The Scottish Government has proposed the Apologies (Scotland) Bill with the aim of altering the culture and attitudes surrounding making an apology. Discussions have recently been ongoing before the Scottish Parliament’s Justice Committee.

The bill aims to encourage sincere acknowledgement and apology and proposes that an apology would be inadmissible in most civil litigation as evidence of liability and could not be used to the prejudice of the apologising person.

Whilst the bill may be well-intentioned and the aims laudable, concerns are already being expressed about the efficacy and potentially harmful effects of such legislation by the wider legal profession - solicitors, the Law Society of Scotland and the Faculty of Advocates.

Those concerns might be summarised as follows:

Similar legislation exists around the world yet there is little evidence that it works.

A 2014 review of the impact of similar laws in USA, Canada, Australia and New Zealand concluded that there has been little shift in the behaviour of potential apologisers and that in the field of medical practice the legislation has been relatively ineffective.

  • Might the effect of the law be to remove rights presently enjoyed by people to be able to rely on admissions and put them before courts?
  • Could an abusive spouse enjoy protection in legal proceedings relating to the care of children or protection of the abused spouse by writing a letter apologising for an assault?
  • Legislation is unlikely to ensure sincerity.
  • How would changes to current practice be implemented and monitored?
  • What status would an apology have and would a right to review or appeal exist if the person receiving the apology was not satisfied?
  • In healthcare, there is no legal duty to give an apology but the GMC, GDC and associated bodies do have guidelines in place to require full, prompt and honest responses to complaints. A breach of professional standards can result in disciplinary action.
  • Would the bill result in duplication of existing processes and remedies such as complaints procedures and professional bodies’ disciplinary procedures?
  • Might the bill cause delay for those seeking compensation for damage caused?

Will saying “I’m sorry “be governed by statute?

Watch this space!