Chris Marshall: Apologies Bill unlikely to be law

The legislation is being brought forward by Conservative MSP Margaret Mitchell. Picture: Robert Perry

Amid claims that fear of litigation has left those in positions of authority afraid to issue an apology, legislation is being considered by the Scottish Parliament.

The Apologies (Scotland) Bill seeks to separate apologies, as well as “expressions of sympathy or regret”, from admissions of liability in civil proceedings. Criminal proceedings would not be covered by the legislation.

The proposed legislation, which is being brought forward by Conservative MSP Margaret Mitchell, also attempts the tricky business of defining exactly what an apology should be in law.

Yesterday, MSPs on the Scottish Parliament’s justice committee heard evidence from lawyers and those in the insurance industry on how the bill would work in practice.

Paul McFadden, head of complaints standards at the Scottish Public Services Ombudsman (SPSO), told the committee that there was a “culture of fear” which prevented professionals from issuing a genuine apology.

He said the SPSO – which investigates complaints against bodies including health boards and local councils – regularly dealt with situations which could be solved with a “sorry”, but quickly “escalated” when none was forthcoming.

But both the Law Society of Scotland and the Faculty of Advocates have raised serious concerns about the proposed legislation.

The Law Society said an apology from a doctor or surgeon could be seen as amounting to “implied negligence” and could be misinterpreted by patients seeking legal redress.

Speaking for the Faculty of Advocates, David Stephenson QC said there was no evidence that similar laws introduced elsewhere in the world had actually worked.

Imagining a letter written by a husband to his wife, apologising for assaulting her and their children, he said: “Does anyone seriously believe that that letter, because it starts with the word ‘sorry’, should be inadmissible in legal proceedings … relating to the care of the children or protection of that woman from her husband?”

While it’s a rather sad indictment of our society that many fear the legal consequences of a simple apology, the proposed legislation looks as if it will create more problems than it will solve.

While no doubt well-intentioned, the whole idea looks like a mistake. With an array of legal opinion lining up to question the plans, it’s difficult to see the bill making it to the statute books.

There’s no need for anyone to apologise, but the whole idea should probably just be dropped.