On 17 December 2020 – following a two hour debate in the chamber of the Scottish Parliament – the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill passed stage 1 by unanimous collective consent when the parliament agreed to the general principles of the bill. The bill is now within stage 2 of the 3 stage legislative process. Amendment to the detail of the bill is highly likely during stage 2. In this blog, we highlight certain areas where amendments are likely to be proposed and assess the likelihood of those amendments passing. In considering the content of this blog, it is important to remember that, in the current fifth session of the Scottish Parliament – which will continue until dissolution ahead of a 6 May 2021 election – the governing administration is in a minority but can often command support from other parties.
There was considerable debate on the requirement in the bill as currently drafted for an applicant to waive their right to seek civil compensation from Scottish Government and from any organisation listed by Scottish Government as making a “fair and meaningful” financial contribution to the scheme in order to receive a redress payment.
Jamie Greene MSP, speaking for the Scottish Conservatives, commented “I do not think that evidence in favour of a waiver has been strongly given – a conclusion that I came to reluctantly.” Iain Gray MSP, speaking for Scottish Labour, remarked “Survivors see the requirement to give up their right to civil justice as an abrogation of their rights that would compromise their confidence in the scheme”. Ross Greer, speaking for the Scottish Greens, observed “I struggle to see how the bill could achieve majority support at its final stage if the waiver were to remain.” Beatrice Wishart MSP, speaking for the Scottish Liberal Democrats, added “I remain unconvinced that the waiver is appropriate. In fact, it goes against natural justice and it will not work.” Rona Mackay, an SNP MSP, also spoke out against the waiver, saying “the waiver would restrict survivors’ choices, so it should be removed.”
John Swinney MSP, the Scottish Government Minister in charge of this bill, responded to these points by saying “if there is a better idea (than the waiver), I am prepared to contemplate it.”
It seems highly likely that amendment to the bill’s waiver provisions will be brought forward at stage 2. There appears to be majority support for the removal of the waiver but whether any such amendment prevails is likely to depend on whether an alternative off-setting regime is considered workable. Further, no detail has yet been made public of any organisation agreeing to make a financial contribution to the scheme though there have been many references to ongoing discussions with such organisations. The interaction between possible removal of the waiver and the likelihood of contributions to the scheme may be an issue that develops to influence any final voting on this matter.
Level of payments
Mr Swinney undertook to “reflect on the maximum payment level (currently £80k) that is available.” Perhaps in contrast, Mr Gray highlighted “the jump from £40k to £80k, which is too big a jump.” It remains unclear whether amendment to the level of payments will be brought forward at stage 2. The present financial memorandum estimates the total cost of the scheme at £408m. Any increase in the level of payments would need to be factored in to an updated financial memorandum.
Contributions to the scheme
An amendment to be brought forward by Scottish Ministers which, in all likelihood, will pass is the removal of the current clause 15 from the bill. That allowed Scottish Ministers to make regulations about the use by charities of restricted funds to make contributions to the scheme.
The uncertainty which remains around the waiver and the apparent majority support at present for its removal, combined with continuing uncertainty on what, if anything, may replace the waiver may be an issue that impacts on potential contributors’ decision-making during any ongoing discussions with Scottish Government. Scottish Government’s position appears to remain that organisations making a “fair and meaningful” contribution to the scheme should benefit from the waiver but the minority government will be unable to give any meaningful assurances to potential contributors that this will be reflected in the version of the bill which may become law.