Education and Skills Committee Wednesday 10 February 2021 Session 5 © Parliamentary copyright. Scottish Parliamentary Corporate Body Information on the Scottish Parliament’s copyright policy can be found on the website - www.parliament.scot or by contacting Public Information on 0131 348 5000 Wednesday 10 February 2021 CONTENTS Col. SUBORDINATE LEGISLATION............................................................................................................................... 1 Repayment of Student Loans (Scotland) (Amendment) Regulations 2021 (SSI 2021/8) ............................ 1 REDRESS FOR SURVIVORS (HISTORICAL CHILD ABUSE IN CARE) (SCOTLAND) BILL: STAGE 2 .............................. 2 EDUCATION AND SKILLS COMMITTEE 5th Meeting 2021, Session 5 CONVENER *Clare Adamson (Motherwell and Wishaw) (SNP) DEPUTY CONVENER *Daniel Johnson (Edinburgh Southern) (Lab) COMMITTEE MEMBERS *George Adam (Paisley) (SNP) *Kenneth Gibson (Cunninghame North) (SNP) *Iain Gray (East Lothian) (Lab) *Jamie Greene (West Scotland) (Con) *Ross Greer (West Scotland) (Green) *Rona Mackay (Strathkelvin and Bearsden) (SNP) *Oliver Mundell (Dumfriesshire) (Con) *Alex Neil (Airdrie and Shotts) (SNP) *Beatrice Wishart (Shetland Islands) (LD) *attended THE FOLLOWING ALSO PARTICIPATED: John Swinney (Deputy First Minister and Cabinet Secretary for Education and Skills) CLERK TO THE COMMITTEE Gary Cocker LOCATION Virtual Meeting 1 10 FEBRUARY 2021 2 Scottish Parliament Redress for Survivors (Historical Child Abuse in Care) Education and Skills Committee (Scotland) Bill: Stage 2 Wednesday 10 February 2021 08:39 [The Convener opened the meeting at 08:38] The Convener: We move to item 2. This will be my first stage 2 as convener; I know that some Subordinate Legislation committee members have dealt with bills at stage 2 in other committees. I will endeavour to get through the amendments as efficiently as possible. Repayment of Student Loans (Scotland) (Amendment) Regulations 2021 When members wish to speak in the debate on (SSI 2021/8) an amendment, I ask them to indicate that by typing R in the chat bar. If members wish to The Convener (Clare Adamson): Good intervene on a speaker, I ask them to please type I morning. I welcome everyone to the Education in the chat bar. I will give further information on and Skills Committee’s fifth meeting in 2021. I ask divisions if we come to one. We move to consider everyone to please turn their mobile phones and amendments to the bill. other devices to silent. Agenda item 1 is consideration of a negative Section 1—Overview of Act instrument. Details about the instrument are in the The Convener: The first group of amendments committee’s papers. I ask members who have is on the waiver. Amendment 1, in the name of comments to indicate that by typing R in the chat Iain Gray, is grouped with amendments 38, 2, 40, bar. 3, 43 to 45, 48, 5, 84, 6 to 17, 106 and 107. I draw I see that no one wants to speak. Thank you. members’ attention to the pre-emption information that is in the groupings document. If amendment 3 is agreed to, amendment 43 will be pre-empted. If amendment 17 is agreed to, amendment 100, from the group on initial determinations, will be pre-empted. Iain Gray (East Lothian) (Lab): I will speak to amendment 1 and the other amendments in my name. It is appropriate that the group on the waiver is the first to be debated, because it goes to the heart of the bill’s purpose. As we know, the redress scheme is the final stage in a very long process of recognising the appalling treatment that many children suffered when they were supposed to be in our collective care. It took years for their stories to be heard at all; years more for those stories to be believed; longer still for an apology to be made to them—initially by the then First Minister, Jack McConnell; and years more until their experience was formally investigated and recognised in an inquiry. It has taken yet longer to produce the legislation that will provide those people with redress. The abuse that they suffered has blighted their whole lives, which have been further hurt by the struggle for justice that they have faced. We all want to get the scheme right—above all, for survivors. The bill that we pass and the scheme that it creates must be trusted by survivors, yet the bill as introduced has at its heart a measure that threatens to compromise such trust. As the committee has heard, some survivors consider that measure to be a betrayal. 3 10 FEBRUARY 2021 4 Under the waiver, if a survivor benefits from the other schemes. The result of that exploration and redress scheme, they are required to give up their consultation has confirmed my belief that the right to pursue civil justice. The cabinet secretary inclusion of a waiver represents the best possible argued to the committee that that is necessary to way of delivering a collective approach to redress ensure that care providers in whose care survivors that secures the financial contributions that were abused contribute to the scheme. It is true survivors want and deserve. that survivors want care providers to contribute. There can be no mistaking the commitment and However, the cabinet secretary has been unable desire of all of us in Parliament to do the very best to put before the committee the evidence that the we can for the survivors that our country has let waiver is the critical element that will ensure that down so badly. contributions are forthcoming. I fully acknowledge that there are no easy The committee heard evidence from potential options, but I continue to believe that the waiver is contributors that, although a waiver might help the best option available to us. The waiver is an them, it is not the critical factor—that is the important mechanism to encourage the affordability of the required contribution and the participation of organisations. It is the only route to fear of a commitment without limit, which we will securing meaningful contributions at a level that deal with under other sections. The providers were can be considered fair and appropriate. The at best ambivalent about the protection that the waiver helps to secure financial contributions by waiver purports to provide. reducing the risk of litigation that organisations, We must remember that contributions will be the Scottish Government and local authorities voluntary, with or without the waiver in place. would otherwise face in relation to abuse covered There will be no compulsion. In effect, we are by the scheme. By reducing that risk, the waiver being asked to include in the bill a measure that enables those organisations to commit to larger threatens to undermine the scheme in survivors’ contributions than would be the case if there were eyes, and to do so in the interests of those who no waiver and the risk of future litigation were not historically allowed the abuse to happen, without reduced. creating a compulsion on care providers to Alex Neil (Airdrie and Shotts) (SNP): As the contribute. cabinet secretary knows, I am not enamoured with The key amendments are amendments 6 and 7, the waiver, although I recognise that in his which would remove the waiver requirement. The amendments he has gone a long way to try to deal other amendments that are in my name are with the concerns of survivors. A major concern for consequential to those amendments. some survivors is that, after they sign a waiver, additional information might become available that I acknowledge that the cabinet secretary has would have given them a good chance of success made significant efforts that would mitigate the in getting substantially more compensation and effect of the waiver, but it would remain in place redress in court. Between now and stage 3, will even if his amendments were agreed to. He has the Government consider the possibility of not managed to square the circle of the waiver and amendments to address that situation, so that if contributions. Given the choice, we should choose any survivor finds themselves in it, the waiver to square that circle on the side of survivors. We could be waived? should protect their rights and ensure their confidence in the bill. John Swinney: I am grateful to Mr Neil for the intervention. I listened carefully to the concerns I move amendment 1. raised by survivors and others on that point and, if new evidence emerged, the amendments that I 08:45 am lodging would allow redress payments that The Deputy First Minister and Cabinet have already been accepted to be revisited to take Secretary for Education and Skills (John account of that fact. Swinney): I thank Mr Gray for raising the issue of I want to create a redress scheme that is fair to the waiver. It has been a key issue throughout the survivors. That means empowering them to make scrutiny of this bill, and it is important that we the right decision, with independent legal advice, discuss it today. I also thank the committee for its and to choose the right path. I lodged careful consideration of this complex and sensitive amendments to ensure that survivors have the matter. During the past weeks and months, we time that they need to make those decisions and have all been navigating our way through a wide that the scheme is open long enough to allow range of evidence and an even wider range of them to fully explore other options. They also have views on this issue. the option to pause their redress application at any [Inaudible.]—explore alternatives, and we have time before a determination is made. looked far beyond our shores at the experience of 5 10 FEBRUARY 2021 6 However, Mr Neil made an important point, and and removing initial determinations so that the I will consider that issue again in advance of stage waiver will come only at the very end of the 3.