Apologies

Part of the debate – in the House of Commons at 12:38 pm on 1st December 2020.

Alert me about debates like this

Photo of John Howell John Howell Conservative, Henley 12:38 pm, 1st December 2020

I beg to move,

That leave be given to bring in a Bill to make provision for the effect of an apology in certain legal proceedings;
and for connected purposes.

Let me start by declaring that I am an associate of the Chartered Institute of Arbitrators, since the heart of the Bill lies within the dispute resolution and dispute prevention system. I will also say what the Bill does not do: it does not take away any rights that we may have to go to court on any issue, but it does introduce an element of civility and common sense back into society. It allows an apology to be given that is genuinely and sincerely meant without creating a legal liability that would run into millions of pounds.

Simply put, an apology that does not create a legal liability will often settle a dispute, rather than being seen as a way to take the accused for every penny they have. It should be the mark of a mature democratic society and of its dispute resolution system that an apology, whether made publicly or privately, can and should be allowed to be meaningful and helpful rather than simply a necessary yet tokenistic gesture. An apology can truly change atmospheres, the nature of conversations and outcomes. Used appropriately, it can help to avoid a dispute going to court. Equally, it can assist the resolution of a case by changing the approach being taken.

The policy driver behind the initiative is that apologies can often unlock disputes and lead to settlements without recourse to formal legal action. Since parties may be reluctant to do anything that may be construed as an admission of liability, apologies have to date seemingly been sparse, except in cases of NHS clinical negligence. A culture has emerged of people and organisations not wanting to offer an apology in case it is detrimental to their legal position or deemed to be a weakness. With tragic incidents such as that of Grenfell Tower, and the need to improve multicultural community cohesion, the time has come to extend the current limited legislative provisions.

A fresh apologies Act would be a clear statement from Westminster and a simple legal mechanism to help to improve our country’s conversations. It could incentivise disputing parties to make apologies whether in the direct aftermath of an accident, mistake or other dispute, or further down the line, should the dispute escalate, with a view to achieving a more amicable resolution.

An NHS publication, “Saying sorry”, published in June 2017, reminds of a little-known provision in the Compensation Act 2006, which 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.”

More significantly, in the same medical context, there is the duty of candour under the Health and Social Care Act 2008, which is more fully described in a leaflet published by Action against Medical Accidents and endorsed by the Care Quality Commission. The General Medical Council and the Nursing and Midwifery Council advise that that means that healthcare professionals must tell the patient when something has gone wrong; apologise to the patient; offer an appropriate remedy or support to put matters right, if that is possible; and explain fully to the patient the short and long-term effects of what has happened.

How has such common-sense advice worked in practice? A search during the preparation of this speech found that there was limited empirical research through acknowledgements of the benefits and anecdotal examples of its successes. In fact, the most helpful insight into the successful outcomes of medical apologies comes from an article in the National Law Review, a US professional publication, dated 6 November 2018. Although the majority of US states have, on the one hand, apology legislation, but on the other, a highly litigious approach to life’s adversities—from the current President downwards —none the less:

“Physicians typically recall, with stunning clarity, the moment a patient’s treatment went wrong. Following an adverse event, physicians often are tormented by competing desires to apologize and instincts to forge ahead without acknowledgement. A patient’s decision to file a malpractice action may be triggered by the physician’s response to a problem—or lack thereof…Apologies may decrease feelings of frustration and anger that drive some plaintiffs to file lawsuits. A study published in the Journal of Patient Safety and Risk Management found that” those engaging in a

“‘collaborative communication resolution program’ experienced a significant decrease in the filing of legal claims, defense costs, liability costs and time required to close cases…Events with medical errors were resolved by apology alone in 43% of the cases. Similar programs have cut the number of malpractice lawsuits and yielded dramatic litigation cost savings.”

Not only do the majority of US states have apology statutes, but so do Australia, Canada and even Hong Kong, whose legislature was the first jurisdiction in Asia to enact apology legislation through the 2017 ordinance, but was unable to put its best intentions into effect due to the growing restrictions from mainland China on its governance and judicial systems.

Closer to home, there is the approach taken by Holyrood with a short yet powerful statement: the Apologies (Scotland) Act 2016, which contains only six clauses, including its commencement and short title. It defines an apology as:

“any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence”.

For an apology to be constituted within the terms of the Scottish Act, it must include an acknowledgment that there has been a bad outcome, an expression of regret, sorrow or sympathy, and a recognition of direct or indirect responsibility. In addition, there may also be an undertaking to review the circumstances of the incident with a view to making improvements or learning lessons. The Act applies to all civil, not criminal, legal proceedings, with some exceptions.

The following considerations are worth noting. Qualifying apologies may be oral or in writing. The core element of an apology as defined in the Act is an indication

“that the person is sorry about, or regrets, an act, omission or outcome”.

Where the statement includes

“an undertaking to look at the circumstances…with a view to preventing a recurrence”,

it qualifies as part of an apology. An apology does not include statements of fact or admissions of fault, so in any statement that includes both an apology and a statement of fact and/or an admission of fault, only the apology is inadmissible as evidence of liability. The Act makes it possible to apologise without fear of prejudicing the person making the apology or of the apology being used to attribute blame in litigation. It applies to all civil proceedings except four types of specific actions. As I said, it does not apply to criminal proceedings.

In a subsequent article written by Scotland’s most high-profile mediator, John Sturrock QC explains how that piece of legislation achieved the rare distinction of attracting enthusiastic cross-party support:

“Over more than two years, Margaret Mitchell”— a Conservative MSP

“has piloted this legislation through the Scottish Parliament with skill and tact…As one member noted: ‘…Both sides have been pretty consensual in trying to ensure that we end up with something that the Parliament can be genuinely proud of.’”

The essence is

“that apologies have the great value of acknowledging that something has gone wrong and demonstrating that lessons have been learned. We all know that mistakes happen—that is a sad fact of life—and that they can often have tragic and long-lasting consequences. However, it is how we deal with those mistakes that makes the difference.”

John Sturrock continues:

“It is clear that legislation alone cannot remove social barriers to apologising, but the bill is an important step in changing attitudes to apologies.”

As my fellow officer of the all-party parliamentary group on alternative dispute resolution, John Spellar, and I learned and wrote about in our recent APPG report, “Securing the UK’s position as a global disputes hub: Best practice lessons between Singapore and the UK”, policymakers and institutions in the UK and Singapore should foster a paradigm shift so that disputes are not viewed solely through a legalistic lens. An ever-wider and ever-deeper range of dispute resolution options should be pursued. We must also think about disputes in a way that goes beyond the legal conceptual framework and encompasses all aspects of commercial relationships.

I commend the Scottish approach to the House. It is short, focused and yet of profound effect, much like the speech I have just given.