Apologies

Debate between Lindsay Hoyle and John Howell

1st reading & 1st reading: House of Commons
Tuesday 1st December 2020 Commons Chamber

[John Howell (Henley) (Con)]

I beg to move,

That leave be given to bring in a Bill to make provision for the effect of an apology in certain legal proceedings; and for connected purposes.

Let me start by declaring that I am an associate of the Chartered Institute of Arbitrators, since the heart of the Bill lies within the dispute resolution and dispute prevention system. I will also say what the Bill does not do: it does not take away any rights that we may have to go to court on any issue, but it does introduce an element of civility and common sense back into society. It allows an apology to be given that is genuinely and sincerely meant without creating a legal liability that would run into millions of pounds.

Simply put, an apology that does not create a legal liability will often settle a dispute, rather than being seen as a way to take the accused for every penny they have. It should be the mark of a mature democratic society and of its dispute resolution system that an apology, whether made publicly or privately, can and should be allowed to be meaningful and helpful rather than simply a necessary yet tokenistic gesture. An apology can truly change atmospheres, the nature of conversations and outcomes. Used appropriately, it can help to avoid a dispute going to court. Equally, it can assist the resolution of a case by changing the approach being taken.

The policy driver behind the initiative is that apologies can often unlock disputes and lead to settlements without recourse to formal legal action. Since parties may be reluctant to do anything that may be construed as an admission of liability, apologies have to date seemingly been sparse, except in cases of NHS clinical negligence. A culture has emerged of people and organisations not wanting to offer an apology in case it is detrimental to their legal position or deemed to be a weakness. With tragic incidents such as that of Grenfell Tower, and the need to improve multicultural community cohesion, the time has come to extend the current limited legislative provisions.

A fresh apologies Act would be a clear statement from Westminster and a simple legal mechanism to help to improve our country’s conversations. It could incentivise 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.

An NHS publication, “Saying sorry”, published in June 2017, reminds of a little-known provision in the Compensation Act 2006, which provides that:

“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”

More significantly, in the same medical context, there is the duty of candour under the Health and Social Care Act 2008, which is more fully described in a leaflet published by Action against Medical Accidents and endorsed by the Care Quality Commission. The General Medical Council and the Nursing and Midwifery Council advise that that means that healthcare professionals must tell the patient when something has gone wrong; apologise to the patient; offer an appropriate remedy or support to put matters right, if that is possible; and explain fully to the patient the short and long-term effects of what has happened.

How has such common-sense advice worked in practice? A search during the preparation of this speech found that there was limited empirical research through acknowledgements of the benefits and anecdotal examples of its successes. In fact, the most helpful insight into the successful outcomes of medical apologies comes from an article in the National Law Review, a US professional publication, dated 6 November 2018. Although the majority of US states have, on the one hand, apology legislation, but on the other, a highly litigious approach to life’s adversities—from the current President downwards —none the less:

“Physicians typically recall, with stunning clarity, the moment a patient’s treatment went wrong. Following an adverse event, physicians often are tormented by competing desires to apologize and instincts to forge ahead without acknowledgement. A patient’s decision to file a malpractice action may be triggered by the physician’s response to a problem—or lack thereof…Apologies may decrease feelings of frustration and anger that drive some plaintiffs to file lawsuits. A study published in the Journal of Patient Safety and Risk Management found that”

those engaging in a

“‘collaborative communication resolution program’ experienced a significant decrease in the filing of legal claims, defense costs, liability costs and time required to close cases…Events with medical errors were resolved by apology alone in 43% of the cases. Similar programs have cut the number of malpractice lawsuits and yielded dramatic litigation cost savings.”

Not only do the majority of US states have apology statutes, but so do Australia, Canada and even Hong Kong, whose legislature was the first jurisdiction in Asia to enact apology legislation through the 2017 ordinance, but was unable to put its best intentions into effect due to the growing restrictions from mainland China on its governance and judicial systems.

Closer to home, there is the approach taken by Holyrood with a short yet powerful statement: the Apologies (Scotland) Act 2016, which contains only six clauses, including its commencement and short title. It 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”.

For an apology to be constituted within the terms of the Scottish Act, it must include an acknowledgment that there has been a bad outcome, an expression of regret, sorrow or sympathy, and a recognition of direct or indirect responsibility. In addition, there may also be an undertaking to review the circumstances of the incident with a view to making improvements or learning lessons. The Act applies to all civil, not criminal, legal proceedings, with some exceptions.

The following considerations are worth noting. Qualifying apologies may be oral or in writing. The core element of an apology as defined in the Act is an indication

“that the person is sorry about, or regrets, an act, omission or outcome”.

Where the statement includes

“an undertaking to look at the circumstances…with a view to preventing a recurrence”,

it qualifies as part of an apology. An apology does not include statements of fact or admissions of fault, so in any statement that includes both an apology and a statement of fact and/or an admission of fault, only the apology is inadmissible as evidence of liability. The Act makes it possible to apologise without fear of prejudicing the person making the apology or of the apology being used to attribute blame in litigation. It applies to all civil proceedings except four types of specific actions. As I said, it does not apply to criminal proceedings.

In a subsequent article written by Scotland’s most high-profile mediator, John Sturrock QC explains how that piece of legislation achieved the rare distinction of attracting enthusiastic cross-party support:

“Over more than two years, Margaret Mitchell”—

a Conservative MSP—

“has piloted this legislation through the Scottish Parliament with skill and tact…As one member noted: ‘…Both sides have been pretty consensual in trying to ensure that we end up with something that the Parliament can be genuinely proud of.’”

The essence is

“that apologies have the great value of acknowledging that something has gone wrong and demonstrating that lessons have been learned. We all know that mistakes happen—that is a sad fact of life—and that they can often have tragic and long-lasting consequences. However, it is how we deal with those mistakes that makes the difference.”

John Sturrock continues:

“It is clear that legislation alone cannot remove social barriers to apologising, but the bill is an important step in changing attitudes to apologies.”

As my fellow officer of the all-party parliamentary group on alternative dispute resolution, the right hon. Member for Warley (John Spellar), and I learned and wrote about in our recent APPG report, “Securing the UK’s position as a global disputes hub: Best practice lessons between Singapore and the UK”, policymakers and institutions in the UK and Singapore should foster a paradigm shift so that disputes are not viewed solely through a legalistic lens. An ever-wider and ever-deeper range of dispute resolution options should be pursued. We must also think about disputes in a way that goes beyond the legal conceptual framework and encompasses all aspects of commercial relationships.

I commend the Scottish approach to the House. It is short, focused and yet of profound effect, much like the speech I have just given.

[Mr Speaker]

No apologies then!

Question put and agreed to.

Ordered,

That John Howell, John Spellar, Greg Clark, Chris Grayling, Chris Bryant, Kenny MacAskill, Sir Paul Beresford, Sir Roger Gale, Sir Robert Neill, Mrs Heather Wheeler, Sir Jeffrey Donaldson and Rob Butler present the Bill.

John Howell accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 5 March 2021 and to be printed (Bill 221).

Oral Answers to Questions

Debate between Lindsay Hoyle and John Howell

Wednesday 11th November 2020 Commons Chamber

[John Howell (Henley) (Con)]

What discussions he has had with the Chancellor of the Exchequer on the economic support available for Scottish businesses during the covid-19 outbreak.

[Mr Speaker]

This question, No. 16, has been withdrawn, so the substantive question will be from David Mundell. Secretary of State to answer.

Japan Free Trade Agreement

Debate between Lindsay Hoyle and John Howell

Monday 14th September 2020 Commons Chamber

[Mr Speaker]

To help Members, I advise them that I will run this session until 4.37 pm.

[John Howell (Henley) (Con)]

I, too, congratulate my right hon. Friend on this trade deal. Can she say a little more about how the south-east will benefit from this? It is not just financial services there. She will be aware that the increase in both exports and imports over recent years has been in road transport.

Prison Reform and Safety

Debate between Lindsay Hoyle and John Howell

Thursday 7th December 2017 Commons Chamber

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Can I be honest? We need shorter interventions. The hon. Gentleman was hoping to get two minutes at the end of the debate; he is eating into those two minutes, and he will understand if he does not get them.

[John Howell]

I fully accept the point raised by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which goes back to what I said about the prison having given up on trying to invest any money in refurbishment or in replacing its ageing facilities. I have already quoted the chief inspector of prisons, who said that the shower and lavatory facilities in many prisons are filthy and dilapidated.

What will the Government do to address our concerns about the quality of the ageing estate? What are they doing about the current programme of reform and estate modernisation? What impact is the uncertainty about closures having both on the prisons themselves and on the lives of prisoners? Those are the three most relevant questions.

GP Services

Debate between Lindsay Hoyle and John Howell

Thursday 5th February 2015 Commons Chamber

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. May I make a suggestion? The Speaker suggested a time limit of about 10 minutes, and the hon. Gentleman has now had 13 minutes. I hope there will not be too many more interventions, and that the hon. Gentleman is coming to the end of his speech.

[John Howell]

Thank you, Mr Deputy Speaker. I am coming to the end, but let me respond to my hon. Friend’s intervention. It depends on where the practice is and what its buildings are like. Some are quite modern, and one would not want to change their facilities. Even those practices may need to add an extra surgery, if the village is going to grow by several thousand people, so they need to plan for where it will go and for the doctor that will use it.

The trend in the population has been towards more elderly patients and more patients with long-term, chronic or multiple conditions. That leads to an increase in the number of patients per year. There is no doubt that the age profile is having an impact. The Government’s allocation of a named doctor to a patient is useful for the co-ordination of services, even though in an emergency the patient may not be able to see that doctor on the day when they require them.

Yes, there is a need for money to be provided for GP services, but this is possible only if we have a strong economy. The Government have evened out the payments between practices so that they do similar things in similar parts of the country and there are not wide variations between them. That has to be the right way to go. It also has to be right to increase the strength of the economy in order to provide these services.

Forensic Science Service

Debate between Lindsay Hoyle and John Howell

Monday 27th February 2012 Commons Chamber

[John Howell]

I fear that this is turning into a debate about who has got what television show—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I can assure the hon. Gentleman that we will have no more Dr Whos or anything else. We will stick to the subject before us.

[John Howell]

I am grateful for those comments, Mr Deputy Speaker. I intended to head in that direction anyway.

In 1991, we had a major change with the FSS that attracted new entrants to the market, including companies such as LGC Forensics. It ushered in a period of investment and scientific innovation that has driven up quality and ensured that prices and turnaround times have reduced dramatically. That move has resulted in a safer and more secure society together with better value for the police and taxpayers. That is an important combination of factors.

But what confusing signals the previous Government sent to this emerging sector! We had just encouraged the sector to be innovative and to invest, but then, as I mentioned in my intervention, in March 2009, the Labour Administration agreed to a £50 million subsidy to support business transformation. That was a major subsidy for a company that existed in a competitive market, and it sent a very confusing signal. No one in the private sector wanted to see the end of the FSS. Indeed, some of those private companies have said that they wanted the FSS to continue because a healthy competitive market is good for all. However, doing that through this sort of heavy-handed subsidy was not the way to go.

There are good private sector providers, as even Opposition Members agree, and they have a crucial role to play. I am glad that my hon. Friend the Member for Northampton North (Michael Ellis) mentioned the Stephen Lawrence case, because it illustrated the importance of the current investment in technology. It was not available at the time, and I do not think we would have had that result otherwise.