On 30 September and 7 October 2020, the Education and Skills Committee at the Scottish Parliament heard evidence on a wide range of aspects of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. This blog focuses on certain evidence heard on one of the most contentious aspects, the requirement that a survivor must waive, to a defined extent, his or her right to seek civil compensation in court in exchange for a redress payment.
The proposed waiver
The extent of the proposed waiver is to prevent a recipient of a redress payment from seeking civil compensation in court from the Scottish Government or from a “relevant scheme contributor” listed by Scottish Government as making a “fair and meaningful financial contribution” to the scheme. No detail is publicly available on the level of financial contribution which might be regarded by Scottish Government as fair and meaningful in this context. Scottish Government presently estimate the total cost of the scheme at £408m.
Reasoning for the proposed waiver
At the 30 September session, a representative of the Scottish Government’s redress bill team explained that “if we are looking for organisations to step forward and seek to play an active part in this, the existence and operation of the waiver within the scheme as designed is a critical factor.” He continued “We have had discussions with a broad range of organisations thus far, including a number of trusts and other similar bodies that hold legacy responsibility for organisations that no longer exist. However, the conclusion to those discussions, and the ultimate financial impact, will depend on the survivors who come forward to the scheme and the organisations that are named in the applications. As we move forward, we are looking to have discussions with and seek contributions from any organisation that is facing up to a historical legacy in this space, but the process is very much ongoing.”
What the waiver will not do
In response perhaps to previous remarks reported in the media that the waiver will “silence” survivors, the Scottish Government representative emphasised that “there should be no suggestion that the operation of the waiver can silence survivors – those who prefer their day in court can absolutely proceed on that basis. There is no sense that participation in the redress scheme involves anything like a non-disclosure agreement, and participation does not prevent survivors from discussing their experience privately or publicly.”
Evidence heard from certain legal practitioners against the waiver
At the 7 October session, Kim Leslie of APIL, Una Doherty QC of the Faculty of Advocates and Iain Nicol as convener of the Civil Justice Committee of the Law Society of Scotland all spoke against the waiver.
Ms Leslie described the waiver as “the most dangerous provision in the bill”, explaining that it “benefits only the scheme contributors” and is likely to reduce uptake of the scheme. She added that it will be difficult for legal advice to be confidently given on the ramifications of signing a waiver against a backdrop of an evolving legal landscape on abuse, with the Scottish Child Abuse Inquiry still ongoing and with case law emerging following the abolition of limitation in claims for personal injury caused by childhood abuse.
Ms Doherty QC commented “I don’t think that a fear that contributors won’t get involved with the scheme is sufficient to justify the extreme measure of the waiver”, noting also that the “potential award under the redress scheme may be much, much less than the potential award in court.”
These points were echoed by Mr Nicol who also highlighted the proposal in the bill that, in addition to signing a waiver in exchange for a redress payment, a survivor would be required to abandon any ongoing, relevant court proceedings which could have cost implications for a survivor and put the survivor’s solicitor in a conflicting situation, describing this as a “fundamental flaw” in the bill.
The Education and Skills Committee next meet on 28 October 2020 when they may hear further evidence on the bill. The committee will produce a report on the bill before the Scottish Parliament, sitting in chamber, will complete stage 1 of the 3 stage legislative process by voting on the question of support for the general principles of the bill. Stage 1 is to be completed by 23 December 2020. Amendment of the bill will thereafter be possible during both stages 2 and 3.