The next item of business is a debate on motion S4M-14297, in the name of Margaret Mitchell, on the Apologies (Scotland) Bill. I call Margaret Mitchell to speak to and move the motion. Ms Mitchell has no more than 10 minutes.
15:21
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.
15:31
I apologise—no irony intended—for the state of my voice.
I welcome the opportunity to speak to the stage 1 report on behalf of the Justice Committee; I will also reflect on amendments that are promised or likely at stage 2.
I thank everyone who took the time to provide evidence to the committee, which shaped our thinking on the bill. Apologies and how they are used in law is not an area that has crossed our desks before, so we very much valued the views of legal, human rights and mediation experts, local authorities, insurance lawyers and health professionals on how the proposed legislation would affect individuals and groups.
The committee spends so much of its time dealing with criminal law that it was refreshing to cover some civil law for a change—I am looking at the Cabinet Secretary for Justice and the Minister for Community Safety and Legal Affairs. It was good that one of our own committee members introduced the bill, and it was quite fun reprimanding Margaret Mitchell when she started to give evidence instead of asking questions of witnesses. It was good to have some power over her for a change.
In our stage 1 report, the committee broadly supported the general principles of the bill in encouraging the use of apologies in circumstances in which something has gone wrong. We acknowledged that there seems to be a lack of empirical evidence on the success of apologies legislation in various jurisdictions, but on balance we concluded that legislation might have a role to play in changing the culture and people’s attitudes towards apologies—alongside, of course, measures such as guidance and training.
However, we thought that further work is required at stage 2 to ensure that the measures in the bill can work effectively with professional medical standards—which are reserved—and the Government’s proposed duty of candour, which is a provision in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. More important, the committee wanted to be reassured that individuals who want to pursue fair claims will not be disadvantaged by the measures in the Apologies (Scotland) Bill. We made a number of recommendations in our stage 1 report, which aim to improve the bill in that regard.
As we heard, the policy objective of the bill is to encourage the use of apologies by providing that an apology is inadmissible in certain civil proceedings as evidence of liability and cannot be used to prejudice the person who made the apology. The bill also has the broader purpose of encouraging a cultural and social change in attitudes towards apologising.
Although there was general support among witnesses for encouraging the use of apologies, we heard a range of views on whether legislation is the best way to facilitate the cultural and social change in attitudes that is envisioned. Although we received little evidence to convince us that there is a serious compensation or blame culture in Scotland that needs to be addressed, it appeared from the evidence that we received that there is a fear of litigation in certain sectors, which might hinder the use of apologies.
There was also little evidence on the success of comparable legislation in other jurisdictions, which made it challenging for us as a committee to assess the potential impact of the bill.
I think it is fair to say that the definition of “apology” in the bill, which Margaret Mitchell commented on, attracted some concern. Most witnesses felt that it is too wide and that it might have unintended consequences. It covers
“an express or implied admission of fault ... a statement of fact”—
Margaret Mitchell addressed that—or
“an undertaking to look at the circumstances ... with a view to preventing a recurrence.”
Some witnesses said they would have preferred the wording that is used in the Compensation Act 2006, which simply provides that
“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”
There were also concerns about the inconsistency between the definition in the bill and the duty of candour provision in the Scottish Government’s Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which adopts the approach in the 2006 act.
I will give an example of the possible unintended consequences. We heard colourful evidence—as we might—from David Stephenson QC with respect to whether, if someone apologises and includes a statement of fact, they could prohibit evidence. This was his example:
“A husband writes a letter to his wife: ‘Dear Senga, I’m sorry I broke your nose last night and beat the kids on the way out. Genghis.’ Does anybody seriously believe that because that letter starts with the words “I’m sorry” it should be inadmissible in legal proceedings relating to the matrimonial situation, the care of the children and the protection of that woman from her husband?”—[Official Report, Justice Committee, 9 June 2015; c 16.]
Trust a Queen’s counsel to give an example that tells us the problems with the way something is drafted. I note that Margaret Mitchell has reflected on that, and we will see what comes forward.
On the legal proceedings that are covered in the bill, the committee is content that fatal accident inquiries and defamation proceedings should be excluded from its scope, but we heard in evidence that a number of other proceedings should also be exempted. Again, Margaret Mitchell is addressing that. However, it may be that, if the definition of “apology” is amended in the way that some witnesses suggested, some of the proposed exemptions would no longer be required.
We also heard from a number of health professionals who questioned how the bill would interact with their UK-wide professional standards. The British Medical Association, in particular, suggested that there is a real risk that, regardless of the status of an apology in Scots law, the General Medical Council could consider an apology as an admission of fault or evidence of poor performance when pursuing individual cases. We hope that that can be addressed at stage 2 should the general principles of the bill be agreed to at stage 1 tonight.
The committee broadly supports the general principles of the bill, but we have concerns about how it might work in practice, some of which I have highlighted and some of which Margaret Mitchell is already addressing. I am sure that other members of the Justice Committee will pick up on some areas of our stage 1 report that I have not had time to cover. I look forward to hearing other speeches in the debate.
15:37
I thank Margaret Mitchell for her opening speech and the work that she has put into the bill. I commend her for her dedication to the topic and I share her wish to enable a cultural change to encourage the giving of apologies, as I understand that that can be of great psychological benefit to those who feel that they have been harmed.
We should not underestimate the positive impact of a person receiving an apology when they have been wronged. The apology can be a way of showing acknowledgement, respect and empathy for the other person, and although in itself it cannot undo past harms, if it is done sincerely and effectively it can provide some form of redress.
The Scottish Government supports the aim of promoting and encouraging the giving of apologies by individuals and private and public bodies in order to achieve better outcomes for victims. However, I believe that the bill may have a role to play in changing the culture in terms of the prevailing attitudes to apologising more generally.
I highlight the important work that is undertaken in this area by the Scottish Human Rights Commission, which Margaret Mitchell mentioned. It is clear from its work with survivors of historical abuse and from the action points in the SHRC action plan that full consideration should be given to the merits of an apologies law. With that in mind, I am pleased that the Scottish Parliament is giving the Apologies (Scotland) Bill such full consideration. I met Professor Alan Miller last week to discuss the reasons behind his support for the bill and to explore the areas of concern that are raised in the Justice Committee’s report, and I welcomed the opportunity to hear the commission’s views directly.
As we have just heard, the Justice Committee has taken evidence from a range of experts and key stakeholders and it has concluded that it broadly supports the general principles of the bill. I share its view and I confirm my support for the general principles. Having said that, I believe that a fine balance needs to be struck between promoting the general use of apologies in the public interest and protecting individuals’ access to justice, and I share the committee’s concern that the bill, as it is currently drafted, does not strike the correct balance. I welcome Margaret Mitchell’s willingness to work with me, and I look forward to working with her on her bill. I also note the committee’s recommendations for improving the bill at stage 2, which Margaret Mitchell has indicated she has taken on board.
The most important consideration is that individuals who want to pursue justice should not be disadvantaged by measures in the bill. I therefore echo the Justice Committee’s concern that making apologies inadmissible in civil court proceedings could disadvantage pursuers, who would be unable to draw on potentially important evidence to support their case as a consequence of the bill’s drafting. As the committee’s report indicates, that is particularly relevant to survivors of historical child abuse, who often face difficult evidential challenges. As members will be aware, the Scottish Government has set out its intention to remove the three-year limitation period—commonly known as the time bar—for cases of historical child abuse that took place after 26 September 1964. Should the bill be passed, that will remove a significant barrier to justice for a number of survivors. However, I recognise that that would remove only one barrier and that survivors will still face significant evidential hurdles. Removing the ability to use the evidence provided in an apology by rendering such an apology inadmissible may deprive a pursuer of an effective evidential remedy. Legal certainty about the status of apologies is a highly admirable aim, but it should not be achieved at the cost of restricting access to justice for potential pursuers in actions for damages.
The key question in my mind is about how we can promote a climate of open, full and frank apologies—I share Margaret Mitchell’s intention—without disadvantaging individuals who want to pursue a fair claim. I see the merit in the alternative approach that I discussed in my evidence to the committee, which would put the common law in Scotland on a statutory footing along the lines of section 2 of the Compensation Act 2006 in England and Wales, to which Christine Grahame and Margaret Mitchell referred. I will not read out section 2 of that act, but it makes it clear that an apology, in and of itself, might not amount to an admission of negligence or breach of statutory duty. However, although an apology might not, in and of itself, amount to an admission of liability, it may be admissible in court proceedings and, importantly, can be considered by the court alongside other evidence. That enables the court to take into account all evidence when determining liability but does not place undue weight on any apology that is given. Moreover, I propose that, in addition to the terms of section 2 of the 2006 act, a definition of an apology be retained in Margaret Mitchell’s bill, which would thereby go further than the 2006 act. Putting the common law on a statutory footing would provide greater clarity around the law on apologies in Scotland, while raising awareness of the fact that an apology could not, in and of itself, be used to prove liability may encourage more apologies to be made.
I share the Justice Committee’s concern about how the bill will work effectively with the provisions relating to the duty of candour in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which is currently being considered by the Parliament. The duty of candour provisions in that bill create a statutory requirement on health and social care organisations to have effective arrangements in place to demonstrate their commitment to the disclosure of instances of physical or psychological harm. The approach that is taken to apologies in that bill also mirrors section 2 of the Compensation Act 2006 in England and Wales, but the Apologies (Scotland) Bill, in its current form, risks substantially undermining those proposed duty of candour provisions. As the Justice Committee notes, apologies that are made within the context of the duty of candour would likely have to be excluded from the scope of the Apologies (Scotland) Bill.
The issue of what we will have to exclude from the bill is an important one. As the bill is currently drafted, fatal accident inquiries—to which Christine Grahame referred—and defamation actions are excluded from its scope. However, as was highlighted during stage 1 evidence, the list of exclusions would likely have to extend to court proceedings under the children’s hearings system, public inquiries, arbitration and tribunals in addition to apologies that are made in the context of the duty of candour, which I just mentioned. In my view, such a long list of exclusions would muddy the waters in understanding the application of the bill and would not provide the clarity and legal certainty that the bill aims to achieve. The alternative approach, of putting the common law in Scotland on a statutory footing, would not require exclusions from the bill’s scope and would make the legislation easier to understand.
Having noted those important concerns, I reiterate the Scottish Government’s support for the general principles of the bill. I recognise the value of apologies and would warmly welcome the change in culture that Margaret Mitchell seeks, which would promote the effective giving of apologies. However, my support and that of the Scottish Government is conditional on satisfactory amendments being made to the bill at stage 2. I welcome Margaret Mitchell’s comments in that regard and hope that we will be able to address the concerns that I have outlined, but I must make it clear that, if the bill is not amended in a satisfactory way, the Scottish Government will have to reconsider its position on the bill. I am keen to work with Margaret Mitchell to ensure that I can continue to support the bill, and I am hopeful—given what has been said today—that we will be able to find a suitable compromise.
15:45
On behalf of Scottish Labour members, I thank the clerks to the Justice Committee and the witnesses who gave evidence on the bill, and I congratulate Margaret Mitchell on bringing her bill to this stage. In particular, I congratulate her on her recognition of the importance to survivors of historical child abuse of a meaningful apology that recognises the harm done to them. Her bill is supported by the Scottish Human Rights Commission, which considers that an apology can provide significant psychological and emotional benefit to victims, who do not necessarily wish to pursue an action through the civil courts but wish to have the wrong that they have suffered acknowledged.
The bill provides that an apology is not admissible as evidence in civil proceedings other than fatal accident inquiries and defamation actions, and that it cannot be used prejudicially in such proceedings against the person who makes the apology. As we have heard, the bill’s intention is to change cultural and social attitudes towards making an apology, and in the longer term it seeks to reduce litigation, as many pursuers only seek recognition of the damage that has been done to them and a sincere apology for it. No witnesses questioned the value of an apology in such cases, and many expressed their support for the general principles, but there were several areas of disagreement with aspects of the bill and between witnesses. As we have heard, Ms Mitchell has expressed her willingness to consider amendments at stage 2.
Some witnesses did not feel that there is a particularly litigious culture in Scotland. The Association of Personal Injury Lawyers and the Forum of Insurance Lawyers argued that there is a declining level of litigation in the civil courts in Scotland. In the Law Society of Scotland’s view, the bill does not necessarily add anything to what already exists, and it argued that there was a lack of clarity about how the bill would achieve its aims.
The definition of an apology, which includes in section 3(b) the term “a statement of fact”, was problematic for a number of witnesses, as we have heard. It is possible that that provision could remove the rights of pursuers to be able to rely on admissions of fault or fact in court, and it could even mean that making an apology that includes a statement of fault or fact could be used deliberately in order to prevent that evidence from being able to be used in court. Even the Scottish Human Rights Commission, which was generally highly supportive of the bill, in evidence to the committee expressed some concern that there might be unintended consequences of the definition as it currently stands.
Part 2 of the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which is currently undergoing stage 1 consideration by the Health and Sport Committee, contains a duty of candour in health and social care situations that is based on section 2 of the Compensation Act 2006, which applies only in England and Wales. That act has a narrower definition of an apology that does not include admissions of fault and does not prevent apologies from being admitted as evidence.
There were differences in opinion on the merits of the broader definition, which was supported by the Scottish Human Rights Commission, but which the Faculty of Advocates considered to undermine the duty of candour in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. The British Medical Association and the Medical and Dental Defence Union of Scotland also raised concerns about how the bill would interact with the UK-wide professional standards. An apology might not be admissible in court, but if it included a statement of fact, the General Medical Council might still consider the evidence to be an admission of fault or poor performance. The GMC confirmed that it would not consider an admission of fault to be inadmissible in fitness-to-practise and tribunal proceedings.
If fault is not removed from the definition, other exemptions in addition to fatal accident inquiries and defamation proceedings could be considered. Pre-action protocols in personal injury cases are to become compulsory and will apply to all sheriff courts as well as the personal injury court. Therefore, as it stands, the bill could provide a loophole for defenders. If admissions of fault are to remain in the bill, it should be amended so that it does not apply to pre-litigation protocols where they provide for binding admissions of fault.
The committee also heard evidence supporting the exclusion of children’s hearings, as the reporter could be inhibited from establishing grounds for a referral, or admission of an offence against a child might be inadmissible. Public inquiries could be exempted for the same reason as fatal accident inquiries, and arbitration proceedings generally take a case-by-case approach to what evidence can be admitted. Tribunals could also be excluded, as they are designed to focus on points of fact rather than points of law and they require consideration of all relevant facts. However, as the committee report records and others have said, those exemptions would not be necessary if section 3(b) were removed from the bill.
The bill’s policy memorandum suggests that the Scottish Government might issue guidance on how to use and respond to the legislation. The committee received little evidence on that during our evidence taking, so the committee therefore suggested that the member in charge should discuss with the Scottish Government the possibility of guidance being issued.
Scottish Labour members are supportive of the bill’s policy intentions in seeking to make it easier for victims of civil offences to receive an apology for actions that have caused them harm. However, our view, like that of the committee and the Scottish Government, is that the bill requires amendment at stage 2. We will support the bill this evening in order that such amendments can be considered further.
15:50
I, too, congratulate Margaret Mitchell on bringing forward the bill and pursuing it so effectively for a couple of years. I know that the consultation took place in 2012, but there was clearly a fair degree of heavy lifting both before and after that. As a substitute member of the Justice Committee, I acknowledge the excellent written and verbal evidence that was given to the committee, and the work of committee members, who I think genuinely tested the bill’s provisions pretty effectively.
The what of the bill is fairly straightforward, because it is a short bill that runs to a mere page and a half and has a pretty straightforward aim—the hope that we get more apologies such that an expression of apology would not amount to an admission of liability and would be inadmissible as evidence for the purposes of certain legal proceedings. There are hopes that such an apology would lead to an acknowledgement that something has gone wrong, an undertaking to address what has gone wrong and, at least in some cases, closure for the recipient.
It is worth noting that apologies legislation can be found in several jurisdictions, such as a number of US states, Canada, Australia, and England and Wales. However, the legislation varies in scope across those jurisdictions and there does not appear to be a magic formula for the perfect apologies legislation.
It is worth reflecting on the Justice Committee’s report on the bill. First—perhaps the minister can address this point in his closing remarks—it would be useful for all members to see the Government’s official written response to the committee report. The minister has given an outline of some of his thoughts, which was quite helpful, but in the seven minutes that he had for his speech and in the shorter time that he will probably have for his closing speech it is impossible to do justice to what I think is a pretty comprehensive 27-page report. It would be helpful to see the written response to the committee’s report.
It is simply a procedural matter, but I would have thought that because the member is acting like a minister—it being a member’s bill—it is the member who should have provided a written response to the report. However, perhaps I have got that wrong.
In terms of procedure, the member may be right. However, it would be helpful for members of the Parliament to know the Government’s view in response to the bill, because ultimately it is the Government’s view on the bill that will determine whether the bill becomes law. It would be useful to know the exact points of issue. The minister outlined two such points quite clearly, but does that mean that the Government now accepts everything else in the bill, or are there other areas in which there are still issues of disagreement between the Government and the member promoting the bill?
I agree that legislation is not a magic formula but I think that it has a role to play in this case. Its effect might not be overnight or dramatic, but I am persuaded by the evidence that I have read that the bill will have an effect and a positive impact. It is worth reflecting that the empirical evidence said very little in either direction. Given the amount of apologies legislation that exists and the fact that some of it has been in place for over a decade, it is slightly surprising that there is not, as far as I can see, much empirical evidence out there in either direction. It is difficult to say just how much the bill will improve matters, or whether it will turn out to be problematic.
It sounds as though all members agree with the bill’s principles, but it is clear that stage 1 is the easier part and that stages 2 and 3 will probably be the more complex parts as the bill proceeds. The bill’s definition of apology is fairly wide, and it could change slightly as a result of comments made by Margaret Mitchell a few minutes ago. However, there are still a couple of outstanding issues that need to be resolved, and I have to say that there are no simple resolutions for them.
There are difficult issues around how we treat health. If we remove that aspect from the bill entirely, we remove a huge slice of apologies. However, it is clear that complications could arise as a result of interplay with the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill and from the fact that health professionals are regulated at a UK level.
A number of members have raised the important point that a balance must be struck so that we do not end up passing a meaningless bill simply for the sake of it. However, we must ensure that no one is denied access to justice and that no complications arise that no one—including the member who introduced the bill—intended.
Regardless of which exceptions are made and which aspects are agreed on, it is pretty clear that a great deal of training and guidance will be required as we move forward, but such guidance can probably be put together. I support the principles of the bill and I hope that it is passed at decision time today.
We move to the short open debate. Members may have been advised that speeches should be four minutes long, but if possible shorter speeches would be appreciated.
15:55
I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates.
I belong to the school that believes that the bill as it is currently drafted, whatever the good intentions of the member who introduced it, may create more problems than it solves. David Stephenson of the Faculty of Advocates posed a question in oral evidence, stating:
“If enacting the bill would disadvantage certain people, where is the balancing advantage and how confident can we be that there would be a benefit from depriving people of rights that they currently have?”
Many individuals who suffer some calamity, a minor infringement to their life or a minor injury are looking only for someone to say sorry, and a failure to acknowledge that can be a source of endless frustration to them.
As Ronnie Conway of the Association of Personal Injury Lawyers—a pursuers’ organisation—suggested in evidence, a proposal seeking to build on the common-law position in statute and following the general line of section 2 of the Compensation Act 2006 in England and Wales would have had attractions.
That view was supported by the Forum of Insurance Lawyers, which is, in contrast, a defenders’ organisation. Graeme Watson of the forum suggested that
“straightforward legislation that made it clear that an act of apology, of itself, did not amount to an admission of liability would have great merit”.—[Official Report, Justice Committee, 9 June 2015; c 8, 6.]
However, we have moved on. The member promoting the bill has already conceded the position in relation to statements of facts and also seems lukewarm—with good reason—on the question of excluding fault from the definition. It cannot be right to remove the rights from those who want to rely on admissions as they can at present, particularly when the empirical evidence on the point is limited.
In addition, given the introduction of the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, is it sensible to embark on two approaches to the problem? As the minister noted in evidence, the duty of candour provisions sit more easily with legislation that follows section 2 of the Compensation Act 2006.
What of the insurance industry’s response to the bill? In my experience of professional indemnity insurance policies, there is never a problem with an insured person suggesting, “I am sorry—there is an issue here” but there would be a problem if an insured person said, “Sorry—I didn’t behave as a competent accountant might have done” or “Sorry—I fell below the standard.” That is a completely different issue. Saying sorry per se is in itself not at present an issue in relation to insurance.
Paragraph 94 of the committee’s report says it all. It states in reference to the ABI’s evidence to the committee that
“if ‘fault’ and ‘fact’ are taken out, the ABI will be perfectly happy with what remains, which it seems will be the essence of section 2 of the 2006 act.”
If an apology is inadmissible in evidence, it will undermine the pre-action protocol for personal injury to which Elaine Murray referred.
In the time I have available, I turn to a couple of other matters. Would the bill as currently drafted improve matters for victims of sexual abuse? A survivor of historical abuse might decide to seek damages in court for the harm that was the subject of an apology. As a result of the bill, they would not be able to rely on that apology and would have to find other evidence. That might, as the minister suggested, be extremely difficult, especially with the passage of time.
In response to that issue, Bruce Adamson of the SHRC implied that such a situation might be rare. He said:
“I am not sure that the bill would take away evidence that would otherwise have been available to found a civil case on, because I am not sure that people would voluntarily disclose that evidence but for the protection that is provided.”—[Official Report, Justice Committee, 9 June 2015; c 30.]
Bruce Adamson may be right, but I am not sure that the alternative scenario posed by the bill would assist victims and would change the position to the victim’s advantage. Although I greatly respect the views of Professor Miller, the evidence that was presented to the committee on that point was rather limited.
With regard to the position on medical complaints, we would be wise to reflect on the evidence of those who point out that the regulation of medical professions remains a reserved matter. We should have particular regard to the views of the GMC and others, and to the GMC’s current joint guidance with the Nursing and Midwifery Council, which makes it clear that apologising to a patient does not mean that someone is admitting legal liability.
The GMC suggested in its supplementary written submission that the bill as drafted “may have unintended consequences”.
I am afraid that the member must come to a close.
In conclusion, I welcome the general principles of the bill, but it needs substantial amendment.
I call Margaret McDougall. I will call Alison McInnes, but I am afraid that she will have only three minutes.
15:59
Sometimes “sorry” is the hardest word to say—more so if one has the threat of litigation hanging over one’s head. I am supportive of the Apologies (Scotland) Bill, which Margaret Mitchell has introduced. However, although I support the bill’s general aims, as did 86 per cent of consultation respondents, I see some issues with the bill in its current form, which I will discuss in my speech.
I note from the policy memorandum that two of the reasons for introducing the bill are that
“There appears to be an entrenched culture in Scotland and elsewhere that offering an apology when something has gone wrong is perceived as a sign of weakness. There is also a fear that an acknowledgement of fault can, in some circumstances, lead to litigation.”
I agree that in the public sector and in organisations in other sectors there is definitely fear of litigation, but I am not sure that the bill will provide the required cultural change.
The Medical and Dental Defence Union of Scotland argued:
“An apology ... carries little weight in civil litigation proceedings”
and the Faculty of Advocates wondered whether such a simple change in the law would achieve a dramatic effect. I have to say that I have the same doubts. However, my view is that we have to start somewhere, and that although the bill will make a relatively small change, it would be a mistake to judge its outcomes before we can measure its practical effects in law. Although the bill alone might not lead to the desired change, it can play its part.
The fear of litigation is a much greater concern. The committee heard in evidence that in a survey of 500 Medical Protection Society members, 67 per cent said that there is a culture of fear in healthcare and that many people would not apologise due to fear of reprisal.
The Scottish Public Services Ombudsman found that many front-line staff fear apologising because of the risk of litigation or because they have been advised against it by senior staff. Clearly, that situation cannot continue. Although that may not be widespread in other sectors, the bill could help to give those staff peace of mind, if it is developed.
That said, I have some concerns that making an apology inadmissible may affect an individual’s rights. That is a particular concern in cases of historical child abuse. As it stands, the bill may have unintended consequences. I agree with the committee’s recommendation that there needs to be a better balance in the bill: it must ensure, while remaining relevant, that there are no unintended consequences for victims.
Although I am happy to support the general principles of the bill at stage 1, I question whether it will stimulate the cultural changes that are outlined in the policy memorandum. I agree that we need to tackle fear of litigation and reprisal in certain sectors, but the bill has the potential to have a host of negative unintended consequences, which I hope will be addressed during stage 2. If the bill can achieve its stated aim while avoiding making the system more unjust I will be happy to support it, but my continued support depends on what happens during stage 2.
16:03
I acknowledge the work that Margaret Mitchell has done so far. I supported the proposed legislation back in 2012. At the time, I believed that apologies had an important role to play in reparation and the healing process, and I still believe that today. However, I recognise that the bill as introduced would have a far broader application than the initial proposal. I have some concerns about it, which I will touch on shortly.
We have all come across constituents who say, “All I want is an apology. All I want is for them to admit that a mistake was made and tell me what they have done to prevent this from happening to others. I just want to move on.” I therefore understand what Margaret Mitchell is trying to achieve with the bill, which I support in principle. However, it is important that we strike the right balance between making it easier for organisations to say “sorry” and protecting the rights of those who have been wronged. As drafted, the bill does not achieve that balance.
The effect of apologies in relation to legal proceedings and the regulation of health professionals are two areas in which significant questions arise. Pre-action protocols, which are currently in place to expedite and simplify proceedings, could be affected, as members have said. That could lead to individual injustices. The Faculty of Advocates has therefore argued that
“the Bill should provide, specifically, that it does not apply to pre-litigation ... Protocols where those Protocols provide for the making of binding admissions of fault”.
As Ms Mitchell has said, things have moved on a little in that area.
On regulation of health professionals, the Nursing and Midwifery Council and the GMC both argue that the bill would have serious unintended consequences. There is a legitimate fear that it would be used to encourage admission of liability as a way of preventing information being used in subsequent proceedings, or to close down the option for a patient who has suffered harm to pursue a civil claim for compensation. The warnings that we have heard from those bodies must be heeded—the regulation of our health professionals is an important safeguard and we should do nothing that impacts on the regulators’ ability to bring a fitness-to-practice case.
The bill currently provides for a number of exceptions, including fatal accident inquiries. We heard evidence that the list of exceptions should be extended to include court proceedings under the Children’s Hearings (Scotland) Act 2011. The Scottish Children’s Reporter Administration argued that the bill as drafted would inhibit the children’s reporter
“from being able to establish grounds for referral”
to bring a child to a hearing. If fault remains part of the definition of an apology as the bill proceeds, we must address that, but I say again that I welcome Ms Mitchell’s commitment this afternoon to look again at the inclusion of fault and statements of fact in the definition.
The Scottish Government has argued that by making apologies—including ones that admit fault—inadmissible in civil proceedings, the difficulties that face the survivors of historical child abuse as they seek justice would be compounded. On the other hand, the Scottish Human Rights Commission has said that that provision would help the survivors. Open Secret is supportive of the bill; that organisation told me that many survivors of abuse do not wish to pursue legal redress, although closure is important to them to ensure on-going recovery.
We understand that survivors feel let down by those who should have offered them care, and that they are deeply affected by their experiences. An apology does not put right what happened, but it acknowledges the pain and distress that are caused and gives some comfort. I am happy to be guided on that point by organisations, including the SHRC, that are dealing directly with survivors.
Margaret Mitchell’s intentions in introducing the bill are commendable. The Liberal Democrats will support the bill in principle this evening. However there is much work to be done at stage 2 to ensure that the good intentions behind the bill are not drowned by damaging unintended consequences.
We move to closing speeches a bit behind time, so I ask closing speakers to take a little bit less time, please. Gavin Brown has a maximum of four minutes.
16:07
This has been a short but particularly useful debate in which all parties in the chamber have taken a responsible and reasonable approach. Clearly, the minister and other members are in listening mode, so this stage 1 debate has been helpful in that regard.
Everyone supports the general principles of the bill—although many have a degree of caution over certain areas. Plausible arguments have been put forward for removing health from the bill, for removing personal injury from the bill, for adding other exceptions to the bill, and for reverting to a definition that is similar to that in the Compensation Act 2006.
However, if we do all those things, I would be slightly concerned that we would ultimately pass a bill that might not have the impact and effect that we all want. I urge the member who is pressing the bill, the Government and other members to do all that they can up to stage 2 and during stages 2 and 3 to get the best possible bill so that we ultimately strike the balance that I think we all want to strike.
If we take everything out of the bill that has been suggested—with perfectly decent arguments—there is a risk that we will be left with a bill that comes nowhere near to achieving what we all want. To take exceptions as an example, obviously the bill does not apply to criminal cases. As drafted, it applies to civil proceedings except fatal accident inquiries, sudden death inquiries or defamation proceedings.
Although I was not personally present at the evidence sessions, I read all the evidence and there were some pretty good arguments made for excluding children’s hearings, public inquiries, tribunals, arbitrations and pre-action protocols. However, there is a risk that the longer the list of exceptions, the greater the confusion that will likely be caused. As Professor Miller pointed out, if we include all those exceptions and some others that have been suggested, that could ultimately damage and go against the spirit of the bill. None of us wants a situation in which people need a law degree to figure out whether it is safe to apologise.
I draw attention to a point in the letter that Professor Miller wrote to Margaret Mitchell on 22 October, which members and ministers have seen. In that particularly powerful and well-crafted letter, Professor Miller made the point that, although there might be good arguments for moving to the Compensation Act 2006 definition—many would describe that as the “safe harbour” position, which is completely risk free—that would not meet the expectations of survivors of historical child abuse.
Given what Margaret Mitchell said in opening today’s debate about the fact that the genesis of the bill was a meeting back in 2010 of the cross-party group on adult survivors of childhood sexual abuse, and given that a lot of the heavy lifting and the work that has been driving the bill has been done as a result of that, I make a plea to the Scottish Government and to members to listen to the views of Professor Miller and others, and to consider how we can find a way through some of the difficult issues so that, ultimately, when the bill is enacted it meets the expectations of those who drove it. It is not an easy problem to solve, but if we all put our minds to it, it can be done so that we have an act of which we can all be proud.
Elaine Murray has a maximum of four minutes, although less would be better, if that is possible.
16:11
The debate has been short but interesting, and many important points have been made—and, in some cases, repeated. I hope that the fact that we are having a debate on the bill might in some way contribute to the cultural change that is required to enable apologies to be made that acknowledge the harm that is done to people who have experienced actions that have been damaging to them. However, as Margaret McDougall said, the issue is not that simple, because there is considerable fear of litigation, particularly in the public sector.
I will summarise some of the representations that have been made this week, in advance of the debate. As Gavin Brown mentioned, Professor Alan Miller, the chair of the Scottish Human Rights Commission, does not consider that amending the bill along the lines of the Compensation Act 2006 would meet the expectations of survivors of historical child abuse. He also feels that a long list of exceptions would be confusing and unhelpful and would discourage full apologies. The commission does not agree that inadmissibility in a civil court would prejudice a complainant’s case. That is an interesting position, because it is very different from everybody else’s. The commission argues that, if apologies were to be admissible in court, they simply will not be made.
The British Medical Association agrees that removing the threat of civil action would improve communication between doctors and patients, but says also that it is unclear how the bill would work in practice in interacting with the General Medical Council’s standards and its investigative and adjudicatory processes.
The Law Society of Scotland supports the policy intent and objectives of the bill, but considers that it is unclear how the provisions will achieve those aims, although the society also believes that the bill could help to change cultural and social attitudes to apologising. The society is concerned about the definition and how it would impact on the duty of candour and definition of apology in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. The society believes that the two definitions could lead to unintended consequences, because we would have two pieces of legislation with different definitions. The society agrees with the BMA that there is a risk that an apology containing a statement of fact could be used in an investigation or disciplinary hearing when professional standards may have been breached.
The Association of Personal Injury Lawyers was probably most critical of the bill. It stated that it would be “illogical and unjust” if no consequences were attached to an apology that contained a degree of liability. APIL argued that admissions after an event are important in Scots law, because they are very likely to be true. Its briefing contrasts the definition of an apology in the bill with the definition in section 2 of the Compensation Act 2006, which encourages appropriate expressions of regret but retains the ability to use an apology as evidence in court where there is a clear acceptance of legal responsibility. APIL also expressed concern about the consequences for pre-action protocols in personal injury cases, which a few members have mentioned, and stated that the bill risks making the civil justice system in Scotland “second rate” compared to the criminal justice system.
The majority of recent respondents, like the majority of witnesses during the stage 1 process, support amendment of the bill. I reiterate that we will support the bill at decision time tonight, but we will also support its amendment at stage 2.
16:14
I have listened with great interest to members’ speeches and am encouraged by the cross-party support for promotion of apologies. I am sure that that is of great encouragement to Margaret Mitchell, as well.
As I noted in my opening speech, the Scottish Government shares Margaret Mitchell’s aim of promoting cultural change in respect of the giving of apologies, and I support the general principles of the bill. However, as I outlined, we and others have some important concerns that need to be addressed. Colleagues around the chamber have repeated them.
Most important is that we need to ensure that the bill does not restrict access to justice by limiting what can be used as evidence. From listening carefully to colleagues in the chamber, and to respond to Gavin Brown’s points, it is clear that the key question is how we strike the best balance between promoting use of apologies and avoiding the unintended consequences of restricting access to justice and making the bill overly complex.
I am aware of the argument that those unintended consequences might apply only to a small number of cases and would only rarely disadvantage individuals. In reflecting on that, I was struck by the recent comments of my colleague Nigel Don in the Delegated Powers and Law Reform Committee during an evidence-taking session on the Succession (Scotland) Bill:
“I observe on behalf of the committee that the fact that something is not very common does not mean that we do not need to get the law right. It does not matter if there is only one case. Even if we are not sure that the issue will arise, we still need to make sure that the law says what we think it should say.”—[Official Report, Delegated Powers and Law Reform Committee, 8 September 2015; c 6.]
That is an important point to keep in mind, and I agree with Mr Don on it. We cannot ignore the rights of claimants or pursuers who might need to draw upon an apology in their evidence base simply because such cases are likely to be few in number. Surely protecting the rights of minorities is at the heart of good law making.
The aim of achieving legal certainty has also been addressed in the discussions. It is a sound point. I am concerned that the long list of potential exceptions to the scope of the bill to which Gavin Brown referred, and the remaining questions regarding its interaction with the insurance industry, would work against achieving such certainty. As I noted previously, an approach that is based on putting the common law in Scotland on a statutory footing along the lines of the Compensation Act 2006 would avoid many such issues.
I acknowledge the argument that Margaret Mitchell and others have made that putting the common law on a statutory footing does not necessarily go far enough. However, as I previously pointed out, it is about striking the right balance. A bill along the lines of the Compensation Act 2006 with an added definition of “apology” would provide clarity about the law on apologies in Scotland. That would raise awareness that an apology cannot, in and of itself, be used to prove liability: that may, in turn, encourage the making of more apologies. It would send a strong signal and strike a more appropriate balance between encouraging apology as a form of redress for victims and the need to ensure that justice is served appropriately through the court process.
I reiterate the point that, as Elaine Murray mentioned, the submissions from the Law Society of Scotland, the Nursing and Midwifery Council and the General Medical Council are consistent with the Scottish Government’s position and our proposal to take an approach that is based on putting the common law in Scotland on a statutory footing along the lines of the Compensation Act 2006 with an added definition of “apology”, as per the duty of candour provisions in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. That would address the Nursing and Midwifery Council’s concerns and would be consistent with what it and the General Medical Council say about apology in their joint guidance on candour.
As members are aware, the Scottish Government is very committed to promoting the rights of the survivors of historical child abuse. We have demonstrated that with our decision to hold a public inquiry and our intention to remove the three-year limitation—or time bar—for cases of abuse. We are also keen to promote a climate in which survivors achieve the acknowledgement and redress that they deserve through receiving apologies. However, that cannot come at the price of restricting potentially valuable pieces of evidence that survivors might require to prove their cases.
I reiterate our support for the general principles of Margaret Mitchell’s bill. As previously noted, that support is conditional. If our concerns can be addressed, I will be happy to support the bill at later stages, but the Scottish Government will have to reconsider its position if we are unable to reach common ground. However, given the positive comments that Margaret Mitchell has made and the apparent consensus around the chamber, I am hopeful that we can achieve consensus.
16:19
I thank all the members who have contributed to what has been a short but good debate in which a number of points have been raised. I will try to address those points in my closing comments. Before doing so, it would be helpful to outline how the concept of apologies legislation came about and to convey the positive effect that an apology can have on recipients.
The first recognised apologies legislation was enacted in the US state of Massachusetts in 1986. It emerged from a tragic series of events in 1974, when a young girl named Claire Saltonstall was hit and killed by a car while riding her bicycle near her family home. The driver who struck her never apologised. Her father, William L Saltonstall, who was a state senator, was angry that the driver had not expressed contrition. He was told that the driver dared not risk apologising, because it could have constituted an admission in the litigation surrounding the girl’s death.
On the senator’s retirement, he and his successor presented the state legislature with a bill that was designed to create a safe harbour for would-be apologisers. That was the first tentative step, which has since resulted in more than 35 US states and many nations around the world, including Australia, Canada and New Zealand, quietly and successfully implementing innovative and effective apologies legislation. As legislators and the judiciary have come to appreciate, in many legal proceedings, an apology is frequently worth more to an applicant than money.
The positive effect that an apology can have on survivors of historical and childhood abuse is neatly covered by the following quote from one of the survivor organisation members of the cross-party group on adult survivors of childhood sexual abuse, who said:
“Many survivors of abuse do not wish to pursue legal redress but closure is important to them … An apology does not put right what happened but it acknowledges the pain and distress that has been caused and gives some comfort that lessons will be learned for the future.”
The effect of an apology is also underlined in the following quote from a British Columbia ombudsman. He had been in office for more than six years when he said in 2006:
“I have heard repeatedly from individuals who need to hear a public agency apologize so they can stop being angry about what happened, forgive and move towards healing.”
That view is endorsed by the Scottish ombudsman. In a Justice Committee evidence session, Paul McFadden, the head of complaints standards at the office of the Scottish Public Services Ombudsman, said:
“People say, ‘I want recognition that I was right and something went wrong, and an assurance that it will not happen again to someone else.’ They might want various other things but, by and large, they do not say that they want compensation. It is very much about repairing a relationship, often with an organisation that they have an on-going relationship with. They are not consumers in the broader sense, as they cannot choose to go to another local authority or another health board, so repairing the relationship is at the heart of this ... However, in complaints that come to us, we still see a reticence from public bodies to saying sorry. From a very early point in the journey of many of the complaints that we see, it is clear that, if a simple, timely and human or empathetic apology had been given, the complaint would not have escalated. The failure to make that apology results in a breakdown of the relationship between the individual citizen and the public body, which then escalates, builds and exacerbates the situation—it grows arms and legs.”—[Official Report, Justice Committee, 9 June 2015; c 12-13.]
I turn to issues that were raised during the debate and begin with the view that using section 2 of the Compensation Act 2006 would be as effective as having a protected apology. There are various reasons why that is not the case. We can start with the view of Professor Miller, the chair of the Scottish Human Rights Commission, who said:
“Adopting a similar model to that of the Compensation Act 2006 would not achieve the aims of the Bill and would not meet the expectations of survivors of historic child abuse in Scotland.”
The main reason why the commission holds that view is that an apology could still be admissible. In effect, the 2006 act wording would preserve the status quo, and individuals or organisations would still continue to be unwilling to apologise for fear of litigation. Interestingly, in response to an inquiry from me about the impact of section 2 of the 2006 act, the UK minister for justice, Lord Faulks QC, confirmed that no detailed research or analysis of that had been undertaken, partly because the provision did not change the law.
Some concern has been expressed that making an apology inadmissible in civil proceedings could prejudice a pursuer’s future case. However, as the Massachusetts experience makes plain and as various witnesses have confirmed, that places too much emphasis on the assumption that the majority of individuals automatically wish to pursue a claim in court. It also downplays the potentially life-altering benefits of an apology.
As the Scottish Human Rights Commission, the Law Society of Scotland and Prue Vines—the academic expert on apologies—state from their experience, the pursuers are not prejudiced because, in most cases, no apology would be forthcoming if it was admissible in civil proceedings. I hope that those observations help to allay any concerns that members have about the issue.
As for the definition in the bill and any exceptions, I realise that that will involve compromises and taking on board concerns. Those issues will be fully discussed if the bill progresses to stage 2.
Members might be interested to learn that the progress of the Apologies (Scotland) Bill is being closely followed in other common-law jurisdictions, such as Canada and Australia, where apology laws have operated effectively for some time. In Hong Kong, a draft apologies bill has taken detailed account of the work that has been done on this bill.
I hope that Parliament will vote this evening to approve the general principles of the bill, which has the potential to help to give closure to many people, including survivors of sexual abuse.