Meeting of the Parliament 19 January 2016
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-practise 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.
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