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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.]
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.