On 28 February 2017, the Scottish Parliament’s Justice Committee continued its consideration of the Limitation (Childhood Abuse) (Scotland) Bill, by taking evidence from seven further witnesses. We summarise that evidence as follows:
Legal principles and the law
Representatives of the Faculty of Advocates, the Law Society of Scotland and the Scottish Human Rights Commission (SHRC) gave evidence. It was stressed by those giving evidence on behalf of the first two organisations that their membership comprised broad churches of opinion and the evidence given today should not be taken as suggesting that there is consensus amongst those bodies. That should be borne in mind when this blog refers to a view from either of those two organisations. From the claimant perspective, the Bill was welcomed by the Law Society. It was also welcomed by SHRC. A view on the Bill was not expressed on behalf of the Faculty of Advocates, with their representative advising that their position is that the Bill is here now and they are keen that it should be made as good law as it can be. We look now at specific topics covered in evidence:
- Guidance on exercise of discretion?: None of those giving evidence supported guidance being given to Judges in the exercise of their existing discretion to allow a time-barred claim to proceed, though for different reasons.
- An alternative discretion: It was acknowledged that discretion to disallow a case proceeding remained in the Bill, in the context of whether the defender could get a “fair hearing” and whether allowing a case to proceed would “substantially prejudice” a defender such as to outweigh the pursuer’s interest. It was noted, though, that the law is to be “re-booted” should the Bill become an Act since the onus would shift from the pursuer having to justify delay to the defender having to establish that a fair hearing could not be obtained or that they would be substantially prejudiced to the extent that the pursuer’s interest should be overridden.
- Injury: All those giving evidence made the point that, regardless of the way in which “abuse” is ultimately defined, a survivor would need to prove injury – physical and/or psychological – caused by the abuse to make a successful claim.
- Today’s or yesteryear’s standards?: A Committee member raised this issue in the context of consideration of chastisement. Broadly speaking, the view was that conduct should be viewed in terms of the standards of the time.
- Prior settlements: The Law Society echoed a point made by APIL at the first session that cases previously settled for “damages and costs” should be allowed to be re-raised, that off-setting should apply in those cases and that it should be for a defender to prove a prior settlement.
- Pre-26 September 1964 abuse: Prescription: All were agreed that, realistically, the law can afford no remedy to survivors who suffered abuse before 26 September 1964, on account of the Scots Law of Prescription. That point was made forcibly by SHRC in that defender’s human rights would be interfered with such that legislating in this area would be incredibly problematic and may frustrate the whole legislation.
Legal practicalities and the law
Representatives of the Convention of Scottish Local Authorities (COSLA), Police Scotland, Social Work Scotland and the Society of Local Authority Lawyers and Administrators (SOLAR) gave evidence. We summarise that here:
- Abuse: Discussion continued on the definition of abuse. “Neglect” was suggested as an addition to the proposed definition. “Psychological abuse” had earlier been suggested by the Faculty of Advocates’ representative for inclusion. It was thought that “spiritual abuse”, mentioned at the first evidence session, would be encompassed within “emotional abuse”.
- The numbers involved: The consensus was that no reliance should be placed on the figure of 2,200 survivors referred to in the Scottish Government papers. A figure of 4,400 was put forward by the Police in respect of the Strathclyde region complainants (those who had reported a crime) but again it was emphasised that nobody can predict the number who may choose to make a civil claim.