Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill: human rights impact assessment

3. Description of the Bill

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill 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 Bill will be:

• Independent decision making: a Non Departmental Public Body, Redress Scotland, will be created to independently assess and decide 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 scheme will be open to accept applications for five years, although the Scottish Ministers will have the power to extend that.
• Payment structure: the scheme will adopt a combination payment approach and offer survivors the choice to apply for a fixed rate redress payment or an individually assessed redress payment.
• Assessment: the level of each individually assessed redress payment will be determined following consideration of the nature, severity, frequency and duration of abuse along and all other relevant facts and circumstances. An assessment framework will be published as guidance to provide transparency and consistency in decision making.
• Evidence: the scheme will be robust and credible to ensure that survivors, 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.
• Contributions: Financial contributions to the redress scheme are sought from those organisations 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.
• Charities: the Bill makes provision to enable charities to participate in the redress scheme without any legal barriers
• Legal costs: subject to appropriate limits, the legal costs for 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 after 17 November 2016, the date on which the Deputy First Minister made a statement to Parliament committing to consult on the provision of financial redress to survivors.
• 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 Bill 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 Bill 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 provisions on waiver
• The independence of the decision-maker
• Evidence and the provision of information in support of applications