The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (Consequential Provisions) Order 2021

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision in consequence of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15) (“the 2021 Act”).

The 2021 Act establishes a scheme of financial redress and related support for and in respect of survivors of historical child abuse in certain residential care settings in Scotland.

Article 1 provides that articles 2 and 3 of the Order extend to England and Wales only. The remainder of the Order extends to England and Wales, Northern Ireland and Scotland.

Article 2 applies where a charity subject to the control of the High Court in England and Wales makes a financial contribution to the redress scheme established by the 2021 Act. It provides that financial contributions made by such charities will be treated as being in furtherance of the charity’s charitable purposes and consistent with the charity’s constitution or trusts (section 353(1) of the Charities Act 2011 (c. 25) defines “trusts”), providing public benefit, not being contrary to the interests of the charity, and being within the powers exercisable by the charity trustees of the charity.

Article 3 makes provision in consequence of section 44 of the 2021 Act. Section 44 of the 2021 Act sets out that an application for a redress payment must provide the Scottish Ministers with information about relevant payments which the applicant (or the person to whom the application relates) has received or becomes entitled to before their application is determined. This article provides that, where the applicant has entered into a settlement or other agreement relating to a relevant payment that forbids them from disclosing information about relevant payments and which is governed by the law of England and Wales, the disclosure of that information will not be regarded as a breach under the law of England and Wales of the settlement or other agreement.

Article 4 makes provision in consequence of section 79 of the 2021 Act, and provides that the Scottish Ministers may by notice in writing compel individuals or organisations (other than an applicant for a redress payment or the Crown) to provide information, documents, objects, other items of evidence or evidence in the form of a written statement, which may be relevant to an application for such a payment. An individual or organisation may challenge the requirement to provide the information where they are unable to comply with the notice, or it is not reasonable in all the circumstances to require them to comply with it. A notice does not have effect to the extent that complying with it would involve disclosure of information which would breach data protection legislation or any other statutory requirement relating to the disclosure of information, or give rise to the commission of an offence, or where the individual or organisation would be permitted to refuse to comply with it in connection with court proceedings in England and Wales or Northern Ireland or, as the case may be, Scotland.

Article 5 makes provision in consequence of section 80 of the 2021 Act, and provides the Scottish Ministers with a power to obtain information from third parties for the purposes of section 42 of the 2021 Act (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 or the Crown) to provide information to the panel with details of relevant payments. However, a notice does not have effect to the extent that complying with it would involve disclosure of information which would breach data protection legislation or any other statutory requirement relating to the disclosure of information, or give rise to the commission of an offence, or where the person would be permitted to refuse to comply with it in connection with court proceedings in England and Wales or Northern Ireland or, as the case may be, Scotland.

Articles 4 and 5 only apply in Scotland to the extent that it would not be possible to require a person to provide information, documents, objects or other evidence, or details of a relevant payment, under section 79 or, as the case may be, section 80 of the 2021 Act.

Article 6 makes provision in consequence of section 81 of the 2021 Act and 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.

Article 7(1) makes provision in consequence of section 84(1) of the 2021 Act and provides that any person who fails to comply with a notice under article 4 or 5 to provide evidence, and does so without reasonable excuse, commits a criminal offence. Article 7(2) provides that any such 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 under article 4 or 5 or under section 79 or 80 of the 2021 Act. The maximum penalty for either of the aforementioned offences is imprisonment for up to three months or 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.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.