Meeting of the Parliament 19 January 2016
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.
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