Faculty argues there is no good evidence apologies law would work

The Faculty of Advocates has raised a fundamental question over planned legislation for Scotland which aims to alter attitudes to apologising – where is the evidence from anywhere in the world that such laws are an effective means of bringing about the desired change?

Under the Apologies (Scotland) Bill, an apology would be inadmissible in most civil litigation as evidence of liability and could not be used in any other way to the prejudice of the apologising person.

An “apology” in terms of the bill is a statement that someone is sorry about or regrets something, whether an act, omission or outcome. An admission of fault or statements of fact within the apology qualify as part of the apology itself.

David Stephenson QC, for the Faculty, took part in a round-table discussion of the bill before the Justice Committee of the Scottish Parliament. Witnesses were asked whether the bill was a good thing or a bad thing.

Mr Stephenson suggested the starting point was to acknowledge that the provisions, if enacted, would take away rights which people currently enjoyed.

Those who wanted to rely on admissions would no longer be able to put them before courts, he said.

“If the effect of the bill would be to disadvantage certain people, where is the balancing advantage, and how confident can we be that there would be a benefit from depriving people of rights they currently have?” asked Mr Stephenson.

“The Faculty’s concern is that at the moment, although similar laws have been introduced all around the world, beginning with Massachusetts in 1985, no-one anywhere seems to have good evidence that it works.”

Mr Stephenson cited a major review in 2014 which had considered the impact of such laws in countries like America, Canada, New Zealand and Australia.

The paper, by Professor Robyn Carroll, had stated: “The limited research available does not show that apology legislation has worked as a ‘magic wand’. To the contrary, the little data that exists as to the shift in behaviour of potential apologisers, from the field of medical practice, tells us that the legislation has been relatively ineffective.”

Mr Stephenson added: “On what basis are we to be convinced that sufficient benefit would accrue to take away existing rights and limit what courts may look at when they try to determine the truth of what happened?”

Mr Stephenson imagined a letter written by a husband to his wife, apologising for assaulting her and their children.

“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?”

In written evidence to the committee, the Faculty said it supported the general aim of the bill, but was sceptical that it would achieve the dramatic effect suggested.

The evidence can be seen athttp://www.advocates.org.uk/downloads/news/responses/20150515_apologies.pdf

View the evidence session at http://www.scottishparliament.tv/category.aspx?sort=date&vid=0_iwivs1s2