It has been an eventful day in Scotland both at the Scottish Child Abuse inquiry and in the Scottish Parliament.
The only remaining original panel member of the Scottish Child Abuse Inquiry, Glenn Houston, has resigned, citing personal reasons.
That Inquiry, which Lady Smith continues to chair, confirmed today that it has rejected an application for core participant status by Wellbeing Scotland. Such status can be conferred by the Inquiry on individuals or organisations if they are considered to have a “significant role in all or part of the matters being considered by the Inquiry”. However, Wellbeing Scotland has submitted a fresh application to become a core participant, which is now under consideration.
Meanwhile, the Justice Committee of the Scottish Parliament has started to hear oral evidence on the Limitation (Childhood Abuse) (Scotland) Bill. Today, a meeting of that Committee heard from parties and their representatives. We summarise here the main points made by both as follows:
- It was accepted that there is nothing which the law can do to allow actions founded on abuse pre-dating 26 September 1964 to proceed. As noted in our previous blogs, the right to claim in such cases has been extinguished by operation of the Scots Law of Prescription.
- On the definition of “abuse” in the draft Bill, it was suggested that that should be non-exhaustive and as widely cast as possible. The Committee will look into a particular suggestion made, that the present definition of abuse including “sexual abuse, physical abuse and emotional abuse” should be extended to also include “spiritual abuse”.
- Concern was raised about the current drafting of the Bill in allowing previously settled actions to be re-raised if they were settled on a “costs only” basis but not on a “damages and costs” basis. The point was put that any damages paid may only have been nominal and that all previously settled cases should be allowed to be re-raised. The suggestion was that, in any such case, any prior payment should be off-set against any fresh payment, but on a non-indexed basis.
- It was accepted that, even assuming the passage of the Bill, claimants would still face “significant hurdles” in successfully proceeding. In that regard, it was conceded on behalf of the Association of Personal Injury Lawyers, that even if the Bill did not make specific provision for not allowing actions to proceed, if the Defender could not get a “fair hearing”, then such a threshold test would be implied anyway by virtue of human rights.
- Following on from the “fair hearing” point, it was noted that the Bill, if it became an Act, would not give survivors the certainty which was sought. Judicial discretion would still come into play. Rather than discretion relating to the question of whether to allow a time-barred claim to proceed, it would be on the “fair hearing” point.
- With that in mind, other options should be considered: the existing limitation legislation could remain “as is” but guidance could be issued on the factors which Judges should have regard to in the exercise of their discretion to allow a time-barred claim to proceed.
- Noting the highly sensitive nature of these matters, the issue of “secondary trauma”, caused by litigation itself, was raised. The Bill, even if passed, would not eliminate that and uncertainty would remain. Having an extra-judicial protocol to deal with these claims might lessen “secondary trauma”.
- In that the law should always strive for certainty, the definition of “abuse” should be as clear and straight-forward as possible. It should be exhaustive. As such, rather than defining abuse as “including” different named types, abuse should be defined as “meaning” sexual and physical abuse. It was suggested that what is meant by “emotional abuse” needs to be made clear. As was put on behalf of the Association of British Insurers, broad and loose definitions do not make for clear and certain law.
It will be interesting to follow the progress of the Bill in the Scottish Parliament, with further oral evidence due to be heard next week.
Written by Frank Hughes and Siobhan Kelly, partners at BLM