Thank you for giving me the opportunity to make a few brief opening remarks about the Apologies (Scotland) Bill.
One of the main purposes of the bill is to address the apparently entrenched culture in Scotland, as one witness put it, to
“Never apologise—don’t say sorry for anything.” —[Official Report, Justice Committee, 9 June 2015; c 18.]
The bill is not intended, as some people mistakenly thought, to tackle any perceived increase in litigation, but rather to address the very real problem of a reluctance and failure to offer an apology for fear of litigation. The bill seeks to provide legal certainty that an apology cannot be used as evidence of liability in certain legal proceedings.
I first became aware of the existence of apology legislation when Professor Miller, the chair of the Scottish Human Rights Commission, spoke to the cross-party group on adult survivors of childhood sexual abuse way back in April 2010. He talked about how some Parliaments had passed laws to ensure that an apology could be given. I am heartened that he remains supportive of the bill. He is of the view that a generic apology in the context of historical child abuse should not be admissible, and that an apology law is an important element among a range of remedies to which—along with improved access to justice—survivors are entitled.
A meaningful apology includes recognition of what has gone wrong and an assurance that the circumstances will be reviewed. In the case of survivors of historical in-care abuse, it includes the state putting in place arrangements to ensure that the abuse is not repeated. With that in mind, I sought to provide the opportunity for the widest possible disclosure, so that victims of historical abuse and others would receive both an acknowledgement of the wrong done or bad outcome and the full explanation that they sought.
The application of the bill is not restricted; it is wide ranging. It applies to civil proceedings in the public, private, third and voluntary sectors. After much deliberation, I arrived at a definition of “apology” that contains protection for statements of fact and fault.
Evidence to the committee has focused on whether the effect of the bill could be, in certain circumstances, to prevent an individual from securing compensation, in particular when a statement of fact within an apology might be the only evidence available.
I am aware that there is a balance to be struck to ensure that there are no unintended consequences of injustice to pursuers. That has been a consistent concern of the minister, and I thank him for his willingness to engage and to remain open minded about the bill, which he supports in principle.
Having listened carefully to what witnesses and the minister have had to say, I am persuaded that the wording of section 3(b) on statements of fact could be omitted from the bill.
Stage 1 has provided an opportunity for the robust testing of the bill’s provisions. There is a fear that an admission of fault can in some circumstances lead to litigation. Section 3(a) addresses that problem by removing the legal disincentives. However, I recognise that there may be risks in providing such protections. I also recognise that the minister is not currently persuaded that the harm prevented outweighs the potential risk of harm caused. I will be interested to hear the committee’s views on that. In the end, the issue comes down to a policy decision, and it may well be that I have to accept that the minister remains of the view that inclusion of fault may be a step too far.
If enacted, the omission of sections 3(a) on fault and 3(b) on fact would bring the bill closer to the terms of section 2 of the Compensation Act 2006, which I believe the minister has confirmed that he would be content with. However, section 2 is a single provision within the broader 2006 act, and it does not contain a definition of an apology. My bill would still contain a definition and would provide the ability for the apologiser to indicate that a lessons-learned exercise would be carried out, which is what the pursuer generally seeks. The indication of a possible review would be protected, and that may help to give the apologiser confidence and encouragement to make the apology in the first place.
I confirm that I am keen to continue to engage in further dialogue with the minister on matters of detail in the bill, to which the minister referred during his evidence session last week, and to consider amendments at stage 2 where there is a case to be made for further exceptions.