Scottish in-care abuse redress bill passes stage 2 after amendment

On 17 February 2021, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill passed stage 2 of the three stage Scottish legislative process. This stage was carried out by the Education and Skills Committee of the Scottish Parliament. Over two meetings, the committee considered 139 proposed amendments to the bill. The bill as amended at stage 2 is here. No date has yet been set for stage 3 consideration of possible further amendments by the Scottish Parliament, sitting as a whole in chamber, or for the final debate and vote at stage 3 on whether to pass the bill. There does, however, appear to be considerable cross-party political will for this to happen on or before Thursday 25 March 2021 when the parliament will enter recess ahead of the 6 May 2021 Scottish Parliamentary election.

The most notable developments at stage 2 are:

  • On a vote of 7 committee members for, 4 against, the waiver remains in the bill. The waiver means that 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.
  • Two new payment levels have been introduced such that successful applicants will receive £10k, £20k, £40k, £60k, £80k or £100k. The £100k and £60k levels are new. The basic structure for all redress payments remains as it was in the bill as introduced, namely that the £10k is a “fixed rate payment” which may be topped-up to any of the higher levels by an “individually assessed payment” taking account of the nature, severity, frequency and duration of the abuse and any other relevant matter.
  • Scottish Ministers are to be empowered to remove organisations from the list of scheme contributors if they fail to make an agreed financial contribution, including removal with retrospective effect where considered appropriate.
  • Clause 15 has been removed 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 standard period for which a redress offer is open for acceptance has been increased from 12 weeks to 6 months. This is to allow sufficient time for applicants to take legal advice on the prospects of litigating rather than accepting the redress offer and signing the waiver.
  • An applicant is to be given a right of access to relevant evidence obtained by the new body which will administer the scheme, Redress Scotland, excluding evidence that would be likely to identify any person other than the applicant or would otherwise be in breach of data protection legislation.
  • A Survivors Forum is to be established to – among other things – contribute to “the continuous improvement of the delivery of the redress scheme” and “providing scrutiny of the assessment and awards process.”
  • The principle that applicants and potential applicants are to be treated “with dignity, respect and compassion” by all those involved with the redress scheme is introduced to the bill.

On the introduction of the bill, Scottish Government estimated the overall cost of the scheme at £408m. Now that a higher maximum redress payment of £100k has been introduced and another new body, the Survivors Forum, is to be established, the parliament may wish to see an updated financial memorandum before their stage 3 consideration. Certain evidence given during stage 1 committee hearings 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.

Frank Hughes, Partner
Fiona McEwan, Associate

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