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Yes. In the process of consideration of what has led to the circumstances that have given rise to a reconsideration, it must be ensured that individuals are supported without prejudice. That fraud has occurred is perhaps a conclusion; it is not a starting point. Individuals therefore have to have access to the necessary advice, so that they are supported in that process.

I am grateful for the opportunity to discuss the issue and explain the detail of the affirmative instrument that is before the committee.

As the committee will be aware, at the end of last year, we passed a significant milestone with the launch of Scotland’s redress scheme, which opened for applications on 8 December. I am pleased to inform the committee that we have received more than 2,000 calls to the scheme since its launch and that more than 250 application forms have been received. That represents a significant step towards facing up to the wrongs of the past and the harm caused to society’s most vulnerable children.

As we move to deliver redress to survivors, we must ensure that the scheme operates fairly for all. Part of that is providing mechanisms to be able to reconsider, and deal with, any determinations under the scheme that are made in error, including those relating to the outcome of a redress application. The draft regulations before the committee seek to achieve that clear goal.

Section 75 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 creates a reconsideration process, whereby a Redress Scotland panel can revisit a determination already made under part 4 of the act, should a concern arise that the determination was materially affected by error. That includes where a mistake might have been made in making the determination, or where it is thought that a determination was made on the basis of incorrect or misleading information.

Where the panel determines that an error has occurred, it must put that right. Importantly, where an applicant is not satisfied when they are told of the outcome of a determination, they can request a review. Safeguards are included in the act so that an applicant cannot be prejudiced by exercising their review right when the review is linked to the determination of a redress application.

In practice, we hope and anticipate that we will very rarely require to use the reconsideration and review processes, because robust measures have been embedded throughout the application process and wider scheme to reduce the opportunity for error and potential fraud. However, the draft regulations aim to ensure that we have suitable mechanisms in place to support people through the reconsideration and review processes if required. They also allow us to respond in a fair and effective manner to all possible outcomes of the processes that are linked to the determination of a redress application.

Although the range of possible outcomes is complex, the principle underpinning the proposed amendments to the act is simple: as far as possible, we wish to put an applicant back in the position that they would have been in, had no error occurred.

That may mean that an applicant is offered a different redress payment than the sum that they have been offered or have accepted previously, or that they may benefit from a fresh offer where an error has led to them not being given one before. In those scenarios, we intend that applicants will be given the option to do what is right for them, with the benefit of legal advice, by either accepting or rejecting the new offer.

The waiver is a key, and much debated, aspect of the act. It is essential that the way in which the waiver operates is fair. The draft regulations therefore seek to amend section 46 of the act on waiver. The effect of the proposed amendments is that, where an applicant is issued with an updated or fresh offer of a redress payment following a reconsideration or review, the waiver linked to that offer will reflect the contributor list at the time when the offer should have been made, rather than at the date of the offer itself. That will ensure that, where the offer is accepted, survivors do not miss out on any opportunity that they would otherwise have had to raise civil proceedings.

When a person has already signed a waiver to accept a redress payment offer that has changed following the reconsideration or review process, we consider that it is only fair that they have the opportunity to reconsider their choice and receive legal advice at that critical stage in the process.

We have therefore made provision for that and have ensured that, if a person is content to accept a new offer, the waiver that was signed to accept their original offer will remain in place. If they decide that accepting the new offer is not the right option for them, they will be able to reject it, and any waiver that was signed to accept the original offer will be rendered of no effect.

In the interests of fairness, we have also made provision for a waiver to be rendered of no effect where it is determined that a person ought not to have been offered an award under the scheme.

As I have stressed, the draft regulations ensure that people have access to support and advice, along with the provision for the payment of legal fees and the reimbursement of costs and expenses. That will allow them to fully understand and engage with the reconsideration and review processes and to make the choices that are right for them.

The draft instrument is the final one in a package for the implementation of the redress scheme, and I welcome and appreciate the cross-party support that has ensured that we have delivered the scheme that survivors deserve. I hope that I have provided members with a sufficient overview of the instrument, and my officials and I welcome any questions that the committee may have.

The comments that I have placed on the record are an adequate contribution to the explanation of the instrument.

Motion moved,

That the Education, Children and Young People Committee recommends that the Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 be approved.—[John Swinney]

Motion agreed to.

Ian Mitchell might want to comment on that point but, in the investigation process, we neither prescribe nor prohibit that. That it is the best way to say it. We will give the issue further consideration and, perhaps, discuss with individuals who have had experience of such processes to gauge their reaction.

We hope to be able to operate within the timescale that I set out, but I suppose that I have to insert the caveat that we are dependent on a lot of dialogue with external parties, which might not come in the timescale that we envisage. Obviously, I will keep the committee updated on progress on those questions.

I understand that.

It is difficult to be precise, but the process is set out in a fashion to encourage the swiftest movement through each stage, while giving individual parties the appropriate time to formulate their views. For example, it is envisaged that the initial contact and assessment stage, in which the Government judges whether a complaint is within the scope of the policy, will be undertaken very timeously. An individual member of staff would not wait a long time to hear whether the issue that they were concerned about would be considered under the auspices of the policy.

Each stage is designed to move at pace, because it does not serve the interests of anybody for there to be anything other than a swift addressing of any issues that emerge.

This is perhaps not the best way to express it but, as an employer, the Scottish Government is not under an absolute duty to report to the police, in all circumstances, matters that it believes might be a crime. That duty is not statutory. However, for the purposes of ethics, if the Scottish Government considered that it had knowledge that a crime had potentially been committed, it would have to seriously consider referring that matter to the police, even if a member of staff—perhaps a victim of that alleged crime—did not want that to happen.

As a Government, we have a particular duty to uphold the rule of law. In those circumstances, we have to be candid with staff. Although staff might say that they do not have space in their lives for an issue to go anywhere near the police, the Government has to reconcile different considerations and is under an ethical duty to think deeply about whether reporting to the police is appropriate.

Absolutely.

We are anxious to ensure that matters are handled very much within the space of employment practice. Obviously, if an individual wishes to pursue some other grievance against the organisation, it might well be appropriate for them to have legal representation, but the setting of this policy is very much in the context of employment-related activity, where support for the individual’s employment or personal position is the prerequisite of the support that has been identified.