On 9 December 2020, the Education and Skills Committee at the Scottish Parliament published a 127 page report on the Scottish in-care redress bill after hearing evidence over a number of sessions (link here). The Scottish Parliament, sitting in chamber, will debate and vote on the general principles of this bill on 17 December 2020.
Overall, the committee commends the general principles of the bill to the Scottish Parliament and recommends that they be agreed. However, it makes certain recommendations which, if taken forward, could fundamentally change the way the proposed scheme would operate and potentially deter contributions being made to the scheme. Before considering the committee’s position on certain key matters, it is worth recalling certain key features and context of the bill in its current form:
- To receive a redress payment an applicant would have to waive their right to seek civil compensation in court both from Scottish Government and from any “relevant scheme contributor” listed by Scottish Government as making a “fair and meaningful” financial contribution to the scheme.
- Redress payments are provided for at four levels: £10k, £20k, £40k or £80k.
- Scottish Government estimate the overall cost of the scheme, on the basis of the bill in its current form, at £408m. Certain evidence given to the committee suggested that Scottish Government were looking for contributions to the scheme totalling around £350m, with around £200m sought in total from Scotland’s 32 local councils.
Committee’s position on the waiver
The Committee “recommends that Scottish Government consider removing the waiver and find another way to avoid making double payments to victims / survivors.” It also asks for “further clarity from Scottish Government as to the primary policy objective of the waiver, i.e. has it been included as a means of encouraging payments from care providers, of avoiding ‘double payments’ to victims / survivors or both?”.
Committee’s position on payment levels
The Committee recommends that Scottish Government “revisits the payment levels currently set out in the bill … and that any increase in payment levels or other costs in the scheme should be reflected in a revised Financial Memorandum.”
Committee’s position on contributors
The Committee recommends that a contributor should be listed for the purposes of the scheme if it makes a “fair, meaningful, affordable and sustainable” contribution to the scheme (i.e. adding affordable and sustainable to the current qualifying requirements). The committee also “recognises that engagement with the bill creates a potential conflict for charity trustees” in the context of their duty to always act in furtherance of the charity’s purposes and in the best interests of beneficiaries, also noting their legal obligations not to divert money from “restricted funds” beyond their specific purposes. So, the committee recommends that Scottish Government “responds to the evidence received by the committee on this aspect of the bill ahead of the committee’s consideration at Stage 2.”
It is anticipated that this bill will pass Stage 1 on 17 December 2020. Amendment of the bill will be possible at both Stages 2 and 3. The bill will have to pass all three legislative stages before dissolution of the current fifth session of the Scottish Parliament ahead of an election of MSPs to the sixth session on 6 May 2021 failing which it will fall though may be re-introduced to the next session.
Frank Hughes, Partner, and Fiona McEwan, Associate
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