The Scottish Parliament’s Justice Committee has endorsed the general principles of the Bill proposing the retrospective abolition of limitation in cases of childhood abuse. Nonetheless, significant issues of detail and relevant concerns have been flagged in the Committee’s Stage 1 Report. This is now for further consideration by the Scottish Government. We summarise the position taken by the Committee on pre-26 September 1964 abuse then list the issues which have been flagged for further attention.
Pre-26 September 1964 Abuse
The Justice Committee has accepted that there is no realistic legislative solution to the simple point that a right which has already been extinguished by prescription cannot be re-created. Put simply, the right no longer exists. That means that the right to claim for pre-26 September 1964 personal injury remains extinguished. The Committee has, though, asked the Scottish Government to provide information on what action it intends to take in respect of survivors of pre-26/9/64 abuse, in the context of redress.
Issues flagged for further attention:
- Whilst the Committee have accepted the present non-exhaustive definition of ‘abuse’ as including certain named types (sexual, physical, emotional), they have asked the Scottish Government for greater clarity on ‘emotional abuse’. They have also asked for a Scottish Government response on whether ‘neglect’ should be added. Neglect had featured in an earlier draft of the Bill but was not included in the version introduced to the Scottish Parliament.
- The Committee have asked the Scottish Government for greater clarity on whether conduct is to be assessed with reference to current or previous standards. Forms of chastisement once considered reasonable may no longer be considered reasonable. The Scottish Government have also been asked by the Committee to respond to the point that the retrospective abolition of limitation might open the door to retrospectively increased categories of vicarious liability claims against organisations given how the principles of vicarious liability have expanded in more recent years.
- With potential Human Rights challenges in mind, the Scottish Government have been asked to justify the Bill’s proposal for allowing proceedings to be re-raised that had previously been finally disposed of in Scotland (by absolvitor).
- The Scottish Government have also been asked to consider if the issue relating to proof of prior settlements could operate unfairly and, further, whether only allowing re-litigation of prior costs-only settlements (i.e. with no payment at all for damages) could operate unfairly. Off-setting prior payments (i.e. including any damages element) is raised as an alternative approach.
- On safeguards for defenders, the Committee notes that, whether the Bill makes express provision for a ‘fair hearing’ or not, such a provision would be implied by Article 6 ECHR. They ask the Scottish Government to consider whether making the provision an express one may be taken by the courts as suggesting that something beyond ECHR compliance is required. With a view to reducing uncertainty, the Scottish Government have also been asked for clarity on what may be involved in the ‘substantial prejudice’ test which the Bill provides as an additional safeguard to ‘fair hearing’ in the context of the Bill’s retrospective application.
- On financial implications, the Scottish Government have been asked to consider whether further work could be done to provide a more accurate estimate of the likely number of cases which will be raised on account of the Bill if it becomes law, noting its concern that the present mid-point figure of 2,200 may be conservative. The Scottish Government have also been asked to provide further information on its assessment of the financial impact on local authorities and third sector organisations.
The next step is for the Scottish Parliament, in Chamber, to debate the Bill at Stage 1. That is expected to happen on Thursday 27 April.