Education, Children and Young People Committee

Meeting date: Wednesday, January 26, 2022

Official Report 619KB pdf

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Subordinate Legislation

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Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 [Draft]

Good morning, and welcome to the third meeting in 2022 of the Education, Children and Young People Committee.

The first item on our agenda is evidence from the Deputy First Minister and Cabinet Secretary for Covid Recovery, John Swinney MSP, and his Scottish Government officials, on the Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022.

I welcome the Deputy First Minister and his accompanying officials Paul Beaton, the head of the legislation and contributions unit, and Claire Montgomery, a solicitor in the legal directorate.

I invite Mr Swinney to speak to the draft instrument.

I am grateful for the opportunity to discuss the issue and explain the detail of the affirmative instrument that is before the committee.

As the committee will be aware, at the end of last year, we passed a significant milestone with the launch of Scotland’s redress scheme, which opened for applications on 8 December. I am pleased to inform the committee that we have received more than 2,000 calls to the scheme since its launch and that more than 250 application forms have been received. That represents a significant step towards facing up to the wrongs of the past and the harm caused to society’s most vulnerable children.

As we move to deliver redress to survivors, we must ensure that the scheme operates fairly for all. Part of that is providing mechanisms to be able to reconsider, and deal with, any determinations under the scheme that are made in error, including those relating to the outcome of a redress application. The draft regulations before the committee seek to achieve that clear goal.

Section 75 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 creates a reconsideration process, whereby a Redress Scotland panel can revisit a determination already made under part 4 of the act, should a concern arise that the determination was materially affected by error. That includes where a mistake might have been made in making the determination, or where it is thought that a determination was made on the basis of incorrect or misleading information.

Where the panel determines that an error has occurred, it must put that right. Importantly, where an applicant is not satisfied when they are told of the outcome of a determination, they can request a review. Safeguards are included in the act so that an applicant cannot be prejudiced by exercising their review right when the review is linked to the determination of a redress application.

In practice, we hope and anticipate that we will very rarely require to use the reconsideration and review processes, because robust measures have been embedded throughout the application process and wider scheme to reduce the opportunity for error and potential fraud. However, the draft regulations aim to ensure that we have suitable mechanisms in place to support people through the reconsideration and review processes if required. They also allow us to respond in a fair and effective manner to all possible outcomes of the processes that are linked to the determination of a redress application.

Although the range of possible outcomes is complex, the principle underpinning the proposed amendments to the act is simple: as far as possible, we wish to put an applicant back in the position that they would have been in, had no error occurred.

That may mean that an applicant is offered a different redress payment than the sum that they have been offered or have accepted previously, or that they may benefit from a fresh offer where an error has led to them not being given one before. In those scenarios, we intend that applicants will be given the option to do what is right for them, with the benefit of legal advice, by either accepting or rejecting the new offer.

The waiver is a key, and much debated, aspect of the act. It is essential that the way in which the waiver operates is fair. The draft regulations therefore seek to amend section 46 of the act on waiver. The effect of the proposed amendments is that, where an applicant is issued with an updated or fresh offer of a redress payment following a reconsideration or review, the waiver linked to that offer will reflect the contributor list at the time when the offer should have been made, rather than at the date of the offer itself. That will ensure that, where the offer is accepted, survivors do not miss out on any opportunity that they would otherwise have had to raise civil proceedings.

When a person has already signed a waiver to accept a redress payment offer that has changed following the reconsideration or review process, we consider that it is only fair that they have the opportunity to reconsider their choice and receive legal advice at that critical stage in the process.

We have therefore made provision for that and have ensured that, if a person is content to accept a new offer, the waiver that was signed to accept their original offer will remain in place. If they decide that accepting the new offer is not the right option for them, they will be able to reject it, and any waiver that was signed to accept the original offer will be rendered of no effect.

In the interests of fairness, we have also made provision for a waiver to be rendered of no effect where it is determined that a person ought not to have been offered an award under the scheme.

As I have stressed, the draft regulations ensure that people have access to support and advice, along with the provision for the payment of legal fees and the reimbursement of costs and expenses. That will allow them to fully understand and engage with the reconsideration and review processes and to make the choices that are right for them.

The draft instrument is the final one in a package for the implementation of the redress scheme, and I welcome and appreciate the cross-party support that has ensured that we have delivered the scheme that survivors deserve. I hope that I have provided members with a sufficient overview of the instrument, and my officials and I welcome any questions that the committee may have.

Thank you, Deputy First Minister. If any member has any questions or comments, I ask them to indicate that in the chat box.

Deputy First Minister, you rightly put great emphasis on fairness in your statement. Given those principles of fairness, will the person at the centre of the process—the claimant—have guidance and legal advice at each point of the process, and will that be funded?

Guidance will go with the instrument that I have set out today and that we have worked through. At the outset, I should acknowledge that the instrument is complex. The reason for its complexity is that multiple permutations have to be provided for, to establish legal clarity. I have looked very carefully at the issue with my officials, and there is no easy way around that. Guidance therefore has to accompany the instrument.

In any judgments that a survivor makes, they will be supported by having access to legal advice at any point. A crucial element of the redress scheme in its entire design has been that all applicants must be able to make informed judgments about the right course of action to take. That must be funded. A schedule to the instrument sets out the arrangements for meeting the costs of legal advice, should that be required by applicants.

In a case in which there is any suggestion of fraud—albeit that we hope that, as you said, there will be very few examples of that—would legal advice for the individual concerned still be part of the funded package of support that they would get during the process?

Yes. In the process of consideration of what has led to the circumstances that have given rise to a reconsideration, it must be ensured that individuals are supported without prejudice. That fraud has occurred is perhaps a conclusion; it is not a starting point. Individuals therefore have to have access to the necessary advice, so that they are supported in that process.

As you have said, it is a complex situation with many permutations. However, in your answers, you have been very clear about the upholding of the principles of fairness at all points in the process, as far as the individuals at the centre of that process are concerned.

As no other colleague has questions for the Deputy First Minister, I thank him for his comments.

Under item 2, I invite the Deputy First Minister to speak to and move motion S6M-02797.

The comments that I have placed on the record are an adequate contribution to the explanation of the instrument.

Motion moved,

That the Education, Children and Young People Committee recommends that the Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 be approved.—[John Swinney]

Motion agreed to.

The committee must now produce its report on the draft instrument. Is the committee content to delegate responsibility to the deputy convener and me to agree the report on its behalf?

Members indicated agreement.

I thank the Deputy First Minister and his officials for their attendance.

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Nutritional Requirements for Food and Drink in Schools (Scotland) Amendment Regulations 2021 (SSI 2021/481)

Our third item of business is also consideration of subordinate legislation. Before asking members whether they have any comments on the Nutritional Requirements for Food and Drink in Schools (Scotland) Amendment Regulations 2021, I will start with my questions about it.

I have specific concerns about any legislation that involves reducing the requirement to maintain nutritional standards in the food that we serve to children in school. The Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2020 are designed to keep salt, sugar, fat and saturated fats in food and drink that is provided in schools to an appropriate level. The Nutritional Requirements for Food and Drink in Schools (Scotland) Amendment Regulations 2021 are in effect—it is a negative instrument, which means that ministers have already enacted it.

I have several questions. Why, at this stage in the pandemic, have the regulations been brought forward? Are there any examples of the regulations being applied in schools since it was enacted last December? What is the reporting method for them? How long will the regulations be in place? On what basis, and at what point—the regulations have no expiry date—will they be removed? I do not think that anyone would want to see this amendment to the regulations on the nutritional value of food that we are serving in schools perpetuated any longer than necessary—if it is necessary at all. It is not entirely clear to me why it is felt to be necessary at this time.

Those are my questions, but there is nobody here to answer them. Willie Rennie wants to add something.

I agree with all your questions. In the papers that we have received, there is no explanation of why the instrument is required. We have seen media reports about how some councils have found it difficult to get supplies of the right quality, but we do not know how widespread an issue that is, whether it is on-going or why that is the case.

The original set of regulations was introduced in April 2021—a significant length of time after we left the European Union and well into the pandemic. I am puzzled, therefore, as to why an amendment is required now, so soon after the regulations were first brought in. Why was an escape chute—if I can put it in that way—from meeting the standard not considered as part of the original regulations? Why is that being brought in now? There are issues with timing and so on, and I would like an explanation of why the amendment is necessary. We should try to get those explanations from the minister before we proceed.

09:15  

Quite a lot of questions arise in relation to the instrument. Given the comments that Willie Rennie and I have made, I will, with the committee’s agreement, have the clerks draft a letter to the relevant minister seeking an understanding, and answers to our questions, so that we can bring the matter back for further consideration. I hope that colleagues agree to that approach.

I think that it is perfectly reasonable for us to ask for more information, so I have no objection to that. When we ask for that information, perhaps we could also request an update on the progress that is being made with, and the current status and take-up of, the Food for Life programme, through which councils receive assistance to support local purchasing of food from local supply chains. The Soil Association runs that programme, with which I have been involved from time to time. For example, I visited East Ayrshire Council, which is seen as a leader in that regard, and Highland Council, which purchases food from a local butcher to serve hundreds of schools. Such things are not easy, but we all support them—namely, buying local food rather than chickens from Thailand or whatever.

If we are going to ask for information, we could ask for information on that. As I understand it, most of our 32 local authorities—certainly more than half of them—subscribe to the programme, but some do not. It would be useful for us to get an update on what has been—I know that this will be close to your heart, convener—a Scottish Government good-news story.

Thank you—I am all for good news, as you know. As the son of a butcher and the grandson of a small farmer, I am all for the idea of sourcing food locally. In the past, we have discussed informally the nature and quality of the food that is served in Scotland’s school dinners, so I welcome your comments.

Convener, I think that the line of questioning from you and Willie Rennie is absolutely justified. I draw members’ attention to one line in our papers for today’s meeting. The Government’s policy note says:

“This amendment is intended to be a temporary response to specific circumstances and Ministers intend to revoke it as soon as circumstances allow.”

That is precisely what we need more information and clarity on. If the matter could be dealt with in correspondence, that would be ideal.

Thank you. That crystallises the concerns that we have expressed.

With the committee’s agreement, I will have that letter sent to ministers, and I will share the contents of the reply that we get. Do members agree to that?

Members indicated agreement.