The amendments in this group reflect the need to ensure that the bill does not have unintended consequences. As the committee will be aware, I have expressed concerns regarding the potential for restricting access to justice for pursuers and how the bill would interact with other legislation.
Based on further discussions with the member in charge and on further work such as engaging with the legal profession and listening to the views of key stakeholders—including survivors; we have all been concerned to hear from them—I am now satisfied that, if the bill is amended as Margaret Mitchell and I propose, it will strike an appropriate balance between promoting apologies and minimising any unintended consequences.
The amendments in this group, along with the amendments to the definition in section 3, are key to striking that balance. Amendment 3 excepts
“inquiries (including joint inquiries) which the Scottish Ministers cause to be held under section 1 of the Inquiries Act 2005 or which they convert under section 15 of that Act into inquiries under that Act”.
The rationale for the amendment is the same as that which Margaret Mitchell provided for excluding fatal accident inquiries from the scope of the bill. As Ms Mitchell clearly outlined in the policy memorandum to the bill, such an exception would
“take account of the public interest in ensuring that all relevant evidence may be led”.
An inquiry is not about liability; it aims to provide a complete picture of what has happened. The same reasoning can be applied to public inquiries in Scotland. It is for the inquiry chair to determine what information is relevant to the inquiry and to examine that information to inform the recommendations and conclusions.
In that context, the giving of an apology is likely to be a pertinent piece of information, and the ability of the inquiry chair to consider that should not be restricted by the bill. That applies even if the bill is amended to remove fact and fault from the definition of apology, since information regarding whether a simple apology was made may be in the public interest.
When an independent public inquiry is established, it is often to ascertain what happened and why, and identify what can be done to prevent such an event happening again. In this context, the giving of undertakings is often critical to the considerations of the chair to an inquiry. Undertakings form part of the definition of an apology in the bill and would therefore be inadmissible as evidence in the inquiry. Such information may influence any recommendations resulting from an inquiry, and it is therefore important that the bill does not limit the information that the inquiry can draw upon in this regard.
Amendment 4 excludes proceedings under the Children’s Hearings (Scotland) Act 2011, either before a court or a children’s hearing, from the scope of the bill. As you may recall, in their written evidence to the committee, the Scottish Children’s Reporter Administration strongly urged the committee to exclude proceedings under the 2011 act from the scope of the bill. They stated:
“If children’s hearing court proceedings were not excluded from the bill’s scope, there would be potentially significant consequences for the children’s hearings system, in relation to both child protection and youth justice concerns”.
They shared examples referring to an adult apologising during a police interview and an apology made by a child for committing an offence. If proceedings under the 2011 act were not excluded from the bill’s scope, those apologies may not be available as evidence to establish grounds of referral. That might remove the legal basis to bring a child before a children’s hearing or for a court to establish grounds of referral, and therefore the ability to impose appropriate measures of supervision and protection. That could have a direct impact on the children’s hearings system in Scotland.
The SCRA has made the point that, when children committing offences are dealt with through a civil procedure, the standard of proof is that of beyond reasonable doubt. They are of the view that, for the same reason as criminal proceedings are excluded from the bill’s scope, proceedings relating to offence grounds of referral under the 2011 act should also be excluded. The SCRA has written to the committee and confirmed that they remain of the view that proceedings under the 2011 act should be removed from the scope of the bill even if admissions of fault and statements of fact are removed from the definition of apologies.
Amendment 6 excludes apologies given in the context of the duty of candour procedure under the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill from the scope of the bill. As the duty of candour procedure is not itself a form of civil proceedings, the amendment inserts new section 2(1A), exempting such apologies.
The effect of the amendment is to remove apologies made in the context of the duty of candour procedure from the scope of the bill. As was discussed in the course of the stage 1 evidence and in the stage 1 report, the reason for the amendment is to remove the inconsistency that exists between the bill and the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill in terms of how apologies are treated as evidence.
An apology made in the context of the duty of candour procedure does not of itself amount to an admission of negligence or a breach of a statutory duty. The bill would sit at odds with the targeted legislation on the duty of candour procedure in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill and therefore apologies made in the context of the duty of candour procedure should be exempted from the scope of the bill.
I understand that Ms Mitchell has been persuaded that there is a need to make this exemption.
Amendment 2 is a technical amendment to remove any ambiguity that may be created by the inclusion of examples of proceedings. I understand from Ms Mitchell that the wording was intended to provide clarity by indicating what types of proceedings would be covered by the bill. In my view, the inclusion of a non-exhaustive list of proceedings creates ambiguity and is unnecessary. Moreover, as noted earlier in relation to amendment 3, I am seeking to exempt inquiries from the scope of the bill and that is currently one of the categories of proceedings given as an example.
As noted in the explanatory notes to the bill, “all civil proceedings are covered”, subject to the exceptions set out in section 2. On the basis that civil proceedings for the purposes of this legislation simply mean legal proceedings that are not criminal, there would not appear to be a need to set out examples of the proceedings covered.
Amendment 5 is a technical amendment which replaces the reference to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 with what we expect will be the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, the bill for which has passed stage 1.
Amendment 7 is also a technical amendment. It removes section 2(2). The provision is unnecessary since it is already clear that the bill applies only to civil proceedings. By removing superfluous information, the amendment provides clarity.
Amendments 8 and 9 are technical amendments that extend the power of the Scottish ministers to modify the exceptions to include modifying new section 2(1A), created by amendment 6. Amendment 9 does not otherwise extend the Scottish ministers’ power under section 2(3) to make exceptions by way of regulations.
I move amendment 2.