3. Options Analysis
The Act and secondary legislation made under it cover a number of different areas in order to meet policy objectives. The Policy Memorandum for the Bill provides further information on those objectives and the alternatives considered.
3.1 Sectors and groups affected
The following sectors and groups may be affected by this Act and secondary legislation made under it:
- Survivors of historical abuse in care;
- Former and current care providers, which includes third sector organisations, secure care institutions, religious organisations, and independent and grant-aided special schools;
- Local authorities;
- Survivor support organisations (national and local providers of specialist counselling, therapeutic, or advice services);
- National Health Service (NHS) Boards;
- Police Scotland;
- National Records of Scotland (NRS);
- Scottish Courts and Tribunals Service (SCTS);
- Crown Office and Procurator Fiscal Service (COPFS);
- Criminal Injuries Compensation Authority (CICA);
- Scottish Prison Service;
- Legal sector; and
- Insurance industry.
3.2 Options: Benefits and Costs
This section describes the benefits and costs of the different options considered by the Scottish Government in deciding to take forward the redress legislation.
3.2.1 Option 1: Do nothing
There are no changes to the law and Scottish Government does not launch a statutory financial redress scheme.
This option would have no cost implications or operational impact on business, the voluntary sector, public sector bodies, or the Scottish Government as it would be maintaining the status quo. Equally, there would be no benefits to any party in comparison with the current situation.
However, this would mean that survivors would continue to have limited access to redress as discussed in Section 1.3.1 and Scotland would not move forward in its acknowledgment and recognition of the harms of the past or adequately respond to these profound injustices. Therefore, this is not considered a viable option.
3.2.2 Option 2: Create a statutory financial redress scheme
The Scottish Government introduces legislation to create a statutory financial redress scheme. The key aspects of scheme delivery from a business and regulatory perspective include:
- The Scottish Government seeking financial contributions from organisations which were responsible for the care of children at the time of the abuse.
- Scottish Government delivery or procurement of services for applicants, such as support to access records when applying to the scheme, and therapeutic support as an element of non-financial redress.
- Opportunity for applicants to receive independent legal advice on their application, with legal fees paid for by the Scottish Government.
- Set up of a new non-departmental public body (NDPB), Redress Scotland, to make decisions on redress applications and appeals, and the establishment of a new Scottish Government Division to administer the scheme.
- Requests made by the Scottish Government for records, documents, or other information from individuals and organisations such as care providers, local authorities, NHS Boards, Police Scotland, NRS, SCTS, COPFS, Scottish Prison Service, and CICA.
- Potential for increased demand upon survivor support organisations, trauma/counselling provision and NHS mental health services.
- Potential for increased volume of intelligence and investigations to be pursued by Police Scotland.
The high-level benefits, from a business and regulatory perspective, of establishing the scheme would include:
- Providing an alternative route to justice for survivors who are not able to, or who choose not to, pursue legal action due to a range of potential barriers.
- Creation of approximately 50 public sector jobs and an unknown number of potential jobs in the third sector and the legal sector.
- Potential financial boost to businesses in the geographical vicinity of the Scottish Government Division undertaking scheme administration and Redress Scotland.
- Opportunity for the Scottish Government, care providers and others to acknowledge the harm that occurred at their institutions as part of a collective expression of recognition.
- Opportunity for the Scottish Government to build on progress to date and move towards a process of reconciliation with survivors of abuse in care.
There remain considerable uncertainties, but the overall cost of scheme, including payments to applicants, reimbursement of costs incurred in relation to applications, funding for legal advice, and the implementation and delivery costs, is estimated at between £200m and £400m. The Scottish Government will cover all administration costs and the costs of redress payments to survivors to the extent that these are not offset by financial contributions from third parties.
Estimated costs to other bodies are as follows:
- Cost to organisations responsible for the care of children at the time of abuse is dependent on voluntary financial contributions made. Survivors who accept payments through the redress scheme will waive their right to raise litigation against participating organisations. Therefore, by making financial contributions to the scheme, organisations should be able to mitigate the potential impact of legal action relating to historical abuse and crystallise financial risks arising from historical child abuse with respect to applicants to the redress scheme. This means that the cost of any financial contributions made by an organisation to the redress scheme should be offset against unknown costs organisations would incur in the courts if the redress scheme were not to be established.
- Cost to local government is estimated to be £8.7 m to £14.7 m (not including potential contribution amount).
- Cost to survivor support organisations is unknown at this time. Financial implications will become clearer when the scheme is live and delivery of the scheme is developed further.
- Cost to NHS Boards of £1.2 m.
- Cost to Police Scotland estimated at £6.5 m.
- Cost to NRS of £0.07 m.
- Cost to SCTS at £0.05 m.
- Cost to COPFS estimated at £0.5 m.
More detail is provided in Section 12. The full costs associated with the legislation are detailed in the Financial Memorandum and Revised Financial Memorandum (amended following Stage 2 of the Bill process).
High-level non-financial costs include:
- Increase in workload for public services which come in to contact with the redress scheme (e.g. to fulfil subject access requests to provide supporting evidence for redress applications).
- Increased demand on survivor support services and NHS mental health services.
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