Public Law

The Apologies (Scotland) Bill. The confessions of a repentant Scottish minister? A guide for naughty schoolchildren on how to avoid the wrath of irate parents? Nope. Guess Again.

Conservative MSP, Margaret Mitchell has made a draft proposal for legislation. Despite the rather peculiar title, the proposal actually addresses a serious issue. It suggests that certain forms of apologies should not be allowed to be used as evidence in certain court cases to help establish liability or fault against the person, or organisation, making the apology.

 The draft proposal is currently undergoing a twelve week consultation process. Thereafter Ms Mitchell would require the support of at least 18 other MSPs from two or more political parties before she had the right to introduce a Member’s Bill.

 The scope of the proposal is broad: the consultation document suggests that government, public authorities, commercial bodies, and individuals would be able to rely on the proposed law if they issue an apology covered by its terms. Indeed, although the current proposal only covers civil litigation, the consultation will ask whether it should be considered for criminal cases.

The over-riding aim is said to be to encourage apologies, thus creating a “more forgiving culture” in which wronged parties gain closure, and therefore decide not to raise court action. That would of course have knock on benefits in easing the administrative burden of the time and cost of litigation.

And that brings me to the nub of the issue: the definition of an apology. The proposal is that to benefit from the ‘immunity’ an apology should have at least three elements: first an acknowledgement that there has been a bad outcome. Second, an expression of regret, sorrow or sympathy for that bad outcome, and third, a recognition of direct or indirect responsibility for that bad outcome. A fourth element may be added: that there should be an undertaking, where appropriate, to review the circumstances which led to the bad outcome with a view to making, if possible, improvements and or learning lessons.

As well as suffering from a degree of uncertainty as regards the circumstances in which the fourth element is required, I wonder if an apology expressed in such a formulaic manner will truly provide closure for a wronged party. Paradoxically, simply saying sorry, which may be viewed as a more genuine expression of contrition, would not benefit from the immunity as it does not contain the three (or four) elements detailed above. Such an expression would therefore still be capable of being used as evidence to help establish the liability or fault of the person or organisation who made the apology. As Mitchell herself admits in the consultation document, “you cannot legislate to make people empathise”.

It is clear there is much debate to be had before the consultation period ends on 28 September 2012.

Ramsay Hall

Associate at Brodies LLP
Ramsay is a solicitor in the firm’s Government, Regulation and Competition team. He has advocacy experience in both civil and criminal litigation and acts for a wide range of public and private sector clients in the Court of Session and the Sheriff Courts. Ramsay also provides public law advice on freedom of information, human rights, statutory interpretation and the powers of the Scottish Parliament.