Scots law has an international reputation for fairness and equity but there are some rules within our legal system which are patently absurd.
One example is what is sometimes called "the 1979 rule" which I and my colleagues at Drummond Miller are campaigning to have changed.
The law concerns the right to seek compensation from the Criminal Injuries Compensation Authority (the CICA) for childhood sexual abuse. It is a disturbing fact that in the 1960s and 1970s in this country, sexual abuse of children was quite prevalent. Very often, it is only in later life that the victim can come to terms with the abuse and consider making a claim for compensation or contacting the police with a view to a prosecution of the abuser.
Normally, a claim for compensation to the CICA has to be made within two years of the crime or, if the victim was a child, two years from the victim's sixteenth birthday. However, the CICA is aware that many people have great difficulty dealing with their abuse and is usually sympathetic to claims that are made many years later.
Accordingly, if an individual was sexually abused as a child in the 1970s, then there is a reasonable chance that the authority would be prepared to pay compensation for the damage this has done to that person's psychological health and general quality of life.
But here's the thing: if you were abused before 1979 in your own house by a member of your own family, then you cannot make a claim for compensation from the CICA. This means, for instance, that if a victim was sexually abused by her next door neighbour before 1979, then she could make a claim, but, if she was sexually abused by, say, her father (which, psychologically, must be infinitely worse) she cannot get compensation.
You may wonder how this rule could possibly have come about? The background seems to be that the CICA was reluctant to make payment of compensation to wives who had been abused by their husbands as this might prove to be very expensive for the Criminal Injuries Compensation fund. With this in mind, therefore, a rule was introduced that a victim could not seek compensation for abuse within the household. The drafter of this rule had clearly overlooked the situation in which a child could be sexually abused by a member of his or her own family.
Parliament realised the folly of this law and it was amended in 1979 to allow claims of this type to be made for abuse after 1979. However, the rule was not made retrospective. That is why someone abused after 1979 by someone in their household can make a compensation claim but someone abused before that date cannot.
So what can we do about this?
It is sometimes possible to challenge a decision of the CICA by way of a court action called judicial review in the Court of Session. This was actually attempted a few years ago but was unsuccessful. The reasons were rather technical but, in summary, the Court took the view that the CICA made the right decision because it was bound by Parliament. The lawyers acting for the victim then tried to argue that Parliament was in breach of the Human Rights Act. The court took the view, however, that the Human Rights Act would only apply if the right to compensation in these circumstances could be seen as a civil right. The Court decided, however, that it could not be viewed as a civil right.
It seems to me, therefore, that there are only two possible solutions to this problem and both are political. Either Westminster changes the rule by way of legislation or the Scottish Parliament agrees to set up a special fund for victims of abuse within the household that occurred before 1979.
I have several clients who have fallen foul of this rule and who are prepared to write to their MPs and MSPs to put pressure on the authorities to achieve a change. John Swinney MSP, among others, is prepared to help.
The Sunday Mail newspaper, in the New Year, plans to proceed with a campaign for a change in the law or the establishment of a fund.
Even the best legal system can have its flaws and this is one flaw which has to be remedied.