The following is a guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written numerous posts for In Custodia Legis, including Weird Laws, or Urban Legends?; FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.
I was scrolling through the list of bills before the UK Parliament the other day when the brief and aptly titled Apologies Bill caught my eye. My first thought was why do we need this legislation? As an English person, albeit one that has lived in the U.S. for quite some time now, I apologize for everything. If I have to ask where something is in a store, I apologize for bothering the staff member. If a situation is so dire I find myself having to complain, I apologize for complaining. If someone bumps into me I apologize for simply existing. Except that one time on the Metro when it was all just a little too much, but I am sure we have all had moments like that.
Intrigued by the title of the bill and curious about the content, I clicked through for information on the bill’s intent and it was rather sobering. Apparently, the fear of litigation has led to the sparse use of apologies across the country and the bill aims to provide clarity that apologies do not have any bearing on legal proceedings. The “policy driver behind the initiative is that apologies can often unlock disputes and lead to settlements without recourse to formal legal action.” The bill thus aims to facilitate dispute resolution by ensuring that apologies do not give rise to legal liability in the hopes that sincere apologies will nonetheless serve to either prevent some disputes from entering the courts, or help assist in the resolution of a dispute.
The Apologies Bill received its first reading in the House of Commons on December 1, 2020. It was introduced as a private members’ bill under the 10 minute rule. This rule allows backbench members of Parliament (MPs) to introduce a bill in a speech that can last up to 10 minutes. If the House decides that the bill should be introduced, this 10 minute introduction serves as the bill’s first reading. Bills introduced under the 10 minute rule are rarely enacted into law, but do serve to draw attention and parliamentary time to the issue the bill seeks to redress, frequently “affect[ing] legislation indirectly.”
While the Apologies Bill does highlight the issue of the use of apologies in dispute resolution, it may end up becoming a moot issue, with some academics claiming it is a waste of Parliamentary time, as section 2 of the Compensation Act 2006 already provides that an apology does not amount to an admission of negligence or breach of statutory duty, reading “[a]n apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.” At the time the section was enacted, the explanatory notes stated that it was “intended to reflect the existing law.”
The first reading for the bill acknowledged the existence of section 2 of the Compensation Act, noting that it is “a little known provision” in the law. The intention behind the bill is to provide a fresh and
clear statement from Westminster and a simple legal mechanism to help to improve our country’s conversations. It could incentivize disputing parties to make apologies whether in the direct aftermath of an accident, mistake or other dispute, or further down the line, should the dispute escalate, with a view to achieving a more amicable resolution.
The text of the bill is not yet available, but extensive references were made during the introduction of the bill to the Apologies (Scotland) Act 2016, which was enacted, with cross party support, for “the broader purpose of encouraging a cultural and social change in attitudes towards apologising.” While the text of the English bill is currently being prepared for publication, it may bear some similarities to the Scottish Act, which applies, with limited exceptions, to civil proceedings in Scotland. Section 1 of the Apologies (Scotland) Act provides:
In any legal proceedings to which this Act applies, an apology made (outside the proceedings) in connection with any matter—
(a) is not admissible as evidence of anything relevant to the determination of liability in connection with that matter, and
(b) cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made.
Section 3 of the Act defines an apology as
any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence.
Thus, for an apology to fall within the Scottish Act the statement, which may be oral or written, must include an acknowledgement that there has been an incident and that the person expresses regret, sorrow or sympathy and recognizes their responsibility for the incident.