Meeting of the Parliament

Meeting date: Thursday, May 25, 2017

Official Report 878KB pdf

Parliamentary Bureau Motions

The next item of business is consideration of Parliamentary Bureau motion S5M-05776, on the Committee of the Regions.

Motion moved,

That the Parliament endorses the Scottish Government's proposal to nominate, as a representative of the Parliament, Maurice Golden MSP as a full member on the UK delegation to the Committee of the Regions for the remainder of the parliamentary session to 2021.—[Joe FitzPatrick]

The next item of business is consideration of Parliamentary Bureau motion S5M-05767, on the approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the Apologies (Scotland) Act 2016 (Excepted Proceedings) Regulations 2017 [draft] be approved.—[Joe FitzPatrick]

I ask any member who wishes to speak against the motion to press their request-to-speak button now.

The instrument exempts eight health regulatory bodies, as well as the General Teaching Council for Scotland and the Scottish Social Services Council, from the provisions of the Apologies (Scotland) Act 2016.

Section 3 of the act defines an apology and the act itself merely clarifies the current law of evidence in civil proceedings relating to apologies. Quite simply, it has long been recognised by the judiciary that an apology is not good evidence for proving liability or wrongdoing.

By way of background, the origin of the act came from the cross-party group on adult survivors of childhood sexual abuse, and a suggestion from the then chair of the Scottish Human Rights Commission that apology legislation was an effective way to help survivors gain closure.

The Justice Committee is now in receipt of a letter from the current chair of the SHRC expressing concerns about the inclusion of the two non-health-related bodies in the instrument, and the lack of consultation with survivors and survivors’ groups. It goes on to state that the historical child abuse action plan review group should have been consulted on the provisions of the SSI.

Although the SHRC recognises that the eight professional health regulatory bodies are exempted in the SSI only in response to the Scottish Government’s health legislation on the duty of candour, it agrees with the Law Society’s assessment that, in general, an apology is not a reliable indicator of wrongdoing, and particularly as defined by section 3 of the act. Furthermore, it questions the necessity for regulatory bodies to be able to consider apologies.

Therefore, the SHRC offers the solution that the GTCS and SSSC should consider ways in which their processes could be adjusted to allow them to work within the Apologies (Scotland) Act 2016 without the exemption, and that the impact on GTC and SSSC processes should be monitored to assess whether providing an exemption has a detrimental impact on their ability to carry out their role. The SHRC confirms that it is not clear that that will be the case, given the position of other regulatory bodies.

I request that the minister withdraw the SSI with a view to implementing the two suggestions that the SHRC has proposed. The failure to do so would raise serious questions about the effective scrutiny of primary and secondary legislation in the Parliament.

The regulations will do two things in relation to the Apologies (Scotland) Act 2016. They will make a small amendment to the existing exception for inquiries and add an exception for the proceedings of 10 professional regulators. Those are the regulator of the social service workforce and the regulator of teachers in Scotland, as well as eight health professional regulators.

As I explained in the Justice Committee evidence session, it is clear that the Apologies (Scotland) Act 2016 could have negative unintended consequences for those regulators’ fitness-to-practise proceedings. In particular, it would impact on their ability to establish facts and make risk assessments and, ultimately, on their ability to protect the public. The exception is about professional regulation; it will not in any way prevent institutions such as schools or local authorities from offering apologies. That key point has been recognised by the Scottish Human Rights Commission in its letter to the Justice Committee, which has already been referred to. I will write to it to set out these points in detail.

The need for the exception was raised by the General Medical Council and the Nursing and Midwifery Council as early as stage 1 of the Apologies (Scotland) Bill, and the Justice Committee recognised their concerns in its stage 1 report. Continued work revealed that those concerns extended beyond the health regulators. The Scottish Social Services Council and the General Teaching Council for Scotland have made it clear that they share concerns about the impact of the act on their proceedings.

The exception is about the need to protect the coherence of the regulatory processes in order that the organisations can fulfil their mission. The regulators are concerned that, if their professional regulatory proceedings were not excepted, that would impinge on their ability to police their profession and ensure that the public are protected. The proceedings exist to ensure that we all have confidence in those professions. The point is that, in those fitness-to-practise proceedings, an apology can say something important about the suitability of the person who is practising a profession. We know that there are other professions in which an apology is less important and in which apologies do not feature among the evidence that is considered.

As I undertook in the Justice Committee evidence session to ensure happened, my officials have written to other regulators whose proceedings are not included in the exception to explore how they are taking account of the Apologies (Scotland) Act 2016. I have also written to the group of survivors of childhood abuse that raised concerns with the committee about the regulations. I explained to it that excepting those regulators’ fitness-to-practise proceedings from the scope of the Apologies (Scotland) Act 2016 will in no way cut across the ability of institutions such as schools and local authorities to make apologies to survivors of childhood abuse. I am pleased that, in its response, that group said that it found the letter very helpful in explaining the matter and the reasoning behind the Scottish Government’s approach.

I am grateful to the Justice Committee for its thorough scrutiny of the regulations and for the cross-party agreement to recommend to the Parliament that the regulations be approved.