Part 7: General and miscellaneous
Section 102: The Survivor Forum
300.This section requires the Scottish Ministers to establish the Survivor Forum, a forum consisting of survivors of historical child abuse in care in Scotland and such other persons as the Scottish Ministers consider appropriate. For example, this could allow next of kin or persons representing survivors to take part in the Forum.
301.The purpose of the Forum is to provide feedback to the Scottish Ministers and Redress Scotland on the exercise of their functions under or by virtue of the Act. Subsection (3) clarifies that the Forum may not provide feedback on determinations made in relation to individual cases. Section 87 of the Act (on confidentiality of information) already ensures that Forum members will not have sight of details of individual applications or information that may allow individual applicants to be identified (unless an applicant were specifically to request that this should happen or were to provide the information to the Forum themselves directly).
302.Forum members may be paid such allowances or expenses as the Scottish Ministers consider appropriate (subsection (4)). Subsection (5) provides for a general regulation-making power to make further provision in relation to the Forum (for example, to provide for the existence of the Forum to be signposted to applicants) and for the dissolution of the Forum in connection with or following the dissolution of Redress Scotland. Whilst under subsection (6) regulations can modify any enactment, including this Act, that power could only be used to make provision about or in connection with the Forum itself, and could not be used to make unrelated alterations to the redress scheme.
Section 103: Dissolution of the National Confidential Forum
303.This section dissolves the National Confidential Forum. Further provision in relation to the dissolution is included in Schedule 2.
Section 104: Dissolution of Redress Scotland
304.This section gives the Scottish Ministers the power to make regulations (which are subject to the affirmative procedure by virtue of section 107(2)) providing for the dissolution of Redress Scotland. However, this may only be done at such point as the redress scheme has closed for new applications, there are no ongoing applications or ongoing requests for fee payments from solicitors, and Redress Scotland no longer has (or as a result of these regulations will no longer have) the functions detailed in section 7.
305.The regulations may modify or terminate any of Redress Scotland’s functions, or transfer them to the Scottish Ministers or any other body. Before making the regulations, the Scottish Ministers have a duty to consult Redress Scotland and any other persons they consider appropriate. This would cover those whose interests are affected by the proposed regulations, such as survivors of historical abuse in care.
Section 105: Interpretation
306.This section sets out definitions of commonly used terms in the Act. It also clarifies that where a person receives a redress payment subject to the deduction of relevant payments, that is still to be considered as them having received, for example, a “fixed rate payment” despite the sum paid out being less than £10,000. This is relevant, for example, where the person subsequently applies for an individually assessed payment and the amount they receive depends on whether they have previously received a fixed rate payment. Similarly, where a payment is made in instalments or is in the process of being paid out, the payment is to be treated, for the purpose of certain provisions, as having been paid. This is the case where what is relevant is effectively whether the person has an entitlement to the money (again, such as where the amount received on an individually assessed payment is to be reduced because of the previous award of a fixed rate payment). This interpretative rule applies only when construing references in the Act to “previously received” or “previously paid” and does not affect any person’s right to receive the money to which they have an entitlement.
Section 106: Guidance
307.Subsection (1) provides a power for the Scottish Ministers to issue guidance about the operation of this Act. Under subsection (2), those to whom the guidance applies must have regard to it. Without prejudice to the generality of the power in subsection (1), subsection (3) provides some examples of the type of guidance which may be issued in relation to particular aspects of the redress scheme.
308.Subsection (4) requires the Scottish Ministers to have regard to recommendations made by Redress Scotland in its annual report, by virtue of paragraph 17(2) of schedule 1 of the Act, when updating scheme guidance.
309.Subsections (5) and (6) respectively provide that, as soon as possible after issuing guidance, the Scottish Ministers must lay a copy of the guidance before the Scottish Parliament and make the guidance publicly available. Subsection (7) provides that the power in subsection (1) includes the power to vary and revoke guidance issued under that subsection.
310.Under subsection (8), relevant guidance issued before the date this provision comes into force is to be regarded as guidance issued under subsection (1) for the purpose of this provision. Those to whom it applies will therefore be required to have regard to it, and it must be laid and published as provided for in this section.
Section 107: Regulation-making powers
311.This section makes further provision about the powers the Scottish Ministers are given under this Act to make regulations. It provides that a power to make regulations includes the power to make different rules for different purposes or make incidental, supplementary, consequential, transitional, transitory or saving provision when doing so. It also sets out the parliamentary procedure to which each regulation-making power is subject. Regulations made under section 94(3) (provision about fee payment requests and fees for legal work), 102(5)(a) (further provision about or in connection with the Survivor Forum) or 108 (ancillary provision) which amend any text contained within the Act or another Act are subject to the affirmative procedure, but are otherwise subject to the negative procedure.
312.The section does not apply to commencement regulations. Provision is made in relation to them in section 109 instead.
Section 108: Ancillary provision
313.This section sets out that the Scottish Ministers can make ancillary provision, by regulations, where appropriate. Regulations made under this section may modify any legislation, including this Act.
Section 109: Commencement
314.This section sets out when the provisions of the Act will come into force (i.e. begin to have an effect). For the most part, this will happen by regulations as determined by the Scottish Ministers. These regulations will be laid before the Scottish Parliament but will not otherwise be subject to any parliamentary procedure. However, some of the final sections of the Act, including this section, come into force automatically on the day after Royal Assent is granted.
315.In addition, this section provides that commencement regulations may include transitional, transitory or saving provision and may make different provision for different purposes. Further, it provides that commencement regulations which bring into force section 31 may amend subsection (1)(a) of that section so that it specifies the date upon which the section actually came into force.
Section 110: Short title
316.This section provides that the short title of the Act is the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021.
