I am pleased to open this debate on my Apologies (Scotland) Bill.
I thank the Justice Committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their considered scrutiny of the bill. In particular, I thank the Justice Committee for supporting the legislation’s general principles and recognising that it could have a role to play in changing cultural attitudes towards apologising.
I also thank the Minister for Community Safety and Legal Affairs, Paul Wheelhouse, and his officials for the constructive discussion about my bill. I am encouraged that the minister supports its aims, and I look forward to working with him in the future in the event of my bill being supported today.
My initial interest in seeking to introduce apologies legislation stemmed from my work as convener of the cross-party group on adult survivors of childhood sexual abuse. Approximately five years ago, Professor Miller, the chair of the Scottish Human Rights Commission, came to speak to the CPG and told its members that some Parliaments had passed legislation to ensure that an apology could be given without fear of its being used as a basis for establishing legal liability. He spoke about the benefits that can flow from giving an apology and explained that apologies are more readily given when there is protection from apologies being used in future legal proceedings.
It was with adult survivors of historical childhood sexual abuse in mind that I undertook further research on apologies legislation. There is absolutely no doubt that those incredibly brave individuals deserve to have every effective remedy possible to help them gain access to justice.
The aims of the bill are twofold: to encourage the use of apologies by providing legal certainty that an apology cannot be used prejudicially against the person who gives it; and to encourage a change in attitudes towards apologising and a cultural and social change in relation to giving apologies.
At this point, it is important to stress that the aim of the bill is not, as the personal injury lawyers mistakenly seemed to think, about tackling any perceived increase in litigation; instead, it seeks to address the very real problem of the reluctance and failure to offer apologies for fear of litigation.
At some point, every member in the chamber will have had the experience of a constituent coming to them about a problem or something that has gone wrong and all that the person wants is, quite simply, an apology. Having established the aims of the bill, it became evident that its application should not be restricted to survivors of childhood abuse, but that it should have a wider application.
In his annual report 2013-14 “Transforming Scotland’s Complaints Culture”, the Scottish Public Services Ombudsman encouraged public officials to resolve
“things early at the frontline, including ensuring apologies are given freely and action taken where things go wrong”.
The bill supports that aim, and its wider application is exemplified in the same report, where the SPSO reveals that, in 2014, the total number of complaints received was 4,456, of which 1,750 were related to the local authority sector and 1,379 were related to the health sector. When combined, those two sectors made up 70 per cent of the total.
There is a reasonable expectation that the bill, by providing certainty about the legal consequences of offering an apology, would help to prevent complaints from being made in the first place. However, it is important to emphasise and understand that the protection offered by the bill would not prevent the recipient of an apology from going on to pursue legal redress.
Essentially, the bill would apply to all sectors and civil proceedings, but not to criminal proceedings. It would provide legal protection to an expression of apology so that it could not be used as evidence in certain civil proceedings.
The bill would apply to all types of apology, including those that contain an admission of fault, a statement of fact and/or an undertaking to look at the circumstances to prevent a recurrence. Under the bill as introduced, any or all of those elements would be deemed to be part of the apology.
I thank the Justice Committee for its scrutiny and careful consideration of the views both for and against the bill, which it gathered from written submissions and oral evidence. I also welcome the minister’s support for the bill in principle.
Although I am a member of the Justice Committee, I was not part of its deliberations on the bill. However, when I gave evidence to the committee, and subsequently in discussion with the minister, I indicated that I was happy for the bill to be developed further where there is a reasonable case for doing so.
I have listened closely to the witnesses’ arguments, including those of the minister, about whether the effect of parts of the definition could possibly prevent an individual from securing compensation, particularly if a statement of fact in an apology was the only evidence available. I included statements of fact to try to encourage the fullest possible apology, but I am aware that their inclusion in the definition goes further than any other apology legislation. I have reflected on witnesses’ concerns and can confirm that I am persuaded that the definition in the bill should be revised to exclude statements of fact.
On the inclusion of the protection of an admission of fault in the definition, it is important to recognise and understand that an admission of fault is not the same as an admission of liability. Nonetheless, there has been a lot of confused thinking on the issue. However, given the concerns raised, I am, as I have indicated, happy to look at the matter again at stage 2.
On the legislative context of the Apologies (Scotland) Bill within the United Kingdom, Scotland does not have a statutory framework that deals specifically with the effect of apologies on civil or criminal liability. In England and Wales, section 2 of the Compensation Act 2006 offers a degree of apology coverage. It states:
“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”
Under the proposed duty of candour procedure for health and social care professionals in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which the Health and Sport Committee is scrutinising, an apology does not of itself amount to an admission of negligence or a breach of statutory duty. However, an apology could subsequently be taken into account in court proceedings. In effect, the wording in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill reflects that used in the Compensation Act 2006.
The Justice Committee found it difficult to see how the provisions in the Apologies (Scotland) Bill could co-exist with the duty of candour provisions in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill without some form of exception for health matters. Although I am reluctant for such an exception to be made, I accept the committee’s reasoning.
Witnesses raised a range of other exceptions in oral and written evidence. I do not have time to expand on those in detail; suffice it to say that I accept the committee’s view that there are strong arguments for other exceptions to be made, including in relation to children’s hearings, public inquiries and arbitration, tribunal and pre-action protocol proceedings. However as the committee noted, if the definition of “apology” is amended during the bill’s passage, some of the suggested exceptions might not be required.
Since the Justice Committee published its report I have had a useful meeting with the minister, at which he expressed concern that the bill might inadvertently disadvantage pursuers. He suggested that the solution might be to omit the provision that would prevent an apology from being admissible in evidence, thus bringing the bill closer to the Compensation Act 2006 model.
Following the meeting, I sought a further view from Professor Alan Miller, and I am encouraged that he remains decidedly of the opinion that making an apology inadmissible as evidence is central to making apology legislation effective. I have written to the minister, attaching a copy of Professor Miller’s letter. I hope that other members have had a chance to see the letter.
I look forward to working with the minister to refine my bill as it progresses. If there is goodwill on all sides, I am confident that we can deliver apologies legislation that is workable and makes a difference, while addressing some of the concerns that were raised during stage 1.
I move,
That the Parliament agrees to the general principles of the Apologies (Scotland) Bill.
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