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Apologies (Scotland) Bill

Part of the debate – in the Scottish Parliament on 19th January 2016.

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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.