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