The bill to provide a less restrictive time limit for childhood abuse survivors seeking damages in court has been published in the Scottish Parliament.
Deputy First Minister John Swinney introduced the Limitation (Childhood Abuse) (Scotland) Bill, the first of the 2016-17 parliamentary year, following detailed consultation on how far back to allow claims to be brought.
The principal issue was whether claims dating from before 26 September 1964, which were completely extinguished in law after 20 years, could be revived. The Government has concluded that this is not possible, despite representations from victims' groups.
At present, as with any other action of damages for personal injuries, claims by victims have to be brought within three years after they become adults, that is by their 19th birthday, unless they can persuade a court that it would be just and equitable to allow a claim to be brought later. The bill would amend the Prescription and Limitation (Scotland) Act 1973 to remove this restriction.
It applies to abuse against any child regardless of the setting where that took place. It goes further than other jurisdictions by including sexual, physical and emotional abuse even where not connected to other forms of abuse. It also enables cases previously raised but unsuccessful due to time bar to be relitigated, whether they were determined by the court or settled by both parties without damages being paid, subject to appropriate safeguards where this would be incompatible with the defender's rights under the European Convention on Human Rights.
In a statement to the Parliament, Mr Swinney said the exclusion of pre-1964 claims was because "the significant legal issues and the human rights legislation made it impossible to establish a sustainable way forward. I regret there is no legislative solution that can be found for pre-1964 survivors".
However he said he had given "serious consideration" to the "complex issue" of redress, and indicated that the new £13.5m In Care Survivor Support Fund, which provides tailored and personalised support to help individuals "achieve their own personal outcomes, whatever those may be", might come into play.
"I have looked into how some other countries have approached this in relation to past abuse in residential institutions", he continued. "I am conscious of the connection with the Limitation Bill and the position of pre-1964 survivors. There is also the question of how it would be funded and the role of other organisations alongside government.
"I am therefore committing to a formal process of consultation and engagement on this specific issue with survivors and other relevant parties, to fully explore the issues and gather a wider range of views. Discussions have already begun about that engagement process and its timing. I will be in a position to provide details in the coming weeks and can assure Parliament that I will take this issue forward with the urgency it deserves."
Mr Swinney also announced that the terms of reference of the inquiry under Lady Smith would be amended to make clear that its scope includes the abuse of children in care wherever that occurred, though it will not be extended further to include all allegations of abuse in non-residential settings.
While some survivor groups wanted to see the remit extended to include abuse which took place in non-residential settings such as local parishes, day schools and youth organisations, others did not wish to risk prolonging the timescale of the inquiry, and after consulting Lady Smith, he had concluded that it was proper to distinguish between in-care settings and other settings.
The Deputy First Minister further stated that he had decided not to appoint a third panel member to replace Professor Michael Lamb, who resigned around the same time as the original chair, Susan O'Brien QC. Lady Smith would continue with Glenn Houston, and had the power to appoint specialist assessors if needed.