Chapter 6: Provision of information and evidence
Section 79: Power of the Scottish Ministers to require the provision of evidence
234.This section provides that the Scottish Ministers may by notice in writing compel individuals or organisations, other than the applicant, to provide evidence relevant to an application for a redress payment. It is not anticipated that this power will need to be used very often as the Scottish Government’s experience in administering the advance payment scheme has been that evidence requested is provided willingly in the vast majority of cases. However, where a formal power to compel is required, this section would allow for that. In relation to the requirement that any notice be in “writing”, see paragraph 60 of these Notes.
235.Subsection (1) allows the Scottish Ministers to compel the production of information, documents, objects, other items of evidence or evidence in the form of a written statement. The deadline for any such request would be specified in the notice. Subsection (2) provides that information may be obtained for the purposes of any determination to be made by a panel appointed under section 35 or any determination to be made by a review panel or a reconsideration panel. The determination of a matter by a review panel includes a review panel appointed under section 55 by virtue of another section – for example, a review panel appointed in accordance with section 62(6) to consider a review of a decision that an individual should be precluded from being offered a redress payment due to serious criminal convictions.
236.Subsection (3) lays out the conditions on which an individual or organisation may challenge the requirement to provide evidence. These are that the person is unable to comply with the notice, or it is not reasonable in all the circumstances to require them to comply with it. Subsection (4) requires the Scottish Ministers to pass any challenge to Redress Scotland for it to determine. Subsection (5) explains the actions Redress Scotland may then take in response to such a challenge: they may confirm, vary or revoke the notice.
237.Subsections (6), (7), and (8) explain considerations individuals or organisations compelled to provide evidence must take into account in relation to redaction and data protection when considering how to respond to a notice to provide evidence.
Section 80: Power to obtain information about previous payments
238.This section provides the Scottish Ministers with a power to obtain information from third parties for the purposes of section 42 (which relates to the deduction of relevant payments from redress payments). The Scottish Ministers may by notice, in writing, require a person other than the applicant to provide information to the panel with details of relevant payments. In relation to the requirement that any notice be in “writing”, see paragraph 60 of these Notes.
239.Subsection (2) provides that a notice under subsection (1) may in particular require information on the following matters: the date on which payment was made or (where applicable) an entitlement to it arose; the amount of the payment; and the matter to which it related. In accordance with subsection (3), it must also specify the name and date of birth of the person to whom the payment relates (which will normally be the applicant but, for example, in the case of a next of kin payment may be the abuse survivor).
240.Subsection (4) states that a notice under subsection (1) does not have effect to the extent that complying with it would involve disclosure of information which would breach data protection legislation, or where the person would be permitted to refuse to comply with it in connection with court proceedings in Scotland. Subsection (5) sets out the meaning of “data protection legislation”.
Section 81: Redress Scotland’s power in relation to information and evidence
241.This section provides that Redress Scotland may ask the Scottish Minsters to issue a notice to provide evidence or issue a notice to provide details regarding previous payments which a person has received in relation to relevant abuse. Furthermore, Redress Scotland may ask the Scottish Ministers themselves to provide evidence they hold which is relevant to an application for a redress payment. The Scottish Ministers must comply with such requests within the specified period: in the case of issuing a notice to a third party, that period is four weeks; in the case of providing evidence themselves, that period is such period as Redress Scotland specifies (which must be at least four weeks).
Section 82: Applicant access to information and evidence
242.This section provides that Redress Scotland and the Scottish Ministers must, on request, provide a person with access to any information or evidence obtained by or provided to it or them in connection with the person’s application for a redress payment.
243.Subsection (2) addresses the situation where a nominated beneficiary seeks access to information or evidence relating to the deceased survivor and provides that this includes a right of access to any information and evidence held in connection with the application prior to it being taken over by the nominated beneficiary. Any information or evidence provided or obtained after the nominated beneficiary had taken over the application would be covered by subsection (1), by reason of the nominated beneficiary being treated under section 72 as having stepped into the original applicant’s shoes.
244.The right of access to information and evidence applies so far as that can be provided in a way which is compliant with applicable data protection legislation (including the Data Protection Act 2018 and the General Data Protection Regulation as now enshrined in UK law), and without releasing information that would identify any person other than the person making the request or the original applicant.
Section 83: Power to commission reports
245.This section provides the Scottish Ministers with the power to commission reports in connection with applications for fixed rate or individually assessed payments for the purpose of progressing the application, its determination, or the conducting of a review or reconsideration – provided the applicant has given their agreement for this. The determination of a matter by a review panel includes a review panel appointed under section 55 by virtue of another section (see also paragraph 235 of these Notes).
Section 84: Offences of failure to provide, and of tampering with, information or evidence
246.This section states that any individual who, or organisation which, fails to comply with a notice from the Scottish Ministers to provide evidence (as laid out in sections 79 and 80), without reasonable excuse, commits a criminal offence. This also applies where the Scottish Ministers fail, without reasonable excuse, to comply with a request from Redress Scotland under section 81(1)(c) to provide information which Ministers hold themselves.
247.An individual or organisation also commits a criminal offence if, without reasonable excuse, they take action to conceal, destroy, alter, or distort evidence which either they know is required, or they have reasonable grounds for believing might be required, under a notice given by the Scottish Ministers or under a request for information made of Ministers by Redress Scotland. This applies in any case where there are reasonable grounds for believing that a notice might be issued or a request made, regardless of whether or not that subsequently happens.
248.An individual or organisation committing either of the aforementioned offences may be imprisoned for up to six months or issued with a fine up to the value of level 3 on the standard scale, or both. The value of level 3 on the standard scale is currently £1,000 (at the time of preparation of these Notes).
Section 85: Individual culpability where an organisation commits an offence under section 84
249.This section provides that where a criminal offence is committed in relation to a notice or request to provide information (as laid out in sections 79, 80 and 81(1)(c)) by an organisation and where a responsible individual within that organisation or someone acting as such has facilitated the offence – either actively or via neglect – both the organisation and the responsible individual (or the person acting as such) commit the offence. Subsection (3) defines “relevant organisation”. Subsection (4) specifies the meaning of “responsible individual” in relation to different types of organisation.
Section 86: Crown application in relation to offences under section 84
250.Subsection (1) states that the Crown cannot be held criminally liable for any offence committed in relation to a notice or request to provide evidence. However, the Court of Session may, on an application by the Lord Advocate, declare unlawful any act or omission for which the Crown would be criminally liable if it were not for subsection (1). Subsection (1) does not affect the criminal liability of individual persons in the service of the Crown such as civil servants or other officials engaged by Crown bodies who may be held criminally liable as individuals for any offence committed under section 84.
Section 87: Confidentiality of information
251.This section sets out the responsibility of Redress Scotland, the Scottish Ministers, their respective staff, and certain other parties to ensure confidentiality when handling information related to the redress scheme which is not otherwise in the public domain. Other than sharing of information and evidence that is done in accordance with section 82, persons listed in section 87 are prohibited from disclosing information given to them which relates to the scheme and has not been freely circulated to the public unless an exception applies.
252.Subsections (3), (4) and (5) describe the circumstances under which information can or must be shared. Specifically, sharing is permitted or, in some cases, required—
within certain limits for the purpose of carrying out any of the functions outlined in the Act or under any regulations made under it, or where it is expressly provided for in either of those places (for example, to provide information to a scheme contributor);
where the person who supplied the information has given their consent;
to enable the police to carry out the investigation of a criminal offence against a child and where it is in the public’s interest to share this information with a constable; or
under a court order in relation to civil or criminal proceedings.
253.Subsection (6) defines the information subject to these provisions.
Section 88: Power to share information with third parties
254.This section lays out the conditions under which the Scottish Ministers or Redress Scotland may share information with third parties. There are four purposes for which information can be shared—
The first is to ask a third party to verify or authenticate evidence provided in connection with an application;
The second is to ask a third party to provide evidence relevant to a redress application;
The third is to ask a third party to provide details of any relevant payments made to a person or payments to which a person is entitled;
The fourth is to enable a scheme contributor to assess whether an individual in receipt of a redress payment has commenced legal proceedings against the scheme contributor in violation of section 46.
255.The third party to which information is disclosed may only use the information or disclose it to a further party for reasons consistent with the four purposes above and the further party may only use the information for the relevant purpose for which it was disclosed to them. For example, an organisation might inform their legal representative that an individual pursuing civil proceedings against the organisation has signed a waiver and therefore has no legal right to pursue the case. The legal representative may only use that information to provide advice to the organisation in question or take appropriate steps to protect the organisation’s legal interests.
256.Subsection (4) provides that the information which may be shared with a third party for the purposes discussed is only such information as the person sharing it considers is reasonably necessary for the purpose for which it is being shared, and a non-exhaustive list of what this might include is given. Subsections (5) and (6) clarify that this provision does not permit any party to share information in such a way as to contravene data protection law.
