Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation: data protection impact assessment - legislative

Introductory information

Summary of proposal

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act (“the Act”) establishes a financial redress scheme for survivors of historical in care child abuse in Scotland.

Personal data will be required from all applicants to process their application and make a payment. Limited personal data may be processed in relation to any relevant organisation that may or may not financially contribute to the scheme.

The Act states that, on request, information or evidence relating to a person’s application must be shared with that person. This includes circumstances where a nominated beneficiary has taken over an application. Sharing such information with the nominated beneficiary is necessary to allow the beneficiary to make fully informed decisions in relation to the waiver and to allow them to effectively request reviews on any determinations made by Redress Scotland. The information and evidence shared with applicants in relation to their application will only be shared in line with existing data protection legislation. No information will be disclosed which relates to or identifies any person other than the person making the request or the person in respect of whom the application is made.

The Act gives Scottish Ministers the powers to issue a notice to a person/organisation requiring them to provide records/documents/evidence which decision-makers deem necessary in support of an application for financial redress. This will involve sharing an applicant’s personal details, such as name and date of birth, so that the person/organisation can find the relevant information. These powers will only be used when all other efforts to obtain information have failed.

The Act specifically makes provisions in relation to redaction and confidentiality to ensure that the information that is received or shared is treated with sensitivity and in a proportionate manner.

The Act also requires an organisation to share information with the redress scheme in order to clarify whether an applicant has already received a relevant payment for the purposes of avoiding double payment. The policy position is that previous payments for the same matter will be taken into account when considering an application for redress.

Similarly, the Act provides for an organisation to share personal details with the redress scheme to establish whether an individual has signed a waiver relinquishing their legal rights to pursue that organisation in court. This aims to ensure that applicants who have received a redress payment to which an organisation has financially contributed are not subsequently able to claim civil damages against the organisation for the same matters mentioned within their application.

The Act establishes a new Non-Departmental Public Body (“Redress Scotland”) which will carry out the decision making and review functions of the scheme. Information will be shared from Scottish Ministers to Redress Scotland - and vice versa - where it is necessary to enable both to perform their respective functions, or where it is necessary for or in connection with the operation of the redress scheme, such as to allow for assessment of the applications and some other related decisions.

The Act does not provide in full for the operational delivery of the redress scheme, which will be the subject of separate planning. An operational Data Protection Impact Assessment will be developed in respect of the implementation of the redress scheme.

Legislation included in assessment

This impact assessment covers both primary and secondary legislation.

The primary legislation included within this assessment is:

• The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021

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*

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

** This instrument, made under section 104 of the Scotland Act 1998, is subject to procedure in the UK Parliament.

The Bill received Royal Assent on 23 April 2021 and became an Act.

A number of Scottish Statutory Instruments relating to the Act are being laid before parliament before the end of 2021. These instruments are subject to the approval of Parliament.

Consultation on legislation

A pre-legislative public consultation was undertaken between September and November 2019. Independent analysis of the responses was conducted and is published online here: https://www.gov.scot/publications/financial-redress-historical-child-abuse-care-analysis-consultation-responses/

In relation to secondary legislation made under the Act, whilst a formal consultation was not carried out, stakeholder views were obtained through a targeted engagement exercise. This incorporated input from survivor organisations, representatives of the legal profession, care providers and others. A formal consultation was not considered appropriate given previous consultations on the scheme, the significant scrutiny and evidence submitted to the Scottish Parliament before the Act became law, the technical nature of secondary legislation enabled by the Act, and the imperative to implement the scheme as soon as practically possible.

Relevant feedback from consultation

The public consultation focused on the design of the scheme. However, there were two issues raised. The first, in relation to reputational damage to organisations if financial contribution details were made public and the second, on the sharing of survivors’ information between organisations.

Service-related impacts as a result of making financial contributions to the redress scheme

There were two aspects to this concern. First, the organisation making the financial contribution could itself suffer reputational damage if information about the payments were made public. This could result in a loss of faith in the organisation among current service users and their families and affect its ability to fundraise and continue to operate. Care providers and local authorities were concerned about this, as they felt incidents of historical abuse did not reflect the current quality and standards of care in their organisations.

Secondly, respondents said that if a civil claim or criminal prosecution was brought against a previous member of staff alleged to have been involved in abusing children, current or previous employees of the organisation may be individually targeted and victimised by members of the public.

Sharing of survivor information between organisations

The consultation invited views on the option of joint administration of financial redress and wider reparations (now known as “non-financial redress”) which would bring together the administration of other elements of a reparation package (such as support and acknowledgement) with financial redress. Respondents were asked what the advantages and disadvantages of this type of approach would be, and how any disadvantages could be addressed.

One risk was identified – the potential for data protection and confidentiality risks for survivors who do not want their information to be shared between different bodies and did not consent to sharing when they accessed services before the financial redress scheme was established.

Your department:

Scottish Government
Director-General Education and Justice
Directorate for Children and Families
Redress, Relations and Response Division

Contact email:

redress@gov.scot

Data protection support email

dpa@gov.scot

Data protection officer

dataprotectionofficer@gov.scot

Have you consulted with the ICO using the Article 36(4) form?

Yes

Version	Details of update	Version complete by	Completion Date
v1.0	Introduction of Bill	Patsy Kay	13 August 2020
v2.0	Updates following Royal Assent including amendments made to the Bill throughout the parliamentary passage and to include and reflect the impact of the relevant secondary legislation.	Patsy Kay	20 October 2021