Redress scheme should allow litigation advice: Faculty

The proposed redress scheme for survivors of historical child abuse in care contains an “inherently unfair” restriction which should be removed, the Faculty of Advocates has stated.

Under the Scottish Government's Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, applicants to the scheme must sign a waiver, abandoning civil proceedings, and while they can recover legal fees involved in their claim, these fees do not include advice on whether the scheme or litigation would be better for them.

The bill would make fixed payments of £10,000, £20,000, £40,000 or £80,000 depending on an applicant's history. It is being considered at stage 1 by the Scottish Parliament’s Education & Skills Committee. 

"To expect potential applicants to the redress scheme to evaluate, without legal advice, the merits or otherwise of accepting an award under the redress scheme rather than pursuing litigation, is inherently unfair to applicants", Faculty maintains in its submission to the committee.

"A payment from the redress scheme might be lower than an award achieved via litigation in court… Expert legal advice is necessary if applicants are to reach an informed decision as to whether applying to the redress scheme is preferable to pursuing civil litigation".

Faculty adds: "Scottish ministers have a stated objective of fairly and compassionately supporting those who have been harmed and respecting their right to justice. To enable them to make an informed choice, potential applicants under the scheme need to have funded access to legal advice on the merits of applying to the scheme as opposed to pursuing civil litigation."

It recommends that a clause dealing with the recovery of fees "is reworded specifically to allow the recovery of legal fees in connection with legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment".

In other comments, Faculty suggests that:

• residential care in fee-paying schools should be included in the places covered by the bill;
• as drafted, the bill seems to preclude a panel hearing applications from determining whether abuse actually took place – which would appear to preclude a determination that the eligibility criteria have been met;
• the bill should make clear that the civil standard of proof (balance of probabilities) is to be applied;
• it would be fairer to have a range of payments within each level of award; and
• the possibility of refusing payment to an applicant with criminal convictions should be removed, because "a person’s character or conduct after the abuse should have no bearing on any redress payment".

Click here to view the full submission.