Further Scottish Parliamentary evidence session on in-care redress bill

On 4 November 2020, the Education and Skills Committee of the Scottish Parliament took evidence on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill from CrossReach (a Church of Scotland charity), Quarriers (a social care charity), the Office of the Scottish Charity Regulator (OSCR) and the Convention of Scottish Local Authorities (COSLA, representing Scotland’s 32 local councils). The committee then heard from the Scottish Government Minister in charge of the Bill, John Swinney MSP, Cabinet Secretary for Education and Skills and Deputy First Minister.       

Money was a recurring theme throughout the three hour session, both in terms of contributions sought by Scottish Government to the scheme and the proposed banding of redress payments.

CrossReach and Quarriers made clear that they were keen to play a part in the scheme but neither considered as affordable the level of contribution presently sought from them by Scottish Government. Quarriers considered the figure sought by Scottish Government as “a million miles away from being affordable”. CrossReach explained that a Scottish Government “algorithm” had produced an “unaffordable” figure for them. COSLA referred to discussions with officials which indicated that Scottish Government were seeking a total of £350m from contributors to the overall cost of the scheme (previously estimated at £408m) and that around £200m was sought from Scotland’s 32 local councils. COSLA explained that such a contribution would clearly mean that resources would have to be taken from elsewhere in local government budgets and that there would be an adverse impact on services. Likewise, OSCR emphasised that ongoing charity work could be put at risk by contributions to the scheme at an unaffordable level. CrossReach and OSCR also made the point that charity law and trust law requires charity trustees to always act in furtherance of the charity’s purposes and in the best interests of beneficiaries which overriding obligations could put trustees in a difficult position when considering contribution to the scheme. Further, certain charity assets are held in “restricted funds”, ear-marked for specific purposes which may not be overridden by trustees. The financial challenges due to the ongoing COVID-19 pandemic were mentioned too.

The witnesses explained that the points made on affordability held true whether or not the scheme is set up on the basis of an applicant having to sign a waiver before receipt of a redress payment. Nonetheless, the waiver was an important feature of the Bill.

When asked about the “algorithm”, Mr Swinney explained that this was “more a calculation” and that he would share it with the committee. On contributions to the scheme, Scottish Government are “engaging in discussions with a variety of organisations” but “cannot compel an organisation to take part.” The waiver provided for in the Bill is only to operate in favour of Scottish Government (representing the state for its collective failure) and those organisations making a “fair and meaningful” contribution to the scheme. Further detail on “fair and meaningful” had been provided to the committee by letter of 2 November 2020 (link here) and in an accompanying draft paper (link here).  

When the £80k maximum redress payment was queried as too low in the context of a €300k (£270k) top level under the Irish redress scheme and a C$250k (£146k) maximum payment under the Canadian redress scheme, Mr Swinney explained that he was “open to discussion.” Further detail on the proposed banding of redress payments had been provided to the committee in a draft assessment framework (link here).  

The committee has now started work on a Stage 1 report which it will produce before the Scottish Parliament debates the Bill and votes on the question of support for the general principles of it. Stage 1, of the three stage legislative process, is to be completed by 23 December 2020. If the Bill passes Stage 1, amendment of it will be possible at Stages 2 and 3. The Bill will lapse unless it has cleared all three stages before the current session of the Scottish Parliament finishes in March 2021 ahead of the election on 6 May 2021.


fiona.mcewan@blmlaw.com
frank.hughes@blmlaw.com

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