Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation: human rights impact assessment

Introduction

Purpose of Assessment

The purpose of this report is to present and assess any potential Human Rights issues arising as a result of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and the relevant secondary legislation made under or in consequence of the Act.

The secondary legislation included within this assessment is:

• The Redress for Survivors (Historical Child Abuse in Care)(Form and Content of Waiver etc.) (Scotland) Regulations 2021
• The Redress for Survivors (Historical Child Abuse in Care)(Reimbursement of Costs and Expenses) (Scotland) Regulations 2021
• The Redress for Survivors (Historical Child Abuse in Care)(Payment of Legal Fees) (Scotland) Regulations 2021
• The Redress for Survivors (Historical Child Abuse in Care)(Exceptions to Eligibility) (Scotland) Regulations 2021
• The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (Consequential Provisions) Order 2021
• The Redress for Survivors (Historical Child Abuse in Care) (Payments Materially Affected by Error) (Scotland) Regulations 2021
• The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022*

* Subject to the approval of the instrument by the Scottish Parliament under affirmative procedure

Policy Aims of the Act

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act (“the Act”)^[1] seeks to establish a financial redress scheme for survivors of historical child abuse, and, where eligible, their next of kin. The purpose of the scheme is to acknowledge and provide tangible recognition of harm as a result of historical child abuse in relevant care settings in Scotland. The scheme will also provide access to some non-financial redress elements - such as acknowledgement, apology and support, and it will sit alongside existing measures that the Scottish Government has put in place for survivors of historical child abuse.

The design of the redress scheme has been guided by engagement and consultation with survivors and others to ensure that it is trauma-informed and takes the needs of survivors into consideration as far as possible.

The Scottish Government is committed to seeking financial contributions to the cost of the scheme from those who were responsible for the care of children at the time of the abuse whether providing care directly or otherwise involved in the decision making processes and arrangements by which the child came to be in care in the place where the abuse took place. The scheme provides an opportunity for those bodies and organisations to meaningfully participate in the national, collective endeavour to recognise the harms of the past.

Background

The InterAction Review Group was established to oversee the Scottish Human Rights Commission InterAction on Historical Abuse of Children in Care. The InterAction Plan Review Group is a national stakeholder group which includes representation from survivors, survivor organisations, the Scottish Human Rights Commission, the Scottish Government, the Centre for Excellence for Looked After Children in Scotland (CELCIS) and providers from all sectors. When this work concluded in October 2014, with commitments to implement the Action Plan on Justice for Victims of Historical Abuse of Children in Care, the Review Group continued with a revised remit and membership in order to monitor and review the implementation of the commitments to the Action Plan.

Following an extensive survivor consultation and engagement exercise conducted in 2017, in partnership with CELCIS, the Review Group made recommendations for the establishment of a financial redress scheme. In light of these recommendations, on 23 October 2018, the Deputy First Minister made a statement to Parliament committing to establishing a financial redress scheme for survivors of historical child abuse in care in Scotland.

This commitment required new legislation and on 11 March 2021, the Scottish Parliament voted unanimously to pass the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill received Royal Assent on 23 April 2021 and became an Act. The first set of commencement regulations was laid in Parliament on 11 June 2021, bringing into force some provisions of the Act on 28 June 2021 in preparation for the opening of the scheme.^[2] The final set of commencement regulations were laid in Parliament on 18 November 2021, bringing into force the remaining provisions of the Act in time for the launch of the scheme on 8 December 2021.^[3] The Deputy First Minister made a Ministerial Statement to parliament on 8 December 2021 during which he confirmed that the redress scheme had opened for survivor and next of kin applications.^[4]

The advance payment scheme was launched on 25 April 2019 in accordance with the Review Group's recommendation that arrangements should be put in place to allow priority groups of survivors, those with a terminal illness or applicants aged 70 years and over, access to financial redress. In December 2019, the age criteria was lowered to those aged 68 and over. The advance payment scheme closed to new applicants on 8 December 2021, the day the redress scheme became operational. As of January 2022, payments have been made to over 720 applicants.

A pre-legislative public consultation was conducted by the Scottish Government seeking views on the detailed design of the scheme. This was launched on 2 September 2019 and remained open for a period of 12 weeks. This received 280 responses, with over 200 of the respondents identifying themselves as survivors. The responses to the public consultation and the independent analytical report of this, have been published and continue to inform policy decisions on the design of the redress scheme.

A formal public consultation on the secondary legislation was not carried out and instead stakeholder views were obtained through a targeted engagement exercise with survivor organisations, representatives of the legal profession, care providers and others. A formal consultation was not considered necessary or appropriate given: previous consultations on the scheme, the significant scrutiny and evidence submitted on of the waiver during parliamentary passage, including in relation to the waiver, the largely technical nature of the secondary legislation, and the timescales for delivery.

Description of the Act

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (“the Act”) aims to design and deliver a financial redress scheme to acknowledge and provide tangible recognition of harm suffered as a result of historical child abuse whilst residing in a relevant care setting in Scotland.

The key design and delivery features of the redress scheme established by the Act will be:

• Independent decision making: a Non-Departmental Public Body, Redress Scotland, is created to independently assess and determine applications for redress.
• Administration and processing: a division of the Scottish Government will carry out the administration of the scheme, the processing of applications and the making of redress payments.
• Eligibility: the scheme is for survivors of historical child abuse in relevant care settings in Scotland. Historical in this context means abuse which took place before 1 December 2004.
• Time period: the redress scheme will be open to accept applications for a period of whichever is the longer of five years, or two years following the publication by the Scottish Child Abuse Inquiry of its final report. However, there is a potential that opening period can be extended beyond this.
• Payment structure: the scheme will adopt a combination payment approach and will offer survivors the choice to apply for a fixed rate redress payment or an individually assessed redress payment.
• Payment levels:
  • Fixed rate payment and next of kin payment: £10,000
  • Individually assessed payment (Level 1): £20,000
  • Individually assessed payment (Level 2): £40,000
  • Individually assessed payment (Level 3): £60,000
  • Individually assessed payment (Level 4): £80,000
  • Individually assessed payment (Level 5): £100,000
• Assessment: the level of each individually assessed redress payment will be determined following consideration of the nature, severity, frequency and duration of abuse along with other relevant facts and circumstances. An assessment framework has been published as guidance to provide transparency and consistency in decision making.^[5]
• Evidence: the scheme will be robust and credible to ensure that survivors, care providers and others can have confidence in its processes and outcomes. This will be achieved through the production of comprehensive guidance on evidentiary matters, transparency in the appointment process of decision-makers with suitable skills, knowledge and expertise, as well as the statutory safeguard of a reconsideration process to allow fraud to be dealt with.
• Waiver: redress payments will be conditional upon the applicant signing a waiver, relinquishing their right to continue or raise civil actions in respect of the abuse, against the Scottish Government or those organisations that have made fair and meaningful financial contributions to the scheme. The content of the waiver itself encourages the applicant to seek legal advice in any decision making, and is accompanied by information (there is also a separate requirement to provide applicants with a summary of options) to ensure the applicant is fully informed of their rights.
• Contributions: financial contributions to the redress scheme are sought from those organisations who were responsible for the care of children at the time of the abuse, whether providing care directly or otherwise involved in the decision-making processes and arrangements by which the child came to be in care. In making a contribution to the scheme, scheme contributors must acknowledge the wrongfulness of, and the harm caused by, the historical child abuse which took place in relevant care settings.
• Charities: the Act makes provision to enable charities to participate in the redress scheme.
• Legal costs: subject to appropriate limits, the legal costs for all applicants will be funded by the redress scheme.
• Next-of-kin: a restricted category of next of kin of deceased survivors will be eligible to apply for the fixed rate redress payment where the survivor died on or after 1 December 2004.
• Non-financial redress: the scheme will offer access to acknowledgment, apology and support in addition to redress payments.

In relation to the European Convention on Human Rights (ECHR), a number of areas that will be covered by the Act may potentially engage relevant provisions of the ECHR such as Article 6 (right to a fair trial), Article 1 of Protocol 1 (protection of property), Article 8 (right to respect for private and family life), and Article 14 (prohibition of discrimination). In particular, the following policy aspects arising from the Act are likely to have an impact on Human Rights:

• Eligibility criteria for the redress scheme
• Treatment of applicants with serious previous convictions
• The process for determining applications under the scheme
• The process of re-considering determinations of applications under section 75 of the Act and reviewing determinations made under that section under section 76
• The provisions on waiver
• The independence of the decision-maker
• Evidence and the provision of information in support of applications