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Apologies (Scotland) Bill

– in the Scottish Parliament on 19th January 2016.

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Photo of Elaine Smith Elaine Smith Labour

The next item of business is a debate on motion S4M-15144, in the name of Margaret Mitchell, on the Apologies (Scotland) Bill.

Photo of Margaret Mitchell Margaret Mitchell Conservative

It is with great pleasure that I open today’s debate on the Apologies (Scotland) Bill. The bill was introduced almost a year ago, on 3 March 2015, but the idea for it came about as far back as April 2010, when Professor Miller came to speak to the cross-party group on adult survivors of childhood sexual abuse and told its members about apologies legislation that ensured that an apology could be given without fear of it being used as a basis for establishing legal liability.

After doing some research on legislation from other countries, I remember meeting with the bill team in 2012 and waving the one-page British Columbia bill, saying, “This should be pretty straightforward.” Four years later here we are: finally and hopefully at the finishing line.

Stage 1 consideration of the bill was completed on 27 October 2015 after a positive debate, with agreement on the bill’s general principles but caveats from the Minister for Community Safety and Legal Affairs, the Justice Committee and other contributors about the necessity for amendments at stage 2. I express my sincere thanks to both the minister and his officials for their willingness to work with me in order to find common ground and a positive and constructive way to proceed. As a result of that, when the Justice Committee considered the bill at Stage 2 on 8 December, a number of amendments were lodged by both the minister and me, and were supported by the committee. I thank the Justice Committee for its considered scrutiny of the bill and I thank the Delegated Powers and Law Reform Committee for its consideration of the subordinate legislation powers. Others have worked to support me in making my case for the bill, and I will refer to and thank them in my closing remarks at the end of the debate.

The stage 2 amendments were critical to the bill’s passage. Before I focus on some of the key changes arising from stage 2, it will be useful to recap the bill’s objectives: first, to encourage the use of apologies by providing legal certainty that an apology in certain civil proceedings cannot be used prejudicially against the person who gives it; and, secondly, to encourage a change in attitudes towards apologising, and a cultural and social change in relation to giving apologies in an effort to give complainers closure.

Section 1 is “Effect of apology in legal proceedings” and provides that an apology will be inadmissible in certain legal proceedings, which are set out in section 2.

I wanted to keep the bill as straightforward as possible. Therefore, section 2 originally set out in the broadest possible terms that the bill would apply to all civil legal proceedings with two exceptions: defamation proceedings and fatal accident inquiries. However, during stage 1 it became apparent that witnesses and respondents considered that further types of procedures should be included as exceptions.

The first additional exception was in relation to inquiries held under the Inquiries Act 2005. Here the argument is similar to that which applies to fatal accident inquiries: as the inquiry’s purpose is to establish the full facts, an apology should be admissible as evidence.

I also sought and received the minister’s assurances that the new exception would not affect the historical child abuse inquiry, which has no power to determine liability. Instead, that is “a fact-finding exercise”, which seeks to establish a comprehensive picture of the events, to address public concern and to help restore public confidence in systems or services by making recommendations to prevent their recurrence. As such, it is in the public interest for that evidence to be heard.

The minister lodged a further amendment to allow apologies in proceedings under the Children’s Hearings (Scotland) Act 2011 to be relied upon as evidence in proceedings before a children’s hearings panel and the court. Having had discussions with representatives from the Scottish Children’s Reporter Administration, I recognised that those hearings are complex and may, in some instances, cover quasi-criminal issues and decide issues relating to appropriate measures of supervision and protection. I was therefore persuaded that court proceedings under the Children’s Hearings (Scotland) Act 2011 should be added to the exceptions to the bill’s application.

I will turn to the discussion surrounding the duty of candour procedure to be enacted via the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill and the provisions in the Apologies (Scotland) Bill. An apology made under the duty of candour procedure in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill would not in itself amount to an admission of negligence or breach of statutory duty but would be admissible and could be founded on in legal proceedings.

It is, as the Justice Committee noted in its stage 1 report, difficult to see how my bill and the duty of candour provisions could co-exist without the form of exception that the minister subsequently lodged an amendment on. Although I remain unconvinced about the effectiveness of the duty of candour, I recognise the Government’s intention to proceed with the provision, so I was content with the amendment.

Section 3 sets out the definition of an apology. It originally contained statements of fact and admissions of fault, which were included to encourage the fullest possible apology. However, I fully understood, recognised and accepted the concerns expressed by witnesses, including the minister, that the inclusion of statements of fact could potentially prevent an individual from securing compensation where a statement of fact within an apology was the only evidence available.

An admission of fault is not the same as an admission of liability. However, I ultimately recognised that as a technical, legal argument and that, at this stage in the introduction of apology legislation, it was regarded as a step too far. Therefore, I was content with the Scottish Government’s amendments removing statements of fact and fault at stage 2 in an effort to allay concerns that the bill as originally drafted could result in unintended consequences, potentially resulting in an injustice to some pursuers.

The bill as finally amended provides that, in certain civil proceedings, an apology that expresses sorrow or regret about

“an act, omission or outcome” and which may contain

“an undertaking to look into the circumstances”— leading—

“to the act, omission or outcome” will be inadmissible as evidence of liability. The commitment by the apologiser to carry out a lessons-learned exercise is crucial to give closure.

Section 5 of the original bill set out that the act would come into force at a fixed period of six months after royal assent. The minister’s stage 2 amendment changed the commencement of the act from a fixed period to commencement by way of regulations. I sought and received a commitment from him that that additional flexibility was not intended to and would not result in a significant delay in commencement.

It is important to stress that the bill does not prevent anyone from pursuing legal redress, but it should help those for whom an apology in itself is the desired outcome avoid having to take legal action or make a formal complaint in order to get an apology. By clarifying the legal status of an apology as defined in the bill, the bill aims to encourage the use of apologies at an earlier stage.

Although legislation alone will not break down the barriers to making apologies, it can help to change the culture of reluctance to give an apology for fear of litigation and encourage timely, appropriate, meaningful and sincere apologies.

In conclusion, I very much hope that the Scottish Government will take on board the need for guidance on implementation of the legislation and the importance of training for front-line staff in public and private organisations in particular, and that that can be taken forward as part of its preparation for commencement of the legislation.

I thank all those who were involved in the scrutiny of the bill.

I move,

That the Parliament agrees that the Apologies (Scotland) Bill be passed.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I thank Margaret Mitchell for introducing the bill, all the hard work that she has put into it, and the dedication that she has shown throughout the process. I know that taking forward a member’s bill can seem a daunting task, and I hope that Ms Mitchell and her team will ultimately take satisfaction from her having achieved a positive outcome. Although we have at times viewed the issues from different perspectives, we have always agreed on the value of giving and receiving apologies and the importance of promoting a social and cultural change in attitudes to apologising, particularly in the context of public service provision. I am pleased to be at a point at which I can confirm the Scottish Government’s continued support for the bill.

I thank members of the Justice Committee for their hard work and careful scrutiny of the bill, the organisations and individuals who provided oral and written evidence to the committee, and those who provided briefings for parliamentary colleagues or engaged in the bill process in other ways. In particular, I sincerely thank, as Margaret Mitchell did, the survivors of historical child abuse who shared their thoughts on the bill. I also thank the Scottish Human Rights Commission and Professor Alan Miller. I know that Ms Mitchell worked very closely with him during the process.

It has been made very clear during the bill’s passage through the parliamentary process 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. An apology can be a way of showing acknowledgement of and respect and empathy for another person. Although it cannot undo past actions, if it is made sincerely and effectively it could provide some form of redress and perhaps give closure to those affected.

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

Survivors of historical child abuse have been at the heart of the development of the bill. We have heard from many survivors about the importance to them of hearing an apology. The Scottish Human Rights Commission recognised that in its “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, and full consideration of the merits of an apology law was one of the commitments that came out of that action plan.

It is important to note, as the Scottish Human Rights Commission has pointed out, that the bill is only one of a number of measures to support survivors of historical child abuse in Scotland. The Scottish Government has demonstrated its commitment in that area by establishing the inquiry into historical child abuse, which Margaret Mitchell referred to, and making clear our intention to remove the three-year limitation period for cases of historical child abuse that took place after 26 September 1964, with earlier cases being affected by the law of prescription.

At stage 1 of the parliamentary process, there were particular concerns about the definition of an apology in the bill when it was introduced. Margaret Mitchell alluded to that. It became clear that the wide definition, which included statements of fact and admissions of fault, could end up disadvantaging pursuers, who would be unable to draw on potentially important evidence. Concerns were also raised regarding certain civil proceedings where the apologies bill would not work effectively. Margaret Mitchell has covered many of those.

Because of those serious concerns, I initially saw benefit in an alternative approach that would put the common law in Scotland on a statutory footing along the lines of section 2 of the Compensation Act 2006, which applies in England and Wales.

Having discussed the issue further with the member and reflected on the evidence at stage 1, however, my officials and I undertook additional work on the impact of the bill, in particular to try to ascertain whether removing fact and fault from the definition would alleviate concerns about any potential injustice to pursuers. I listened carefully to stakeholders and was persuaded that if the definition was amended to remove fact and fault, the access to justice concerns could be addressed.

At stage 2, therefore, I lodged an amendment to remove fault from the definition, alongside Ms Mitchell’s own amendment to remove fact. Those amendments, as well as some amendments for further exceptions and some technical amendments, were agreed to in the Justice Committee at stage 2 on 8 December 2015.

The two amendments lodged and agreed to at stage 3, as we just heard, will clarify the Scottish ministers’ powers to make regulations under section 2(3) and provide flexibility as to the application of the exceptions by means of “transitional, transitory or saving provision”.

I mentioned earlier concerns that were raised at stage 1 regarding the effect of the bill on regulators of health professionals such as the General Medical Council and the Nursing and Midwifery Council. The committee heard from those regulators about the potential unintended consequences of preventing apologies being used as evidence in their fitness to practice proceedings, which could impact on their ability to assess the risk that a doctor or nurse might pose to the public in future.

My officials have been working closely with the NMC and the GMC to find a solution to their concerns. It is clear from those discussions that an exception for civil proceedings undertaken by health professional regulatory bodies is needed. However, more work is still required to establish exactly what form such an exception should take. I would therefore like to take this opportunity to state my intention to use the powers of the Scottish ministers as outlined in section 2(3) of the bill to add an exception for proceedings held by health professional regulators once that additional work has been concluded.

I reiterate my sincere thanks to Margaret Mitchell for introducing the bill and for working very constructively with the Government and my team on it. I am pleased to be at a point today where I believe that we have a bill that can make a difference to attitudes to apologising in Scotland and can deliver the culture change that the member seeks. I commend the bill to Parliament.

Photo of Elaine Murray Elaine Murray Labour

There is probably not a great deal more to say about this short bill at this stage that has not already been said, so I apologise for any repetition.

Margaret Mitchell is to be congratulated on bringing her member’s bill to this final stage—shortly, I am sure, to become law. That is an achievement for any member who undertakes all the additional work that a member’s bill requires. Margaret is also to be congratulated on being prepared to listen to and take on board concerns and suggestions made during the stage 1 process. She and the Scottish ministers have worked together to overcome those issues and produce a final bill that I think has cross-party support.

Margaret Mitchell has described to us what motivated her to introduce the bill as convener of the cross-party group on adult survivors of childhood sexual abuse. The process that she has described in turning matters discussed by a CPG into legislation that is likely to be passed today testifies to the importance of procedures in this Parliament that enable the concerns of citizens of Scotland to result in legislation. We hear a lot of criticism about the committees of this Parliament, so it is worth noting when our procedures work well and produce good legislation.

I am sure that we have all had experience of constituents who have suffered some form of misfortune at the hands of public or private sector organisations and have felt aggrieved that they have not received so much as an apology for the distress caused to them. Sometimes an apology is all that the aggrieved person requires; on other occasions, they need to know that action will be taken to prevent the mistake from occurring again so that others will not have to go through what they have experienced. A meaningful apology for harm done can be of great psychological and emotional benefit, and it may sometimes be more helpful than any other action taken.

Despite this being a short bill and its intention being widely welcomed, the bill as drafted at stage 1 raised a number of concerns. There was a general consensus that removing the fear of civil action would be valuable, but many witnesses were concerned by the wide scope of the definition and the way in which it would work. We have heard about how it interacted with the GMC’s standards and the duty of candour in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill.

Concerns were also expressed that the bill could have had the unintended consequence of disallowing consideration of information that was relevant to subsequent civil action and thereby depriving victims of compensation.

The fairly small number of amendments that were unanimously agreed at stage 2 removed those concerns by narrowing the definition of an apology. That may have been disappointing to the member in charge, who I know wanted the fullest possible definition of an apology, but an apology is now defined as a statement indicating that a person is sorry about or regrets an omission or outcome and undertakes to look at the circumstances that gave rise to the matter for which the apology is being given, with the intention of preventing recurrence.

As a result of the stage 1 evidence, certain legal procedures were removed from the scope of the bill. Fatal accident inquiries are now exempted, as those are concerned not with liability but with understanding what has happened, with the sheriff making recommendations about how the death could have been prevented. An apology may be an important piece of information in understanding the cause of death and therefore it should be admissible as evidence to an FAI. A similar argument applies to public inquiries that are set up under the Inquiries Act 2005, which are also held to establish the facts and restore public confidence.

Proceedings under the Children’s Hearings (Scotland) Act 2011, whether before a court or a children’s hearing, were also exempted from the definition. That was strongly advised in written evidence from the Scottish Children’s Reporter Administration, which felt that there could be serious implications for child protection and youth justice if apologies could not be considered in the children’s hearings system. For example, an apology for harm done to a child might well be relevant to the actions that need to be taken to protect that child, so it is important that those are not exempted.

The minister made two further minor amendments today. One enables the Scottish ministers to vary or remove exceptions as well as to add to them, and the other clarifies that ministers can regulate on transitional, transitory or saving provisions. The minister explained to me what a transitional provision is, but he did not tell me what a transitory provision is, so I will remain consumed with curiosity as to that. I was tempted to say that we were not going to support those amendments at stage 3 so that we could buy ourselves another five minutes, but that would have been a little silly and I am sure that you would not have agreed to it, Presiding Officer.

At stage 1, the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers gave evidence that we do not have a particularly litigious culture, which is a good thing. As Margaret Mitchell observed, an apology could reduce the number of complaints that are made to organisations such as the Scottish Public Services Ombudsman, which would be a benefit not just to the SPSO, in terms of effort and time, but to the organisations that are complained about and the complainer.

I thank the committee clerks, the Scottish Parliament information centre and the witnesses who gave evidence on the bill. I again congratulate Margaret Mitchell on piloting the bill through Parliament, and I thank the Scottish Government for its assistance with the modifications of the bill. I wish the bill well when it is enacted.

Photo of Gavin Brown Gavin Brown Conservative

I, too, congratulate Margaret Mitchell on the bill. I thank the minister, the Justice Committee and all those who gave evidence for getting us to where we are today.

A couple of months ago, I was not convinced that we would end up with the bill that we have ended up with. When the driven passion of Margaret Mitchell met the caution of the minister, I had a fear—albeit a minor one—that we could end up with a bill that was utterly toothless and not worth the name, or with a situation in which both parties walked away and, after all that work, we ended up with literally nothing.

However, the actions of the member promoting the bill and the Scottish Government have to be praised in the highest order. They have met regularly, talked through issues and carefully explained the positions that they have taken and why they have taken them. Both sides have been pretty consensual in trying to ensure that we end up with something that the Parliament can be genuinely proud of.

We had a useful debate at stage 1 and helpful amendments at stage 2. That consensual approach typified the approach all the way through the debate and the stages of the bill, to the extent that at stage 3 we ended up with a mere two amendments, neither of which prompted any genuine debate or was opposed. I suspect and hope that that will be the case when we decide on the bill as a whole at decision time.

I noted the minister’s approach. He listened carefully. He lodged an amendment at stage 2 that in my view might have diluted the clarity slightly, but he listened to arguments from a number of committee members and decided not to move that amendment. That typified the approach of all parties towards the bill.

The bill that we have ended up with is not hugely different from the bill at stage 2, but it is different from at stage 1. First, we have some more exceptions to it. Inquiries under the Inquiries Act 2005 have been excluded, as have children’s hearings and apologies under the duty of candour. There are good and sensible reasons behind each of those exclusions, particularly the last one, as it was obvious that the duty could not have coexisted with the bill. The interaction had to be considered carefully, and we had to be absolutely clear that there were no unintended consequences. We are probably comfortably at that stage now.

I note that, in its short report to members in advance of the debate, the Law Society accepts the general principles of the bill and does not raise any additional issues. That is pleasing. We have struck the balance between promoting apologies and minimising unintended consequences.

We have already heard about the other major changes. There was a slight narrowing of the definition of apology. Margaret Mitchell initially wanted it to be as wide as was feasible, but she listened carefully and we have rightly removed statements of fact and admissions of fault from the definition.

The Justice Committee considered the matter over a period of months and stated clearly in its report that the definition of apologies must be reconsidered. The member in charge of the bill made it clear as early as stage 1 that she was perfectly prepared to do that. Had we stuck with the original definition, we would probably have ended up going much further than comparable apologies legislation, so we have probably ended up at the right place. We did not want to disadvantage or prejudice any potential pursuers.

Today will mark the end of the legislative process, but what happens after that is even more important. It is all well and good to pass legislation, but if that legislation does not achieve the cultural change that we all want, its value is greatly diminished.

As a number of members mentioned, we will have to ensure that the right training is provided so that people who are at the front line can do their jobs correctly. We need to publish the right amount of guidance so that we make it easy for people who are at the front line to be aware of the legislation and know how they ought to act. If we do that, when we look back in a couple of years, we will all say that we passed the right legislation, it made a difference and we achieved what we wanted to achieve right at the beginning.

Photo of Roderick Campbell Roderick Campbell Scottish National Party

I declare an interest as a member of the Faculty of Advocates.

Charles I is reported to have said:

“Never make a defence or apology before you be accused.”

Of course, he had an unfortunate fate. Perhaps he made his apology a little too late. Perhaps we should follow the lead of the cyclist Greg LeMond who, in difficult circumstances, is reported to have said:

“More people should apologize, and more people should accept apologies when sincerely made.”

Whatever the merits of an apology, we should recognise that the bill—which follows in the footsteps of legislation in other jurisdictions—is a step forward. As many people have said, it is not about changing the law; it is about changing the perception that we cannot say sorry.

Many individuals who suffer some calamity in their lives, often in what could be described as issues of minor injury or distress, are looking only for an apology. The failure to provide one simply inflames matters. Therefore, changing the culture is to be commended.

Margaret Mitchell is to be congratulated on listening to the views of others, not least those of the Scottish Government, on ways in which the bill could be improved, the need to remove the reference to statements of fact and excluding fault. She is also to be congratulated on recognising the need to provide an exclusion for the duty of candour that is proposed in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill.

We heard a lot of evidence at stage 1 of the Apologies (Scotland) Bill, some of which was memorable. For example, on the inclusion of a statement of fact in the bill as introduced, Mr Stephenson of the Faculty of Advocates said:

“why include ‘a statement of fact’? … 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.’”—[Official Report, Justice Committee, 9 June 2015; c 16.]

However, as Mr Stephenson said, no one would seriously argue that such a comment 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.

Issues in relation to the interaction with pre-action protocols and the insurance industry were raised, and I am pleased that we have got to the point where those issues will no longer cause potential difficulties. As the committee recognised, there are proceedings, such as defamation and fatal accident proceedings, in relation to which it would be wholly inappropriate to seek to exclude an apology.

Of course it would be fair to recognise that there were some—in particular the SHRC—who favoured the broad definition of apology as originally drafted, not the rather more limited version that we now have in the bill. However, as Bruce Adamson of the SHRC said in evidence,

“Although we can have discussions about whether to have a limited or more robust definition of apology, what matters in the end is whether the individual victim can have an effective remedy.”

He also said:

“Apology is very much one tool among many.”—[Official Report, Justice Committee, 9 June 2015; c 29.]

I agree.

With regard to certain issues in relation to sexual abuse, I accept that the bill might not provide all the answers that are being sought. However, we should be mindful that the O’Brien inquiry will, hopefully, provide for at least some answers and public recognition of that abuse, which have been sought for a very long time.

What impact will the bill have? We shall just have to wait and see. It seems most unlikely that it will be any form of magic wand. We know, of course, that it was the view of Professor Robyn Carroll, an Australian academic, that the little data that exists on the shift in behaviour from the field of medical practice tells us that such legislation has been relatively ineffective. Nor can it really be said that Scotland has a compensation culture that is comparable to that of other jurisdictions. However, we should not prejudge the matter. Instead, we should approach the passing of the bill with a positive spirit, wish it well and thank the member for her passion, for her efforts in steering the bill through its passage and for dealing with the caution of the minister.

Photo of Margaret McDougall Margaret McDougall Labour

I, too, congratulate Margaret Mitchell on bringing this bill to Parliament.

When I spoke in the stage 1 debate on the bill, I highlighted a number of concerns that I had with the bill. However, during the stage 2 discussions, the bill was amended. Those amendments dealt directly with the concerns that I had, so I am happy to support the bill today.

The stage 2 amendments focused primarily on tackling the bill’s unintended consequences. In doing so, they have made sure that inquiries under the Inquiries Act 2005 are no longer covered by the bill. The reason why that is important is that inquiries are primarily fact-finding exercises and they might find that apologies are in the public interest—that is for each inquiry to decide. If inquiries were not exempt, their independence would be brought into question, so the amendment to the bill is a welcome improvement.

I also welcome the fact that the Children’s Hearings (Scotland) Act 2011 has been exempted from the bill. Concerns were raised that, had the act been included, cases of child abuse might not see the light of day, or children might not get properly referred as there would be insufficient evidence to establish grounds for that. The amendment was necessary. If it had not been made, I could not have supported the bill.

The stage 2 proceedings also offered much-needed clarity on the definition of the word “apology” in the bill. Amendments 1 and 10 were in response to evidence taken by the committee that the definition of an apology needed to be reconsidered. The relevant set of amendments removed the references to “admissions of fault” and “statements of fact”. That helped to alleviate concerns that were raised about access to justice being blocked if those admissions and statements could not be used in court to determine liability in actions for damages.

Although my concerns regarding unintended consequences have been tackled, I am still unsure whether the bill will deal with the issue that is highlighted in the policy memorandum, which states:

“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.”

I am aware of such circumstances, but I am unsure whether this piece of legislation will be strong enough to bring about the required cultural change that it has been designed to make. That said, the bill is a step in the right direction and, if it promotes a cultural shift, that would be welcomed. Obviously, it is difficult to predict the social effects of the bill until we see its consequences in practice.

I argued in the stage 1 debate that

“there needs to be a better balance in the bill” to

“ensure, while remaining relevant, that there are no unintended consequences for victims.”—[Official Report, 27 October 2015; c 49.]

The changes that were made at stage 2 have addressed my concerns about the bill. As such, the bill has struck a much better balance between promoting a cultural shift and protecting rather than excluding those who are seeking justice. Once again, I congratulate Margaret Mitchell on introducing the bill.

Photo of Alison McInnes Alison McInnes Liberal Democrat

I, too, congratulate Margaret Mitchell on bringing the bill to Parliament. Since stage 1, there have been some changes to it that, in my view, improve it. The bill now offers a slightly different definition of apology. The new definition still includes the important aspects of an apology—expression of regret and a promise to look into the matter with a view to preventing something similar from happening again—but the removal of admissions of fault and factual statements ensure that we avoid the risk of causing unintended consequences.

As others have said, the bill also now exempts proceedings under the Children’s Hearings (Scotland) Act 2011 from its scope. That had caused me serious concern during stage 1 proceedings, because the bill as introduced could have meant that children’s panels would not have been able to do their job effectively. That was because, currently, apologies outwith proceedings may sometimes be used to establish grounds for referral to the hearings system. The bill as introduced could have had the potential to leave some children and young people behind, so I welcome the change to it.

In relation to protecting children and young people, I turn to an area that has not been discussed as much. During stage 1 proceedings, the Government argued that the bill would add further barriers to justice for the survivors of historical child abuse. At the same time, the Scottish Human Rights Commission and Margaret Mitchell said that the bill had the potential to help survivors.

I took the time to contact a number of survivor groups to gain a better understanding of where they stood on the issue. The response that I received was that, in general, survivors support the bill. One representative stated:

“many survivors of abuse do not wish to pursue legal redress but closure is important to them to ensure ongoing recovery. Survivors felt let down by those who should have offered them care and were deeply affected by their experiences. An apology does not put right what happened but it acknowledges the pain and distress caused and gives some comfort that lessons will be learned for the future.”

For many of the survivors, the issue is the time bar rather than the ability to use an apology in legal proceedings. The response I quoted is a clear example of the way in which an apology can have an important role to play in the healing process. It shows how an apology can enable people to move on with their lives.

During stage 1, I also raised concerns about the potential clash of the bill with the duty of candour provision in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. I am pleased that that clash has been resolved. However, I note that the recent briefing from the Nursing and Midwifery Council states that the bill, as it stands, would prevent the NMC’s fitness-to-practise panels from relying on evidence that is currently admitted. I am therefore grateful for the minister’s assurances this afternoon that it is his intention that he will use the powers in the bill to add a further exemption. That is welcome clarification.

Finally, while I am still not entirely convinced that the bill will create the much-needed cultural change to make apologies more acceptable—which, in large part, was the purpose of the bill—I hope that it will be a good first step. Cultural and attitudinal shifts take time to happen. It is important that along with this legislation come appropriate education, training and guidance that further encourage that shift. We need organisations to encourage, not discourage, admissions of fault and apologies. We need to work together with the insurance industry to dissuade it from barring its customers from making apologies for fear of having their policies invalidated. The Scottish Liberal Democrats intend to support the bill at decision time.

I commend the member in charge of the bill, Margaret Mitchell, for her determination to pursue the issue and her willingness to negotiate with the Government to ensure that the bill could progress to this stage. I thank her for doing that and I hope that the bill brings about the cultural change that she hopes for.

Photo of Gil Paterson Gil Paterson Scottish National Party

I thank Margaret Mitchell for her determination and the way in which she has chaperoned her bill through Parliament. She has been a good listener and made changes, and all that is to her credit.

The aim of the bill is to provide that an expression of apology is inadmissible as evidence for the purposes of civil legal proceedings, excluding defamation proceedings and fatal accident inquiries. As drafted, the bill makes provision for expressions of sympathy or regret, and any admission of fault or undertakings does not amount to an admission of liability. Apologies have the great value of acknowledging that something has gone wrong and demonstrating that lessons have been learned.

In the not-too-distant past, it was common in everyday life for people to make full apologies. It was considered to be basic good manners and it happened everywhere: in workplaces; at play, whether that was in the school playground or among older people at play; and in the home. However, even in those days, people could fall out for the simple reason that an apology was not given. It might have been through pig-headedness, but someone not saying could sometimes mean losing friends for life or starting a feud.

Having said that, I note that it was much easier in the past. I fear for the Americanisation of our culture because it has changed it for the worse. We now have an industry based around ambulance chasing and no-win, no-fee cases. When something happens within a company or officialdom, they are less likely to say that they are sorry, because they are worried about claims. We need to get back to where we were, and the bill will help us to achieve a more polite and non-confrontational society. I know that it will not be easy because we are looking for a cultural change.

Margaret Mitchell is to be congratulated on listening to the witnesses, but I should not forget to mention the Government, which has also played its part in making the change happen. The bill gets the balance right, and it will help to achieve the change in attitude that we are looking for.

Scotland is not the first jurisdiction to have such legislation. It is in force in the USA, Canada and Australia. Although the laws are not identical, they all seek the same outcome. An apology does not mean that litigation does not happen, but saying sorry does not mean that it will, and that is what everyone is trying to achieve. Under the legislation, a simple apology is just a simple apology. A simple “Sorry” can be said without fear of an admission of guilt. The bill gives space for an apology to be given without the fear of litigation.

For many people in everyday life, a simple apology still happens. However, even in serious circumstances, such as historical child abuse, victims crave an apology. That is not to say that victims of historical abuse, sexual or otherwise, would not want their case to be pursued in the courts, but, for many people, an apology is an enormous step forward in their lives. It could mean them moving forward for the very first time. A simple apology in itself can make a difference.

In general terms, as I explained, attitudes have hardened, and we need to find a way to overcome that with a simple apology. That could help society to change. Margaret Mitchell’s bill can change things for the better. She has been diligent in what she has tried to achieve, and I thank her for that.

Photo of Gavin Brown Gavin Brown Conservative

It has been a short but useful debate, in which we have had references to everything from Charles I to something that still amuses me slightly: Margaret Mitchell saying, back in 2012, “This should be pretty straightforward.”

The passage of the bill is an example of how legislation ought to work. The original bill is drafted pretty well, and the broad principles are in the right ball park. Over the course of committee discussions and debates, the risks are removed one by one and sections are strengthened, so that at stage 3 we end up with a good bill with which it is difficult to disagree.

Apart from members’ business debates, this is one of the first debates that I have taken part in—in many years in this Parliament—in which there has not been an intervention on any of the speakers.

There have been some useful contributions to the debate. I was interested to hear that Alison McInnes has personally contacted groups and individuals representing survivors of historical abuse, and it was comforting to hear that they are strongly in favour of the bill. That ties in exactly with comments that Margaret Mitchell made to me over the past couple of weeks. Given the genesis of bill and where it came from, it is absolutely vital that those groups are still 100 per cent behind it. I am very comforted to hear that that is the case.

I enjoyed Gil Paterson’s contribution, as I always do. He said that back, in the day, apologies, for whatever reason, tended to happen much more regularly than they do today. Like many of us, he hopes that the bill will be a vital first step in ensuring that we go back to where we were.

A number of members have touched on—and no doubt the Government, in closing, will touch on—the fact that this is just the first step. As we know, training will be required to ensure that those on the front line are able to get things right. In particular, they will need to be given careful training on exactly what is included in and excluded from the scope of the bill, given that there are a number of exceptions. Those people must be absolutely crystal clear about what they are able to do and not do. We have heard that guidance will be required, and I am sure that the Government will want to involve Margaret Mitchell and those on the Justice Committee in ensuring that the guidance is as good as it can be, so that it has the impact that we all want it to have.

Ultimately, the legislative change will be of great value only if it leads to cultural change. That is what we all want to see. We want to end the perception that we cannot say sorry and that somehow that is a sign of weakness, and we want to calm the fears of litigation. Roderick Campbell was right: we are not as prolific in terms of litigation as some jurisdictions, but from listening to the evidence there can be no doubt that some witnesses have a genuine fear of it, and many people give that genuine reason for not giving an apology.

We do not know for sure exactly what impact the bill will have, but I was particularly taken by the part of the committee report that said that, although legislation is not a magic formula, it has “a role to play” even if it does not have a dramatic effect. As long as it has some form of effect, it has a role to play. Given the guidance and training that we all want to see and which we will push for, I am hopeful that it can have more than a minor effect.

Alison McInnes put it well. Although she said that she was not sure what effect the bill will have, she described it as a vital first step. She is absolutely right: this is a vital first step that we all hope will have the impact that we desire. What we can say for certain is that, if we did not take this vital first step, we could almost guarantee that we would not see the cultural change that we all want to see. The bill is the first step; I am very hopeful that it will have the impact that we want to see; and I look forward to voting in favour of it at decision time.

Photo of Graeme Pearson Graeme Pearson Labour

Many members around the chamber have quite properly acknowledged Margaret Mitchell’s hard work and persistence in following through with the bill: introducing it, shepherding it through committee and having negotiations on it with the Government. Her compromise at key moments has also been touched on, when commonsense responses were not in any way a betrayal of her original intentions with the bill. We should also acknowledge Paul Wheelhouse’s sensible responses on behalf the Government in bringing us to where we are today—the birth of a new piece of legislation, subject to the vote after the debate.

Members have also acknowledged that the Justice Committee and the clerks who service that committee have done a great deal of background work. That has brought us to a position that, although not perfect—as a number of members reflected when they said that this is a first stage—is a declaration of intention on behalf of the Parliament that there should be a different culture or approach as we go forward.

The Scottish Human Rights Commission, in supporting the approach that Margaret Mitchell developed in her cross-party working group, helped to provide the kernel that formed not only part of the policy memorandum, but part of the bill that we will vote on tonight.

The policy memorandum indicates that obstacles to apologising exist in Scotland. It argues that there is

“an entrenched culture in Scotland and elsewhere that offering an apology when something has gone wrong is perceived as a sign of weakness.”

It also refers to:

“a fear that an acknowledgement of fault can ... lead to litigation.”

I would add a third point—that there is also an individual fear, in a professional situation, that offering an apology offers a threat to future opportunities for career advancement, which sometimes silences people and stops them saying the right thing at the right time.

Margaret McDougall, Gavin Brown and other members indicated that there is no compensation culture in Scotland. However, as an example, compensation payments made by the national health service in Scotland through clinical negligence and other risk indemnity schemes have risen from £1.6 million in 2000-01 to £58.24 million in 2010-11. I do not think that I will be alone in the chamber in having dealt with constituents who began a complaint journey merely wanting an apology, an explanation and the confidence that the circumstances would not be repeated. That pertains not only to health service complaints, but to the complaints that we receive across the board.

The policy memorandum argues that in many cases people complain about a particular situation simply to achieve a sincere apology and an assurance that the situation will improve for the future. To that extent, I think that the change in culture that is flagged up by the bill is to be welcomed. It is an open door and an opportunity for those who act on our behalf in public services to offer an apology in the right circumstances. It is also an opportunity to leave a complainer in no doubt at an early stage that what they have said has been heard, understood and believed, that the evidence supports the fact that an apology is due and that the apology is offered sincerely, with a view to repairing the situation for the future.

The bill proposed by Margaret Mitchell, and now agreed between her and the Government, goes a long way towards providing the circumstances that will make life better for the general public in the future.

The bill will apply to all civil proceedings—apart from those that many members mentioned—and it is not retrospective in effect. Some members said that they are unsure whether it will achieve what it set out to achieve, but unless we take a step into the unknown by agreeing to pass it this evening, no change in culture can be achieved.

I welcome the bill. Like the Government, we will support it when it comes to the vote.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I thank all members for their speeches, as I am sure that Margaret Mitchell will do, and for their interest in promoting a culture change in relation to apologies. It is clear that the bill touches on an issue that is close to many people’s hearts.

Like Graeme Pearson and other members, I think that we have all met individuals who started a journey wanting nothing more than an apology and recognition that they were right to be concerned about what had happened to them, so that they could move on, only for the issue to snowball and become something more significant.

I am grateful for the widespread support that Margaret Mitchell has had for the bill. That broad support has made the process easier for the Government as well as for her. I was struck, as I was at stage 1, by her description of the bill’s importance and its origins—securing her aim today will be particularly poignant for her. I thank members for their engagement on the bill and with my team throughout the parliamentary process.

I thank Gavin Brown for his kind remarks. He pointed out, very appropriately, that the process has been a testament to the Parliament’s procedures. We had a constructive debate at stage 1, all parties worked constructively at stage 2, and at stage 3 I think that we have secured a bill that meets the concerns that Margaret Mitchell set out at the start of the process and allays any concerns about it on the part of the Government and members of other parties.

I thank Christine Grahame, the convener of the Justice Committee, and all the committee members for their detailed and careful consideration, which helped to shape the bill. I also thank individuals and organisations who engaged with the bill process.

On Elaine Murray’s point about the difference between a transitional and a transitory provision, I thank her for not making an issue of the matter during our consideration of amendments. I understand that a transitory provision is similar in nature to a transitional provision but might cover the gap between new legislation coming into force and old provisions being dropped by the Parliament, and that a fixed date is usually associated with such a provision. However, I will be happy to get chapter and verse on that to Elaine Murray in due course.

I was struck by what Gil Paterson said about how in the past it was a matter of good manners to apologise. As Gavin Brown said, it is to be regretted that society has changed to such a degree. I hope that Margaret Mitchell’s bill will move us a little way towards the return of good manners and the making of apologies where they are warranted.

Margaret McDougall helpfully set out, for her interest and for the benefit of members, how concerns were addressed at stage 2. It is helpful when parliamentarians explain our procedures to the public, and she eloquently described how her concerns about the Children’s Hearings (Scotland) Act 2011 and other areas were addressed during the passage of the bill, which again demonstrates the merits of the process.

Rod Campbell referred to the insurance industry. The bill makes provision for the effect of an apology in certain legal proceedings but does not change the law in relation to the insurance industry, which is reserved. There is no requirement for an individual to make an apology. However, by voting for the bill the Parliament will send an important message about the value of apologies and the need to encourage a culture in which apologies are more freely offered, and I hope that the insurance industry will take note of that message. Nonetheless, in future, individuals might also wish to consider the terms of their insurance contracts in that regard. It is important to make that point.

A number of members referred in the debate to survivors of historical child abuse who took time to consider the bill and share their thoughts on it. I reiterate my thanks to the people who engaged with me personally and to those who engaged with other members. Alison McInnes referred to them. It would have been wrong of us not to acknowledge today the origins of the bill and the particular group that may be impacted positively by it.

On the points that Alison McInnes and others made about education, training and guidance, I fully accept that we need to try to support as best we can the process to educate those in the public services in particular, but also wider society, on the benefits of the legislation and the advantages that there may be to them. Many individuals who work in the public sector have said to me that they have wished that they could give an apology but they were fearful of litigation. This is not to excuse that, but I think that we can all understand the pressures on them. I hope that, as Graeme Pearson suggested, the bill will lead to a significant step forward in that respect.

I thank the non-Government bills unit in the Scottish Parliament, which has worked closely with Margaret Mitchell as well as with Scottish Government officials throughout the process and supported our constructive discussions. As I outlined, my main concern about the bill’s original wording was that there was potential for the unintended consequence of restricting access to justice for pursuers who want to make a fair claim. Based on discussions that we had involving the non-Government bills unit and Margaret Mitchell and on further engagement with stakeholders—not least Professor Alan Miller—we concluded that it was possible to find a suitable compromise that would keep the essence of the bill but minimise the unintended consequences. I believe that we have achieved that today and I hope that the bill will be agreed to at decision time.

I reiterate my thanks to Margaret Mitchell for proposing the bill. I am grateful to her for the work that she has done and for working with the Government. As I said, I hope that the outcome of the bill process will send an important message about the value of apologies that has the potential to change attitudes in Scotland. I am pleased that we have reached this point today and can support the bill.

Photo of Margaret Mitchell Margaret Mitchell Conservative

In closing the debate, I want to thank some of the individuals without whom the bill would not have reached this stage. I start with Mary Dinsdale, Andrew Mylne and Neil Ross from the non-Government bills unit, who have been a tremendous support and a source of wise advice throughout the process. Their hard work, research and counsel have been invaluable, as was their encouragement when even introducing the bill was less than straightforward.

A good deal of research was carried out initially, before the proposition for the bill was even mooted with the NGBU, and again as the bill progressed. I thank Kate Wane and Greig Lamont for the huge amount of work that they carried out to get the bill off the ground and for presenting a case for its introduction. Before the draft bill was produced, further research was required, and Douglas Maxwell’s research and involvement were a tremendous help.

I give particular thanks to my parliamentary researcher Felicity Hollands for her continuous support and advice, and I also thank Maureen Morrison, who helped to smooth the bill through its passage prior to stage 2.

It would be remiss of me not to acknowledge the sound guidance on the bill’s competence from the Law Society of Scotland’s Michael Clancy. With analytical precision, he established that the bill was competent as it merely clarifies the law of evidence in civil proceedings.

I owe a huge debt of gratitude to Professor Prue Vines, who is based in the faculty of law at the University of New South Wales. As well as being a visiting professor at the University of Strathclyde, she is the recognised academic expert on apologies legislation. Her world-renowned research on apologies and the effect of the New South Wales apologies legislation significantly informed the bill as introduced. She gave me excellent advice based on her research on what constitutes an effective apology, and she responded immediately when the bill appeared to be floundering, by helping to tease out the problem and giving her comments on a proposed way forward. I know that she will derive a huge amount of pleasure if the Parliament passes the bill tonight.

John Sturrock QC also provided much-appreciated support and suggestions throughout the bill’s introduction and passage. In particular, I thank him for organising an event in the Parliament with Ken Cloke, the mediator and internationally acclaimed writer on conflict resolution. Ken’s powerful testimonies highlighting the effectiveness of an apology in his own work as a mediator reminded me of and confirmed how important it was to press ahead with the bill secure in the knowledge that aiding a culture of apologising to flourish in Scotland benefits both those who have been harmed and those who are responsible for the harm that has been caused.

I have referred to the role that was played by Professor Alan Miller, the chair of the Scottish Human Rights Commission, in making me aware of apologies legislation in the first place when he visited the cross-party group on adult survivors of childhood sexual abuse. His conviction, and that of Prue Vines, that a protected apology is essential for apologies legislation to be truly effective has been crucial to my understanding that the apology must be inadmissible in civil proceedings. When it was suggested, at stage 1, that the bill should follow the wording of the Compensation Act 2006, which allows an apology to be admissible, Professor Miller succinctly explained the adverse consequences that would follow. He 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.”

His views, as well as the experience of the cross-party group on the adult survivors of childhood sexual abuse, proved to be pivotal in helping to ensure that the inadmissibility provision remained.

I pay tribute to the members of the cross-party group for their contributions and their consistent and continued support during the scrutiny process. It is worth reiterating the views of a representative of one of the survivor organisations on the CPG, who confirmed that, for many survivors, it is not legal actions or compensation that are important. What they want above all else is closure and to move on with their lives, as that helps the healing process. The acknowledgement of what happened also gives them hope that they can perhaps prevent the same fate from befalling someone else.

The first recognised apologies legislation was enacted in Massachusetts, in the United States, in 1986, after a young girl named Claire Saltonstall was hit and killed by a car while she was riding her bicycle near her family home and 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. Upon his retirement, the senator and his successor presented the legislature with a bill that was designed to create a safe harbour for would-be apologisers. As was stated at stage 1, 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, introducing apologies legislation.

In the consultation that went out prior to my bill’s introduction, I cited a scenario that every member will recognise. A constituent comes to them and outlines an adverse experience, whether it involves a local authority, the police, a utility or retail company or a quango. The constituent then goes on to say that they do not want to take legal action; they want an acknowledgement that the adverse experience has occurred, an apology and, above all, to ensure that the same thing does not happen to anyone else. However, we all know that, more often than not, fear of litigation prevents their receiving that apology. I am hugely gratified that, while the duty of candour will apply to the health service, the Apologies (Scotland) Bill, addresses and resolves the problem of fear of litigation elsewhere in both the public and private sectors, which has positive and significant implications for early resolution, preventative spend and savings.

If the bill is passed this evening, I will be immensely proud that Scotland is leading the way on apologies legislation in the UK.