Scotland's Redress Scheme - waiver on participation: impact assessment report

Introduction

Scotland’s Redress Scheme (‘the Scheme’) provides tangible redress in the form of acknowledgement, payment, apology, and support to survivors who suffered abuse as children while in the care of the state. Scotland’s Redress Scheme launched in December 2021 following passage of the Redress for Survivors (Historical Child Abuse in Care) Act 2021 (“the Act”).

The Scheme is designed to be an alternative to civil litigation. Redress payments are therefore conditional upon the applicant signing a waiver^[1] (Appendix A) relinquishing their right to continue or raise civil actions in respect of the abuse, against the Scottish Government and those organisations that have made fair and meaningful financial contributions to the Scheme, at the point of signing.

Scottish Ministers are required to establish and maintain a list of public authorities, voluntary organisations and others who, amongst other things, in the opinion of Ministers, are making or have agreed to make a fair and meaningful contribution towards the funding of redress payments under the Act. There are now 17 entries on the live contributions list with contributions totalling over £122 million (Appendix B).

The waiver is a core component of redress schemes around the world. Inclusion of the waiver in Scotland’s Redress Scheme as per section 46 (Waiver) of the Act is to encourage financial contributions from those who were responsible for the care of children where and when the abuse occurred. The waiver supports third parties to proactively, publicly, and as part of a national endeavour, face up to the profound injustices of the past by crystallising their potential exposure to civil litigation for historical abuse and in return for that, avoid the financial and reputational risks of costly, lengthy and adversarial litigation.

By signing the waiver, the applicant to Scotland’s Redress Scheme agrees not to continue or raise civil actions, such as actions for damages, in respect of abuse eligible under the Act, against the Scottish Ministers and those on the contributor list at the time their application was determined by Redress Scotland. Only organisations who are included on the contributor list when an application is determined are covered by the waiver.

The waiver only becomes binding when the individual accepting the redress payment has signed it. Applicants are encouraged to obtain independent legal advice before accepting a redress payment under the Scheme and signing a waiver. Funding for applicants to obtain independent legal advice is available from the Scheme.

As required by section 48 (Report on effect of waiver on participation in redress scheme) of the Act this report sets out Scottish Minister’s 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 others to become contributors to the Scheme.