Assessing impact and effectiveness
When considering how to assess the impact and effectiveness on the waiver, it is important to consider the three ‘key purposes’ for its inclusion within the Scheme; these are detailed below. Scottish Ministers made their assessment on the impact and effectiveness of the waiver by considering each of the three reasons, and determined, as far as possible, whether or not the waiver has achieved those ambitions.
1. To encourage ‘those responsible’ for abuse to make meaningful financial contributions to the Scheme.
During the passing of the Bill, it was recognised that the inclusion of such a waiver was a significant incentive for providers to commit to making financial contributions. This in turn is important not only for the funding of the Scheme, but for survivors to see that ‘those responsible’ are paying for redress.
As set out further below (see ‘Key Principles’), the Scheme is not designed to provide financial redress on the basis of findings or acceptance of liability. Consequently our approach to ‘those responsible’ for contributions is similarly not based on findings or acceptance of liability. Instead we have identified, and approached, those responsible for contributions, because they had been identified by the Scottish Child Abuse Inquiry (SCAI) or have otherwise been linked to the historical abuse of children in care in Scotland (e.g., through the Advance Payment Scheme, current applications, or the criminal courts).
We have no basis to compel contributions from ‘those responsible’, therefore the waiver is intended to encourage contributions by offering protection from ongoing and future litigation in exchange for a fair and meaningful contribution.
2. To design a financial redress Scheme which combines fair processes and fair outcomes to facilitate a degree of closure for:
- survivors who choose to accept awards under the Scheme;
- ‘those responsible’ who choose to contribute fairly and meaningfully to the Scheme; and
- the Scottish Government.
In this respect, it is important to look at financial redress in the context of wider activity in delivering redress for survivors, including non-financial redress. Whilst financial redress is undoubtably an important element, it is just one of a number of elements of the Government’s overall approach to support survivors of historical child abuse in care (see ‘Actions to help victims and survivors of historical child abuse in care’).
One objective of the Scheme is to deal with the issue of financial redress fairly and, where possible, finally, in order for the Scottish Government and others to face up to the profound injustices of the past. The Scheme was therefore designed as an alternative to litigation. To achieve this, awards under the Scheme are conditional on the applicant granting a waiver which brings to an end all current claims and prohibits all future claims against the Scottish Government and contributors that arise from abuse that falls within the scope of the Scheme.
3. To fairly manage the financial risk inherent in establishing and funding a financial redress Scheme.
It was important to ensure that in designing a financial redress Scheme, the needs and interests of survivors were fairly balanced with the interests of the Scottish Government and providers, many of whom are still in operation today delivering vital services to children and adults. One important aspect of this balance is ensuring that, insofar as possible, the Scheme provides survivors with redress, whilst simultaneously achieving a degree of closure for those responsible, and limiting ongoing exposure to costly and uncertain litigation.
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