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Chamber and committees

Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, June 16, 2021


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

The Deputy Presiding Officer (Liam McArthur)

Good afternoon. I remind members that social distancing measures are in place in the chamber and across the Holyrood campus. I encourage members to observe them, including when entering and exiting the chamber. Please use only aisles and walkways to access your seat and when moving around the chamber.

The next item of business is a statement by John Swinney giving an update on the Redress for Survivors (Historical Child Abuse in Care) Scotland Act 2021. The Deputy First Minister will take questions at the end of his statement, so there should be no interventions or interruptions during it.


The Deputy First Minister and Cabinet Secretary for Covid Recovery (John Swinney)

Following the successful passage of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill on 11 March, the bill received royal assent on 23 April. I am pleased to provide an update on the development and delivery of the redress scheme that will be established under the act.

First and foremost, I confirm that the Scottish Government remains committed to opening the redress scheme as quickly as possible. I have previously stated that the scheme will be operational this year, opening in December at the latest, and I reiterate that commitment today. To that end, last week we laid the first set of commencement regulations to bring into force all the necessary provisions to prepare for that event.

Just as the bill was developed through engagement with survivors, our approach to implementation will continue to put survivors’ needs first. We know how important it is to survivors and their families that we open the scheme for applications as soon as we can. We must take a number of steps to make that possible, including setting up redress Scotland and working with survivors to make sure that the application process is as straightforward as it can be for them.

Today, I will give Parliament and, more importantly, survivors, an update on the progress that has been made since March. Before I do that, however, I will give an update on the advance payment scheme.

The advance payment scheme has been open and making payments to elderly and terminally ill survivors for more than two years. I am pleased to share that, in the second year of the scheme, despite the challenges of the Covid-19 pandemic, a total of 219 applications were received and 166 payments were made. We have now made a total of more than 600 payments to older and terminally ill survivors. We continue to take our learning from the scheme into the development of the statutory scheme to ensure that all applicants can expect the same level of service that has generated such positive feedback from survivors to date.

During the committee stages of the bill, I was asked to consider whether we might change the eligibility criteria for the advance payment scheme ahead of opening the new redress scheme later in the year. As I set out then, any changes to the scheme must be compatible with the exceptional nature of the powers that were used to introduce it. Having carefully considered the issue, and having given the temporary and specific purpose of the advance payment scheme, we think that it is appropriate to leave the criteria as they are, particularly as we remain on course to open the statutory scheme on schedule. In the meantime, the temporary advance payment scheme will continue to allow elderly and terminally ill people to access financial redress up to the point at which the statutory scheme opens.

Since March, significant progress has been made with the preparations for the statutory scheme. My officials are developing and drafting the secondary legislation that will set out some of the more technical detail on how the redress scheme and redress Scotland will work and function. That will be laid before Parliament for appropriate scrutiny following the summer recess.

Work is also under way on the statutory guidance that will assist with the interpretation of the act and provide further information about the processes that will underpin the scheme. Targeted engagement is taking place with survivors and others for the secondary legislation and guidance. Feedback that is received through that engagement will be taken into consideration in the development of those materials.

The assessment framework is a key document that was of specific interest to members during the passage of the bill through Parliament. Redress Scotland will use the framework to inform decision making on individually assessed payments in a fair and consistent way. We continue to develop the framework in consultation with clinical psychologists to ensure that we get such a vital document right. Similar to other redress schemes, the document will be published to provide applicants with an idea of how their individual circumstances might sit within the payment levels. We hope to publish the framework document in the autumn.

As well as developing the secondary legislation, we have identified legislative provisions that are required for inclusion in a section 104 order under the Scotland Act 1998. Discussions with the relevant United Kingdom departments about those provisions are well progressed, and they include legislative amendments to facilitate financial contributions from charities that are regulated under the law of England and Wales.

Engagement also continues with the relevant UK Government departments and devolved Administrations to ensure that benefits, social care entitlement, and tax disregards are in place for those who receive a redress payment under the scheme. It is of the utmost importance that survivors are not negatively impacted by receiving a redress payment. We are working to secure appropriate disregards before any redress payments are made under the scheme.

It is also important to a great many survivors that redress payments include contributions from the organisations that were responsible for their care at the time of the abuse. The quality of redress for many survivors comes, at least in part, in seeing their provider make a fair and meaningful contribution. I have said before and I will say again that it is morally imperative that our nation, collectively, including all those who played a part in the failures of the past, joins together in doing the right thing. The scheme encourages, facilitates and recognises those who are willing to make fair and meaningful financial contributions to redress payments to survivors.

In seeking to achieve that, the Scottish Government has engaged extensively with a wide range of public and third sector organisations on the issue of participation in the scheme. A significant number of those bodies has shown real integrity in their approach to redress, and we hope to be able to reach agreements with a number of organisations in the near future.

I will shortly publish the fair and meaningful principles that will underpin our approach to contributions. Draft heads of terms have already been provided to the principal potential contributors, and my officials are working closely with the charities regulator and others to draft comprehensive guidance for organisations considering being part of the scheme. We must ensure that survivors can have confidence in the agreements that will underpin the participation of care providers and other relevant bodies.

In relation to the design and delivery of the scheme, the Scottish Government remains committed to ensuring that the scheme is trauma informed, accessible and delivered with survivors’ needs at its heart. Designing how the scheme will operate involves working with survivors and survivor organisations to develop, test, and improve the service, and it includes getting feedback on draft application forms and other materials. Service design specialists are working alongside the officials who are responsible for recruiting staff to work in the redress scheme to make sure that the scheme looks and feels as it should and has embedded within it the principles of dignity, respect, and compassion.

The survivor forum will ensure that applicants have a mechanism through which to continue to provide feedback on how the scheme is operating and to make recommendations for improvements. A programme of workshops is being put in place to give survivors the opportunity to help to design the survivor forum, which will be in place once the redress scheme opens. Work is also under way to have support services in place for survivors when the scheme opens, including support through the application process and access to elements of non-financial redress such as therapeutic support.

The act establishes a new independent non-departmental public body called redress Scotland to assess applications seeking redress. Work is under way to ensure that redress Scotland has the right people, systems and processes to support its vital work. I am delighted to announce that, following an open and fair public appointments process, in which survivors played a key role, I have agreed to appoint Johnny Gwynne as chair of redress Scotland.

As many will know, Mr Gwynne is the former deputy chief constable of Police Scotland and a past director of the United Kingdom National Crime Agency with responsibility for tackling child exploitation. In leading the establishment of redress Scotland, he is resolutely committed to building the type of independent and transparent organisation that is capable of delivering justice for survivors. To do so, he will work from the outset to instil a trauma-informed culture right across the organisation. I am in no doubt that he will bring the needed leadership and empathy to that key strategic role.

Recruitment is also taking place for other key roles. A campaign seeking redress Scotland’s chief executive attracted more than 40 applications, and interviews are scheduled for next week. By the end of the month, we will have launched a campaign to recruit independent panel members. Those panel members will bring relevant expertise from a range of areas, for example in the field of complex trauma. It will be those panel members who make determinations on applications seeking redress.

As I have stated many times in the chamber, some children in residential care in Scotland were failed by those who were entrusted to look after them, often with catastrophic results. Scotland is taking steps to face up to those failings by establishing this financial redress scheme for survivors. It is the job of this generation to recognise and—as best we can—to rectify, and we are committed to doing so.

I hope that this update gives the chamber and survivors reassurance that the redress scheme is on course to open as soon as possible. The scheme will offer an alternative to court that is non-adversarial and more accessible to survivors than the existing routes that are available. It will provide elements of justice and acknowledgment, as well as some closure for those who have been wronged in the past.

We have reached an important milestone in the appointment of the chair of redress Scotland. I look forward to making further progress on the delivery of the scheme and to providing the chamber with further updates on this important matter in the very near future.

The Deputy Presiding Officer

The Deputy First Minister will now take questions on his statement. I intend to allow around 20 minutes for questions, after which we will need to move on to the next item of business. It would be helpful if members who intend to ask a question could press their request-to-speak buttons now or as soon as possible.

Jamie Greene (West Scotland) (Con)

I thank the Deputy First Minister for advance sight of his statement. I am pleased to be filling old shoes today as I speak on this subject. Members on the Conservative benches are still committed to working constructively towards the success of the scheme, for which survivors have been waiting a long time. For the record, I congratulate Johnny Gwynne on his appointment as chair of redress Scotland. The expectations of his role are high, and trust in it will be key to his success.

I will cut to the chase. The Deputy First Minister said that extensive engagement has taken place with a wide range of organisations that are would-be participants in the scheme. I am not asking which organisations, but how many have been in discussions with the Government on contributing financially to redress? Roughly how many of those organisations have indicated positively that they are willing or likely to proceed to the stage of agreeing contributions? Of those organisations that have chosen not to contribute, or that have refused to, what reasons have been given for their lack of participation? I ask because retention of the waiver, which was controversial during our debates on the issue, was a key argument for maximising participation in the scheme.

Finally, there is nothing in the statement about plans for a wide-scale public awareness campaign when the scheme launches later this year. Can we be reassured that there are robust plans for such a campaign?

John Swinney

I thank Mr Greene for his on-going support of the work that is to be tackled and the appointment of Johnny Gwynne.

I have discussed with Johnny Gwynne the approach that will be required in redress Scotland. As a long-serving public servant, he is aware of the importance of having the characteristics of empathy, justice, fairness, dignity and compassion at the heart of the scheme, and I am confident that he will ensure that they are instilled in redress Scotland.

We have had extensive discussions with a range of organisations. I cannot give Mr Greene a precise number just now, but we are having a number of what I would describe as positive conversations with contributors about their contributions to the scheme. We will share information about the success of those conversations on an on-going basis, to reassure members and survivors about the degree of engagement that is taking place.

On the issue of public awareness, we will undoubtedly be running a public awareness campaign. Later this month, we will start to recruit individuals for the panels that will be required. That will be the first part of the public awareness work, and maximising the number of applications will be a major priority.

I am heartened by the fact that we have had so many applications to the advance payment scheme, and encouraged that our communication has been effective in reaching individuals, which must be ever more so when it comes to the full redress scheme.

Michael Marra (North East Scotland) (Lab)

I, too, thank the Deputy First Minister for advance sight of his statement.

We welcome the fact that we are now on the road to having a scheme to deal with the most terrible of wrongs that were perpetrated against some of the most vulnerable members of our society. For many, it has taken too long, and there can be no further delays.

When, in the Deputy First Minster’s timetable, will details of the amount of financial redress to which survivors will have access through the scheme be available? I am sure that he will agree that, for many survivors, that will be a key moment.

Around 25 per cent of applications to the advance payment scheme were unsuccessful. Will the Deputy First Minister give some insight into why such a number were rejected and whether that seemingly high number of unsuccessful applications shows that there is a need to widen the criteria until the full scheme is operational?

John Swinney

In relation to the level of financial redress that will be available to individuals, some of the detail is already set out in the 2021 act. Any further detail will relate to individual circumstances and applications that are made through the framework that has been legislated for by the Parliament. In the course of the next few months, before the formal establishment of the scheme, further information will be shared about the basis on which payments will be made.

In relation to the advance payment scheme, the issues that have affected the judgments around the scheme have principally related to ineligibility in relation to some of the fundamental criteria on age and condition. Those have been the principal factors. Other factors will relate to quality of evidence, but the overwhelming majority of cases for which any evidence is available have been approved.

As members will understand, there have been particular challenges over the past 12 months because of the need to physically access documents that have been literally inaccessible to some organisations because of Covid restrictions. We have, by exception, allowed a certain number of civil servants into an office environment, to scrutinise documents for the purposes of the advance payment scheme. We have not generally made such arrangements available to other civil servants, but we did it for that scheme. We have taken measures to try to make sure that, despite Covid, there was no interruption to the ability to meet the requirements of the advance payment scheme.

On whether there is a need to broaden eligibility, I am not persuaded by the argument that has been put forward. The fact that we will have a scheme in place before the end of the year gives me reassurance that we can meet the expectations of survivors.

What support will be given to survivors who struggle to find or access records?

John Swinney

We recognise the difficulties that some applicants will face in finding evidence. They will be provided with assistance from officials in sourcing or accessing records. Indeed, some of the challenges that we have been wrestling with during the period of Covid have been about trying to assist individuals in accessing, as part of the process, documentation that is held by third-party organisations. The act creates the criminal offence of failing to comply with a request for information that would be relevant to such an application. There are strong aspects of legal enforcement.

In exceptional circumstances, redress Scotland has sufficient discretion to disregard evidence requirements if it is satisfied that the case merits an award. That approach is similar to some of the characteristics of evidence taking that have been adopted in the Scottish child abuse inquiry, which has been chaired by Lady Smith and which has taken a very considered approach to the gathering of evidence in that respect.

Meghan Gallacher (Central Scotland) (Con)

The cabinet secretary referred to the launch of a campaign for the recruitment of independent panel members. He mentioned that they will have a range of expertise in different areas, but will they have lived experience? That is very important for survivors and for making sure that they have the best possible representation on the panel.

John Swinney

Yes, that will be the case. It is critically important that the work of redress Scotland, and all of this activity, are informed by the experience and trauma of survivors. That has been a central requirement of the approach that we have taken. There was survivor input into the panel for the recruitment of the chair of redress Scotland, and the recommendation that came to me had survivor endorsement, which was critical to my judgment on that question. I assure Meghan Gallacher that those issues are very much at the heart of the approach that we are taking.

Clare Adamson (Motherwell and Wishaw) (SNP)

I thank the Deputy First Minister for his update and for the considerable progress that has already been made, and I congratulate Johnny Gwynne on his appointment. The expectation of survivors is palpable, and we will all take that forward as we progress. As the procedures and processes are put in place and the people of redress Scotland are recruited, what can Johnny Gwynne and the Scottish Government do to ensure that dignity, compassion and respect remain at the heart of all redress Scotland’s interactions with survivors?

John Swinney

The inclusion of the requirement for all the approaches to be founded on compassion, dignity and respect was the product of an amendment lodged by Clare Adamson during the consideration of the bill in the previous session. In my closing speech of the bill proceedings, I made it clear that that had been the critical amendment of the whole bill process, because it had placed a requirement for those characteristics—those values—to be embedded in the construction of the scheme.

In my conversation with Johnny Gwynne, he used those words to describe to me the values that would be central to his leadership of redress Scotland. Given the significance of those words in the legislation and in Johnny Gwynne’s approach to leadership, I am confident that those values will be embedded in the culture and working practices of redress Scotland, which is critical to meeting the needs of survivors.

Sarah Boyack (Lothian) (Lab)

I have met constituents who are concerned to know what advice will be available and when, so that they can apply to the scheme. They have had fantastic support on redress from Future Pathways Scotland and Birthlink, and they have been told that they pass the threshold for minimum payment, but they are worried about where they will get the support for what will be an incredibly traumatic, complicated and challenging process. What financial support will be given to organisations such as those that I have mentioned and Wellbeing Scotland, which have played an essential role thus far in supporting survivors and which will be crucial in giving them independent advice going forward?

John Swinney

I think that all the organisations that Sarah Boyack mentioned benefit from public funding to carry out their activities. It is clear that there is a need for constancy of support provision for survivors. Survivors need to be assured that they have access to that constancy of support in which they trust. Specific assistance will be available through the channels of redress Scotland as well, but it is important that survivors are supported by individuals whom they trust and have confidence in.

Over the next few months, as staff are recruited to redress Scotland—staff will be recruited to fit with the values of compassion, dignity and respect—I suspect and hope that there will be a lot of collaborative working with organisations that are supporting survivors, to ensure that individuals are assisted to bring forward and be successful in their applications. That has very much been the working ethos of the advance payment scheme.

Ross Greer (West Scotland) (Green)

With the support of the Government, the bill that enabled the establishment of redress Scotland was amended to include a review provision to look specifically at the impact that the waiver might have on the participation in the scheme of survivors and contributing organisations. Will the Deputy First Minister expand on how the review will operate, given that it is to be carried out over the first 18 months of the scheme’s operation?

John Swinney

That will be one of the requirements that we will build into the operating processes of redress Scotland. We will gather evidence from the extent of contributions made by organisations. That will be supplemented by individuals’ and applicants’ experience, and we will gather data, evidence and perspectives on the significance of the waiver in the judgments that individuals are making. Over that 18-month period, there will be a need to gather evidence of the effect of the waiver and to formulate a review that will be published and which Parliament will, of course, be able to consider. If any action is required in the light of that review, Parliament will be able to take the necessary action.

What support will be available to survivors of historical sexual abuse in care to access the redress scheme, particularly where it might be difficult for them to access or use digital technology to do so?

John Swinney

We will ensure that digital considerations are not a barrier in any way to individuals applying to the scheme. Paper copies of all application forms will be available. As I indicated in my answer to Sarah Boyack, there will also be support available to individuals to assist them in the gathering of information and detail in that process. We will ensure that we have relevant discussions with organisations that can support us in ensuring that all those requirements are fulfilled.

Beatrice Wishart (Shetland Islands) (LD)

I welcome the cabinet secretary’s update, which shows that real progress is being made. I also welcome the appointment of Johnny Gwynne. It is so important that we get this right, and we all care deeply about ensuring that survivors’ voices are heard, so I must convey the disappointment that will be felt by some survivors as a result of the decision not to lower the age limit for the advance payment scheme. Although financial redress will be important, does the cabinet secretary agree that a meaningful apology will carry much more weight for many?

John Swinney

I acknowledge Beatrice Wishart’s point about the age threshold, but I come back to the fact that we are required to justify our use of the provisions for exceptional circumstances. Given that the scheme will be available in six months’ time, I think that it is reasonable for us to have arrived at that conclusion. The Government will engage constructively with survivors on all questions about the implementation of the scheme.

I have tried, on a number of occasions, to give an apology to individuals on behalf of the Government and the state. The Government has also established the historical abuse inquiry with the purpose of ensuring that the experiences and trauma of survivors can be properly and fully acknowledged by the country. That is a very important contribution. I accept that there are probably no words that will properly address the suffering of individuals. However, I hope that the combination of the very public apologies that I and the former First Minister, Jack McConnell, have given and the abuse inquiry’s powerful capturing of the testimony of individuals will help to address the very legitimate sentiments that Beatrice Wishart has raised.

Natalie Don (Renfrewshire North and West) (SNP)

I welcome you to your new role, Deputy Presiding Officer.

I thank the Deputy First Minister for his statement on what is an extremely important issue. As he touched on, it is important that people who apply to the scheme do not then find themselves in a position in which receiving a redress payment has a negative impact on their benefits or social care entitlements. Will he provide more detail on the discussions that the Scottish Government has had with the UK Government to ensure that that does not happen?

John Swinney

I am happy to do so. We have had extensive discussions with the UK Government Department for Work and Pensions, Department of Health and Social Care and Ministry of Housing, Communities and Local Government about the relevant disregards that are required. We have also had discussions with Her Majesty’s Revenue and Customs, and we have the required disregards from it in relation to tax entitlements and tax questions.

We are continuing our discussions with the UK Government, and I am confident that we will secure the necessary agreements. Taking forward that dialogue is being given the utmost priority.

Alexander Stewart (Mid Scotland and Fife) (Con)

I am delighted that work is under way, through the survivors forum, on having support services in place for survivors when the scheme opens. That includes support during the application process and access to elements of non-financial redress, such as therapeutic support. Will the Deputy First Minister give a timescale for when such services will commence? Will emotional and psychological support be provided to those who require it?

John Swinney

A number of such services are facilitated by a number of the organisations that Sarah Boyack mentioned, such as Future Pathways. We try to put in place interventions that meet the needs of individuals who are trying to address trauma, and to provide the necessary support. Those services will continue under the umbrella of redress Scotland so that there is continuity of provision for individuals.

As we know from the evidence that was gathered during the passage of the bill, survivors face many obstacles and it often takes a long time before they are able to begin even to think about their suffering. New individuals will come forward in need of support, and that support will be made available to them.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

I noted the Deputy First Minister’s response to Mr Marra’s question about the eligibility criteria. I will press on with that issue.

I have a constituent who was abused when he attended school as a weekday boarder. Because he returned home at weekends, he does not meet the eligibility criteria. It is my view that, during those weekdays—I am paraphrasing the legislation—the institution took decisions about his care and upbringing and was morally responsible for his physical, social and emotional needs in place of the parents, in which it totally failed.

Are the eligibility criteria completely closed to any extension of the definition of “residential care”?

John Swinney

I do not want to give Christine Grahame a definitive answer, because it is probably not appropriate for me to do so. It would be appropriate for her constituent to make the necessary application to redress Scotland in due course and to set out the circumstances that she has recounted. Every effort will be made to try to address the suffering of individuals, and there may well be cases of the type that she raises that perhaps stretch the margins of the legislation and its criteria. I assure her that all such cases will be considered carefully and sensitively by redress Scotland.

Daniel Johnson (Edinburgh Southern) (Lab)

I welcome the statement: the sooner that redress Scotland is up and running, the better. With that in mind, I am concerned that the secondary legislation will not be passed until after recess and that the chief executive is not yet in place. Is the December start date safe? Will the Deputy First Minister explain what will be open from December? Will it be only the application process? Will he clarify when he expects redress Scotland to make the first payments?

John Swinney

I can put Mr Johnson’s mind at rest about the timescale for the appointment of the chief executive and for the legislation.

The chief executive interviews will be on Monday and a fabulous range of candidates have come forward. I am confident that an appointment will be made; the panel will have a difficult choice to make, which is encouraging.

I am confident that we have enough time to deal with the statutory instruments after the summer recess. Mr Johnson will be aware that there has been some criticism of the amount of time that we are spending considering instruments before the summer recess and I do not want to add to that in another sphere.

The organisation will be up and running and receiving applications as quickly as possible. December is the latest date; I hope that we can do it earlier. I cannot give a definitive answer on when the first applications will be processed and approved, but I assure Mr Johnson that the history of transactions through the advance payment scheme shows that decisions under the scheme were made pretty swiftly—some were made in a matter of days.

Provided that we put the necessary foundations in place, we can be confident that the work can be taken forward in a way that provides swift responses to individuals who apply.

The Deputy Presiding Officer

I thank the Deputy First Minister. We have overrun slightly but, given the nature of the issues raised in the statement, it was important to allow members to put their questions to the cabinet secretary.

We will now move to the next item of business. I will allow the ministerial team a second to change places.

I remind members that social distancing measures are in place in the chamber and around the campus and I ask them to adhere to those measures, including when entering and exiting the chamber. Aisles and walkways should be used only to access seats or to move around the chamber.