Scottish in-care redress bill passes stage 3

On 11 March 2021, the Scottish Parliament unanimously passed the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. A link to the bill as passed is here.

The bill will now proceed to Royal Assent to become an Act of the Scottish Parliament. Implementation will follow by subsequent ministerial regulations.

A link to the official report for the parliament’s 11 March 2021 chamber proceedings is here [the parliamentary proceedings on this bill are at columns 61-151 and then at 162-164].

The main features of the bill as passed are that:

  • Redress Scotland will be established to assess the applications and administer payments to qualifying survivors or their next of kin.
  • It applies to those survivors who were children in care in relevant residential establishments prior to 1 December 2004.
  • Successful applicants will receive £10k, £20k, £40k, £60k, £80k or £100k. 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.
  • In exchange for redress, survivors are required to sign a waiver, forgoing their right to seek civil compensation in court (the waiver will apply both to Scottish Government and to any “relevant scheme contributor” listed by Scottish Government as making a “fair and meaningful” financial contribution to the scheme).
  • Scottish Ministers are 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.
  • 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”.
  • All applicants and potential applicants must be treated “with dignity, respect and compassion” by all those involved with the redress scheme.

Readers may also be interested in the revised Financial Memorandum the Scottish Government has produced earlier this month (link here). It includes predictions of the average anticipated payment (£35.5k) and a “cautious” estimate of the number of applications is set at 8000 (with a lower estimate of 2500). It anticipates 85% of the payments will exceed the £10k “fixed rate payment”.

In the Act the detail of whether a “fair and meaningful” contribution is being proposed is to be contained in a statement of principles published by the Scottish Government, rather than in the Act itself. A link to those principles, as currently drafted, is here. ”Sustainability” and “affordability” have been introduced to the Act as relevant factors in the approach to “fair and meaningful” in this context. The Act also provides for publication of the list of contributors and the financial contribution being made by them.

At stage 3 many proposed amendments to the Bill concerned the contentious waiver provisions. One of the amendments accepted to the bill at stage 3 on 11 March is that Scottish Ministers are required to lay before the Scottish Parliament a post-implementation report. This report must be produced within 18 months of implementation. The report must set out Scottish Ministers’ assessment of:

  • the impact of the waiver on applications for a redress payment; and
  • the effectiveness of the waiver in encouraging public authorities, voluntary organisations and other persons to become scheme contributors.

The report must also confirm:

  • the steps (if any) Scottish Ministers intend to take as a result of the post-implementation assessment; and
  • where no such steps are to be taken, why.

With evidence from other jurisdictions being that redress scheme applications can take time to gather momentum, and with potential competition from increased litigation volumes, following the introduction of QOCS into Scotland late in June, it will be interesting to see if there is a significant body of data available 18 months after implementation to reach any meaningful conclusion upon the impact of the waiver on applications by then.

For more detailed queries, please feel free to contact us.

Frank Hughes, Partner frank.hughes@blmlaw.com
Fiona McEwan, Associate fiona.mcewan@blmlaw.com

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