Submission to Consultation on Civil Law of Damages: issues in
personal injury
The Scottish Human Rights Commission
22 March 2013
The Scottish Human Rights Commission is a statutory body created by the Scottish
Commission for Human Rights Act 2006. The Commission is a national human rights
institution (NHRI) and is accredited with ‘A’ status by the International Co-ordinating
Committee of NHRIs at the United Nations. The Commission is the Chair of the
European Group of NHRIs and it is also a representative of Scotland on the Advisory
Panel to the Commission on a Bill of Rights. The Commission has general functions,
including promoting human rights in Scotland, in particular to encourage best
practice; monitoring of law, policies and practice; conducting inquiries into the
policies and practices of Scottish public authorities; intervening in civil proceedings
and providing guidance, information and education.
0. Summary
The Scottish Human Rights Commission (the Commission) considers that survivors
of historic child abuse continue to be denied effective access to justice and the right
to an effective remedy in Scotland. In the context of the review of the law on “time
bar”, the Commission considers that the following options bear further consideration:
1. the adoption of a “special regime” on limitation for survivors of historic child
abuse;
2. the development of a national reparations fund for survivors of historic child
abuse.
The Commission looks forward to continued constructive negotiations between
survivors, Government, other public bodies, institutions, workers, religious bodies
and others on the development of an Action Plan on Justice for Historic Abuse, to
consider such steps, among others.
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1. Introduction
The Scottish Human Rights Commission (the Commission) welcomes the
opportunity to respond to the Scottish Government’s consultation on the Civil Law of
Damages: issues in personal injury. The Commission will restrict its comments to
Chapter 3 (“time-bar”).
As the Government is aware the Commission has been engaged in promoting a
human rights based approach to justice for survivors1 of historic child abuse since
2009.2 Under contract by Scottish Government the Commission independently
developed a Human Rights Framework for the design and delivery of an
“Acknowledgement and Accountability Forum”3 (the Human Rights Framework)
which it launched in February 2010.4 The Commission undertook this work as one
element of delivering its 2008-2012 Strategic Plan which focused on the promotion
and protection of human dignity in care through the promotion of a human rights
based approach.
As the Commission outlined in the Human Rights Framework, survivors of serious illtreatment, such as physical or sexual abuse or serious neglect, which may amount
to inhuman or degrading treatment or punishment have a right to an effective
remedy, including access to justice and reparation (including as appropriate
satisfaction, rehabilitation, restitution, adequate compensation and guarantees of
Throughout, this paper refers to “survivors” on the understanding that this term is most frequently
used in Scotland by those individuals themselves who have experienced abuse as children.
International human rights law is built on the foundation that all individuals are born free and equal in
dignity and rights. The choice of terminology is therefore motivated primarily by the importance of selfidentification.
2 For an overview of the Commission’s work in this area see:
http://www.scottishhumanrights.com/ourwork/historicalabuse
3 In 2008 Scottish Ministers announced that they planned to trial a form of truth commission on
historic child abuse which was later given the working title, “Acknowledgement and Accountability
Forum”.
"I am pleased to inform Parliament that we have been actively scoping the adaptation of the principles
of a truth and reconciliation model. We are committed to that. We are considering good practice
examples for establishing a forum to give survivors the chance to speak about their experiences and
to help them come to terms with the past. That will provide an invaluable opportunity to establish the
facts, learn from the suffering and use the experience to help us protect and provide for children in the
future." Adam Ingram MSP, Minister for Children and Early Years, Official Report of the Scottish
Parliament, 7 February 2008,
http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-08/sor0207-02.htm
In late 2009, the Scottish Government announced that a Pilot Forum (that became Time To Be Heard)
would operate in Spring 2010 to listen and validate survivors’ experiences, create a historical record,
signpost to services available and test out a confidential committee model. The Government’s
decision to announce a pilot forum was made independently of and prior to the Commission
presenting the Human Rights Framework which also therefore included recommendations directed to
the design of what became known as Time To Be Heard.
4 SHRC, A human rights framework for the design and implementation of the proposed
“Acknowledgement and Accountability Forum” and other remedies for historic child abuse in Scotland,
Glasgow, February 2010, (hereafter Human Rights Framework),
http://www.scottishhumanrights.com/application/resources/documents/SHRCHumanRightsFramework
onAAF.doc
1
2
non-repetition).5 Depending on the nature of the perpetrator and the gravity of the
harm the State also has an obligation to ensure effective official investigations or an
alternative form of investigation sufficient at least to identify any state responsibility
and systemic failures – that is to identify not only what happened (the “right to the
truth”) but why it happened (to ensure guarantees of non-repetition).
Among the recommendations made by the Commission in its Human Rights
Framework which are of most relevance to the present consultation are:
“The Scottish Government should:
…
4. Ensure effective access to justice through identifying and addressing
barriers which survivors of childhood abuse face in practice in exercising this
right, making necessary adjustments or developing new mechanisms as
required;
5. Develop as effective as possible a reparations programme for survivors of
historic childhood abuse. This should include restitution, adequate
compensation, rehabilitation, satisfaction and guarantees of non-repetition.
The reparations for individuals should be appropriate for each individual, and
based on the principles of proportionality (according to the nature of the
violation and the harm done) and participation (of survivors to identify their
needs and wishes);
6. Make available each of the elements of effective access to justice, effective
remedies and reparation to all survivors of childhood abuse without
discrimination”.6
The Commission continues to pursue the implementation of the full range of
recommendations in the Human Rights Framework. In this context the Commission
welcomes the commitment by the Minister for Public Health as well as senior officials
in justice and health directorates, to engage with the process of human rights
InterActions which are currently underway and have been prepared with the support
of the Centre for Excellence in Looked After Children in Scotland (CELCIS).7
At the first InterAction meeting which took place on 28 February 2013, participants
identified a number of areas which will be considered further in subsequent
negotiations. Among those of most relevance to the present consultation are:

Considering amendments to the time-bar to remove barriers to access to
justice for survivors of historic child abuse;
5
See SHRC and Susan Kemp, A Review of International Human Rights Law Relevant to the
proposed Acknowledgement & Accountability Forum For Adult Survivors of Childhood Abuse,
February 2010 (hereafter legal paper).
6 SHRC, Human Rights Framework, p8.
7 For more information see www.shrcinteraction.org
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
Considering the development of a national reparations fund/adult survivor
fund for survivors of historic child abuse.
Each of these will be considered further below.
2. General response on the issue of time-bar in respect of survivors of historic
child abuse
The Commission reiterates the fact that the State has the duty to ensure effective
remedies for violations of human rights.8 This duty extends to historic human rights
abuses which have not been remedied.9 As the Commission’s Human Rights
Framework states:
“It is the view of the Commission that international practice and emerging
interpretations of international human rights law, support the view that victims
of human rights violations have a right to an effective remedy today, according
to today’s understanding of the right to an effective remedy where they have
not had that right fulfilled in the past.10
However the determination of whether conduct amounted to a human rights
violation should be made according to the standards applicable at the time the
conduct occurred.”11
As the Government’s consultation document and the Scottish Law Commission’s
(SLC) report make clear,12 the manner in which the Prescription and Limitation
(Scotland) Act 1973 are currently operating is effectively acting as a barrier to
This is the case where the state itself has violated an individual’s rights and also where the State
has failed to protect an individual from acts or omissions of others which amount to human rights
abuses.
9 See E and others v UK and UN CAT concluding observations on New Zealand (legal paper pages
70-72).
10 See Legal paper p 71-72. In particular, E and others v UK and the UN Committee against Torture
(CAT, the body of 10 independent experts that monitors implementation of the UN Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) in its concluding
observations on New Zealand: “The State party should take appropriate measures to ensure that
allegations of cruel, inhuman or degrading treatment in the “historic cases” are investigated promptly
and impartially, perpetrators duly prosecuted, and the victims accorded redress, including adequate
compensation and rehabilitation.”
11 SHRC, Human Rights Framework, pp 21-22. NB. Part A of the Commission’s Legal Paper outlines
the developing understanding of torture, inhuman or degrading treatment or punishment over three
periods – pre 1953 (when the ECHR entered into force); 1953-2000; post 2000.
8
12
Scottish Government, Civil Law of Damages: Issues in Personal Injury - A Consultation Paper,
Edinburgh 2012; Scottish Law Commission, Report on Personal Injury Actions: Limitation and
Prescribed Claims, SE/2007/241, Edinburgh, December 2007.
4
survivors of historic child abuse securing access to civil justice.13 Having
consideration to international comparative experience and to the rights of everyone
involved, two options appear to the Commission to be worthy of further
consideration: the establishment of an ad hoc reparations fund and a “special
regime” or exemption of survivors of historic child abuse from the general limitations
regime.
3. The limitation regime and access to civil justice
The right of access to a court is not absolute and the European Court of Human
Rights (ECtHR) has consistently found that statutory limitations will not necessarily
breach Article 6:
“The right of access to court is not, however, absolute. It may be subject to
legitimate restrictions such as statutory limitation periods, security – for - costs
orders, and regulations concerning minors and persons of unsound mind.
Where the individual’s access is limited either by operation of law or in fact,
the Court will examine whether the limitation imposed impaired the essence of
the right and, in particular, whether it pursued a legitimate aim and whether
there was a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved. If the restriction is compatible
with these principles, no violation of Article 6 will arise.”14
However, the existence of a limitation period must be carefully justified, and factors
relevant in the determination of whether it is proportionate will include the nature of
the right engaged (in the case of serious ill-treatment of children this will often be the
absolute right to freedom from torture, inhuman or degrading treatment or
punishment) and the existence of alternative remedies. As the ECtHR has recently
stated:
“the existence of a limitation period per se is not incompatible with the
Convention. What the Court needs to ascertain in a given case is whether the
nature of the time-limit in question and/or the manner in which it is applied is
compatible with the Convention.”15
Further:
13
Among many cases which could be cited here reference should be made to Bowden and Whitton v
Sisters of Nazareth and others, [2008] UKHL 32; Aitchison v Glasgow City Council and Findleton v
Quarriers [2010] CSIH 9.
14
Perusko v Croatia, Application no. 36998/09, judgment of 15 January 2013, para 45. (citations
omitted)
15 Roman v Finland, Application no. 13072/05, judgment of 29 January 2013, para 50.
5
“The Court has also on several occasions found that it has difficulties in
accepting inflexible limitation periods which do not provide any exceptions to
the application of that period. The main problem therefore is the absolute
nature of the time-limit rather than its dies a quo [starting date] as such.”16
In the case of Stubbings v UK,17 the ECtHR accepted that limitation periods in cases
of historic child abuse did not necessarily breach the Convention. In the case, which
originated in England, the ECtHR found that a non-extendable time-limit of six years
from the applicants’ eighteenth birthdays to bring an action concerning allegations of
sexual abuse during childhood did not impair the very essence of the applicants’
right of access to court.18 The ECtHR held that limitation periods in personal injury
cases were a common feature of the domestic legal systems of the Contracting
States. They served several important purposes, namely to ensure legal certainty
and finality, protect potential defendants from stale claims which might be difficult to
counter and prevent the injustice which might arise if courts were required to decide
upon events which took place in the distant past on the basis of evidence which
might have become unreliable and incomplete because of the passage of time. 19
However in reaching this conclusion the ECtHR did recognise the particular factors
relevant to cases involving historical child abuse, and the need to review the
proportionality of limitations in this area as our understanding of the enduring effects
of child abuse develops:
“There has been a developing awareness in recent years of the range of
problems caused by child abuse and its psychological effects on victims, and
it is possible that the rules on limitation of actions applying in member States
of the Council of Europe may have to be amended to make special provision
for this group of claimants in the near future.”20
It is notable that a range of opinion now recognises the significant and enduring
effects of childhood abuse and their impact on the ability of survivors to initiate legal
proceedings.21
Subsequent ECtHR judgments have built on the long accepted rule that the
European Convention on Human Rights is intended to guarantee rights that are not
16
Ibid, at para 57.
Stubbings and others v United Kingdom (Application No. 22083/93)
18 Ibid, at para 52.
19 Ibid, at para 51.
20 Ibid, at para 56.
21 See for example Ben Matthews, “Limitation periods and child sexual abuse cases: law psychology,
time and justice”, Torts Law Journal 11 (3): pp 218-243; Elizabeth Adjin-Tettey and Freya Kodar,
“improving the potential of tort law for redressing historical abuse claims: the need for a
contextualized approach to the limitation defence”, Ottawa Law Review, 22 December 2010;
Carol Brennan, “’An instrument of injustice’? Child abuse and the reform of limitation law”, Child and
Family Law Quarterly, vol. 18, no. 1, 2006.
17
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merely theoretical or illusory but rather rights that are practical and effective.22 The
ECtHR has found that existing judicial and other remedies must be effective and
equally accessible in practice not only in law.23 This requires that they “should be
appropriately adapted so as to take account of the special vulnerability of certain
categories of person”.24
In consequence, a series of cases since Stubbings have in fact found violations of
the right to an effective remedy for cases involving historic child abuse originating
from the UK (Scotland and England). Remedies for historic child abuse in Scotland
have been found to be inadequate by the ECtHR in the case of E and others v UK.25
The case was brought in the 1990s and determined in 2002. It involved a failure of
the State to protect children from serious abuse in the 1960s and 1970s. Judged by
the standards of social work at the time, it was found that the State ought to have
known of the real and immediate risk of serious ill-treatment and had failed to take
reasonably available measures to address that risk. In assessing remedies available,
the ECtHR pointed out inadequacies, notably the restriction of the Criminal Injuries
Compensation Authority to crimes (which would not necessarily cover serious
neglect, amounting to ill-treatment) committed after 1964 (thus excluding older
survivors), and the impact of judgments of higher domestic courts appearing to
effectively block access to civil remedies.26
In an equivalent case which originated in England, the ECtHR found a violation of
Article 13 (the right to an effective remedy) as the applicants:
“did not have available to them an appropriate means of obtaining a
determination of their allegations that the local authority failed to protect them
from inhuman and degrading treatment and the possibility of obtaining an
enforceable award of compensation for the damage suffered thereby.”27
The ECtHR stopped short of declaring that access to a court would always be a
required element of the right to a remedy where alleged violations of Article 3 were
concerned. However it did argue in favour of access to court in such cases.
“The Court does not consider it appropriate in this case to make any findings
as to whether only court proceedings could have furnished effective redress,
though judicial remedies indeed furnish strong guarantees of independence,
22
See Airey v. Ireland, 9 October 1979, § 24, Series A no. 32
See E and others v UK; İlhan v Turkey, Application no. 22277/93, ECHR 2000-VII, judgment of 27
June 2000.
24 UN Human Rights Committee, General Comment no. 31, para. 15.
25 E and others v United Kingdom, 2002, Application No. 33218/96.
26 E and others v UK pointed to gaps in the current framework for remedies of historic abuse in
Scotland (and the equivalent English case of Z and others v UK did the same in respect of England).
See Legal paper, pp 64-67.
27 Z and others v UK, (2001), at para 111.
23
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access for the victim and family, and enforceability of awards in compliance
with the requirements of Article 13.”28
Noting that cases which involve serious ill-treatment of children invoke the absolute
right to freedom from torture, inhuman or degrading treatment or punishment, the
ECtHR considered these:
“rank as the most fundamental provisions of the Convention, [and in
consequence] compensation for the non-pecuniary damage flowing from the
breach should in principle be part of the range of available remedies.”29
The present consultation offers an important opportunity to address the barriers
which continue to be faced by survivors of historic child abuse in securing effective
access to remedies. It is of course axiomatic that any response must take into
account the rights of everyone involved, potential defendants as well as potential
pursuers.30 However in drawing the balance between the rights of each it is
important to recognise the serious nature of the rights violations at stake in cases of
historic child abuse. Many survivors will be victims of serious ill-treatment in the
meaning of Article 3 of the Convention, when judged by the standards of the time.31
Others will be victims of other human rights abuses such as of Article 8. The
Commission considers that there remains both a legal and a moral duty on the State
to remove barriers to access to justice for survivors of historic child abuse.
In considering then what steps most effectively address this, it is instructive to
consider what steps have been taken elsewhere. Among the specific steps which
other jurisdictions have taken to address access to justice for survivors of child
abuse are:
1. Introducing a “special regime” for survivors of child abuse either through:
a. an exemption from the limitation regime;32
b. Providing explicitly that judicial discretion may apply to cases of historic
child abuse;33
28
Ibid, at para 110.
E and others v UK, 2002, para 110; Z and others v UK, Judgement of 10 May 2001, para 109.
30 For a useful overview of the Convention rights of potential defendants, see Irish Reform
Commission, Limitation of Actions, LRC 104-2011, Dublin, December 2011, pp23-26.
29
31
For an overview of the evolving standards which will be of relevance to assessing conduct from pre1953 to the present day see the Commission’s Legal Paper, pp9-17.
32
As for example in the case of several Canadian provinces, see below.
33
See for example New Zealand Limitation Act 2010, section 17, as cited in (Irish) Law Reform
Commission, Limitation of Actions, LRC 104-2011, Dublin, December 2011, p36 (“In such types of
claims, even where the relevant statute-barred defence has been or could be established, the court
may “if it thinks it just to do so on an application made to it for the purpose, order that monetary relief
8
2. Establishing ad hoc reparations programmes for survivors of historic child
abuse.34
4. A “Special Regime”
In its report the Scottish Law Commission (SLC) did consider the position of
survivors of historic child abuse and the possibility of introducing a special regime.35
The SLC considered some such regimes as introduced in other jurisdictions but was
“of the clear opinion that a special regime would not be justified in Scotland, because
of the unfairness that would inevitably result and because of the difficulties of
enacting retrospective legislation.” In reaching this conclusion SLC appears to have
been influenced by its view that the ability of a defender to rely on a period of
prescription or limitation as an immunity from a claim may itself be a “right”, or a
possession protected by the right to property in Article 1, Protocol 1 of the ECHR.
The concern expressed by the SLC on the potential for a special regime to be open
to challenge on grounds of interference with Article 1, Protocol 1 (i.e. the property
rights of potential defenders) must now properly be seen in the light of the decision
of the UK Supreme Court in the Axa case.36 That case upholds that measures which
seek to address social injustices are in pursuit of a legitimate aim of the “public
interest”, and that assessing the extent of that interest is within the margin of
appreciation under the Convention and an area where domestic courts ought
properly to “[respect], on democratic grounds, the considered opinion of the elected
body by which these choices are made.”37 The question is then one of whether the
interference with the property right is a proportionate means of achieving that
legitimate aim, as it was found to be in Axa.38
The public interest in securing to survivors of historic child abuse effective access to
remedies which are at present denied to them, seems no less significant.39 In a
may be granted in respect of the claim as if no defence under this Part applies to it.””); and proposals
by the Irish Law Reform Commission in the same report.
34
As in Ireland, Canada, Australia
35
Scottish Law Commission, Report on Personal Injury Actions: Limitation and Prescribed Claims,
SE/2007/241, Edinburgh, December 2007, pp55-59.
36 Axa General Insurance Limited (and others) v Lord Advocate (and others) (Scotland), [2011] UKSC
46.
37 Ibid, pp 14-16.
38 Ibid, pp 1739 This was also the view of the Law Commission for England and Wales in its report of 2001:
“Victims of such abuse frequently need time to recover sufficiently from the trauma
consequent upon the abuse to be able to contemplate bringing a claim against their abusers.
It could also be argued that the public interest in protecting the defendant from stale claims,
and in ensuring that there is an end to litigation, does not apply where the defendant has
been guilty of sexual abuse (which could be considered to make the case for exempting such
9
decision in 2008 Lord McEwan considered the effect of the present regime on
survivors of historic abuse in Scotland commenting:
“I have an uneasy feeling that the legislation and the strict way the courts
have interpreted it, has failed a generation of children who've been abused
and whose attempts to seek a fair remedy have become mired in the legal
system."40
As the SLC notes, other jurisdictions have grappled with the limitation period for
claims related to childhood abuse. Australia41 and Ireland42 both considered how to
remove or limit legal barriers to accessing justice in delivering remedies packages for
historic child abuse. Furthermore there have been important developments in
Canada. In 2000 the Law Commission of Canada (LCC) issued a report specifically
on the topic of limitation of claims by survivors of historic child abuse.43 In it the LCC
noted the importance of survivors having the opportunity to choose the redress
option that benefits them out of respect for their autonomy and dignity. This was
seen to be even more important given the experience of powerlessness that is
associated with institutional child abuse.44 In the Canadian context a number of
claims from the long-stop limitation period even stronger than is the case for other personal
injury claims such as for asbestosis).”
Law Commission for England and Wales Limitation of Actions (Report No. 270, 2001) at 68.
40
A v N, [2008] CSOH 165, para 26.
In Australia the Senate Committee examining institutional child abuse recommended that
governments review the law and consider amending limitation legislation (Parliament of Australia,
Senate Community Affairs Committee, Forgotten Australians: a report on Australians who
experienced institutional or out-of-home care as children, 2004. In Canada, the federal government
stopped using technical defences to contest civil cases initiated by Aboriginal people who experience
historical abuse. Canada and Ireland have addressed the issue of limitation to civil claims in
considering reparations for survivors of historic child abuse. In Ireland for example the reparations
package included an amendment to the statute of limitations. In developing similar human rights
frameworks other national human rights institutions have suggested that no limitation period should
be applied to monetary compensation mechanisms for historic child abuse (Australian HREOC, 1997,
recommendation 17(3)).
42 Ireland passed the Statute or Limitations (Amendment) Act 2000, which retrospectively extended
the period within which a person may bring a civil claim arising out of child sexual abuse in
circumstances where the person bringing the claim is deemed to be “under a disability”’.
(Compensation Advisory Committee (2002) Towards Redress and Recovery. Report to the Minister
for Education and Science, Dublin, January 2002. (Also known as the Ryan Report. Full text:
http:/www.rirb.ie/ryanreport.asp), p 512-52. “In such cases the normal three year period does not
begin to run ... until he or she overcomes the psychological injury’. The amendments still allow for
judicial discretion in allowing for dismissal of claims. Section 3 of the Act provides that the court
retains the power ‘to dismiss an action on the ground of there being such a delay between the accrual
of the cause of the action and the bringing of the action as, in the interests of justice, would warrant its
dismissal”. More recently the Irish Law Reform Commission recommended a reform to the overall
limitation regime to include a statutory grounding for judicial discretion to dis-apply the limitation
period in respect of survivors of child abuse. See (Irish) Law Reform Commission, Limitation of
Actions, LRC 104-2011, Dublin, December 2011.
43 Law Commission of Canada, Restoring Dignity: responding to child abuse in Canadian institutions,
Ottawa, 2000.
44 Ibid, at p72.
41
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provinces have legislated to remove the limitation periods for differing forms of child
abuse, whereas others have introduced presumptions of legal incapacity in such
cases.45 The contrasting approach in Canada to that in England and Scotland has
also been the subject of some discussion.46
5. An ad hoc reparations fund
The Commission also notes and endorses the SLC’s consideration that it may be
possible in Scotland to set up an ad hoc compensation mechanism in respect of
historic childhood abuse in Scotland.47 Should such a reparations fund be
established the Commission considers that this would provide an alternative means
of upholding elements of the right to an effective remedy of survivors of historic child
abuse. Initial discussions during the Historic Abuse InterAction hosted by the
Commission and CELCIS suggest a willingness from all participants to discuss the
potential shape and modalities of such a fund, which may be in the form of an “adult
survivor fund” offering support to access forms of restitution such as educational,
health or other forms of support. International good practice guidance suggests that
institutions should contribute to reparations packages to the extent to which they are
accountable. “in cases where a person, a legal person, or other entity is found liable
for reparation to a victim, such party should provide reparation to the victim or
compensate the State if the State has already provided reparation to the victim.”48
Individual reparations should be based on the participation of the victim of a violation
(to uphold their autonomy and dignity and identify their needs and wishes) and
should be proportionate to the gravity of the violation and the resulting harm. 49 The
Commission therefore draws attention to the importance of integration of a
reparations programme with broader forms of access to justice. As one UN expert
has warned:
On this area generally, see Elizabeth Adjin-Tettey and Freya Kodar, “improving the potential of tort
law for redressing historical abuse claims: the need for a contextualized approach to the limitation
defence”, Ottawa Law Review, 22 December 2010. For example no limitation period applies to
chidhood sexual abuse in British Columbia, Limitation Act RSBC 1996, section 3(5).
46 See Carol Brennan, “’An instrument of injustice’? Child abuse and the reform of limitation law”,
Child and Family Law Quarterly, vol. 18, no. 1, 2006.
47 Scottish Law Commission, Report on Personal Injury Actions: limitation and prescribed claims,
December 2007, Scot Law Com No. 207, p 58-59.
45
48
Van Boven Principles, IX, para 15. This has been the case in other contexts such as Ireland, where
institutions such as churches have contributed to reparations funds.
49
See views of the UN Special Rapporteur on the Rights to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (legal
paper, p 60) and research paper, p 31 where survivors clearly envisaged a wide range of reparations
from which survivors could determine the appropriate reparations for themselves. p 36 “people should
be able to chose the type of counselling/support they required”.
11
“A reparations programme should also operate in coordination with other
justice measures. When a reparations programme functions in the absence of
other justice measures, the benefits it distributes risk being seen as
constituting the currency with which the State tries to buy the silence or
acquiescence of victims and their families. Thus it is important to ensure that
reparations efforts cohere with other justice initiatives, including criminal
prosecutions, truth-telling, and institutional reform” 50
6. Conclusion
Survivors of historic child abuse in Scotland are currently denied effective access to
justice. The Commission considers that a combination of appropriate amendments to
the prescription and limitation regimes and the establishment of a national
reparations programme may offer a solution to the current deficit. The Commission
remains committed to negotiations to develop an action plan which would include
such steps and to the continued constructive engagement in those negotiations of all
of those whose rights are affected, including survivors, Government, other public
authorities, institutions and religious bodies.
50
Report of the independent expert to update the Set of principles to combat impunity, Diane
Orentlicher, UN Doc. E/CN.4/2005/102, 18 February 2005, para 59.
12