time out of their brief to meet with the survivors, meet with groups and individuals of survivors. They have taken the time to, I believe, understand what the issues are that we have been facing. They have brought forward a number of the elements of the interaction review group now, and there are still some elements outstanding. However, in the pre-1964 case, we recognise that, as a survivor group, it is difficult for us, but we would want every single survivor to enable this law to be helpful. However, we recognise that the Government has explained that to us. We recognise their position, and we fully support that they are engaging with us on the interaction review group and on the interaction plan and on other elements that we will address on that particular issue. Can I chip in, Ben? Yes, we do understand this problem. It is a dilemma for us, but I think that it has been resolved in our minds for the people that I have spoken to. Looking at me, you can tell that I am not 35, but the people that we deal with, we are able to talk them through it as best we can. It is a long negative prescription problem, but it is substantive law, whereas limitation is a procedural law. We do understand that. In this case, when the 1964 law has to be enacted, there is a reconciliation in the minds of many survivors, not all, but in many survivors that is a closed door for them. It is a difficult pill to swallow, but at least we do understand that. Further, there is a proposal that the best way to deal with that is to make sure that they are treated fairly and appropriately in the redress scheme once that is up and running. If that is done sensitively and to the proper degree, I think that that would satisfy the people who may not be with us very long, at least to receive recognition. The 1964 dilemma will take that to the grave with them. The organisation fully understands the reasons for the 1964 cut-off date. We feel that the class of case that is likely to catch is the very class of case that would have struggled on evidential grounds anyway to establish a successful case. I can also look at the criminal injuries scheme, which, for entirely coincidental reasons, also operates a 1964 cut-off date. I sat as a tribunal judge on criminal injuries cases for 10 years, and I think that I can say that during that time I came across one or two cases at most which were caught by the 1964 rule. I do not believe that we are talking about significant numbers. That is reassuring. It is also reassuring to know from survivor groups that there is an understanding about the... One of our fears in this committee was the potential for the bill to raise expectations where there was not access to justice through this new legislation. That is reassuring that there is a wide understanding among survivors around the balance. Those conversations have been open and transparent. They have been supportive of what the survivors wish to achieve in the interaction plan. Where there have been difficulties, I believe that the Government to date has explained those difficulties and taken the time to explain those difficulties. I think that, using the realistic expectation of what is possible and what is not, the difficulties arising from pre-1964 are there, but the fact that there would be some redress, maybe some recognition for those people that this abuse had taken place. You will be aware that there is an apology act. Would that help the fact that it has been acknowledged and there is a commitment to look into the circumstances to ensure that it does not happen again? Within the interaction plan, there are a number of elements. Apology law was one. There was redress. There was the national confidential forum. There was the public inquiry. So there were a number of elements within the interaction plan that was agreed. I think that the apology law is certainly very, very helpful. It is actually going to be helpful to the pre-1964, but it is also going to be helpful to those who will be helped by the law as well. Maybe some people come forward and go to the civil process if the bill is enacted, but all they might want is an apology. The organisations will be able to give that apology without the fear of liability. I did not support it initially, as Margaret knows, because of the liability bit within the apology law. However, we recognise fully that we need to enable organisations to be able to give that apology without the fear of liability. It is up to the individual survivor what they want, but some survivors may want all three, some survivors may just want one element. However, an apology that is sincere and meaningful is probably one of the most powerful things that you can give someone as an individual, no matter the hurt and damage that has happened. I think that the fact that it has the provision to look into the circumstances to see if there is anything to ensure that it does not happen to anyone else, which I know is a huge issue for survivors. I think that one of the drivers for the survivor groups is that we want to ensure that the next generation of children cared for in Scotland is fit for purpose, and that is one of the drivers for us. That cannot happen to another generation of children cared for in Scotland. Of course, we cannot prevent every single case, but if the systems are robust and investigated, such as through the child abuse inquiry, then, at the end of it, we would expect institutions to be fit for purpose. About six years ago, a visiting professor came from Australia, and this lady had dealt extensively with the apology law in Australia, you may have seen her. I was present at that discussion, and it really allayed many of the fears that we had simply because it gave the abused agency, for want of a better word, the freedom to express themselves to the survivors and give an apology. That was one good thing. That was a human thing, and that worked extremely well. She also said that, in the process, claims were accepted more readily. Less claims came forward on the basis of controversy. They were clear. There was a pathway that was made clear because the apology had been made. The other thing that I would like to add was that an attempt was made during the time to be heard pilot forum under Tom Shaw, Kathleen Marshall and Anne Carpenter's aegis, when, at the end of the process, the survivors were asked, by the way, we have this method called restorative justice. Would you like to take part? They were at their most vulnerable. Some of them said, justice, yes, that's what I'm after. So they were given this restorative justice method to pursue. 15 opted to take it out of 98, nine continued, and to my recollection, to my knowledge, only one successfully completed the course. Simply because the apology was meaningless, it was given in the wrong context, it was not given by the right people in the right circumstances, it was not ratified, and it was not supported. That was a disgrace to the survivors, and I tell you, the people that we had to support through that process were traumatised yet again. But this method, and I say thank you to you, Margaret, for your sterling work and getting it through the system, this approach has the stamp of authority, has permission and has the stamp of efficacy attached to it, and I do believe that it will remove the burden from care providers that no longer will the insurers, the mighty and powerful insurers, stifle them and constrain them so that they will now be able to make an apology. Also, it removes another impediment. There's no excuse now because they are allowed to give an apology without liability, so I can see the merits of it. I just want to say one thing about restorative justice, because I think it's important to say this. This isn't actually a model that would suit survivors, and I think it's demonstrated by what Harry said about the there was only one outcome. Secondly, the reason some of those past processes have been criticised or have failed is simply this. They didn't consult with us. They actually put it there and said, you're going to be part of this. Whereas the difference in the last two to three years is that we have been consulted on the processes that directly affect us, and we have been able to input into those processes that directly affect us. That is the way forward. The processes need to be victim-survivors-centred, and I recognise the law and the legislation that may be different, but it is there to support the survivors, or it should be enabled to support the survivors' access to justice. It was just really to hear from each of you about the terms child and abuse that are defined in the bill. For example, when we look at abuse, do you think that there has been some criticism about the definition or lack of within the bill around that? Do you think that abuse is defined by sufficient precision that survivors can feel confident that their case will fall within the scope of the new regime? Our position is that we support as broad a definition as possible. It's very welcome that the definition of abuse has been broadened to the initial terms, which was in care. I think that it should cover any form of abuse. Certainly from the work that we do, I think that it needs to cover all sexual offences. My understanding is that it is sufficiently broad at the moment. I think that, as soon as you start being more specific, you are potentially going to limit people's experience. As panel members have already said, I think that what we want is for the legislation to be able to be accessed by as wide a range of people as possible. We are content with the wording as it stands just now. There is one slight hiccup in what has been said before. The mental, the physical and the sexual abuse is well catered for. There is another form of abuse that emanates from the church environment. The survivors have always said to us, and we put this forward on their behalf, that spiritual abuse should also have been included. It is a different dimension. It is something that gets somewhere else in the human being and has to be dealt with. The other three do not really deal with it. However, it is probably more damaging because it is in the soul, in the heart and in the mind of the person. I would have liked to have seen that continue. We did used to have it on our consultation documents, but that has been removed. I would like to see it included once again. People were indoctrinated in these institutions in relation to religion. The damage that is done to people is quite extraordinary. On the one hand, you are being abused by someone who is potentially a faith person, a priest or someone else who has a religious connection and you are being abused. All of that mixed in, the damage is just unbelievable. To indoctrinate children into the Bible in an institution and abuse them at the same time, what does that actually do to that person as an adult? You can see the damage. There are mental health issues and alcoholism. There are 40 per cent of former residents who have been in the care system in the criminal justice system. All of those issues are about issues that are not all relating to the care system, but there is certainly an impact of how people were previously not cared for properly. Was there supplementary? Just to clarify that, do you think that that is something that should have a specific mention within the bill or do you think that the definition, as it stands at the moment, would be broad enough to encapsulate that specific time? I see it broad enough for the bit that I have given simply because, if we go back to section 19A and section 17 in the Limitation Act, discretion may come into play and we do not want any discretion, because with discretion comes confusion. We have seen in the cases of Lady Smith that I am not saying that she was confused, but she certainly did not use her discretion to our advantage. I would like it to be there, just for the sake of clarity and certainty, such that the people who did suffer this kind of abuse and not all of us did would not be neglected or forgotten or even abandoned for that matter. It brings together all of the elements of our society in that it is not just the police, it is not just the social services, it is not just the care providers. It is the church and the foundation of our society, and we do not want them to escape that scrutiny, which the bill should, hopefully, allow us to do. Chris Fulton, then Liam. Thank you, convener, and can I first say thanks to the panel on what powerful evidence we have heard today. A supplementary from Mari's point, can I wear my hat as convener of the cross-party group on racial equality and follow on from the discussion that we have just had? Do you think that the bill and the definitions are broad enough to incorporate the challenges that many members of ethnic minorities might face when presented with those challenges? As Sandy said, I support what Sandy said in relation to the definition and the widening of the elements that are contained within the bill. Every bill should recognise every individual in society. It does not matter whether they creed their religion or their colour, so one would hope that one would be legislating for every individual in society. I could just add that there is no evidence in the bill, as it is presented, that there will be exclusion and that is comforting. If we take it, there is no exclusion. That means that everyone is included. Inclusion across the spectrum of all types of creeds and genders and whatever, you will have the opportunity to allow them to avail themselves of the benefits of the law. I think that, as it stands, this bill will certainly support them in that endeavour, simply because we cannot, at this late stage, have gone through this whole process and ultimately attempting to right the wrongs of the past, make a mistake such as simple mistakes such as that. I do not see any evidence that that could happen from the way that I read the bill. I think that it was important to get that on record. Liam McArthur was at the supplementary. On this, I join others in thanking you for the clarity of your evidence this morning. The point that you make about spiritual abuse, and I think that you set it out very clearly, but going back to what was being said earlier at my civil and I think that you are talking about the quality of the engagement that you have had with the Scottish Government at ministerial level and official level, has there been an explanation as to why they were reluctant to take that particular point on board? It is something that we can raise with the minister in due course. It is very interesting to know what explanation you have been given for why that was not encapsulated within the definition of abuse. Quite honestly, we did not ask that question. We discussed it within a survivor group and I think that Harry may have raised it, but we did not specifically. It would be unfair of me to say that we asked the Scottish Government specifically about that, but we did ask about the definitions within the bill and we were satisfied by the definitions in the bill that they were as wide as could be at this point in time. Clearly, if they can be wider, we would welcome that. There is a particular section of our society that is in the minority who feel the impact of spiritual abuse more than others. We did discuss it and it was discussed at the consultations. I saw it in some of the literature, but it has never filtered its way through to the bill. I am putting a case forward for that minority. It is a substantial minority, but I am putting a case forward for that. Their view and their fear should also be represented in the bill. I think that it would be to the detriment if we did not do that. The Government would follow in the evidence this morning, but we can follow that up in due course. It does mention emotional, so do you feel that emotional does not cover that particular? No, because we all feel emotion. We start with feelings, we start with emotions, we start with thoughts and then we move to actions. That is the way in which a human species operates, but we all feel that emotion—different scales of it, different levels, different formats and different expressions. However, no, that is something that I am trying, as a layperson, to explain. It is something that is so fundamental to a human being. It is not just an item of experience, it is something that gets right into their bones and their soul. If we overlook that part, I think that that would be to the detriment of this group that I have just identified as being a very substantial group in the community. I think that I will probe a little further. I think that it is often being said, show me the child of seven. If you are looking at things from a religious point of view, I suppose that there is almost a moral code, so it is almost as though that has been tampered with in some way. Is that the kind of thing that you are trying to get at, that emotion would not cover but perhaps spiritual? Clearly, we would not want to—what I am trying to say, Margaret, is not one institution, so we would not want to define it as a particular institution. Again, it is about equality and recognising what that issue is. It does not matter what the institution is, what the label on the institution is, whether it be Catholic or Protestant or whatever, it is not about that. It is about that specific abuse type. Thank you, that has been very helpful. I think that we have covered all the supplementary data and your substantive question, Liam. I think that we have had a discussion previously about rights of discretion. I know that is why I am slightly thrown. Do you want me to continue? Can I go to where we should go? I do not want to throw you. Stuart, it should be you. Thank you very much. I want to explore some of the way in which the insertion of 17.6 and what it actually says. I particularly address my questions to Graham Garrett. This is the technical kind of stuff that we as a committee get involved in, less about the underlying policies but whether the words in the bill implement the policies that we are looking for. In particular, I think that you have some concerns about the way in which this section is drafted, particularly in relation to the relationship between the amount that was paid out in a previous case and the expenses. I just want to make sure that you have the opportunity to put that in the record and for me to test it as well. Thank you for that. Our concern is that, if the intention of the bill, which it clearly is, is to permit people who have brought actions previously to be entitled to bring fresh actions, it seems to us that the provision is going to eliminate a large group of those people at source. That is simply because we failed to understand the rationale for saying that someone who may have received what really would have been a trivial payment many years ago should be prevented from bringing a claim for full and proper compensation now. This is not a matter that, as far as we can see, was rehearsed in the consultation document. We are not sure where it has come from, and, as I say, we simply do not understand the rationale behind it. If the intention is to avoid double compensation, then the provision goes very far beyond that. It would be relatively simple to say that anything that has been received as compensation in a previous action should be offset against any damages that are obtained in future, but that is not what the bill says. That is likely to have very damaging consequences for the very group of people who did, in the past, attempt to do something about the abuse, and that seems to us to be an extremely unfair situation. I take it really—the issue that you have is with 17C4B3, which reads any sum of money of which it required the defendant to pay to the pursuer. Which follows on and— Indeed. I confess, as a committee member, to being puzzled as to where that might come from, and exactly what cases it is trying to allow to progress and which it is trying to stop. Have you any insight? I am not sure that I understand from what anything the Government said. That came as a great surprise to us when we looked at the draft bill. We simply couldn't see the rationale for it. We couldn't see what evil it was trying to correct. In fact, it seems to us to create an entirely new evil in the people who may have received what they regarded at the time as being quite insulting levels of compensation will now be met with yet another brick wall, which will prevent them from pursuing a claim for full compensation. That seems to us to be entirely wrong. I suspect that it simply is confirming in my mind that this is a matter that we need to raise with the Government when it appears in front of us. I will come to you shortly, if I may, to finish one particular point. In referring to the previous pay-out being offset against any new pay-out, have you a proposal as to how the previous pay-out, which might have been made two decades earlier, should be valued when deciding what the sum of money that should be offset against the new pay-out should be? Clearly, if it is a very small pay-out, that will magnify if nothing is done and magnify the size of the pay-out that it would now get, but if, on the other hand, you index link it forward to today, it will reduce it? Have you a view as to what properly should be done? I think that it could simply be offset as a straight arithmetical deduction. When the court is doing an interest calculation, which it would have to do, what it would do is to credit interest on the earlier payment, which would be offset against any and the earlier payment together with accumulated interest would then be offset against the fresh damages. That seems to me to be a perfectly workable system. The courts would use the standard discount rate that applies in these circumstances. Well, the discount rate would only apply to future benefits, to future damages. It wouldn't apply to past damages. Yes, but there is a discount rate that could be used from the point of… Let's not get too… We'll ask the Government, I think, is basically where it falls down to. Mr Whelan, you obviously had a point. I'm trying to pursue quite a technical point. No problem. I know that part of our campaign for the bill was that the cases that had been tried in the criminal courts and that had been time barred in the civil courts, we wanted them reherd. That is a definite part of our campaign. In other words, where it has been time barred previously, because what they have done in the civil courts is a Latin terminology, I'm not sure I can even say it absolutely. It means that you can't bring the case back into the court. I'll be quite honest, I didn't understand that at the time, but, as I've said to the committee in my correspondence, legal aid was withdrawn at the time. I wrote to the court of session saying, and put on record, I asked for my letters to be put on to my file, that should the law ever change that I reserve the right to bring a future case forward. It is really important that those cases that have been time barred in the past are given a proper opportunity. I specifically put on record where there has been a criminal conviction that those cases should never have been time barred. What has happened, and I don't want any labour on that point, but the defenders and the organisations, including the warriors, by their actions have made the whole process adversarial. If they had taken a different approach in the early days, I don't believe that the processes would have become as adversarial as they became, and they were very adversarial around 2003 to 2007, and quarriers have to take some responsibility for that. They have to take responsibility for the actions of their insurers, the actions of their solicitors in the civil court processes, because the harm and the damage that they have done to people, including myself, is enormous. Can I just intervene? I suspect that this is what Liam wants to develop with you, looking at what he is going to be asking. My point was quite a narrow technical point about 17C, which is about the civil cases without reference to criminality. Would that be reasonable if I hand it to— Sorry, could I comment on your specific point? We can take an example. The Dumfries and Galloway Monkland home gave ex-gratia payments to all of their residents and to the tune of £20,000. That was a sum that was compensation for any or all abuse that was covered, that they were subjected to. We felt that that was one size fitting all. There was no gradation of the abuse that people had suffered. In that case, some people may say that, well, my abuse was fairly slight, I have gained £20,000, I now come forward to under the new bill, and I have the possibility of compensation again. That is one possibility. Take the other possibility, someone who was severely abused and badly damaged, £20,000, come forward, and the £20,000 becomes the factor that you manipulate in order to see that fairness was being done. I do not think that that should be included. If you want to count it back using discount rates and net present values, then that is something that could be done, but it must not be to the detriment of survivors. It must be wholeheartedly in the spirit of the thing, the severity of the abuse, the gradation of the abuse, the duration of the abuse and all other matters that are relevant before that decision was made. I do not think that we covered the onus, whether it would be the pursuer or the defender who had to prove to the court the details of the settlement. I think that you have made the point that that was not clear in the bill. It is not at all clear. I think that there are two issues here. One is a point of principle, and that I would suggest is the main issue. Is it fair that people, because of this clause, should end up receiving less than full compensation? I would suggest that it is not. I lied to that. There are a number of practical difficulties that are going to face claimants and insurers in working out what happened in a previous litigation. As we say in our paper, solicitor files may no longer exist. Insurance records may be scanty. The most court actions are settled by a document called a joint minute, which does not actually set out the settlement terms. Claimants may have been very young and the claim may have been settled on their behalf by parents or by social work departments, so they may be completely unaware of the settlement terms. If the clause remains in the bill, there are serious practical difficulties going forward for claimants. If it remains, we feel that some guidance needs to be given as to where the owner lies. Is it on the claimant to prove that he did not receive a payment, or is it on the compensator to prove that he did? It may seem a narrow issue, but we suggest that it is an important one. Oliver Macdonald I do not have enough legal knowledge to know if it is the answer to it, and I will ask the Scottish Government in due course. I wonder when you start to talk about previous settlements and other things where there are already terms and some facts have already been established in order to get to that situation. If there is not a difficulty around having a fair trial the second time, if some of the issues have already been decided and thought about, and if that is why this is cropped back in. I do not mind that you will very rarely have had a trial dealing with the facts of the abuse. Those cases, by definition, will have been dismissed on a procedural debate because of limitation. The facts were never aired. Those cases proceeded on the basis of written amendments by each side. I have, but some of the facts will have been agreed within the legal parameters that existed at the time. Is that correct or not? I do not, with respect, think it is. I do not think that there will have been agreement. The second category is where, by agreement between the parties, the case was settled. I think that the same difficulties will arise in evidencing the terms of any such agreement, given that we may be going back 20 or 30 years. Liam Kerr. We talked earlier about the issue of discretion and the importance for survivors around confidence or certainty about the process. Obviously, the legislation affords the court discretion in terms of dismissing cases in two circumstances where it would not be possible for a fair hearing to take place and where, in relation to retrospective application, there would be significant prejudice. There is not a great deal of detail around that. We are led to believe that some of that will only flow through future case law. Where has this been unanimity across the panel up until now? Crisis Scotland and just Sylvan Segarat have not really offered a view on those two provisions. I think that victim support said that it was a reasonable position, but Mr Whelan, you have expressed some concern that it would really be appropriate for all cases to be given a fair hearing on the facts and the evidence. I would be interested to know where the panel stands in relation to those provisions. Bear in mind that there is not the tight definition around how those two provisions would apply. I can be very brief on that point. My organisation recognises that those checks and balances are probably necessary. Whether they are in the bill or not, as a matter of law, those are issues that a court would have to apply anyway because of the human rights legislation. Even if the bill were silent on those, the position would be much the same. Are you able to almost predict the way in which they would be applied because of the way that they applied elsewhere in law? Yes. I do not think that those are novel concepts for judges. Judges, by and large, are pretty good at dealing with those on a case-by-case basis. Back to the point that was being made before about the problem and the discretion to date on not applying the time bar, would you be concerned that that discretion may be used in a way that could almost reintroduce the time bar provision, but perhaps not to the same extent? Perhaps not to the same extent. Anyone who has looked at that over the years would be forced to conclude that the Scottish judiciary is an extremely conservative body and that it has operated the discretionary power in a way that has simply closed the door, in a way that has not happened south of the border. There is a legitimate fear that those provisions may simply transfer the discretionary power to a later stage of the case. However, it would certainly be our hope that, by getting rid of limitation, the damage that can be done by those would be greatly reduced, if not eliminated. Mr Wheelhouse, does that bear out your concerns? Yes. I am not a legal person, but we would want the discretion to be as wide as possible in the provisions to be as wide as possible, so that there is no element in doubt, and where there is clear certainty in the bill and clear in the sense that legislation is clearly directing legally what the judges are able to do without any element of doubt. That is in a certain layman's terms. That is what we would like to see. It is not something that we picked up on in our written submission, but we have been contacted by survivors expressing concern about how that might operate and practice particularly for certain religious institutions and whether or not it might restrict the benefits of the legislation. I think that it is very difficult to predict when it is going to be dependent on case law. We do not know how that is going to be interpreted. The Government, I have not seen any clarity from them about how they anticipate it is going to be interpreted, so I think that it does introduce some uncertainty about how that legislation might be implemented. Is there anything that could be done in terms of the legislation or ministerial statements around the passage of the legislation that might provide additional clarity? You could simply remove this and say that every victim of historic abuse will be entitled to have a hearing in court. I am not convinced that that would necessarily be in the interests of all victims of abuse, because if a case were so weak that it was almost bound to fail because of lack of evidence anyway, I am not sure that that would be of assistance to every victim. Unless, inspector, did you have any view on that particular? I think that we have said originally in our submission that it was reasonable to put this in, not having a legal background or having the full knowledge of what that actually means, but if it was clear and concise and backing up what my colleagues here say, clear and concise and leaving no doubt what it actually means, and whatever happened, it was not to the detriment of the victim. But just to be aware that that could be a stumbling block was probably good to raise so that it did not come as a shock or an impediment maybe later on, because obviously you want the bill to be as effective as it possibly can be. That concludes our questioning for the panel. I thank you all for attending, and I thank Mr Whelan and Mr Eakin particularly. I realise just what a huge amount of courage it is to come and talk to a committee, but please be assured that it has been so worthwhile from the witnesses' point of view. I hope you feel that the effort has been worth it, too. We will now suspend to allow for a change of follow-up. Committee for taking forward this bill and for scrutinising it and for allowing us today to come to give evidence. I have given the committee some personal documents in relation to my court case and other issues. If there is anything that I have said today that you need further clarification, I am more than happy to provide other information in relation to Dr Janet Bolx and other issues that we have raised today with the committee. Thank you very much. It was very helpful. We suspend now to allow for a change of witnesses. I now welcome our second panel on the bill, Alasdor Ross, assistant director and head of public policy with the Association of British Insurers. Graham Watson, member of the subgroup on historic abuse forum of insurance lawyers. We are both very welcome. I think that we will move straight to questions. If I could start with a first general one, much the same as we started with the last panel, in terms that the bill removes the three-year limitation period where the court action in question is about childhood abuse with retrospective effect. Do you like to place on record your views about the proposed change and what impact you think it would have on organisations defending claims and on their insurers? If I may start with that. First of all, we recognise from the outset what sensitive and difficult this area is, particularly for the victims and survivors to come forward in any forum to come before you this morning to seek out legal advice and to come before a court. We recognise that that is an exceptionally difficult thing for them to do and that each case has to be considered on its merits. There are two particular aspects to this. The first is the policy and the second then is the practice. The policy of the Government is to widen access to justice for victims and survivors and we certainly welcome that as a policy. What I hope that I can do, what Foyle can do in responding to this committee, is to talk through some of the practical effects of the drafting as it currently stands and what the impact of that might be. Two particular aspects that I would like to draw out of the drafting as it currently stands, the first is how this bill would deal with cases of historic abuse that have already been concluded. Those fall into two categories. Those where the case was dismissed, which means that procedurally it was disposed of, but the right remains and the action can be re-raised at any point. The bill would allow those to be re-raised again, as they could anyway, and would change the criteria by which the court would decide whether the claim ought to succeed. The second is those where there has been final decree absolvator, which is a final substantive judgment. Those cases have been determined by way of a final binding decree. It is interesting that I see that the committee has already written to the Government to ask for their views on the pre-1964 cases and why those cases were not included within the scope of the bill. At the heart of the Government's response to that is a concern that, in those cases, the substantive right has been extinguished and there were risks of falling foul of the European Convention on Human Rights. We are getting quite far down the line and into detail when my initial question is just, the bill is before you, it is the limitation bill, it is the three-year period, what are your views on that initially? My views are that removal of the three-year limitation period and reinstating those cases that have previously been disposed of is problematic, that what we are replacing the section 19A discretion with is a test of whether a fair hearing is impossible and is substituting one form of discretion for another. I therefore have concerns about how much the bill is going to achieve in opening the door for claimants and what clarity there is around how those cases will be dealt with. You heard the concerns for certainty, I do not believe that the bill as drafted brings the certainty that the survivors and victims are looking for. I can perhaps tease that out a little bit, but the second part of my question was what impact you think it would have on organisations defending the claims and on their insurers. Those fall into a number of categories, there are some who are insured and so ultimately it will be a financial cost that insurers bear. There are organisations who may have been insured at the time but cannot trace it or who had very low limits of indemnity, that is, after some damages have been paid out in any given year, their insurance will be exhausted. There will be others who had no insurance at all for this sort of claim and will be meeting it directly and personally themselves. Mr Ross, do you have anything to add? If I could start by echoing Graham's comments that this is an incredibly sensitive issue, it is most sensible for the victims and the survivors, and it is absolutely credit the issue with the heart of this legislation. It is also probably the most sensitive type of claim that insurers will deal with compared to all the other types of personal injury claims and other claims that they handle. Insurers recognise that, over time, insurer developed practices and protocols to specifically recognise the distinctions in this class of case and to handle them differently. Our members have put a lot of work into that. In terms of the proposals that are set out in the bill, we have expressed in our written evidence the concerns that we have about that, some significant concerns about the implications that it may have. I think that what I would concur with the previous panel was on the recognition that the system, as it currently stands, is not working. We have a central issue here that seems to be the application of discretion. The previous panel set it out. What I would draw the committee's attention to is that, in England and Wales, judges seem to be more inclined to use discretion. It is a different piece of legislation, but it is broadly similar in terms of what it says out. There seems to be an issue that judges in England and Wales are more inclined to exercise discretion in cases. For Scottish judges or not, that seems to be the number of the issue. What I would ask is whether the bill is the best and most effective way to address that and meet the needs of victims and survivors when we propose that there are more effective ways that we can do that, or that the committee can recommend that there are more effective ways to do that. Whether that be in providing additional guidance to judges, whether that be looking at some of the criteria under which discretion can be exercised, or the opportunity of bringing forward a different way to raise all those claims. We mentioned in our written submission the idea of a pre-action protocol, which would be a process that sits outside of the court, but would still be legally binding and has a number of advantages for all parties—not just for victims and survivors, but for all parties. Rona Mackay had mentioned the concept of secondary trauma, where, if you accept that the primary trauma is the abuse that is being experienced, the secondary trauma is, in terms of that, an adult, perhaps discussing that with friends and family, then going to a lawyer and discussing the details with them, then that lawyer sharing those details with other parties, possibly the alleged abuser as well, perhaps going as far as court and details being read out in court, even as far as actually having to stand up and retell your story of abuse—all that is incredibly significant. I ask a lot of the victims and survivors who are taking this forward. A pre-action protocol could still achieve a—depending on the way that the protocol was drafted—a legally binding settlement, it would probably deliver that earlier or quicker than you would if you had gone through the court system, where you might be subject to a number of delays for various different reasons. There would be an option, again, depending on how the protocol is drafted, that victims and survivors or pursuers could opt to move out of the pre-action protocol process and into court, if that is what they were looking for. If you look at organisations such as Bernardos, who are a leader in the field in supporting survivors and victims, and they have done a lot of interesting work—I have talked to them about this—on the issue of secondary trauma. I would certainly encourage the committee to look at that and explore that. We have significant concerns about the bill and its implications for insurers. The interest of insurers here is the organisations that are insured and the significant financial exposure that they could face if the bill is taken forward, as it is currently drafted. I suppose that you would hear the evidence earlier, and it came loud and clear that the survivors thought that A, it gave certainty, and B, it gave choice—a choice that did not come from a pre-action protocol or having to go through that mechanism. It was quite clear that the time bar would be removed and it would have that choice. If we just think about that in the context of what happens when any claim of any form is intimated, someone will write to the organisation that the person bringing the claim and the person defending it are likely to appoint solicitors and there will be an exchange of correspondence between them. In many cases, putting this particular area to one side for the moment will result in an agreed form of settlement and will dispose of the matter entirely. The point about a pre-action protocol is that it is a form of standardised way of doing that so that both parties exchange their position. If it is possible to reach an agreement without the necessity for litigation, they do that. If the bill goes through and the victims and survivors are hopeful that that will be a means by which they are heard in court, that is not going to be any more the case than it is for other forms of litigation. Our job in acting as lawyers to insurers is not to defend claims that ought not to be defended. On the contrary, part of our role is precisely to advise them when claims ought to be recognised and settled without the need for a court hearing. On that, you will have heard in the exchange of the previous panel the fact that there is under 17D discretion for cases not to be heard, where a fair hearing could be guaranteed and where, given the retrospective nature of the application of that, there could be significant prejudice. I think that there was some concern expressed that this may in a sense be used in the same way as the courts have to now use the discretion in relation to the time bar in a way that would effectively lead to the time bar being applied, albeit not as rigorously in future cases. Given what you have said, Alasdair, about the approach of judges north of the border and south of the border, would it be reasonable to assume that perhaps the approach to that area of discretion may lead to survivors not having an opportunity to have their cases heard? That is an interesting point. The important thing to keep in mind in all this is that we have a balanced and fair process. I appreciate the reasons that have been put forward and the arguments that have been put forward for changing the limitation period, but we all need to keep in mind the need to deliver a fair trial if the case goes to the trial and the need for equality for all parties involved in the process. In terms of the issue of confidence and certainty about the process, you will have heard the concerns around the way in which the discretion that the courts currently have has not been exercised at all in the time bar in all but one case has been applied. It is not impossible to imagine the use of those two circumstances where cases would not be heard being used in a similar way to apply the time bar almost by the back door, so to speak. Is that something that you think is a realistic prospect? I think that an important point to bear in mind about limitation or time bar, the two terms are interchangeable. It is a legitimate defence. There may be occasions that were touched on in the earlier session that cases might go so far back in time that there might no longer be an alleged abuser that you can pursue. There might no longer be evidence, whether it is records or whether it is a testimony of other people that were there and may have witnessed abuse. The organisation itself that had the duty of responsibility may no longer exist, so there are a lot of questions and issues that that brings up. As I said earlier, there is an issue that judges are not applying discretion in the same way north of the border as they do south of the border. One option there is to provide greater advice. I do not know—I have not been able to find a record of the advice that is currently provided to the courts in terms of the application of limitation and the discretion surrounding that. That would be another route that the Government could have chosen to have gone down the shore and explored that. I do not see any indication of that in the bill and the supporting documents. There are other options here, and it would be useful for the committee to explore that in the round. Just to come back, if I may convener to a question that you raised from the previous session about survivors saying that the bill offers choices to pursuers. I absolutely appreciate that. I would say that a pre-action protocol could be an additional choice that might be preferable for some groups of victims and survivors. In the time that I have been working on this and dealing in this area, I have come to appreciate that this is an incredibly complex field and it is an incredibly complex group of victims and survivors with different interests, different priorities and different expectations. I do not think that any one process would meet them all. The previous panel touched on some of that in terms of what people are expecting at the end of this. Does the removal of time bar mean that your case proceeds? No, I mean that other witnesses have already set out that there are other factors that have been taken into account. You could say arguably that the removal of time bar would provide for a day in court, but that might not mean that the case actually proceeds for various other reasons, including the quality of evidence for the existence of other parties. I think that it is important to bear in mind the choice of pursuers. It would be interesting to hear the likes of the written evidence from the former boys and girls abused at quarrier homes that suggested that they would be open to some kind of solution outside of the court or some kind of protocol outside of the court, so it would be interesting to explore that as well. I absolutely agree and appreciate the importance of choice for the pursuers, but it returns to the point that I made that we have to have a fair and balanced litigation process, where the needs of all parties are observed. Watson, you said something very interesting about your role as a lawyer and that how you would offer, you suggest recommending a settlement. Are you able to say how often you have done that? Perhaps Mr Ross might be his head of policy. You would be able to give statistics for the past 25 years. How often has that been the case? Not often. I have been acting in abuse cases for 17 years or so. Over that time, there have been very few of those that have progressed. I would say that, in recent years, it has been a larger number that has been settled, but it is also fair to say that, in recent years, there has been a lower volume of cases that have been brought forward. If we were to go back 15 years or so, there were high volumes of cases that were brought forward. As Mr Whelan set out himself when legal aid was withdrawn for those cases, many of them ceased at that point. However, where cases have been pursued on the merits, there are certainly some, but it is a low number that has been settled on that basis. I would like to talk about time again. For criminal prosecutions, it is not subject to time bar at all. That can lead to the situation where you have a successful criminal prosecution, but there is not a facility to follow that up with civil action. That is surely not an equitable situation. What is striking about the criminal position is that there is, by definition, an accused who is fit to stand trial and does stand trial. I agree that the discretion would seem to be working in an obtuse way if there was sufficient evidence for a criminal trial to proceed, but not for a civil trial. That comes to what criteria you use to determine whether there is sufficient evidence to proceed and how a discretion is exercised. However, the bill does not simply cover the situations where there is a live accused who is available to give evidence, whose evidence can be heard and can be tested in court against the other available evidence. A specific example is that you have a historic case that results in a criminal prosecution. We should not necessarily talk about the degrees of proof that require criminal versus civil. That is an inequitable situation, surely. The situation that Mr Aitken mentioned of the case of an uncle and his niece is a case in point for that, where the discretion was exercised in favour of allowing the case to proceed, where it would otherwise have been out of time precisely because the evidence was available. I agree with you that the discretion or whatever is in place ought to deal with that situation. However, the bill, as framed, covers the whole spectrum of cases where abuse is alleged. That will include cases where there is no criminal prosecution and even if there were in the circumstances where there is a lack of witness or documentary evidence. That is why it is important that there is a means of weighing up, a means for the court to weigh up, whether an action ought to proceed or not, precisely so that clear circumstances such as you set out can be dealt with equitably by allowing it to continue, and cases in which there is a dearth of evidence are not taken to a full hearing. Is that only by testing in court that you establish whether there is a sufficiency? Well, that is a good point, and that is a question that arises from the drafting of the bill as well. A question that arises from that is whether it is better to test all of the evidence and then, at the end of that, have the possibility that the court will say, having heard all of the evidence, that a fair trial is not possible or to have the opportunity of the court at an earlier stage determining that there is not sufficient evidence for there to be a fair trial and therefore there would be no proceeding to a full hearing. There was a recent case where that was precisely the issue, and having heard a preliminary trial on whether there was sufficient evidence, the judge determined that the equitable discretion should not be exercised in favour of allowing the action to continue, but also stated in terms that a fair trial was not possible. Now, one element that may arise from that is that in those circumstances there would have had to have been a full trial, which would be necessarily stressful for all of those involved, particularly for survivors and victims, but to have the outcome that a judge says a fair trial is not possible, I'm not sure that's a step forward. I mean, I take in good faith the comments you've made about your concerns about victims and survivors, but your obligation is to companies and organisations and this may well be seen at your position on all of this is simply about finance. It would be naive to say that insurers have no financial interest in this, of course they do, but the interest is of their insured companies and organisations which continue to exist and what their continued ability is to function. It is to ensure that, while survivors and victims have the opportunity to be heard, that likewise those organisations who are facing allegations have the opportunity and the scope to put forward a reasoned response to that. I think that it was very well said by Mr Garrett that even if the possibility of a fair hearing taking place was not in the bill, that would be the case anyway because of the European Convention on Human Rights. Limitation has a purpose of itself, it serves use to all those involved in knowing the limits of what their involvement in litigation may be. It was described earlier as a barrier and I don't accept that. It is a hurdle, but it is not a barrier and it is an equitable discretion. Accordingly, a risk that arises from this is pushing back the point at which the court decides on similar criteria to a later stage in the proceedings. If I can come in there, Mr Finnie, just to concur with what Graham said, specifically in terms of insurers and their interests in this, insurance is a commercial contract. In this case, it is to indemnify an organisation for some legal liabilities that may arise under the terms of the policy and those can be very specific or they can be a lot broader. To be absolutely clear, if the avoidance is a doubt, an abuser retains personal and primary responsibility for their acts. Insurers are providing insurance to organisations to cover certain liabilities that they may be obliged to deliver to third parties. Insurance is about managing risk. You pay a sum in terms of insurance premium and that manages the risk of claiming that. The alternative would be to reserve significant amounts of funds so that, if you did have a case raised against you in terms of abuse or some other kind of personal injury, you would have the money there to defend yourself and to pay for any compensation that was due. It is a way of managing risk and a device to do that. That helps us organisations to manage liabilities that they might not otherwise be able to meet. Either it ties up a significant amount of money and accounts just in case somebody comes after them or they do not do that and they receive significant litigation and they have to make that from current reserves or it actually puts the existence of the organisation in some doubt if they cannot actually pay their funds. What we are talking about here is public liability policies in the main principally public liability policies. They can cover compensation claims by victims and survivors of child abuse. I will be guided by Graham here a bit in terms of the extended no fault vicarious liability principle. What that means is that, even if an organisation is not aware that it employs or has a volunteer who is an abuser, and even if they are not aware that that abuse is going on, there is still cover provided for the organisation under the terms of the insurance policy. That is what our interest is here. It is in terms of working with our insurance, our customers who have taken out insurance and entered into a contract. In cases where the risk is going back a significant number of years, whether it may be decades or into the last century or whatever, you are looking at a contract that was entered into by all the parties. At the end of that contract it was closed and you are now talking about revisiting that several years after the event, in some cases several decades after the event. I just want to be clear that we have had a fairly lengthy discussion around discretion. I would like your view on whether you think that the guidance that is given to judges is sufficient, as it is, to allow them to use that discretion properly. Do you share the view that some have that new guidance should be issued to judges and courts? There is no guidance as such and that is where the Scottish legislation differs, principally, from the English legislation. It was interesting in the Government's response at consultation stage the emphasis that they placed on the way in which this seems to work in England and Wales and it seems to have greater difficulties in Scotland. Certainly, one way of proceeding would be to have an equitable discretion with a non-exhaustive list of factors that the judges have to take into account. There is nothing like that in Scotland. All there is is past case law and the high point of that really is a decision of the House of Lords, which states that the court has to consider whether there is a real possibility of substantial prejudice. I suspect that it is not controversial that where there is a real risk of substantial prejudice, a court should be slow in considering that that action should be allowed to continue, but we are talking about one form of words as against another form of words. It may well assist the courts and the judiciary in general if they were to have a list of factors that they were required to take into account when considering how to exercise their discretion. Again, bringing in the question of whether there can be a fair hearing does not provide certainty. It is another form of question for the court on whether an action has a sufficient basis to allow it to proceed. I agree with that, and as I touched on earlier, I have looked into this and done research and there does not seem to be any guidance afforded to judges on that. I find that quite surprising, but that seems to be the situation. It would be an option to look at providing more detailed guidance and putting in some of the conditions that Graham's alluded to. Whether that is a role for Scottish ministers or whether that is a role for the Scottish Civil Justice Council, I will defer to others, I am not sure who would have the responsibility for that, but that is one alternative to the actions that are proposed in the bill. We have not had discussions with Scottish ministers about that. I know that the previous panel has a lot of reference to that. We have not had discussions with Scottish ministers about that. I am not able to understand why reading the bill and reading the supporting documents has not been considered as an option. Scottish ministers have opted to go straight to removal of time bar as their solution to what I think everyone agrees is a problem. It gives certainty and then the sufficiency of evidence can be looked at when the case comes to court, if it does come to court or is considered, but there is the certainty that it is being considered under your proposal that certainty is not there. It may be improved, but it is not there. I do not quite follow in terms of that. The time bar is removed, so there is no legal obligation. The court does not have to issue its discretion, so that certainty would not be there, even with the improvements that you are suggesting with guidance. Is not that the key difference? I can accept that point, so I was confusing that with another point. I beg your pardon. Stuart Stevenson Thank you. You have got a number of issues with the financial memorandum, and I think that some of the numbers that the Government is using are perhaps not the ones that you would suggest. It would be useful if we could get some of that in the record and perhaps then explore some of that. Of course. It is very important that we all look at the financial memorandum because we are dealing with, by definition, for the reasons that have been set out, a fairly limited set of data. I had some difficulties following the process by which Scottish Government arrived at the figure of 2,200 cases that they anticipated coming forward. I may have misheard the previous panel, but I think that there was a suggestion at one point that only a percentage might come forward. That is not how I have read and understood the financial memorandum, but, sitting that aside, you have a financial memorandum that estimates 2,200 cases. You have Police Scotland saying that it has 5,000 active cases that it is working on. You have one law firm or one lawyer in particular that was mentioned earlier who has 1,000 cases. It is very difficult to establish the quantum here. It would be useful to see some kind of independent analysis, whether that can be provided by actuaries or by another independent group that could go away and do some estimating. The reason that I mentioned actuaries is that they might have access to data help to ensure that they could use an anonymised basis to try to extrapolate out some of the range of numbers. However, bearing in mind the restrictions that I mentioned about the available data, 2,200 is a figure that should be tested a wee bit more so that we can understand whether that is a midpoint, as the financial memorandum says, whether it is an overestimate, whether it is a substantial underestimate and that helps us to understand some of the other material in the financial memorandum, whether that is around implications for legal aid, potential implications for public sector organisations that might be pursued subsequently as a result of the bill being passed as drafted. It would be useful to see some more work on that. I know that the Finance and Constitution Committee considers the financial memorandum specifically and reports into the committee, so it would be useful to see its views on that as well. Is that useful, or is there anything that I could expand on? I suspect that merely expanded the uncertainty rather than closing it down. However, in particular, are you of the view that the 5,000 cases that the police are pursuing are ones that would be time bar? I imagine that the 2,200 that the Scottish Government is talking about are ones that come back in to have a process and to have a future, whereas the 5,000 is something entirely different altogether. I cannot recall offhand what the Police Scotland submission said. You have maybe got it in front of you there in relation to those 5,000 cases. I think that, from memory, those were 5,000 active inquiries and those were ones that were dating back as far as 1964. The time bar would possibly apply, but there would be more recent cases that they are dealing with where time bar would not be an issue under the three years. I suppose that the other thing to which you might not have the answer has the insurance industry itself taken a position as to what the liabilities for the industry might turn out to be? It is incredibly difficult to put numbers in any figure for that, because I was at the different firms. I am simply asking if you have made a provision. Of course, you are representing the industry and the provision would be in individual insurers, but I am simply asking if a provision has been made, not necessarily what the quantum might be. I am not aware of what measures individual member companies would have taken in terms of provision against that at this point of time. I want to pick up on something that Graham Watson made brief reference to in your opening remarks. As you hinted towards the new limitation regime, you would sit alongside the prescription in this area of law. As you are aware, I alluded to the Scottish Government that has decided not to reform the law of prescription because it would not be able to or appropriate to in terms of the European convention of human rights. For clarity, the effect of this decision is that, if the abuse occurred prior to September 1964, usually it would not be possible to raise a court action under the new proposed regime in the legislation that we are looking at around limitation. Was the Scottish Government correct to take this approach to prescription? The Government was correct to take that position, and it was correct for the reasons that it set out. There is a difference between prescription that extinguishes a right entirely and limitation, which is a procedural issue of whether someone can exercise or enforce that right. It is a long time since Parliament took the view that prescription was simply not appropriate in personal injury actions at all. 1984, the change to the law came into effect. No doubt, that was right and appropriate, that actions for personal injury should be subject to limitation rather than prescription. However, the effect of prescription was that the substantive right was extinguished and no longer exists. The Government's concern is that it would run counter to article 1 protocol 1 of the European Convention if it were now to resurrect those rights. I would say that the same arises for cases where there has been final judgment already. That is a very similar position where there has been a substantive right that has been extinguished rather than a right that simply has not been exercised. Mr Ross, do you have any comments on that? I do not think that there is anything that I would particularly add to what Graham said there. I read with interest the correspondence from the Minister for Community Safety and Legal Affairs, where she wrote to the committee in the papers for this meeting and noted that, on the one hand, the Scottish Government does not feel able to address the prescription issue on grounds of the European Convention of Human Rights but feels able to proceed in terms of the removal of the time bar and limitation. She recognises things like resurrected cases. That was a highly unusual step and I was struck by the contrast between prescription and the application of VCHR and limitation, where it is felt that it is fair and reasonable and legal to proceed on that basis. Of course, the clarity that has been given in this session and the one beforehand, the difference is that one is an aspect of procedural and the other is an aspect of substantial Scottish law. It is good to have that on the record, thank you. Was one of the aspects there not the time that the prescription that tends to go much further and the legal rights would be extinguished? Is it fear so much later to look at reinstating them or possibly reinstating them? Was that not the issue that was at stake? The question of extinguishing of the rights was certainly at stake. It is undoubtedly the case that, when one gets to 1964, inevitably there is going to be a more difficult question of a sufficiency of evidence. Of course, there is not a light bulb moment come 1965. There is a spectrum. We could be asking the courts now to look at cases that time barred in 2016 relating to events in 2013. Perhaps it is not terribly difficult for the court to look back four years rather than three, but we would equally be asking the courts to look at events in 1965. Again, in the circumstances, for some cases it might not be terribly difficult to piece back together what happened, but in some cases it will be. Documentary evidence degrades and is lost over time. Witnesses become unavailable, dead or untraceable. The challenge is increase. That is precisely why it is beneficial to have some form of discretion. The bill allows that to the extent that there is a question of whether a fair hearing can take place. That, in turn, cuts against the possibility of there being certainty. Really, in terms of article 1, the right to peaceful enjoyment of possessions, the further back it goes, the more that perhaps comes into play, was that not more the factor that distinguished it from the limitation time bar? That is of relevance to cases that have been disposed of by final judgment rather than to the pre-1964 cases. For pre-1968 cases, it can arise in relation to both, but in different ways. If you have cases where there has already been final judgment, then the European Court on Human Rights has said that holding a judgment, even if it is that you are not liable for something, is something that has a proprietary value and therefore interfering with that can be contrary to article 1 and protocol 1. However, you are right in that the further back one goes and looks to try to assess whether someone ought to be liable for events of a long time ago, the greater is the argument that you are not exercising proportionality in interfering with that. Liam McArthur Talks about the challenges that the further you go back, and I think that everybody has accepted that. Similarly, I think that all the evidence suggests that one of the real incongruities with the time bar and the limitations in relation to child abuse is how long it takes for that abuse to be, in a sense, revealed by the individual, either to themselves and the immediate family, far less to the authorities. Therefore, the drive behind lifting the limitations in that respect is borne by the evidence that suggests. We were told that it is estimated around 22 years as the average for that to reveal itself. Do you not accept that that absolutely needs to be addressed because it is not being addressed through the discretion exercise that is available to the courts? Absolutely, I agree with that entirely. We are actually on behalf of organisations who are being held vicariously liable for the acts of a volunteer or an employee. If events are coming to their attention for the first time 22 or more years after the event, they may simply have a dearth of material on which to proceed. That does not mean that there should not be an opportunity for the victim and survivor to come forward and try to make their case, but it does mean that there has to be a balancing act in considering whether there can be justice done in the circumstances, which is a reason for having some form of judicial discretion rather than a firm cut-off. To give you the same question that I asked the previous panel on the definitions of child and abuse that are in the bill, because I understand from your written submissions that you were critical of the fact that the definition of abuse was not exhaustive. It is just really to see to get your opinions on what amendments you would like to see from that and to get your opinions on that. So far, as the definition of child is concerned, I think that there are reasonable arguments as to whether it is 16 or 18. 16 is the age of majority, but we do not take a particular issue with it being 18. That is understandable. The issue with the definition of abuse is twofold. One is that it is currently framed as being non-exhaustive, and the second is what is encompassed within emotional abuse. When the Government published its draft bill, it was sexual, physical, emotional abuse and unacceptable practices. The consultation referred to unacceptable practices. On reflection, the Government took that out, and then in the draft bill it had neglected, but it has taken that out. That is a recognition that there is a range of activity that it is harder to define and where it is more helpful to have a degree of clarity. On your specific question of what changes to the drafting I would like to see, the straightforward one would be to change the words includes to means, so that the definition reads abuse means sexual, physical and emotional abuse. Emotional abuse itself is not a well-defined term. It is quite straightforward to go to pass case law and see what is meant by sexual or physical abuse, much less so with emotional abuse. I think that you have a flavour of that from the discussion with Mr Wheele and Mr Aitken regarding spiritual abuse and what is encompassed within that. I would certainly encourage the committee to consider replacing the word includes with means, but to consider whether greater clarity can be brought to what is meant by emotional abuse. I echo what Graham Cedd said. The ABI supports the definition of a child as is set out in the bill. I would accept that. Similar to what Graham Cedd said, we propose that includes is replaced by means to give that tighter definition. The previous panel spoke about the awareness effect and how that brings forward a significant number of people. What would be useful is clarity in terms of the definition of what the bill is referring to. We had an interesting conversation about the concept of spiritual abuse, which was not one that I had previously considered in looking at the bill. That was very interesting, but the broader and the looser the definition, the more scope there is, and you would have an issue potentially, as Mr Ross touched on in terms of volumes of cases coming forward. That is not to say that the bill should not go ahead just because it might create more business for the courts, but you will have to make sure that that can be met within the resources. It is not an argument against proceeding, but if the definition is significantly broad, then it is fair and reasonable to say that it is likely to encourage more cases to come forward. Then you are into a situation where we need to all ask questions about whether the interests of victims and survivors are being met. As I understand it, the bill that is drafted is going to give, as the convener touched on earlier, the certainty of the case coming to trial. I do not necessarily know that it gives the certainty of a day in court. I do not necessarily correlate into the certainty of the case going to trial because we could still have some of the issues that we have touched on before about the availability of defenders and the calibre of evidence. I just wonder how victims and survivors would feel if they were in a position where, because there was a broad definition in the face of the bill and they were encouraged by whatever means to bring cases forward, whether that is by representative groups, whether that is by the lawyers, whether that is by claims management companies. One point that I would make if we can discuss slightly is that I would hope that we do not end up in a similar situation on historic abuse cases that we do in other classes of personal injury where you have this phenomenon of people being cold-called and approaching out of the blue. The most common one that we have been in terms of whiplash claims is that you get a phone call and I got one the other night. You were involved in an accident and a car accident in the last three years, so I will definitely know that I was not. No, no, you were. We can help you to claim for that. I sincerely hope that we do not see similar practices in this class of personal injury, but you will probably see organisations approaching people who have been in some of the institutions that we have mentioned earlier, around the same time as other people are being asked whether they were affected by abuse or whether they were a witness to abuse and how people will feel decades on being asked to go and either give evidence as a pursuer or possibly give evidence of a witness of something that they would rather not be involved in, which slightly digress off the point. However, it is really important to get the definitions of abuse right, hence we would support what Graham set out there in terms of amending it from things that it includes, since it means just to give that greater level of clarity and certainty. Perhaps by way of reassurance we also heard just how long it can take survivors to come forward, so I do not know that there is really a parallel to a whiplash, which is something that people are quite happy to disclose or to think about to disclosing something like that, so perhaps that was an unfortunate analogy. No, that was my point entirely. I would hope that the way that organisations handle the pursuit of claims like that would be entirely different to how they might approach and sort of confuse cases. I think that maybe what was not mentioned when you were talking about the volume going through the court and where that would come from is that fundamentally that is looked at as an access to justice issue. What the legislation does as far as the witnesses seem to suggest is to make sure that the abusers who were abused were no longer facing that substantial barrier and that awareness was raised. That was the case. I would accept that, but I would repeat the point that the system is not functioning as it should at the moment. I think that there is general consensus between this panel and the last panel where that is the case and action needs to be taken. There are differences in views in the action that you would take to resolve that, but there is definitely an issue with access to justice. In the previous panel, I am sure that we are accused of having a vested interest. I would say that we have all got a vested interest in making sure that victims and survivors can actually come forward and avail themselves of access to justice, but access to justice must also be provided for the other parties. A separate issue from looking at the substantive legislation. Rona Rennie. Mr Watson, in your opening remarks, you talked about your concerns about section 17C and spoke of your preference for a pre-action protocol. I wonder if I could drill down a wee bit further into that. If you could give your key concerns surrounding that. Given that you have heard the evidence from survivors who are very much in favour of re-raising a time-barred action, you are dealing with cases that have previously been concluded by final judgment. That is a determination that their right of action has been concluded. I draw the parallel with the pre-1964 cases in which the Government recognises that a right of action has been extinguished. Accordingly, the Government is concerned that it would run counter to the ECHR if those cases were to proceed. What I am saying is that those cases where there is final judgment by way of absolvator are in the same category. I do not quite understand how they are in the same category. I am having difficulty with that one, given that time-barred cases after 1964 are a different issue from the prescription issue. Does it not give victims access to justice? It does, and that is in the context of where they have already brought a case. That case has a final judgment of the court in it. There is a weight and importance to be given to the rule of law and the certainty of law. Part of the right to a fair trial is the right to have the determination of that court enforced. If we were looking at another jurisdiction where there had been a determination of the court and the Government intervened to reverse the judgment of the court, we would rightly be concerned about that. I recognise that the Government is concerned about that, so far as pre-1964 cases are concerned and a right is being extinguished. The same point arises for those cases where there is decree of absolvator. To be clear, there are two types of cases. Those are those that were disposed of by dismissal, which explicitly recognises that the case can be brought again at any point. However, there are then those where there was a final judgment absolvator where the right has been determined. What we are talking about is some significant principles under Scots law. I understand that you are going to be hearing separately a future date from the legal fraternity in terms of the faculty of advocates and others. I would certainly endorse what they have said in the written evidence to you. We are talking about substantial changes here. I appreciate what we are talking about is entirely within the context of historic child abuse. However, if you start changing those principles, is there a point at which, whether it is the Scottish Government or it is April, another group would come forward and say, well, the changes that you have made that apply to historic child abuse should also apply in another area? I appreciate, convener, that this is not the core business and interest of this particular session, but you are dealing with some fairly fundamental principles of Scots law here. Obviously, the committee will consider it very carefully in terms of the proposed changes that the Government is putting forward. You will also be aware that it is a very specific circumstance that the Government is talking about removing the decree of absolvator. It was not a realistic expectation on the person settling that the time bar would be removed. A condition was put on by the insurers that, rather than having a decree of dismissal, which would allow it to be raised again, instead, in order to make the settlement and have it agreed, it would be a decree of absolvator that was imposed when it was not actually necessary to have that. We are probably talking about very limited circumstances, but I think that it would be disingenuous not to recognise that the clause was put in to cover what might be very, very few cases. I do not recall that being the circumstance. I dealt with many of those cases at the time. On the contrary, my recollection is that we were surprised that the claimant solicitors proposed absolvator certainly was not on the instructions of insurers, as far as those I dealt with. I suppose that it could have happened. I can only speak for the cases that I dealt with. I dealt with more than any other individual. Just to clarify as well, convener, if I had you correctly, you were suggesting that it was insurers that were proposing this. As a conditional settlement— I have no awareness of that, so if there is documentary evidence that we can see, it would be useful to be able to review that and understand that point in more detail. Yes. It is certainly why, in my understanding, that particular section 17c to cover that precise set of circumstances. Perhaps you might want to go back and look again at that. Yes, we will certainly be very happy to see that. Okay, why are we at the Stuart? Thank you, convener. I just wanted to drill down a little bit. In your opening remarks, Mr Watson gave us two cases—those that dismissed and those that went to absorvator. Is it not the case that the absorvator cases themselves fit into a number of different categories? Those that have gone to proof issue in terms of evidence has been resolved and a settlement has been raged. There are also absorvators where you are a long way short of that, but also there are people outside it. This is entirely hypothetical. There are two boys and they are twins. In 1970, they are going through exactly the same system and they are abused together through the system. One goes to the courts and gets a settlement absorvator and a payoff, which he accepted at that point as being the best available then. The other twin took no legal action and now will have the right to go back and will get potentially a very different outcome, both financially and in terms perhaps of how much of the evidence and the process is dealt with. Is it not? Even if we know of no such circumstances as I have described, it is precisely to cover that kind of circumstance that it is proper that when the twin who took no action gets a result, it is proper to revisit and reopen the case that someone previously signed up in the circumstances that were then available, which we know—and I am getting this from the panel, as I did from the previous one—are not the proper way in which we should be dealing with those cases. Is not that the point of principle as to why we set aside the absorvator in certain circumstances? Yes, and I understand the force of that argument very powerfully. I think that it is very clearly made. The issue here is not about the morality of whether those cases should go forward at all. Any difference from the pre-1964 cases cannot be said that there is a moral basis for saying that someone abused in August 1964 cannot come forward but October 1964 cannot. Do you forgive me? I deliberately, in my example, said 1970 to dispose of the pre-1964 issue, and I am not making a moral point if I may. I am making a legal point that the legal circumstances at which the absorvator was granted to one person in an identical circumstance were likely, under some of the absorvator's circumstances, to have been accepted by the pursuer simply because that was what was then available and that therefore it is proper if the law is changed now to grant an option to pursue a case, that other twin today, that that right should be extended to the person who took the absorvator at that point. That is the legal point. The moral point that we have dealt with is a pure legal point. Is that a new thing in law? Is that something that should be utterly resisted in law? In which case does the whole bill not then fall? The reason that I took it back to 1964 in the question of morality is because the example that you gave highlights the challenge precisely because it looks unjust if an individual can proceed in one way and someone else in highly similar circumstances cannot. However, phrasing it as you do as a question of law is a good way of putting it. You asked the question of whether that is, in effect, unique. The answer is that it is. There is not a precedent for legislating away final determinations. It is something that has come before the legislature on a number of occasions, not before this legislature but before the Westminster Parliament in the lead-up to the 1973 act and then again in the lead-up to its amendment in 1984. It was very clearly voiced the concerns at interfering retrospectively with rights that had already been determined. The issue here is one of certainty of law, the rule of law, the importance that that has within Scots law as a system anyway and then the way in which that is buttressed by the European Convention on human rights and whether looking to reinstate cases that had finally been judicially determined ran counter to both Scots law and the convention. It is very helpful that you make it in those terms. I think that that helps the committee to understand the very great care that we need to take in dealing with this, but it absolutely reinforces my personal commitment to make sure that we do. Again, going back, I understand entirely what you say. This is a huge issue to get right, but there is a very specific circumstance here where it can be proved that it was a condition of settling and that people did this knowing that time bar was in. It was a condition of settling that a decree absolvator was to be granted where normally you would expect that to be in the circumstances a decree of dismissal. We are talking about a very narrow issue that is being addressed here. I do not think that there is any attempt in fairness to the Government legislation to overturn the very important principles that you have talked about today, so I hope that that is helpful in just closing the discussion on that. Can I get your opinion on that, though? If it is such circumstances that can be proved, would it be fair? Would it be proper? Would it be the right thing to do? The reason that I am hesitating on that is that, again, I am coming back to my experience of how those cases were dealt with. I simply do not recall that they were disposed of on that basis. We are talking hypothetically then. If it could be proved that the pursuer, in order to get the settlement, was required by the insurers in settling the case to accept a decree of absolvator where normally, in the same circumstances, it would have been a decree of dismissal. There are two circumstances there. One is when there is a payment of money in form of extrajudicial settlement, as you would get in any form of litigation. It would always be expected that that would be concluded with absolvator, because both parties accept that they have determined the dispute between them, and it is at an end. The other circumstance is when a case is abandoned by one party without seeking settlement. In those circumstances, they would not have been receiving anything in return for it and would not have been in a position to insist on a decree of absolvator, particularly—I mean, the vast bulk of those were legally aided cases. It wasn't like the party defending it was going to get any award of expenses from them anyway. I insist on it, but because it was a condition of settlement that they put on, and because at that time—because we're not looking at this legislation—the pursuer realised that it was time-barred and there was no prospect of it being raised again in any case, then that gave the insurance company that extra, if you like, incentive or leverage for the pursuer to accept absolvator when it should have been dismissed. I don't believe that in that circumstance the defender had any leverage, but let me put that to one side and just answer the question directly. My concern about this is that it runs counter to the rule of law and the certainty of law, not the specific circumstances. In any hypothetical situation, the same would pertain. That's a helpful discussion. I think that there's only one more aspect that we haven't covered, and that was just a double compensation issue, both in terms of where you saw that and the onus on defender or pursuer to establish a settlement. I was interested in what Mr Garrett had to say about that and what was in their submission as well. He gave an example of, for instance, cases settled on behalf of a child by the parent. By definition, that could not have been time-barred. Any form of settlement was not on the basis that there was a limitation issue. By definition, time would not have started running, let alone have run out against a child until they were 19 or 21. What was also striking about that was his concern about the paucity of evidence on the basis on which a settlement was reached. I ask the committee to bear that in mind. We're talking about much more— Double compensation, where it's been settled. Compensation had been paid. Yes. We're talking about—I think that one of his concerns was that it's going to be difficult to establish retrospectively on what basis it was settled, what amount was expensive, what amount was damages, how that decision was reached. I understand his concern about that, but that goes to highlight the evidential difficulty that one faces when trying to investigate what happened years ago. Putting that to one side, I can see the force in what he says in an alternative means of addressing that would be to offset whatever was awarded or had been agreed in the context of that earlier settlement. Trying to unpick that as to the basis upon which that was reached is a very difficult exercise. I'm trying to think of situations in which insurers would have said, we'll pay you your expenses plus a nominal sum for damages. There would have been little or no incentive to insurers to do that. I've dealt with approximately 4 to 500 cases. None has been in that situation. I agree with Mr Garrett that I'm not clear what ill this is seeking to meet. I agree that there's another way of coming at it, but I encourage the committee to reflect on what he says about evidential difficulties. Those are writ large for the circumstances of abuse and why we have some form of discretion on how those cases proceed. It's a matter of fact. I wouldn't have strong views on where the onus lies. It's the pursuer who's bringing it forward as an aspect of evidence. I would expect in the ordinary run of things the onus to be on the pursuer, but that's secondary to the issue of how it's dealt with. That seems to be a very specific point, because I wasn't aware of the particular double compensation concept being raised in any other evidence that the committee has received. As far as I'm aware, it's not set out in the bill on the supporting documents. On the one hand, I was very conscious that Graham Garrett was talking about a hypothetical situation, whereas, as Graham just said, it was at 4, it was at 500 cases that you've dealt with. That hasn't actually been the case in the actuality. It would be useful to get more information, whether it's from Mr Garrett or our colleagues or whoever else, on specific examples of this. I can absolutely understand the hypothetical point, but specific examples of this. Is it something that's actually happened in the past and we need to be addressing the course list of legislation? From what Graham Graham said, I'll defer to him in terms of his length of experience in handling those cases in court. Is that something that I'm aware of from the insurer's side of things? It's not something that I've heard and discussed in all the time that I've been working on this bill and in preparation for this meeting. Any kind of indication that there would be this approach where I think it was at a token sum of £50, I think it was, he'd suggested. It was something in the region of that. It's just something that I've not come across at all. Graham Graham wasn't either. That's been helpful discussion in the round and on that point specifically. Can I thank you both very much for coming? Anything that you want to add in closing, Mr Roth? If I may, it's something that hadn't really come up in the session so far, but I do think that it's important. The committee's got a significant job here to do. This is a very substantial piece of legislation in terms of its implications. There's an expectation in the committee to consider all the evidence before it so that you're as well informed as you possibly can be before you make the recommendations at stage 1. The bill goes forward. While I'm struck by it, I'm concerned that you've got fewer than half the number of submissions to your committee that the Scottish Government did when it ran a consultation on this measure in 2015. Your point being? I'm struck by the contrast between the level of evidence that you've received from organisations that have an interest in the bill and the likes of the Scottish Child Abuse Inquiry, Lady Smith, at the end of last month, read out a list of literally dozens of organisations that could be affected by this. There doesn't seem to be any representation of their opinions and their voice on the bill when they could conceivably be affected by it, if Lady Smith's inquiry is already investigating allegations of historic child abuse. No doubt, organisations will have noted your point and had the opportunity to submit. I put it on the record that is all. I'm grateful to you for the opportunity to do that. I can assure you that one of the funding principles of this committee is access to justice for all within the criminal justice system. I hope that if you take nothing else away, you take that away today from having heard the questions and the evidence that the committee has received.