Section 2 of the Compensation Act 2006 says:
An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.
The law has its origins in an amendment introduced by the Conservative party, which was in opposition at the time. Lord Hunt of Wirral suggested there were “perverse incentives that actively discourage people from doing the decent thing”.
He added:
There is no doubt that, by taking the heat out of situations where there has been an injury and encouraging basic human civility, we can do a great deal to improve the way society responds to such incidents.
Speaking as a solicitor, I have to say that the present system of claiming compensation is just too adversarial. It creates frictional cost and delay when the focus should be on making sure that all injured individuals receive what they need to get them back on their feet as soon as possible.
This provision was introduced after organisations and individuals appeared reluctant to apologise because they were worried that an aggrieved party, or insurers, might interpret an apology as an admission of fault.
But what does the section actually do? Bridget Prentice, the minister, told MPs:
it does not change the law but provides reassurance on how it works and encourages the giving of apologies and other offers of treatment and redress.
And that’s confirmed by the government’s explanatory notes:
Section 2 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. This provision is intended to reflect the existing law.
It should therefore come as no surprise to find that the reform has made little or no difference. As the justice minister Lord Bellamy says today,
while there is little empirical evidence to suggest how effective the current legislation is, the general view is that it has had very little impact as parties are understandably very averse to offering apologies for fear of liability being admitted.
The only surprise is that it has taken 18 years for anyone to notice this.
But now the government is thinking about changing the law. Only thinking about it, mind you. As Bellamy says in a consultation paper published this morning, there are arguments on both sides:
Some argue that protected apologies help settle cases early and so it should be easier to make one. On the other hand, others believe that the apology will not assist in the resolution and therefore that the desire for one need not be addressed in an apologies statute.
In 2016, the Scottish parliament passed the Apologies (Scotland) Act — loosely referred to as the Scotland Apologies Act in the consultation paper. Its wording is more detailed and specific than the England and Wales legislation. But we’re told that the Scottish Government also “has no firm data on the impact of its act”, while acknowledging that it is “quite low”.
The consultation period ends in June and the government will take time to consider the responses it receives. So the chances of legislation being passed before the general election are negligible — as the government effectively accepts in the consultation paper:
Given the potential difficulties in securing parliamentary time for primary legislation and the questions over its potential effectiveness, it may be worth considering alternative approaches involving secondary legislation or guidance. As well as providing a potential alternative, in the event that primary legislation is considered viable these could still serve as supplementary measures to support and encourage a pro-active approach.
Why, then, is the government raising the issue now?
It seems to be a response to a 10-minute rule bill introduced by the Conservative MP John Howell in 2020, which failed to attract government support at the time. Howell is quoted today as saying he is delighted that the consultation has been brought forward:
It should be the mark of both 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.
It may be because the government promised four years ago to explore a recommendation from the independent inquiry on child sexual abuse. After hearing from victims who said that an apology would have been worth more to them than financial compensation, the inquiry recommended that apologies should be offered vicariously by employers for the actions of current or former employees.
Or it may be because ministers want to apologise for the fact that nothing has been done about this supposed problem for so many years. But perhaps we shouldn’t be too harsh on them. Saying sorry is the hardest thing to do.
Correction: an earlier version of this piece unintentionally jumbled the name of the Scottish legislation. I’m sorry about that.