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That will be the case. The regulations contain a power of discretion as to whether consideration should be given to the response to a potential error that has emerged. In other words, there is no obligation in the regulations to take such a course, but there is provision for consideration of any steps that might be taken in that respect. Of course, the issue that Mr Mundell has raised would be material to such a consideration.

Thank you, convener, and thank you to the committee for inviting me to speak in support of the affirmative instrument that is before you.

Section 97 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 makes provision for the recovery by the Scottish ministers of payments other than redress payments that were made due to a “relevant error”. The payments to which section 97 applies include those made in respect of expert reports, payments made by way of reimbursement of costs and expenses, and legal fees in connection with a redress application or a proposed application.

A “relevant error” can be either an error that occurs when making the payment—for example, an administrative mistake—or an error that ministers consider materially affected the decision to make the payment. That situation may arise in a case where the decision to make the payment was simply wrong, or where that decision was right but the information on which it was based was incorrect or misleading.

The draft regulations provide for reconsiderations of decisions to make the payments mentioned in section 97(2) of the act where an error, as defined in regulation 2, may have been made. The reconsideration is to be conducted by a panel of at least two members of Redress Scotland. Before it takes place, the beneficiary of a payment will be given eight weeks to make written representations to the panel. If the panel finds that the decision was materially affected by error, it must redetermine it on the basis of how it would have been decided had the error not been made.

We hope that, in practice, the process will rarely be used. It will be invoked only in cases in which there is cause to believe that there has been material human error or it is thought that a decision to make a payment may have been materially affected by error because it was based on misleading or incorrect information.

It is important to note that, when there is an error in making a redress payment, it does not follow that all decisions to make payments linked to it are materially affected by error. For example, legal fees may have been paid to a solicitor in making a redress application for a person who is offered a redress payment. If it later comes to light that the application was fraudulent and no redress payment should have been made, the decision to pay the solicitor’s legal fees will not be referred for reconsideration unless it is suspected that the solicitor had also fraudulently claimed the fees.

In the interest of fairness, the draft regulations include a right to review the outcome of a reconsideration process. If a review is requested, it is to be determined by a panel of Redress Scotland that is different from the one that conducted the reconsideration. A person who requests a review is able to provide further information and written representations to the review panel.

As the committee will be aware, the importance of sound processes and fraud prevention measures was considered throughout the development of the 2021 act. That is why we have put in place measures to ensure that appropriate financial recovery is available where payments have been made in error. The draft regulations supplement that work and set out the detail of how potential errors in non-redress payments will be considered.

I seek the committee’s support for the draft instrument, which is part of our preparations towards launching the scheme.

I am happy to answer any questions.

That is unlikely. I cannot rule it out in all circumstances, but it is more likely that it will be solicitors, psychologists or providers of some form of service who will be in question. However, as Mr Mundell has pointed out, due consideration must be given to the potential impact on survivors of any reawakening or reconsideration of a particular case. Mr Mundell has actively participated in the debates on the redress legislation, but we all know the damage that has been done to survivors and how difficult and challenging they find this process, and I want to assure the committee that I do not view the application of the regulations with any automaticity. We have to exercise the regulations with care, and one of the issues that has to be considered is the very valid point that Mr Mundell has just put to me.

That is correct. We expect to lay those regulations shortly and will perhaps put them before the committee some time in the new year.

Mr Ewing has put to me three substantive questions, all of which are absolutely legitimate.

On the first question, we have not undertaken any modelling of expectations of fraud. We have undertaken modelling of the number of applications that we consider it likely that we will have to deal with in the scheme. That modelling information is enhanced by our experience of the advance payment scheme, which has given us a sense of the likelihood of applications coming forward. Therefore, there has been modelling, which has underpinned the financial memorandum for the scheme. The modelling also influences the discussions and dialogue that we have with providers of care, to whom we are looking to provide financial contributions to the scheme.

We have not carried out modelling of the likely quantity of cases that might be affected by error. The reason is that the instrument is about creating a proper architecture for financial control and giving financial assurance about the operation of the scheme. An entirely new scheme is being created, so we have to ensure that we have the appropriate financial architecture in place. The instrument is one element of that architecture.

Mr Ewing’s second point is about the threshold of evidence. During the committee and chamber deliberative processes relating to the act, we discussed the issue extensively. The question is finely balanced, because the redress scheme is available to members of the public who have suffered abuse but who are likely to be unsuccessful in pursuing a claim through the civil courts.

If it is possible for an individual to pursue their claim through the civil courts—and if it is their judgment that the claim is strong and valid—they should do so, and sufficiency of evidence will be a critical factor in that respect. The scheme is predicated on a lower standard of proof than that in the courts, but that standard is still of sufficient credibility to enable a judgment to be made in each case. That has to be accepted in good faith, but, if we find that that is not the case, we will need remedies, and the regulations are therefore appropriate in that respect.

Lastly, we have engaged extensively with a range of schemes across not just the United Kingdom but the world to identify any lessons to be learned from their administration and organisation, and we have taken a lot of that learning into the design of the legislation that the Parliament has considered and passed. The provisions under consideration are our assessment of the legitimate provisions that must be in place to ensure that the scheme is robust and workable.

I completely understand Mr Mundell’s point, but I can clarify that the regulations that are before the committee relate not to redress payments to survivors but to legal fees and psychology reports and other relevant circumstantial reports where costs might have been incurred in error. The other instrument that I mentioned in my answer to Mr Ewing will look at the question that Mr Mundell has raised, and we will have an opportunity to air some of these issues again when those regulations come before the committee.

No—in fact, I would say the opposite, convener. It might be that there was an error in the process that requires specific action to be taken in relation to the process, not necessarily to the payment that has been made. However, there could of course be a relationship between the two.

I think that I have said all that I need to say this morning, convener.

Motion agreed to.

It is not a word that I often use about this matter, but I felt it appropriate to use it now. I think that the Christie commission report is highly ethically based—it certainly had a profound impact on me. At the time we commissioned it, a great debate was going on about the proper role of public services. The Christie commission might not have used the word “ethical”, but it provided us with an ethical justification for the maintenance of public services. As I have said, there was a great debate at the time over whether everything should just be privatised, the degree of private involvement and so on.

I thought it appropriate to use the word “ethical” now, because when I look at some of the issues that we have been wrestling with for some time now—for example, fair work, the transition to a green economy and the more sustainable use of resources—I think that they reinforce the ethical purpose of the Christie commission.

I think that that is a legitimate question, although the issue is not just about that. If one is going down the route of exploring these questions, there is an almost philosophical debate that needs to be had about determining the right level for a particular subject. With some of the issues that I still wrestle with around child protection, for example, some very sophisticated knowledge is required. We have to be certain about the approaches to child protection in all localities in the country. Clearly, we do not have a national system of child protection, but we have to be satisfied that the right level of child protection exists in every locality. Local authorities have populations that range from 25,000 to 1 million, and they support different levels of expertise to enable us to be assured that the right level of protection is available in all circumstances.