Lady Smith, chair of the Scottish Child Abuse Inquiry, said “some ineptitude”, the failure of ministers to listen and engage with survivors, and over-reach of officials urging against an inquiry and attempting to prevent one led to the 13 year delay in setting up the inquiry.
Publishing her findings into the Scottish Government’s response to a petition by abuse survivor Chris Daly, which called for an inquiry to be established and for an apology from the state, Lady Smith said survivors of abuse were “not listened to, nor heard” akin to their experience while being abused in care.
An inquiry was announced by the government in December 2014, and began its work in October 2015.
Lady Smith, chair of the Scottish Child Abuse Inquiry, said between 2002 and 2014, there was “no appetite” within the Scottish Government, at official or ministerial level, for setting up a public inquiry.
Concluding the approach from the government that led to the delay in establishing an inquiry was “woeful and wholly avoidable”, Lady Smith criticised the “significant power and influence” of officials within the government.
The judge said submissions to ministers from officials were “inadequate and, in some respects, misleading”, but that ministers did not do enough to challenge the advice presented or check progress of the Scottish Government’s response to it.
Lady Smith also outlined fears of litigation against the government through the potential of an apology being used as evidence for state liability for the abuse also drove how officials responded to the petition.
She said: “For far too long survivors’ voices were not listened to, nor heard. They were treated as if their views did not matter and as if they were not worth listening to, just as when they were abused in care.
“The Scottish Government failed to grasp the fundamental importance that survivors appropriately and justifiably attached to their need for justice, accountability and redress.
“Justice is not a service, and those who call for it where it has been denied are not customers of a service that may or may not be available depending on the choice of the administration of the day. That key point was missed.
“Officials and legal advisors wielded significant power and influence. Ministers relied heavily on their advice and generally followed their recommendations.
“By following advice and by not questioning it when they should have done, key aims of the Daly petition were resisted for far too long.”
Former first minister Lord Jack McConnell, Deputy First Minister John Swinney and former education minister Peter Peacock were among those who gave evidence to the inquiry between November 17, 2020 and December 4, 2020.
The judge said that there was a “marked lack of urgency” in the Scottish Government’s approach to addressing justice, accountability and redress between 2002 and 2014, although during that period a significant number of survivors of childhood abuse in care in Scotland died.
Lady Smith said “for them, justice delayed was justice denied”.
She also said over that period of time the Scottish Government regarded survivors’ needs as primarily health needs, which she described as ” inappropriately paternalistic”.
Lady Smith added: “It was clear throughout that the justice survivors were calling for, and was of paramount importance to them, was the need for public acknowledgement of their experiences of being abused as children in institutional care, and the need to hold to account those who did not listen to them when they were children, those responsible for the abuse, and those who failed to prevent the abuse from happening.
“The delay was the result of a variety of factors including: some ineptitude, some confusion on the part of ministers and officials, diversion into areas that were not the subject of the Daly petition, officials urging ministers not to hold an inquiry, [and] officials controlling the process up to the point of trying to prevent there being an inquiry.”
The-then first minister, Lord McConnell, made an apology in the Scottish Parliament for past institutional child abuse on December 1, 2004.
However, Lady Smith said its wording was “extremely cautious, drafted in a hurry”, and “was not an apology on behalf of the state”.
Lord McConnell, who was first minister between 2001 and 2007, said: “In my view, an inquiry should have taken place when the court cases of the survivors were thrown out nearly 15 years ago and the survivors of historical child abuse deserve respect and praise for their bravery and persistence which has finally given them the opportunity to be heard.
“Lady Smith has drawn important conclusions based on the evidence she has heard and I thank her for that. The judgements made by my ministers were made in good faith within a complex legal environment.
“The delays in communication and the way decision-making was managed were not acceptable then or now. There are lessons here for everyone, including for the quality of legal and policy advice within the Scottish Government.”
Reacting, Mr Swinney apologised for the mistakes of previous administrations.
He said: “The Scottish Government apologises unreservedly that it did not respond more appropriately and sooner to the concerns of survivors of abuse in care who called for a public inquiry.
“Responding to survivors of abuse in care spanned different administrations between 2002 and 2014. Steps were taken by government to respond in that period, but this happened too slowly and did not go far enough.
"However, an inquiry was announced within weeks of the current First Minister taking office as head of the government.
“The Scottish Government has sought to deliver positive outcomes for survivors of abuse and established the inquiry when it became clear that previous initiatives were not enough to provide this acknowledgement and accountability that survivors needed.”