Functions in relation to the redress scheme
Section 7: Functions of Redress Scotland
13.Section 7 of the Act sets out the general function of Redress Scotland. The function is making decisions in connection with applications for redress payments under the scheme, including determining those applications and reviewing or reconsidering those determinations (for example, in the case of a possible material error).
Section 8: Functions of the Scottish Ministers
14.This section sets out the general functions that the Scottish Ministers have in relation to the redress scheme. They must make administrative arrangements for the establishment and operation of the scheme and provide information, guidance and support for applicants to the scheme in connection with their applications.
Section 9: Duty with respect to ensuring individuals can make informed choices
15.Subsection (1) of section 9 places a duty on the Scottish Ministers, when exercising their general functions under section 8(b) of the Act concerning the provision of information, guidance and support, to use their best endeavours to ensure that applicants and potential applicants to the redress scheme have the opportunity to make informed choices.
16.Subsection (2) requires the Scottish Ministers to prepare and publish a statement (the “summary of options”) setting out information about the options available to individuals in connection with applications, the support and other assistance available under the scheme, and alternatives to the scheme (which could, for example, include raising an action for damages).
17.Subsection (3) requires that the summary of options must contain or set out details of where to find information about: (a) options in relation to making, pausing and withdrawing applications, accepting redress payment offers (including the timescales and the effect of signing and returning a waiver), and requesting reviews of decisions; (b) the sources and types of information or evidence that may or must accompany an application for a redress payment; (c) how such information and evidence may be obtained and shared, including the assistance offered to applicants under the scheme with regard to obtaining it; (d) the importance of obtaining independent legal advice, in particular before accepting an offer of a redress payment and signing and returning a waiver (a key point at which the applicant should be obtaining advice on the legal effect of the waiver); (e) payment of fees for legal work under the scheme; and (f) other support available under the scheme. In addition, subsection (4) provides that the summary may include other appropriate information.
18.The summary will therefore provide applicants and potential applicants with a list of their options under the scheme as well as assurance that they can access support and legal advice through the scheme and will not have to pay for this separately, with a view to them being able to make informed decisions about accessing the redress provided by the scheme. Further provision about the summary of options is included elsewhere in the Act to require it to be provided to applicants at the point at which an application is submitted to the redress scheme (under section 29 of the Act) and at the point when an applicant is notified of a determination made by Redress Scotland (under section 36 of the Act).
19.Subsection (5) requires the Scottish Ministers to keep the summary of options under review and provides that they may make any adjustments required. This will ensure it remains up to date and reflects any developments in the operation of the scheme. Subsection (6) requires that the Scottish Ministers, in complying with their duty under subsection (5), must have regard to any recommendations made by Redress Scotland in its annual report, which, by virtue of paragraph 17(1)(d) of schedule 1 of the Act, must include an assessment of whether applicants for redress appear to have had the opportunity to make informed choices. By virtue of subsection (7), any modified version of the summary of options must also be published.
Section 10: Provision of administrative support to Redress Scotland
20.This section sets out that the Scottish Ministers must provide such administrative support as they consider necessary to Redress Scotland in order to allow Redress Scotland to perform its functions under the Act.
Section 11: Duty on the Scottish Ministers and Redress Scotland to co-operate
21.This section provides that the Scottish Ministers and Redress Scotland must co-operate with one another when exercising their respective functions under or by virtue of the Act. However, they may only share information with each other as provided for in section 12.
Section 12: Sharing of information between the Scottish Ministers and Redress Scotland
22.This section provides that the Scottish Ministers and Redress Scotland may share information with each other in certain circumstances, such as where it is necessary to allow either of them to exercise their functions, or where necessary to allow the scheme to operate effectively. This is subject to data protection law.
Section 13: Principle of dignity, respect and compassion
23.This section provides that when exercising functions under the Act, the Scottish Ministers, Redress Scotland, scheme contributors and others performing duties or exercising powers under the Act (or any subordinate legislation made under it) must have regard to the principle that anyone who has made, or has decided to make, an application to the scheme should be treated with dignity, respect and compassion. This duty is also owed to persons who are, or may be, considering making an application for redress, as well as those receiving or eligible for support under section 90, those seeking or considering seeking the reimbursement of costs and expenses under section 91, and nominated beneficiaries.
24.The duty applies not only to Ministers, Redress Scotland and scheme contributors, but also to other relevant persons as defined in subsection (2). The latter includes those on whom functions are conferred under or by virtue of the Act. This may be, for example, a person from whom information or evidence has been requested by the Scottish Ministers under section 79 of the Act. However, although an applicant can, for example, be subject to the requirement to provide information under section 44, the result of paragraph (b) of subsection (2) is that the duty is not imposed on those for whose benefit it is intended to operate.
