Item 2 is stage 2 proceedings on the Apologies (Scotland) Bill. Members should have their copies of the bill, the marshalled list and the groupings of amendments.
I welcome Margaret Mitchell, the member in charge of the bill, and Scottish Parliament officials. I also welcome Paul Wheelhouse, Minister for Community Safety and Legal Affairs, and his officials. This is not an evidence session, so the officials are here not to answer any questions but just to give moral support where required.
Section 1 agreed to.
Section 2—Legal proceedings covered
Amendment 2, in the name of the minister, is grouped with amendments 3 to 9.
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.
Thank you. Does any other member wish to speak?
My only question is about amendment 7. Are there any downsides to the retention of section 2(2)? The upside seems to be that it provides absolute clarity and simplicity. The minister’s explanation was that removing the section provides clarity, but it could be argued that retaining it would provide greater clarity. Perhaps the minister could comment on whether there are any downsides when he winds up.
Amendment 3 mentions the Inquiries Act 2005, which is a piece of United Kingdom legislation that specifies that inquiries may be set up by certain ministers, including UK ministers. Obviously, they are not subject to the bill, but the 2005 act also mentions the Scottish ministers, Welsh ministers and so on. Would the bill cover inquiries that the Scottish ministers set up under the 2005 act?
I put on the record that, as my entry in the register of members’ interests states, I am a member of the Faculty of Advocates.
I support the comments of my colleague Gavin Brown. I would be grateful to hear the minister’s response.
Before I ask the minister to wind up, I call Margaret Mitchell.
I take this opportunity to sincerely thank the minister and his officials for working constructively with me to reach this stage. I hope that the amended bill will, in the main, meet the aims that we both want to achieve.
Section 2 sets out the legal proceedings that are covered by the bill. Essentially, it applies to all civil proceedings subject to two exceptions, namely defamation and fatal accident inquiries. Amendment 5 updates the reference to take account of the most recent FAI legislation.
During stage 1 consideration of the bill, it became apparent that witnesses and respondents felt that the exceptions should be extended to include a number of other types of proceedings. I indicated at the time that I would be open to considering other exceptions where a case could be made for their inclusion. I will take each proposed exception in turn.
Amendment 3 relates to the minister’s proposed extension to the original list of exceptions to include inquiries set up under specified provisions in the Inquiries Act 2005. My understanding is that the argument in favour of that is that such inquiries are held to establish the facts and not for any probative value. The minister has advanced the argument that such apologies should therefore be included in order to ensure that such proceedings are not undermined. I confirm that I accept that.
I think that Elaine Murray now understands, so you have got a hit there.
Yes—my question has been answered.
All right. Thank you.
However, I would welcome a clarification from the minister of the intention behind the proposed exception. In particular, I would be grateful if he would give his views and an assurance on how it would operate in relation to the inquiry into historical child abuse. He will be aware that one of my key reasons for introducing the bill stems from my work with the cross-party group on adult survivors of childhood sexual abuse and the recognition of the benefits of an apology being given without the fear of it being used as a basis for establishing legal liability.
Amendment 4 exempts proceedings under the Children’s Hearings (Scotland) Act 2011. Having had discussions with representatives from the Scottish Children’s Reporter Administration, I recognise that children’s hearings are complex in nature and are established for a range of purposes, some of which the minister covered this morning. I am therefore persuaded that court proceedings under the 2011 act should be added to the exceptions.
Amendment 6 provides that the provisions in the bill do not apply to apologies under the duty of candour procedure in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. Here, a different approach to apologies is to be legislated for. An apology that is made under the duty of candour procedure in that bill will not in itself amount to an admission of negligence or breach of statutory duty, but it would be admissible and could be founded on in legal proceedings.
Although I have reservations about how successful making an apology admissible there would be, I recognise that the Government’s intention is to proceed in that way and that, as the Justice Committee stated in its stage 1 report, it is difficult to see how the bill and the duty of candour provisions could co-exist without some form of exception. I agree and hence am also content with that exception.
10:15The other amendments in the group—amendments 2, 5, 8 and 9—are in the main consequential amendments as a result of those exceptions, or tidying-up technical amendments.
It is to be hoped that, as the bill is established, the number of exceptions could be kept to a minimum in an effort to ensure that it remains as straightforward as possible. Some may even be removed using the power to do so that is provided in section 2(3), which allows the Scottish ministers to modify exceptions to the bill by means of regulations. That would clearly be some time in the future.
I note that amendment 7 would remove the reference to criminal proceedings. That provision was included in the bill for the avoidance of doubt and to make it absolutely clear that the bill does not apply to such proceedings. I fully appreciate the Scottish Government’s position that section 2(2) is unnecessary and that it is not essential to set it out in the bill, but as the provision is in the bill, removing it may cause confusion. I therefore wonder whether there would be any harm in allowing it to remain there. At the very least, it would certainly be helpful to have confirmation on the record that there is no intention to cast doubt on the non-application of the act to criminal proceedings.
In conclusion, I confirm that I am content with amendments 2 to 6, 8 and 9.
I have listened to the points that have been made by Gavin Brown, Roderick Campbell and Margaret Mitchell and am happy not to move amendment 7, if that would make members more confident about the clarity of the bill.
In response to Dr Murray’s point and Margaret Mitchell’s response, 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 purpose is to exclude inquiries that are held by the Scottish ministers under section 1 of the 2005 act, that they convert under section 15 of the 2005 act and that are held jointly by two or more ministers where the Scottish ministers are one party from the application of the legislation. The effect of that would be that an apology that was given in the context of an inquiry or a joint inquiry that the Scottish ministers caused to be held under section 1 of the 2005 act or which they had converted under section 15 of the 2005 act would be admissible as evidence in those proceedings. I hope that that puts on the record our understanding of what that amendment would mean in practice.
I want to address the point that Margaret Mitchell made about amendment 2. I appreciate that the issue is of great interest to Margaret Mitchell, who has had a long-standing interest in those matters. I understand the importance to many survivors of historical child abuse of hearing an apology—I have heard testimony to that effect—but as section 2(1) of the Inquiries Act 2005 states:
“An inquiry panel is not to rule on, and has no power to determine, any person’s civil or criminal liability.”
Instead, as members will know, an inquiry panel is on a fact-finding exercise to establish a full picture of events that have caused public concern. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone. Part of that function may include the hearing of an apology and an associated undertaking that may demonstrate that a person or a company has shown insight into past failings and has taken steps to prevent a recurrence. I do not take the view that it would be in the public interest to prevent such evidence being heard in the context of a public inquiry. Not exempting inquiries from the scope of the bill would limit the independence of the inquiry to make its own decisions on what is in the public interest and what can be used as evidence. The bill would still prevent a simple apology from being used in the civil courts as evidence of liability. For those reasons, the amendment is necessary at this point.
Amendment 2 agreed to.
Amendments 3 to 6 moved—[Paul Wheelhouse]—and agreed to.
Amendment 7 not moved.
Amendments 8 and 9 moved—[Paul Wheelhouse]—and agreed to.
Section 2, as amended, agreed to.
Section 3—Definition of apology
Amendment 10, in the name of the minister, is grouped with amendment 1.
As discussed at stage 1 and as reflected in the stage 1 report, there has been an overriding concern that the benefit of hearing an apology may be outweighed by the inability to use it as evidence in any civil proceedings. In particular, the committee noted in its stage 1 report that
“the definition of apologies must be reconsidered”.
I reflected on the stage 1 evidence and my officials and I undertook further work to try to ascertain whether removing the reference to “fact” and “fault” from the definition would alleviate concerns about any potential injustice to pursuers. I am of the view that amendment 10, which will remove “fault” from the definition of apology, is necessary because in our largely common-law-based adversarial system it is for courts to determine liability in actions for damages.
Making expressed or implied admissions of fault inadmissible because they are preceded by an expression of regret would not strike an appropriate balance. Some jurisdictions, including New South Wales, on whose legislation the bill is based, have largely replaced the common law of negligence with statutory no-fault compensation schemes. In such a context, apologies legislation does not present the same challenges. When fault is not at issue, apologising for causing injury does not put the person who caused the injury in a worse position. As I noted, making admissions of fault inadmissible as evidence in a largely common-law-based adversarial system presents concerns about access to justice for pursuers. That was clear from the evidence from the Faculty of Advocates and the Association of Personal Injury Lawyers at stage 1.
Ronald Conway of APIL explained that
“The first thing that any justice system has to do is to get at the truth.”
If “admission of fault” was retained in the definition of an apology, it would, in his words, remove an
“extremely powerful and persuasive piece of evidence.”—[Official Report, Justice Committee, 9 June 2015; c 5.]
He gave the example of a road traffic accident, but there are other scenarios where injustice could arise in cases where an admission of fault was the only means of demonstrating liability for the harm caused. A pursuer would be unable to succeed in an action for damages if “fault” remained part of the definition.
As I explained to the committee previously, one of my main concerns was about the evidential hurdles that survivors of historical child abuse can face when they seek to progress a court action. Preventing the use of an admission of fault in the way proposed in the bill could add to their evidential burden.
For those reasons, I remain of the view that there is a real risk that retaining “admission of fault” in the definition of an apology could cause injustice to pursuers. As we heard in evidence at stage 1, making admissions of fault inadmissible would take away from people rights that they currently have.
In its stage 1 report, the committee made it clear that it must be reassured that individuals who wish to pursue fair claims will not be disadvantaged by the measures in the bill. In an effort to work constructively with Margaret Mitchell, I have undertaken further inquiries into the impact of protecting a simple apology, which is what we would get if the definition was amended to remove references to “fault” and “fact”. Having listened to stakeholders, I have been persuaded that, if the definition is amended to remove “fault” and “fact” and the necessary exceptions are provided for in section 2, the concerns about access to justice that have been raised will be addressed. I trust that, if amendments 10 and 1 are agreed to, they will provide the committee with sufficient reassurance that the concerns about access to justice that were voiced during stage 1 have been addressed.
I should make it clear that, along with amendment 1, which will remove “statement of fact” from the definition, which I support, amendment 10 being agreed to is key to my continued support for Margaret Mitchell’s bill.
I move amendment 10.
Section 3 sets out the definition of an apology. As it stands, that definition is broad—my intention was to set out the fullest possible definition of an apology. Included within the apology could be an admission of fault, statements of fact or an undertaking to look at the circumstances that gave rise to the incident to which the apology relates.
Although all those elements are protected from being admissible in the proceedings to which the bill applies, I fully expected those provisions to be tested during the committee’s scrutiny of the bill. In particular, I recognise that by including statements of fact in the definition of an apology, the bill goes much further than any other apologies legislation. The argument for their inclusion is that there is virtually always another way to prove such facts if necessary.
However, I fully accept that there may be occasions on which the statement of fact within an apology might be the only evidence available. During the stage 1 debate I confirmed that I was persuaded that the definition in the bill could be revised to remove the reference to “a statement of fact”. Amendment 1 addresses that point.
Amendment 10 seeks to remove admissions of fault as one of the elements that is protected from being admissible and it addresses the minister’s concern that the bill as drafted could have the unintended consequence of causing injustice to some pursuers.
I have argued that to admit fault regardless of whether one is actually at fault is a natural thing to do in the context of giving an apology and that, furthermore, an admission of fault is not the same as an admission of liability, let alone an admission of negligence. However, I accept that that is a legal distinction and that the minister and many others who gave evidence were not persuaded that an admission of fault should be included in the definition of an apology. I previously indicated that I was open to being persuaded that the removal of the reference to “admission of fault” was required to address the fears that were expressed at stage 1. I now confirm that I recognise that to be the case and that I am therefore content with amendment 10.
The definition of an apology is of course an essential part of the bill. The only remaining element of it, beyond a simple apology, is a commitment to review matters, which will still go some considerable way towards providing closure for the recipient and encouraging the apologiser to make a more meaningful apology in the first place.
Does any other member wish to comment?
I have listened to what the minister and Margaret Mitchell have said and I think that the minister is wise to have taken on board the comments of not only Mr Conway of APIL but the Forum of Insurance Lawyers and the body of which I am a member, the Faculty of Advocates. I think that the amendments are the right way forward, although I am not fully persuaded that it is appropriate to leave section 3(c) in the bill—I want to put that on record because that subsection is not being amended today.
I invite the minister to wind up.
I am happy to leave it at that, convener. I note Mr Campbell’s concern, but I believe that we have struck a fair compromise, which I hope will deliver the culture change that Margaret Mitchell seeks through her bill and protect any victims of abuse and other individuals who need to take forward a case from concerns about access to justice.
Amendment 10 agreed to.
Amendment 1 moved—[Margaret Mitchell]—and agreed to.
Section 3, as amended, agreed to.
Section 4 agreed to.
Section 5—Commencement
Amendment 11, in the name of the minister, is in a group on its own.
Amendment 11 will change the commencement of the act from a fixed period—six months from the date of royal assent—to commencement by way of regulations. The amendment is in line with Scottish Government policy.
The proposed change will allow flexibility with regard to when the act is commenced, which may be important if the Scottish ministers consider making regulations under section 2(3). Given that dissolution commences on 24 March, it is important that sufficient time is provided to enable parliamentary scrutiny of any such regulations.
Given the collaborative manner in which I have worked with Ms Mitchell, I trust that she will be content to work constructively to commence the bill by way of regulations.
I move amendment 11.
As the bill currently stands, the new legislation will automatically come fully into force six months after royal assent.
Amendment 11 provides for the act to come into force by way of regulations on a date to be appointed by Scottish ministers. I note what the minister says, and I look forward to working with him, but I should greatly appreciate a commitment from him that, if possible, the whole act will come into force within six months of royal assent and, if that is not possible, that it will come into force no later than a year after royal assent.
I think I will just leave the two of you to agree things, as you are getting on so well. A collaborative, smiley approach is being taken. Minister, would you respond to Ms Mitchell, who is smiling again?
I can assure Ms Mitchell that, if I am here in a year’s time, I would hope that the legislation will have been implemented.
We have worked collaboratively on the issue, convener. I hope that it is just a matter of practicalities to avoid a clash with dissolution. I do not have a strict timetable, but I take Ms Mitchell’s point. We want to see the culture change happen as soon as possible.
Thank you very much.
Amendment 11 agreed to.
Section 5, as amended, agreed to.
Section 6 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank the member in charge, Margaret Mitchell—it was a successful outing for you, Margaret. I also thank the minister. I am sure that he and Margaret Mitchell have more happy little meetings ahead, because it all seems to be going swimmingly.
10:31 Meeting suspended.