 Yr hŷnwys, wrth gwrs, mae gweld i'r 20 y myd i ddechrau'r Cymru yn 2015. Mae'n gweithio'r cyfeirwyr cymryd, mewn ddrwngor, a'r hyfforddiant, ac yn cymryd yn cymryd yn cyflwyllwyr, yn cymryd yn cymryd i ddrech yma, mae gweld i'r Llanet, sy'n ymblwyddwr i'r Mnaugwt Mitchell, oedd ymweld i'r 2. Mae'n ymdweith o'r 1. Rwy'n gweithio'r cymryd ymdweith o Gwyddi Gwyddi'r 4. that's our work programme in private. Are you agreed? Today, item two, today we're taking evidence on the Apology Scotland Bill, and members will introduce my Margaret Mitchell. Standing orders prevent Margaret from being involved as a committee member on the scrutiny of her own bill, but she can of course participate in evidence sessions and an ordinary member you are at her mercy at last. We have two round table sessions on the bill today and before I start, Roddy, you wish to make a declaration. My register of interest is a member of the Faculty of Advocates. Felly, welcome, witnesses to the first round table session today. Has anybody been around table session in the committee before? It's a bit more informal than the usual panel format so really it's your show. We are kept pretty silent which is wonderful and it's really about your interaction with regard to the bill that's before us. The microphone will come on automatically to indicate that you want to speak just to me and I'll call you and if I have a list I'll read out the list so you know where you are in the running order. I think it would be a good idea, certainly for me because it's been a bad start today so far. Can I just go round and introduce everyone? I'm Christine Grahame. I'm convener of the Justice Committee. It's my name in front of me to remind me. Elaine Murray, vice convener of the Justice Committee. Ronnie Conway, Scottish coordinator of association of personal injury lawyers. John Lamont MSP. David Stevenson, faculty of advocates. Roderick Campbell, MSP for North East Five. Graham Watson, forum of insurance lawyers. Gil Paterson, MSP for Clydeback and Mulguye. MSP Central Scotland. Christian Lard, MSP for the North East of Scotland. Laura Cheraes, a Law Society of Scotland. John Finnie, MSP for Highlands and Islands. Paul McFadden, Scottish Public Services Ombudsman. Alison McInnes, MSP for North East Scotland. Charlie Irvine, senior teaching fellow at the University of Strathclyde. I'm James Baxter, MSP for Mid Scotland and Life. Thank you all very much. I'll just start by asking the question that my history teacher used to always say. The Apologies Scotland will be a good or bad thing. Who would like to discuss? Who would like to come in first and break the ice? Mr Cormie, you looked energetic there, right? Insofar as the original proposal by Ms Mitchell was concerned, this seemed to me simply to reflect what the common law position was about apologies. Namely, that an expression of sorrow, benevolence, regret does not attract liability. In that regard, it seems similar to the English legislation, which is contained in the Compensation Act 2006. There may be arguments about whether we should be... I can understand the idea that we should be in a kinder, gentler world. Of course, there can be arguments that people are reluctant to apologise because of fear of litigation. Ms Mitchell's proposals would have addressed that. There is a point of view that says that you should legislate for substantive law matters and educate in other ways but in any event. If we'd followed something like the Compensation Act, that would have been absolutely fine. We've gone far beyond that now. There are two particular aspects in which I'm afraid to say this, Ms Mitchell. I think that this is bad law. The first point that I would like to make is that I do think, borrowing from other durus addictions, that this addresses a problem which doesn't exist. I know that already some of you may well be thinking that he's a claimant's lawyer. He would say that anyway. I know your history as well, Madam Chair. Oh, good grief. See me later. On you go. Can I refer to a matter that recently preceded in the Court Reform Act, namely the Taylor review on expenses, and in particular to the four words at pages 2 and 3 where he talks about the so-called compensation culture. He says that it's not his place to decide whether it exists in any other part of the world. It does not exist in Scotland. He produces the figures for claims recognised by the compensation recovery unit. By way of example, medical negligence cases are about one-thirtieth of the amount in England and Wales. There are various reasons for that. In fact, he has a bit of fun because he says that he does not think that it is because the doctors in medical profession are any more efficient in Scotland than they are in other parts of the world. There is the same crossover for road traffic cases for employers' liability cases. First of all, there is no litigation crisis here. There is no compensation culture monster that the bill is seeking to address. This is not opinion, it is arithmetic. Can I then talk about what seems to me to be absent from almost all the discussions and almost all the submissions in this paper, namely access to justice? As far as I can see, the only time that access to justice in the sense of getting the right result is approached is in the Scottish Government's memorandum, which I saw only recently. In fact, I wonder if I could use a specific example that comes hot off the press, something that my associate asked me about yesterday. A road traffic accident, she said, the person at the scene said, I'm sorry, it was my fault, I was daydreaming. If we deconstruct that, the first part is the expression of regret and that is I do not have a problem with that being excluded from admissible evidence. The second part, it's my fault, is not a factual statement, but it is certainly an indication of what the state of mind of the person was at the time of the accident, so that if he later were to come to court or attempt to give evidence to say it was your fault, then that would be a powerful piece of evidence against him. The final critical point, I was daydreaming, I wasn't looking etc, that is a statement of fact. The old law was, all kinds of hearsay was excluded, but in both criminal and civil cases, those kinds of admissions were allowed precisely because people would not make them unless they were true. It's dismissed in a sentence, it's said that this is a fallacy, but in every common law system, I should be accurate, in England and Wales and in the United States and in the Commonwealth countries, admissions against interest have been accepted as exceptions to the hearsay rule for the simple reason that they are likely to be true. If a justice system, the first thing that any system has to do is to get at the truth, to find the factual matrix and then apply the law to it, and it seems to me that by removing, first of all, it's my fault, secondly, I was daydreaming, you are removing an extremely powerful and persuasive piece of evidence. The other point that I have got to say is reading the papers, it seems almost that reduced settlements are to be a name in themselves. There's nothing about fair settlements, but there's an idea that reduction of damages is to be something to be achieved. If the organisation I have has a vested interest, the vested interest is to see that people get fair compensation, no more and no less. It may I say that this place has a very powerful history in that regard. The Rights of Relatives Act 2011, the Damages Act 2011, this legislation in my view would be a retrograde step. The final point relates to again what is going on elsewhere and will be dealt with in this building is the pre-action protocols. It's accepted that early and fair settlements are what we should be looking at, and there are specific codes of practice effectively that both claimants and insurers have to deal with, including. The critical point is that the insurer should admit or repudiate within a period of time, five or six weeks in the normal situation. At common law, that repudiation, that admission of fact, you can resile from that, you can say, I've changed my mind, etc. In terms of the protocol, you will be unable to resile from that. If this legislation is passed in its current format, it would strike directly against that. I appreciate that I've gone on for a bit, but I'll just make one final point. I'm just going to get responses. You're going to get corroboration and support. I love using the word corroboration. Throw it about willy willy. The final point is, if you just think this through, the statement of fact and the statement of fault are the things that are attached to the apology. The minute the apology is made, neither the statement of fact nor the statement of fault can be used as evidence, but if the apology is not made, then they can be used so that an insurer, for example, could say with regard to the protocol, except liability, it was our insured fault. Our insured says he is sorry, and immediately all of that disappears. Ms Mitchell, I applaud your intentions. I think that if we'd stayed at the original proposals, this would have been a bill that would have increased public perception of the idea that an apology is not an admission of liability, but I'm sorry to say that I have the misfortune to agree with you and to say that this, if it's passed, will be bad law. Thank you, madam. I've got Graham Watson, please. Mr Conway's starting point is that this is a problem that does not exist. In part, I agree with that in that there is no crisis of litigation, there is no floodgate of litigation, regardless of what some perception of that may be. But there is a very real perception amongst those on the receiving end of claims that they must not or indeed cannot apologise because in doing so they will be seen to have admitted their liability. I appreciate that there is a good argument that that does not represent the common law, but that is not the perception, and that perception is, of course, heightened by the existence of the Compensation Act in England. I have frequently been contacted by clients within and outwith the personal injury sphere who have been asked to apologise, indeed told by the ombudsman to apologise, but the ombudsman does not seem to understand that, while in England that would be protected, in Scotland it is not. Again, I agree with Mr Conway that there is a job of education to be done, but straightforward legislation, which made it clear that the act of an apology of itself did not amount to an admission of liability, which would have great merit. The committee may be aware that the Government published its health bill last week, which contains reference to the duty of candor and will provide, will legislate for the duty of candor. In the context of that draft legislation there is a section Clause 23 dealing with apologies, which in effect mirrors the Compensation Act, the English legislation, in providing that an apology in the context of the duty of candor will not of itself be an admission of liability. I think that by way of practical outcome, if not in starting point, Mr Conway and I are largely in agreement, but I would say that legislation of some form has a very definite role to play. It may be an educative one, but it is also a practical one with a legislative effect in making it clear to those on the receiving end of claims that there is a proper role for an apology which does not bind them to an admission of liability. There is a significant gulf between admitting or between saying that one is sorry for an event happening and indeed sorry for one's role in it, and that, as a matter of law, amounting to there having been negligence or a breach of statutory duty, and it is correct that the law ought to recognise that. Mr Conway's perspective has, of course, taken as its starting point the role of claimants, but I would suggest that the proposed legislation would also have a deleterious effect on defenders. It is quite common that, after an accident, the injured party will say, I'm sorry, that was my fault, and will find themselves on the receiving end of a plea of contributory negligence. This legislation may strike equally at that and equally, therefore, strike at what would otherwise be the defender's interest. Mr Conway also raised the question of compensation and about whether an aim of lowering the value of compensation payments was an end in itself. Again, I accept entirely what he has to say, but the role of an apology may also be to shorten the course of a dispute, may avoid it going to litigation in the first place, or if it does litigate, may end in it settling quicker. Accordingly, it's outcome may be that those solicitors costs are reduced, and therefore the total cost of settlement and indeed the burden on the court service is reduced. That, too, is an appropriate end to litigation. The role of an apology is very important, perhaps particularly in the medical and clinical setting, but also more widely. There is a role for promoting that within an appropriately formed legislation. I echo the sentiment that this is reflected more properly through the English wording whereby the fact of an apology may be taken into account, but is not of itself an admission of liability. As with Mr Conwy of the Association of Personal Injury Lawyers, the law society supports the intentions of the bill, but the concern, as Mr Conwy has already said, is that it doesn't necessarily add anything to what already exists. I am looking from the perspective of medical negligence law. There already exists a mechanism through the NHS internal complaints procedure where a party who feels aggrieved can approach the hospital or the clinician involved and request an investigation, and that will potentially embody an apology. The internal complaints procedure is quite separate from a legal claim for damages in respect of medical negligence, because the test for an apology or the admission of something having gone wrong through the NHS internal complaints procedure does not meet the legal test for medical negligence, so it is entirely separate. By the time someone is coming to see a solicitor with a concern over treatment that they have had, the question of an apology doesn't really come into it. The test is totally different. The test is embodied in a case from 1957 under V Hanley, and that is what the experts will have to decide whether or not there has been negligence. An apology is entirely separate, and whilst it may be something that the client is looking for in terms of what they want to achieve by coming to see a solicitor, the apology doesn't form part of an investigation for medical negligence. Although the apology may be helpful in some way to the client understanding what has gone wrong, it doesn't form part of the compensation or investigation for compensation in legal terms. As I understand it, compensation is supposed to put the injured party back in the position that he would have had there been no negligence, so the apology is secondary to that. I don't see that compensation will be reduced in any sense or in any way if an apology has already been given. If at present we are talking about the wrot principle, is this a good thing or is this a bad thing, then it seems to me that we have to start by acknowledging that the purpose of the bill, if enacted, would be to take away from people rights that they currently have. People who wanted to rely on admissions or fault or fact or simple apologies would no longer be able to put them before courts and courts would no longer be able to take into account evidential matters that they currently do take into account. If the effect of the bill would be to, if enacted, 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. Faculty's concern is that at the moment, although similar laws, not the same, they all tend to be a bit different, similar laws have been introduced all round the world, beginning in Massachusetts in 1985, no one anywhere seems to have good evidence that it works. So, for example, I don't want to labour the point, but there is a paper from last year by Professor Robin Carroll, who is an Australian academic, and it's cited by Professor Ovan, it's cited by Professor Vine in her submission, it's cited in the SPICE memorandum you have, and at page 18, towards the end of that article, she says, 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. Now that's a 2014 review of the world literature and of the impact of laws that have been brought in in America, in Canada, in New Zealand, in Australia. And if that's the conclusion in 2014, after 30 years of such legislation, Massachusetts in 1985, why on what basis are we to be convinced in Scotland that sufficient benefit would accrue to take away existing rights from people and limit what courts may look at when they try to determine the truth of what has happened? Professor Ovan, as you were named. Thank you. I would like to acknowledge the rhetorical direction in which we seem to be travelling, and far be it from me to spoil the party. I was initially sceptical in 2012 when the initial bill was published. Larger on the grounds, in fact, of the fact that it looked as if it protected partial apologies, and it seems to me that the partial apologies are likely to do more harm than good, the classic, I'm sorry you're unhappy, I'm sorry that some things happened to you but it wasn't me. I felt that that kind of apology, to some extent already protected and it would not be particularly helpful. The conversion to full apology has won me round. My reasoning is a wee bit more broad than that. I've been persuaded probably on three grounds. I do think that there is value in setting a tone for the country. There's significant evidence, I don't know if any of my colleagues have come across some research by Tamara Relis in Canada. She found fascinating evidence that lawyers for both plaintiffs and defendants on one side and the people themselves involved in medical negligence claims saw the world so differently. She regarded them as living in parallel worlds. In particular, she found that with regard to what the plaintiffs wanted from their interaction with the defendant, lawyers consistently underestimated their wish for an apology, even more strongly underestimated their client's wish for the other side to admit fault, to give explanation, to hear their perspective and to discuss quality improvement. It looks as if there's a range of things which it may well be that people go into a lawyer's office and think they ought not to say this. I'm not particularly pointing the finger at anyone here, but the evidence chimes with some common sense that there may well be elements in the giving and apology that are overlooked by the legal profession. It sets a tone and may persuade a number of people and a number of settings who are not daffed that the giving of an apology is the right thing to do. We tend to forget that people giving apologies are aware of the law. The risk of the current situation is that, by and large, most parties get neither the evidence nor the apology. There's an idea that we might be depriving people of best evidence, but there are many situations. I appreciate the moment of an impact is one particular situation. I have also been affected by being involved in the human rights interaction for survivors of historic abuse, a different setting where it was clear to me, having met some of the survivors in that context, that there was a very powerful wish for apology, and those apologies appear to be inhibited by the perception of the fear of litigation. That's one setting that's quite different from the prang that we might be talking about that has also had an impact on me. It seems to me that there's a large group of people in Scottish society who would welcome an apology, whether it turns into financial compensation. I'm not saying that's not important, but that is not the only factor in those people's minds. Finally, it would be worth saying that, while there's little evidence of the positive benefits of apology sites, there's little evidence of the harms that our colleagues are describing to us as well. There's some evidence from Canada of the judiciary beginning to nuance the way that the actor interpreted it, quite a recent case in British Columbia, looked as if the judiciary there were taking statements and allowing elements of them to be used in an explanatory fashion, not perhaps to determine liability. That doesn't look terribly far from the way, in fact, that the Scottish courts might want to develop it. For those reasons, I have come to believe that this is broadly a positive step for Scottish society, albeit that some tweaking may be wise and useful. Proceed with the tweaking, if you wish. I'm not sure that it's for me. I actually would say that the magic wand statement is accurate, and in fact it's not perhaps the purpose of this committee. For this to be effective, I believe that it would need to be combined with other steps, in particular in the health sector. There's very interesting evidence from Michigan which has been referred to where what was much more significant was an end to deny and defend approaches to medical negligence and a proactive approach. In that state, the legislature created a six-month embargo on the raising of an action to allow face-to-face contact between all parties. There may be other steps that are required. Let's say that that might not be for today's business, but I think that that's important to say. Ms Chiritha. I would like to come back to something that Mr Irvine said at the beginning about client's instructions and understanding or misunderstanding between solicitors and clients. It's very important as a solicitor to find out from the outset what the client wants to achieve by coming to see a solicitor. We form a wish list of what the client wants to achieve, and certainly usually top of the list is an apology. Compensation comes usually quite far down on the list of things that the client wants to achieve, but as a solicitor you have to work out what the vehicle will be for the client to achieve all of these outcomes. If apology or an explanation or an understanding of what has happened is on the wish list, then there are other vehicles. Having a claim for compensation does not provide a client with an apology. As I said previously, the NHS internal complaints procedure already exists and the client is sent off to go down that route before any investigation for a civil claim for damages is commenced. It's very important from a solicitor's point of view to take that stance. Mr Irvine said that people aren't daft and they intuitively recognise the difference between being paid in feelings and being paid in money. I would like to ask him the proponents of the full-bodied legislation, so to speak. When you talk about research and agree with Mr Stevenson, who is clearly much more on top of the research than I've been able to, but it does seem to be all over the place, what is the definition of success? In these articles it seems to say reduced settlements, reduced legal actions, and, from the constituency that I represent, that is not a good thing. Catastrophe injuries, reduced settlements mean no accommodation, no care equipment, a lower quality of life for persons who deserve more. Can I first of all ask him what definition is applied in this research to success? I wouldn't propose to summarise world research. Either Ho and Liu's research is interesting, I know it's been criticised and it's US-based, and their findings, broadly speaking, were that Apologies legislation appears to bring initially more claims through the system, interestingly, but it does appear to speed up the time of disposal quite significantly, and they thought the cost to the system was more broadly speaking neutral over the long term, 10 to 15 years. That's a numerical analysis. There aren't lower settlements, it's just more claims. Yes, Professor Steenson. Thank you very much. I was just going too well for my head, not wet in another direction. I'm happy to call you that. Just on the Ho and Liu, part of the faculty has gone into their papers at some depth in our submission. I think what one has to recognise is that they are using a very specific American model on costs. In most states in the US, the plaintiff will be paying their own costs whether they win or lose. It may be better for a plaintiff to settle for less money as damages now than wait two or three years and get a little bit more, but I've spent more than the difference. You have to be very cautious. Yes, you have to be very cautious looking at Ho and Liu. If I can make one more point. In footnote 5 of Professor Vine's submission A16, she makes the point. She can cite only two pieces of research in support for apologist legislation being effective. One is a paper of her own. The other one is Ho and Liu. She puts in brackets, but you've got to be careful of applying this out with the US context. Before the dissertation goes any further, I'll make you come back in, but I'll take Mr McFadden, who's not been in yet. I think that our experience as an ombudsman comes less than our colleagues here, but from our experience in dealing with people who feel or have had feelings in the system of public services and also actually from dealing with public sector workers themselves and those who are delivering front-line services and managing those front-line services to our training, outreach and other engagement with them, we have been supported from an early stage in the broad sense of this bill and we've been supported because we think it is important to have a clear statement and to give a clear signal to those public sector staff and those delivering or public services that saying sorry is okay when things go wrong. Our experience of what complainants want when they complain about public services mirrors some of what has already been said. We asked them the outcome of what they want when something has gone wrong when they bring their complaint to us and the top of that list is always I want an apology. I want someone to say sorry. I want recognition that it won't happen again and it won't happen to someone else. They want various other things. They don't want compensation by and large. They do not say they want compensation. There's very much about a repairing the relationship very often with an organisation that they have an on-going relationship with. They are not consumers in the broader sense. They can't choose to go to another local authority or another health board. So I think repairing the relationship is at the heart of this. Now our experience of dealing with public service providers and we have a very constructive dialogue with them through our work in helping them to improve how they handle complaints and respond to issues that have gone wrong. The experience of what they tell us is that they are frightened to say sorry. They are told or they feel individually that saying sorry is automatically an expression of liability in the negligent sense. That's a very common misconception that's raised almost at every session that we deliver to public sector staff. So there is a culture of fear and there are other reasons for that but I think that is the number one reason. We work very hard. We deliver training to a whole range of bodies generally, which concludes our apology, but we have a very specific course as well on the power of apology. We develop guidance which has been very well shared around the power of apology. Professional bodies, Scottish Government, the regulators all say in all their guidance to various parts of public sector that saying sorry is the correct thing to do. Yet we still see a reticence in complaints that come to us of public bodies saying sorry. We often see complaints where you see the journey and a very early point in the journey of that complaint where if a simple early time apology a human apology as well an empathetic apology had been given it is very clear that that complaint would not have escalated. The failure to do that results in a breakdown of relationships between the individual and the citizen and the public body which then escalates and exacerbates those arms and legs. We put a lot of onus and put a lot of work into encouraging early resolution and early apology, but this culture remains. We think that this bill gives a very important statement that is a safe space that is okay to say sorry when things have gone wrong. It is very important that we explain very clearly that a simple admission that something did not go the way it should have or that something went wrong does not automatically lead to admission of liability. That is a very common misconception among our public sectors which I think this bill would give a very strong statement to addressing. I also agree that this is not going to change this culture on its own this bill and I think we have been quite clear on that. I think there are a whole range of other things that need to be done. In addition to the clear statement that apology is okay in this bill I think we need further guidance and clarity on what is a good apology. The kind of framed around professional regret apology or I'm sorry that you feel that we are and that the Ombudsman agrees with you type of apology is something that actually exacerbates the situation as well. I think it's about genuine apology at the earliest point and usually actually at the closest point to the incident or the point that the service was delivered. I think there's a lot of training and guidance needed to support this bill which is saying that it should be a human empathetic response. It should be genuine, it should be the way of apologising outside of your professional life and trying to rebuild that relationship because that's fundamentally what this is all about. I think that it's one step towards it but it's a very important first step. I'm going to take Roddy. Don't look worried, you're on my list but the courtesy I have witnessed is first. Okay, thank you convener. I just really wanted to ask Mr Irving as he referred to the Michigan model what the impact of the non-admissibility at that point has been in Michigan, if any, because you know that... The Apologies Act State, so their model doesn't hold the Apologies Act. The model is entirely about managing adverse events proactively and there are lessons from that, I think. I don't think we've actually seen any kind of research or any kind of papers on the impact of section 2 of the Compensation Act in England in Wales that we're a bit bereft of useful empirical evidence. Would it be fair to say... I think it's fair to say it's difficult to measure cause and effect in large societal matters and that's probably a very simplistic statement to attribute an effect to one cause is always daunting. I just wanted to come back and say I'm not particularly taking the position that less compensation or fewer actions is a good thing. More apologies is a good thing. That, I think, would be the tone of my contribution here. You see the... I was going to ask a question. Chris, I'm going to ask you about the definition of apology which I think is what you were raising which is the fact that it means any statement made at buying on behalf of a person which indicates that the person is sorry about that and includes any part of a statement which contains. Then we have an express or implied of mission of fault relation to the act. That's a bit the kind of bothers me from the argument you're making that it would be deleterious to the claimant or to the other party. That's a bit the bothers me that includes that part. You can't detach them. Is that an issue? Sorry, I just wanted to know if the other party feels that's an issue. Professor Irwin, is that an issue? I mean, is that the argument propounded here by Mr Cormie have merit? Significantly. Wherever you draw the line I think eventually will depend on the judiciary to help us with definition. You could draw the line as it was originally done and say that any expression excluded from the definition and then you're going to get these very narrowly drawn apologies even if you draw the line more broadly. Examples have been given where there might be an absurdity to a lengthy explanation a lengthy confession if you like but then has the word I'm sorry tacked on the end. So we can all think of absurd examples. I presume we expected judiciary at some point and posed a degree of sense on that. Except it says explicitly includes any part of a statement which contains. So I don't know how the judiciary's got any leeway. Can I? There is a case which was mentioned I think one of the submissions King V quarrier's homes where there was a public apology made by in the Parliament is my recollection about child abuse and Mr King who claimed he had been abused tried to found on that the apology was in general terms and was an expression of regret and no more and the judge made it perfectly plain that this was not an admission of liability I fully take the point which is made by Mr Revern and Mr McFadden that there may be a perception problem here in which case the legislation as initially proposed by Mr Mitchell meets the bill the other point may I say to Mr McFadden that the constituency that I deal with does not generally have an on-going relationship it's what they call one-shotters versus repeat players so my daily work is taking up dealing with insurance companies who are the classic repeat players and quite frankly an apology from them would hardly be worth the paper it was written on Mr Stevenson I've demoted you from Professor O'Railine quite appropriately there is a great concern on the part of faculty about the definition of apology and its extension to cover admissions of fault and of fact I think one must recognise that there is fairly good evidence that unless you protect admissions of fault then there is no prospect of this law having any beneficial effect because unless people with their apology get some acknowledgement of responsibility they don't regard it as a psychologically satisfying apology so there might be some argument I think that for the proponents point of view they would have to argue that an admission of fault should be part of the definition but why include a statement of fact again could I suggest Professor Prudence a submission A16 is very good on this and she's against including admissions of fact and she explains why to go over what she said I just refer you to it but just taking another simple example because this is a law that's to apply to not just personal injuries there's been a very personal injuries discussion husband writes letter to wife dear Sengar I'm sorry I broke your nose last night and beat the kids on the way out Gengis now does anybody seriously believe that that letter that the word sorry should be inadmissible in legal proceedings relating to the matrimonial situation the care of the children the protection of that woman from her husband one can multiply these situations there's nothing uncommon or strange in this but you know why are we seeking to protect admissions of fact so you would detach that subsection B and the court it would seem in Canada I think it's the example Professor Irvine was alluding to has in a recent commercially orientated case redacted parts of a letter which ends with an apology and has left in the statements of fact the fact that I think it's something to do with securities they haven't been recorded properly but took out the apology so it would be possible for a court to do that if admissions of fact are not to be protected are not to be rendered inadmissible Mr Watson Yes, reference was made to the case of King and whether the court would place any weight on the apology that had been made on behalf of the Scottish Government the Scottish Government wasn't a party to the action so the pursuer was seeking to rely on an apology on an apology made by another body which does put it in something of a different camp the focus of this bill is on admissibility rather than on the probative weight of an apology or indeed an admission of fact and what frequently happens as disputes progress is that an insurer who may at the outset have intended to settle at the outset may have admitted liability as matters progress and more investigations are undertaken discovers that in fact that admission was incorrectly made and again the common law as it stands has found a means of dealing with that and has found a means by which the court may be appraised of the full circumstances and then reach its own conclusion on what weight if any to place on the earlier admission and this again therefore comes back to a question of whether the apology should be inadmissible as a matter of evidence as opposed to whether it ought not of itself to be probative of fault I just want to ask you, I'm a bit confused here you're quite happy that CB is in I agree that if one is going to have legislation that's framed in this way it would become extremely difficult in fact it's easy to imagine satellite litigation endless debates about precisely what does and what does not fall within the scope of a protected apology unless one has a broad definition like this if this is the form of legislation to be adopted then I would suggest a broad definition is required but I would suggest that in fact rather than having this form of broad legislation it would be better to follow the compensation act model whereby it is simply made explicit that an apology is not of itself an admission of liability I was just going to make a point about the inclusion of statement of fact and I can understand the point that is made by David there and it's something we can have reflected in early submissions but in reflection in the latest submission we have said to define to someone who is delivering a public service what is a mission of fault what is a mission of regret what is a statement of fact that could be quite difficult to explain and I think the clear sense in terms of the definition from your point of view is that this should be as broad as possible and it should be as simple as possible to explain so that you don't get to a position where people are never trying to determine is this a statement of fact or is this a mission of fault and that they feel free to give an open apology and don't feel that they're going to be acting against a kind of tick box where that might have the perverse effect of making the apology seem legalistic framed in less human empathetic language I take your point but we can't just look at the point of way of public bodies this is what applies to everybody I appreciate it but I know I take your point but then this applies overall and we have to see if this would cause problems that have been elucidated by Mr Conway an example which Mr Stevenson used would of course attract criminal liability and the firestorm that the word corroboration caused in this place would be a storm in a teacup compared to what you would hear if you suggested that confessions which of course are hearsay if confessions were to be excluded from the criminal system because they are the whole confessions in many ways are the queen of proofs why would people admit something a factual matter adverse to their interest if it was untrue we've had 200 years just about of legal jurisprudence based not in some technical legal point but in common sense and this legislation throws in its format before today throws all of that away yes I do think we risk forgetting what I think I've already said that at the present time most of the time we get neither the apology nor the evidence and it's not a significant part of determining liability I'm sure my colleagues would agree with that apologies certainly not the only show in town when it comes to the determination of liability because people know about this the received wisdom on the street appears to be never apologised don't say sorry for anything we hear this time and time again so I think that's the mischief that the acts intending to address rather than perhaps technical legal points I just come back to you Mr Cormie this act does not apply to criminal proceedings indeed so you might be confessing to something that is a civil matter but certainly not if it were to be a criminal matter but then it might transmute into a criminal matter you might apologise for something which you think is I'm sorry I crashed into your car but then it becomes a criminal matter it becomes a section 3 or something I've seen that I'm not for one minute suggesting that it should be extended to the criminal practice what I'm saying is why should we have a two-tier system to go back to what I said at the start a justice system the basic duty is to get at the truth and that's why and then to apply the law to a factual matrix and why are we giving an extremely powerful source an extremely powerful weapon why are we giving that up and to say that there is no evidence Mr Irvine to say that apologies are not used they have to be pleaded specifically and they are a paradigm piece of evidence in road traffic litigation where despite the advice from the insurers that you should never apologise people apologise all the time I wasn't looking I didn't see you those are matters of fact which can be critical because the other I'm speaking from experience here many people apologise on the scene say something which is witnessed go back, discuss with their significant other and suddenly have a change of mind as to whose fault it was I think we've all been there speaking for myself I'm not speaking for the team but I think every day to somebody's experience saying they're sorry or even if they're not at fault sorry it's happened anybody else coming in? have we exhausted the debate? no Christian we have just wanted for the participant who have not said it yet some participant have pointed out that maybe this legislation will be better understanding alone but being incorporated like it is in England or maybe like the Scottish Government is proposing so one who have not said yet will maybe want to say something on that particular point which legislation were you talking about? talking about should it be a stand-alone legislation understand but which Government legislation you think you have? no we've took him in health but it could be are you talking about this, the health one? yes somebody want to this is under the health tobacco nicotine and care Scotland bill and it's section 23 for the purpose of this part an apology means a statement of sorrow regret in respect of the unintended incident an apology or other step take in accordance with the duty of candid procedure on the section 22 does not of itself amount to admission of negligence or a breach of statutory duty so that's in this particular bill it's introduced it's just started out in its journey Mr Stevenson the health tobacco nicotine and care Scotland bill was only introduced last week so there hasn't been any opportunity for discussion about the bill by the faculty subcommittee so I don't have a faculty position but this is pretty much in line with my own personal practice so can I just suggest on a personal rather than a representative basis that there is an obvious inconsistency between the Apologies Scotland bill and the health bill in that the health bill in its definition of Apologies adopts the definition from the compensation act in England and says nothing about excluding admissions of fault or admissions of fact and so I think one is immediately in looking at the health bill scratching one's head and saying well what impact would the Apologies Scotland bill have on these provisions and how would they be changed or altered in effect by the Apologies Scotland bill and I would suggest that there is the risk that the Apologies Scotland bill would substantially undermine the duty of candour procedure as is proposed to be introduced in the health bill and I would assume everybody would think that it's not a good idea because the duty of candour provisions are potentially very important for individual citizens who have suffered adverse events as a consequence of healthcare so I think that would be a very bad result if there's a deleterious impact from the Apologies Scotland bill on the duty of candour provisions Yes Certainly I would echo that but the definition of apology in the health bill is a statement of sorrow or regret and then in subsection to an apology or other step taken in accordance with the duty of candour procedure and that might be wide enough to encompass an admission of fault and certainly a recitation of the facts which lie behind it but that seems to be the intention of section 22 as currently drafted so it may or may not cover an admission as to the factual background but it would certainly sit ill with the Apologies Bill as currently drafted and it would be at a minimum the law of unintended consequences the courts would have to marry the two Just a small point the duty of candour procedure is section 22 so I don't think it would extend to admissions of fault which isn't part of the duty of candour procedure I was taking that from 22f the form and manner in which information must be provided e an account of the incident information about further steps taken and so on all we're told here is that regulations it may be broad enough we don't know but the thing is that there will be an interaction which we're perhaps not got time or we don't know enough today and it will be interesting to see what the health committee finds out from that and the interaction with this particular piece of legislation I've got your marg, it was going to take Alison so you can ask the roundup questions at the end I think it'll be helpful Alison I just want to ask Mr McRadge to respond to something Mr Conway said you seem to imply that the proposal would inadvertently create a greater imbalance in the system so at the moment you've usually got the citizen against a fairly powerful organisation is there a danger that the organisation would play this cynically and kind of reduce the rights of the citizen I think it goes back to what we're seeing about the supporting guidance and training around what is a good apology and the fact that the way that apology is made is going to be very important I think that in terms of the balance free apologies and good quality apologies are in the benefits of both the complainant and the citizen and the members of staff and the organisation in their experience it does provide a balance it recognises the fact that members of staff also feel very often bad about things that have gone wrong and allows them the freedom to kind of express that and make that clear to the complainant Can I thank everyone for their contributions? Can I probably say that the outset is important to emphasise that the primary purpose of the bill is to provide legal certainty and to change the law in terms of admissibility so there has been a lot talked about will it reduce the cost there's no evidence of this but really these are the primary these are the primary intentions of the bill and I wonder if the panel did feel an apology was more prejudicial than actual probative and that certainly seems to be the way case law is moving and hence the reason for the bill giving this legal certainty and also I think from the law society's perspective I'd be interested to see if you felt that the NHS guidelines which are there and the apology bill protection and legal certainty were mutually exclusive and maybe one other thing to throw out much has been made of the compensation act it doesn't define an apology and there's still a real fear and a perception that if you apologise then that is equivalent to saying I am liable and you therefore will trigger compensation and it's really trying to deal with this that's at the heart of the legislation that's quite a few points who wants to take them up briefly please Mr Cormie briefly I will prejudicial is an interesting word because of course if I say something adverse to my interest it is prejudicial against me there's no prejudicial in the sense which at some times think appears from these articles that there's some kind of unfairness or bias and to get back to the point about confessions in the criminal sphere of course they are highly prejudicial and that which is why the law spends so much time making sure that they are fairly obtained so I prejudicial in the sense of unfairness or bias is not the right word here it is a potent and persuasive piece of evidence if it has been freely given and the courts are astute to recognise situations in which it hasn't then it should be part of the factual matrix except this doesn't apply to criminal proceedings I must always emphasise that Mr Watson Miss Mitchell raises the question of whether there being no definition of apology within the compensation act and of course that's correct but apology is a well understood word with an ordinary and natural meaning and that is the manner in which the courts would be expected to construe it the Apologies Scotland Bill defines apology as being a statement which indicates the person is sorry about or regrets an act or a mission but equally ordinary words of the English language with natural meanings and I don't see that the introduction of those words makes our understanding of whether someone is giving an apology or not any more straight forward and whether or not something is an apology is I would suggest fairly easily construed Miss Shirison From the law society's point of view Apologies and civil claims for damages are not mutually exclusive they are entirely separate as I see it and there are different vehicles for each one but it seems that factual evidence that is embodied in for example the NHS internal complaints procedure or indeed information that is gleaned from the Scottish services ombudsman reports if that information is not available or that we can utilise that to support a civil claim for damages because of the factual evidence that is available then that would tend possibly to stop the access to justice for claimants and for people who are aggrieved That's it I was about to say I apologise but that's just cheesy isn't it awful but thank you very much for your evidence think of being another seminar legal seminar I always feel sometimes but thank you very much for your views thank you for your attendance and I am going to suspend for five minutes to allow the setup for the next panel to be arranged thank you very much now I welcome the witnesses to introduce themselves and I'll start things off I'm looking at here to check yes I'm Christine Graham MSP I'm convener of the justice committee up to this moment who knows what will happen tomorrow Elaine to you oh that's anti-clockwise oh sorry sorry I was a deliberate mistake just to see you were listening we didn't go that way if it's so important is this my left hand morning I'm Jane Baxter MSP for Mid Scotland and Fife good morning I'm Geraldine McHann head of admin and legal services at South Lanarkshire Council convener I apologise Alison McInnes MSP for North East Scotland good morning I'm Bruce Ermson I'm the legal officer at the Scottish Human Rights Commission good morning John Finne MSP hello I'm Dr Gordon McDavid I work for the medical protection society creation allowed good morning I'm MSP for the North East of Scotland Margaret Mitchell MSP Central Scotland Guild Patterson MSP for Clydebank and Mulgae good morning I'm Roderick Campbell MSP for North East Fife hello I'm Anne Thea Martin joint head of medical division at medical and dental defence union of Scotland I'm Sally Winning I work for Scotland and I work as a psychiatrist in Aberdeen I may need your help I'll tell you I'm MSP for Dumfretian boys convener well I don't know if you're in for the previous session but a round table is very different and really it's for you to speak up about what you think about the bill and to interact through the chair if you just give me a look I'll know when we put you on the list and I'll call you and your microphone come on as I call your name come on automatically and just as before I'll just start off by asking Apologies Scotland Bill as my old history teacher used to say is this a good or a bad thing discuss he didn't know he was going down the annals of history but that's what's happened to him so who would like to start good or bad thing Gordon McDavid Doctor McDavid thank you very much just for those of you who don't know we support the Medical Protection Society which is a worldwide organisation and the leader of protection for healthcare professionals in the world we have 300,000 members worldwide and they come to us for supporting things like clinical negligence claims complaints referrals to the regulator or disciplinary proceedings so we have quite a lot of experience of what happens to healthcare professionals when things go wrong and the short answer is that we support this bill very much so we think that what it does is a good step in the right direction to allow for an open discussion and an appropriate apology to be offered when things go wrong for a very long time we have engaged with our membership to encourage that openness to encourage that opportunity is taken very early on and that a considered and appropriate apology is given early on in the procedure and when something goes wrong a doctor is faced with a bit of a dilemma they are essentially feeling awful about it wondering what an earth to do to try and put right whatever it is that's gone wrong and one of the main concerns is that they are actually scared about reprisal for themselves or fearful that actually a claim might fall if they go in and say sorry and that almost stifles the natural interaction you would expect to have between individuals when something goes wrong and I think that what this bill does is it gives an opportunity for us to reassure our members based in statute that in fact what they go in and say in the heat of the moment to fulfil what they feel to be an appropriate thing to say is actually protected and it's not going to result in them being sued else wish to come in yes Doctor Martin Doctor Murray as well I work for Medical and Dental Defence Union of Scotland very similar organisation to organisation that David works with but we provide indemnity for about 95 per cent of GPs in Scotland I don't disagree with David's perspective or the NPS's view on this they are obviously very supportive of the bill one thing that they may have omitted to consider and that the legislators might want to think about is that not only do doctors fear litigation they also fear their regulator and as this is a Scottish bill and the GMC is a UK regulator we do wonder whether or not the cultural change that is desired partly desired through the bill would be achieved by the implementation of the act alone because it will only allow doctors that freedom to apologise in Scotland without fear of that the fact of that apology being used by the regulator to pursue an investigation or indeed to do to get an investigation I've thought Mr Adamson followed by Doctor Winning The Scottish Human Rights Commission has a general duty to promote human rights and as such we are very supportive of this bill when the commission conducted its initial mapping study of the situation of human rights access to justice emerged as one of the key themes and under Scotland's national action plan for human rights significant works being done in relation to access to justice including by this very committee and we certainly acknowledge the hard work this committee has done in terms of trying to improve access to justice we're also required by statute to have a focus on those groups in society whose rights aren't sufficiently promoted and since the earliest days of the commission we've been working very closely with survivors of historic abuse and I know this came up in your previous session convener in that context we developed a human rights framework on acknowledging accountability and we facilitated a number of interactions with survivors, care providers and governments and apology law was one of the key commitments that came out of that process as part of a wider commitment to acknowledgement and accountability survivors told us that the lack of an apology law was a barrier and the Scottish Government agreed that it will give consideration to Margaret Mitchell's bill or other ways of ensuring that apology can be part of an effective remedy and I share Dr McDavid's point that this isn't just about victims but it's also about those that are providing care providing some assurance that they can give an apology that they want to give without due restrictions because that came through very strongly from care providers in relation to historic abuse as well that often they wanted to give an apology but were given legal advice or insurers told them that they couldn't do so I'd be very happy to go on to the wider human rights framework once we develop this discussion For winning Listening to people was much more legal expertise than me and the defence bodies in particular I would defer to them on legal matters When I was reading about the bill and considering it I was considering it in the context of the journeys that I go on with my own patients and in psychiatry many of the conditions are chronic GPs have very very long term relationships with their patients and like any other relationship there are times when things go to plan unexpected or sometimes predicted but low risk things low chance occurrences happen along and from my point of view it's about continuing the journey with that patient through those difficult times and that may involve an apology I hope it does when things go wrong but it's actually about problem solving and working through that so the principle of the bill is an extremely laudable one and I like to think it's something most of us do in practice anyway The big worry which was mentioned by Anthea is about the GMC which is a UK organisation it's our regulatory body every year we do an appraisal where we're expected to discuss occasions when things have perhaps gone wrong or a patient has made a complaint that is then fed through a national UK system so my concern really is how we could protect doctors and offer the legal certainty and admissibility intentions that are within the bill on a UK basis with the GMC Do any members wish to ask questions for... Yes, Ms McCann Local authorities are very supportive in my view of this type of bill because we are faced with many people over the years who all they want is someone to say sorry we got it wrong and if that was done at an early stage then potentially that would negate the need for future litigation because litigation by the time you reach court everyone's views are very entrenched and no one says sorry and the victim is left feeling perhaps with an award but feeling less than satisfied however I do have also shared the concerns that others have particularly working in a regulatory framework that some of the professionals within local authorities would also then face their regulatory bodies and there would be further action I also have concerns about council insurers because if it looks as if it is a potential for litigation they would be standing back and advising us not to apologise because they would anticipate that that would perhaps raise expectations that there would be compensation to follow an apology and that wouldn't always necessarily be the case Doctor McDavid I take your point absolutely and I think we need to give a thought to what a meaningful apology is and when we get entrenched in civil proceedings when someone is instructed prodded and forced into giving either a partial or even then a complete apology it doesn't have the same effect on the person who's been wronged and I think that what we need to very much bear in mind is that the problem here that the bill is seeking to address is an issue of a culture of fear and a culture of feeling unable to take appropriate action amongst the healthcare service recently surveyed 500 of our members and 67% of them actually came back and said that there was a fear within the healthcare sector and that that's really stifling their ability to be able to interact appropriately with patients and that just cannot be right it's much better if MPS can use this sort of legislation to go to the profession and pass on that they are safe and appropriate steps if they have them at that point in time or assurance that they'll look into them without fear of recombination and causing themselves to be reliable I just wondered if I could ask a question Ms McCann there had said from her point of view an apology would be about explaining that we got it wrong on this occasion most of the time in my experience things go wrong because there was a risk in the first place and that risk has usually been explained to the patient in the context of for example there's not a single medication that I have ever prescribed that doesn't come with some risk of a side effect so usually when things go wrong it's been predictable and the patient will have given informed consent and understands the risk what I'm not clear about on reading the bill is whether the committee considers that to be an occasion for an apology would it apply in that service? I'm not here to answer questions I'll raise the question because it's not clear in my mind and I think that that poses problems for us clinicians in how we interpret where and when an apology is required and appropriate if I have explained to a patient there's a 10% risk of high blood pressure if I prescribe this medication but these are the alternatives we agree on the basis of probabilities that the 10% risk is a risk worth taking and it happens then of course I am sorry and regret that the patient got that side effect but is that an apology in this instance because I don't believe that's an occasion where something has gone wrong I think it's a known risk that is knowingly undertaken Eileen It was just a question around the issue of the GMC in a UK wide organisation so we heard in the earlier session that there is already a compensation act of 2006 which has a definition of apology which is again replicated in section 23 of this Health Tobacco and Nicotine and Care Scotland Bill which was just introduced last week so I wondered whether the concern around this bill is because the definition is different or is there a lack of awareness of the compensation act definition or does it not adequately protect medical personnel at the moment? Certainly on my reading I haven't read the other act on my reading of the Apologies Scotland Bill and having spoken with my in-house legal team we don't think it offers adequate protection for a UK wide regulator to use the fact of an apology in terms of their own investigation certainly obviously it's untested because of the point where we are but along with the BMA I think what we'll be looking for is some kind of reassurance I think in order to offer the full protection that the NPS are also looking forward to reassure their members doctors don't just fear litigation they fear their reputation the impact of an apology and an admission that something's gone wrong to a patient and their colleagues the impact of that on their reputation they fear the actions of the regulator which can remove completely their ability to earn a living they fear action by their employer so I think the MDGS are unsupportive of this bill we're very supportive of an open culture that does allow doctors to apologise and also for organisations to learn from errors and mistakes and there may be other ways that that can be achieved for example through the new duty of Canada bill and legislation but really I think the main issue with the bill for the MDGS certainly is the limit of it that it deals with litigation protection and litigation only particularly in a UK context given that we have a UK wide regulator I think the difficulty for us is we've probably not had time to really as a committee consider the health bill and that section because the instant that Dr Winning you raised the instant that activates duty of Canada procedure one of them is under 21 section 2a an unintended or unexpected incident occurred well it's not unexpected you've alerted the patient to the fact that there may be side effects so that it may be that in this particular it would be dealt with under this bill and that there would be you know it says in apology it means a statement of sorrow regret of an unintended or unexpected incident which would cover the fact that there had been an open discussion with the patient with regard to the consequences good or bad or whatever of taking a particular line of treatment I think that's probably an issue for us for those who are looking from the medical point of view we perhaps need to look at this in tandem with the bill before us so do you have anyone else I've got Mr Adamson convener as with colleagues I'm not competent to comment on the health bill but I think it is interesting to consider the health bill and the compensation act and the definition of apology or the treatment of apology in England and Wales and the commission's view is very strongly that definition, the more limited definition isn't deficient in human rights terms but there is value in a broader and robust definition and I think it's probably helpful to look at the wider human rights context in terms of the duty to provide an effective remedy which is, I'm sure everyone's aware is an essential element of the human rights framework it's contained within article 13 of the European Convention on Human Rights but also within the international covenants the convention against torture the convention rights of persons with disability convention rights of children you need to have an effective remedy if your rights are breached and the UN guidelines on the right to remedy and reparation set out the need for equal and effective access to justice that's the point that I made at the start access to information about your rights and reparation for violations and then importantly adequate, effective and prompt reparation and there's been a lot of work done internationally on what reparation can mean including restitution compensation, rehabilitation very importantly guarantees of non repetition but also satisfaction which includes apology and I think that there's certainly to go back to my original point there's real evidence that any barrier to apology can influence this overall holistic view of whether there's been an effective remedy and while I think we can have discussions about whether to have a limited or a robust definition of apology what matters at the end of the day is for the individual who is the victim whether they can have an effective remedy and apology makes up a part of that and so that's why we support the kind of broader more robust definition to help ensure that overall holistic view of right to remedy but it's very much one tool of many and to go back to my original point about historic abuse and the action plan covers seven different commitments and apologies just one of them but it applies across the board just to clarify for me in terms of section 3b of the bill it says so when the apology contains a statement of fact in relation to the act and mission or outcome you're content that that can't be founded on in any proceedings can you just press you on that because we heard quite strong evidence from the previous panel that they felt that while yes you're gaining a remedy in one hand you're actually losing quite a lot of rights that you already have and that you cannot then found on those in court and get the compensation of the reparation which you've also referred to as being important absolutely it is important that the person is able to to access that reparation I thought it was very important that there was a clarification in the last session that this would not impact on criminal liability I think that it's important that that's very clear when we talk about the right to remedy and the restriction here it's the evidential element of it that is restricted so you can't rely on it yes we know that's the problem you're happy about that we're happy that this bill in our view will promote apology and alternate dispute resolution and a way to come up with a holistic view of a remedy and what we've heard because of historic abuse is that the way in which the common law currently operates acts as a barrier and what they are very interested in is as part of an overall I suppose the point would be that what's the purpose of an apology and so if the purpose of an apology is being able to set up the facts and kind of a safe environment and come to a common understanding to provide part of that satisfaction then that provides real value for the victim and I'm unsure as to a situation where someone would choose to disclose facts that they weren't compelled to disclose what would be the purpose of doing that unless they were trying to come to some satisfaction with the victim and so in terms of whether this bill would take away evidence that would otherwise have been available to found a civil case I'm not sure that would be true because I'm not sure people would voluntarily disclose this but for the protection that's provided but you must in legislation provide for all circumstances not the generality the exceptions might prove the rules so that if this was in and there was a circumstance where somebody apologised and a statement of fact of really quite telling form part of that apology and freely at the time cannot be founded on in civil proceedings is that not a problem? I think it comes down to a balance in terms of whether you go with the more limited or the more robust and I think that obviously one of the big issues this committee in this parliament will have to wrestle with is whether the value of having the cultural change which this bill seeks to promote and meeting the clear view that we've had from survivors that this is something that they need outweis the specific circumstances that convener that you the unintended consequence that did you mention I mean you might be able to take section 3B out and have A and C left in Dr McDavid I think that what you're looking to do is subdivide up the protection that the bill is seeking to offer and that can cause difficulties I would think for those who are looking to convey an apology if rather than having a truly open and transparent health service like MPS things should exist how can that go alongside having to have doctors or other healthcare workers second guessing what they can say as part of their apology my understanding is that the mischief here is to say you can offer information at the time of an incident and give that in a meaningful and appropriate way whereas if we are saying that in actual fact you can say sorry but you can't give any facts it starts making it very difficult for the members to feel confident in offering an apology example you might say I'm sorry that this happened to you the nurse should have done X, Y and Z and she didn't have anybody else in it that's pretty unfair I know it can't be founded on in terms of this that's pretty unfair to the nurse that this has been said when they passed the buck that could be part of an apology I'm sorry I should have been paying attention but the nurse should have done this somebody else is involved in the chain in civil proceedings though there will be opportunity to give time and careful consideration and in the medical profession regularly notes are taken we understand all that we understand about civil proceedings I'm just wondering about when some so-called fact which may be a fact or may not be the fact because it's the person stating it that says it's the fact is appropriate to be excluded or included in it because the other bit seem fine an expression implied of mission of fault and the other bit which is simply circumstances which seems a good thing to possibly do but I think there might be issues here for me I've got a list now because I've provoked something and Elaine you want to come in on that first then I'll take everybody else on the list on the same point that if in the course of the apology a statement of fact is made which then gives the victim the grounds for civil action so the victim may not have been aware of the statement of fact until it is made and then that's maybe even the grounds on which I could get some form of compensation but they're not now able to pursue that right, that's there out there because we're now focusing at this moment on 3B and that's where am I, Ms McCann then I've got Dr Martin and Dr Winning I would share the concerns that you have already expressed because I think that would then give a pointer to the person and direct them to an indication to them where to seek the evidence from and they will then target it against an individual through potentially freedom of information laws to try and get information in advance to allow them then to raise a proceeding in my view A and C are more appropriate because particularly at an earlier stage someone wants to know if you got it wrong what steps to make sure that it doesn't happen again so they'll want to see that you haven't ignored their complaint you've looked at the facts and circumstances you have tried to do something to put it in place so that someone else won't have to undergo the same trouble etc that they have had I've got Dr Martin and Dr Winning Thank you I entirely adore what Ms McCann has simply said what you describe actually happens now where we deal with complaints in 2030, complaints come into my office every day where we help doctors to respond to them and there can be a lot of finger pointing so again it's a real concern I think generally putting the whole thing in context at the moment we advise doctors that an apology is not an admission of liability and again echoing what Ms McCann said people looking for a resolution not only looking for an apology but are reassuring that the matter has been looked into properly and there is a reduced risk about happening again and whilst not unsupportive of the bill I think the difficulty with the bill is that it potentially puts obstacles in that way and doesn't create the open culture that we really want to have within the health service Yes, convener I would like maybe just to illustrate to your concerns with an example whereby an inpatient receives the wrong medication that sort of thing usually would come to light before any ill effects or adverse consequences occur what happens in that situation is that an apology and proper steps need to be taken before the facts of the matter are even known it would be very easy of the cuff to say well a nurse gave you the wrong tablets that is a fact but actually what we haven't been able to do we need to address the problem first and I think that usually these sorts of situations are dealt with very locally they're reported through the data system and whatever dealt with appropriately and swiftly and complaints usually don't even arise because they've been dealt with swiftly and appropriately and I think if statements of fact are required at the stage of an apology that could be to the detriment of the patient never mind the process and remedying the problem It's not required but the definition says that if it contains that it can't be founded on but that so there's two ways to look at it that it ought to be founded on or there might be something as I described in a statement in fact that is you called it finger point it might be mischievous, malevolent and then something else follows on for that and yet one can't there's no redress for the person who made that as part of their apology there's no redress for the third party so there's all these strands of unintended consequences that may occur even though there's good intentions I think that's the issue I want to probe Mr Adamson Thank you convener Just reflecting very briefly and possibly uninformedly on this third party example there's a recourse to the law of defamation in terms of if they were defamed in their character they could take recourse there which is excluded from this bill obviously so I think there would be Excluding defamation proceedings Does it really a bigger part so a third party who is defamed in the context of an apology Who raises defamation proceedings what ordinary person raises defamation proceedings are a politician they don't even do it because there's no legal aid it's costly which again I know this committee is looking at but my wider point perhaps is to come back to the human rights framework in terms of there isn't a requirement in human rights terms to have 3BN but in my view it adds something and what it adds is the ability for an apology to include that statement of that narrative of what happened and I think if that's missing if that's missing it needs to be filled in some other way again I'm reflecting with apologies to historic abuse survivors there are other ways where through national confidential forum or the national enquiry that's being set up where their narrative might be told where they could help establish the facts I felt at that time when the apology has been given if you respond to that it's not obligatory but I think it's a useful addition to if an apology was to include that statement of facts I think for the victim that's something that's very useful not just to be told that there's an admission of fault not just to be told that there won't be non-repetition both of those are very important but don't actually understand what's happened and I think without protecting that statement of facts it needs to be that it could be added in somewhere else but we support it being included here so that if an apologiser chooses to add in that narrative I think it adds something for the victim Yes, I'll take Christian first then I'll take Roddie I'm keeping you as usual so you can ask the follow-ups at the end Christian and Roddie I just wanted to have some views regarding what we have already and I want to talk about the general medical practice guidance there are a lot of things there which already address all the point that we heard today for example there is a need of giving full explanations and prompt explanation to the patient of what happened I read as well that doctors do not always adhere to the principle outline in the good medical practice where registration can be called into question I wanted to know does that happen is there cases that how strong is as a recommendation from the good medical practice guidance and because as you said already that is a reserved matter does it sits better there and an additional question on this we've got to read the patient rights act 2011 which have introduced a lot more a different way of dealing with complaints in the NHS with the introduction of a duty of Canada in the NHS will that fit in perfectly with what we have already or not Dr Martin I think that that's our point really is that for very many years have advised doctors that where something has gone wrong they should offer an apology and a full explanation and more increasingly now they look for doctors to advise what they or the organisation indeed have learnt from the error and that may be done very quickly it may be done at later stage depending on investigations depending on the complexity of the complaint some complaints are very straightforward some are very complex involving various different individuals but ultimately with the guidance from the GMC with the new duty of Canada duty of Canada has been implemented in England too I think as an organisation we feel that the Apologies Scotland Act is I suppose more limited in that it mainly deals with civil litigation and it's a Scottish act so wouldn't necessarily protect doctors from investigation by a UK-wide regulator it is an interesting kind of dilemma really I suppose because as an organisation we assist doctors with claims and here we are promoting an open culture but equally we assist doctors when they face their regulator so we've got to have an eye on both but we do have experience I have personal experience of cases where doctors haven't made apologies and genuine apologies not an apology because an act says that we must give one a piece of legislation says that we must a genuine apology where that hasn't been given for whatever reason and another and sometimes it's not always the doctor's fault the complaint has escalated and they end up at a GMC hearing because they haven't had the opportunity to say I'm sorry to a bereaved relative for example and that can be very very sad so I think anything that promotes apologies and certainly not we certainly wouldn't object to that I think we just feel that this bill is perhaps quite a blunt tool to do it and it has potentially been superseded by things like the duty of candour and that there is existing vehicles to promote apologies such as the GMC guidance the NHS complaints procedure Dr Winnig Yes, just to explain how it works in practice I mean in my own experience apologies are required reasonably often and remediation taken it's very very rare that an apology is required as a result of a complaint being made I think that a problem has arisen in the relationship with the patient if it gets to the stage that a complaint's made so formal complaints are few and far between then a formal complaint followed by a formal apology because this bill is in existence something's gone wrong way before that it gets to that stage with regard to the good medical practice and the principles therein I am appraised annually as is every doctor and part of that appraisal involves a very explicit discussion about any complaints that have been made with regard to your personal practice but also within your wider team what the outcome was and what actions were taken that's reported on the form 4 which is the form that goes to the GMC so there is a very robust system in place already and every doctor has an absolute requirement to comply with those principles of good medical practice I think where the apologies bill interfaces and interlinks with the duty of candour and how it fits with the GMC as a UK body is very unclear to me at the moment and I think those things probably need a bit more work before I as a practicing doctor would be clear about where the apologies bill might fit with my clinical practice Doctor McDavid I think on behalf of MPS I would echo exactly what's been said I have here in my hand good medical practice in fact from the GMC it is a document that doctors will refer to but it gives pretty straightforward guidance when it comes to what should happen when things go wrong and that is that an explanation is offered and it specifically states that an apology should also be offered and I think that we are slowly beginning to see that filter down into more of a culture of openness in the NHS and at MPS we would like to see that expand and to continue to work on that and allowing people to offer a fulsome apology at an appropriate time is a much better way to achieve that helpful interaction with the patient and facilitate the apology right from the outset so in the stopping things escalating to the complaints you were speaking about is definitely going to be something that we would advocate I think to the interface is going to be interesting of course because there's different legislation for the different areas but I think doctors are obliged to look into something if it was wrong I would hope that they would want to do that and I think that the feeling they would have when things go wrong is that they want to apologise and engage with and put things right for the patient who's been wronged but to move into a duty and to put it down in statute and say you must do X, Y and Z it's almost a prod in the back to say you must do this whereas this apologies Bill we do support that it's protecting you protecting the doctor from subsequent litigation as opposed to say the duty of candor which is a prod in the back saying you must give this apology under duress I understood that Mr Adamson Obviously I'm not an expert on medical matters but just to reflect on the positive duty on the state to put in place systems to prevent violation and to ensure effective remedy and we think that this Bill is an important element to that and reflecting on the Y consultation that both Margaret Mitchell and this committee have done that I know that a lot of the evidence has been around personal injury or medical practice but this is actually quite a broad scope in terms of issues that we're looking at and particularly the positive duties that the state has in relation to ill treatment and the protection from ill treatment and in the right to respect for private family life that we are talking about a wide variety of not just health settings but care settings detention settings personal autonomy personal integrity this is a broadly drafted Bill that applies to victims in all circumstance and applies to those that provide services particularly and allows them another tool to help provide an effective remedy and so I certainly reflect on the evidence from the Scottish Public Services Ombudsman both in writing and today in terms of the wide scope of this in the usefulness of it Thank you, I have Roderick John and Margaret after Roderick and John To pose the question whether providing at this Bill and providing greater protection for doctors or indeed anybody else necessarily will improve the culture of apologising and what the panel thinks might be or can we improve the culture of apologising without legislation Dr David I think it's a step in the right direction but legislation is a blunt instrument and it's just one tool but if it can help bring about change then great I think MPS can offer to take that to the profession and say here's what your Parliament has to say here is the tool to protect you from consequences of being sued if you apologise I think that's a strong message and you make a statement of fact which could be founded on which is what the Bill does safe from that yes yes no I'm saying if they apologise and also make a statement of fact which could be founded on in civil proceedings they might just say it but they can't be founded on so you'll be able to tell them that as well you've gone quiet on me but it is a fact is it not Dr Martin Maybe I can help my colleague out slightly I think that's one of the difficulties because that fact can then be founded on by a UK wide regulator so I have to confess I don't agree with the MPS on the protection that it offers to doctors Dr Winnie Yes I'm not convinced it will offer the all-round protection that a medic or perhaps a nursing medical council would feel they needed to be fully protected by their own regulator I do think the principle of apologising and the philosophy behind this is absolutely laudable and one that we would want to foster part of the problem if you take it out of the GMC is about relationships within the organisation itself so about relationships between the medical staff the nursing staff and their employer which again is another potential source of reprisal or recrimination when you're making an apology or admitting to fault so I think there's potentially some work around that could be done I'm not sure that this bill will address the issues within the organisation themselves and that employer-employee relationship Mr Adamson Cultural change is something that we're very interested in and a human rights based approach to changing culture involves a lot of things including the participation of everybody ensuring that duty barriers understand empowering those that may be victims but also having a strong legal basis and I'm certainly not suggesting that the commission is not suggesting that this bill is a panacea but we think it plays an important role in helping to change culture I'd like to take John It's actually a question on that very issue for Mr Adamson, if we look at the policy memorandum it's very clear the bill is intended to encourage a change in social and cultural attitudes and as with all pieces of legislation there is a human rights assessment and there are no issues of incompatibility is what we're told in that and of course the main article is article 6 the right to fair hearing is to ask Mr Adamson in relation to this particular passage that's in in the rights assessment here established legal systems do routinely set out rules about what evidence can and can it be admitted they might for example exclude potentially relevant evidence on account of broader reasons of fairness or public policy now that would seem to cover the circumstances we're talking about here and I wonder where the balance of rights is between the individual wishing to pursue something on the basis of and if you like the collective good as determined by public policy there will be attention there on occasion Yes there will I think it is a first point I would make is that it's very useful that there's a requirement for a human rights impact to be set out in the accompanying documents the commission has for some time been seeking to possibly improve those through proper human rights impact assessments to allow committees to have more information around this article 6 in relation to ensuring a fair hearing and particularly in relation to ensuring the right against self-incrimination is obviously important here this bill doesn't apply to the criminal law we also need to be sure that someone is able to not be forced into a position where they're incriminating themselves there is a balance within the system of evidence to ensure that not only someone doesn't incriminate themselves but also that someone can fully seek a fair hearing and get a remedy the court are very well used to dealing with that I don't think this bill really impacts upon that okay, thank you very much surely the fact is that this bill removes the judicial discretion but whether or not it's admissible or inadmissible because it specifically says here the effect on apology and legal proceedings an apology made outside the proceeding connection with any matter is not admissible as evidence it cannot be used in any other way there's no judicial discretion no, in relation to a properly formed apology within the context of this bill that would be excluded from those civil proceedings notwithstanding fatal accident inquiries or defamation or criminal law but there may be some discussion around whether something fits within a properly defined apology or not on the basis of that wherever there's a law there's litigation Margaret thank you very much convener again a very interesting discussion can I say at the beginning the bill seats above all to give legal certainty when an apology is made and to absolutely make it crystal clear that an admission of fault isn't an admission of liability or negligence and it was unfortunate in the last session that the law society didn't pursue the law of negligence concerns that I know they have just now very often someone can get an apology think that's liability think it's even negligence go through very lengthy costly legal proceedings only to be told categorically that it isn't so I would hope here there would be some redress for that clearly one of the most important things that we're trying the bill tries to achieve is full disclosure of any given situation when something has happened you feel this is what went wrong or this is what happened here are the facts very sorry we're going to look into this and we hope we can make sure it doesn't happen to anybody else and that's why I included and I realise it's probably the most contentious part of the bill the statement of fact on the basis that another way nine times that of ten I think it was a point that Ms McCann made and if it can be proved in another way and if the fault was so bad that it was negligent then of course you would want that to be founded on so it was a question of balance so I take your point convener entirely I was always tempted to ask your question there about nine times out ten is it good enough if there was some room to perhaps amend the statement of fact so there was some judicial discretion in whether they should be admitted or not in other words was it an attempt to hide behind the legislation or was it actually germane to the apology if that would maybe change the point of view and I think just the last thing I'd say in terms of the duty of Canada which relies very heavily some people seem to be going in that direction on the compensation act we understand this was added at the last minute now so far as without a lot of discussion do you think that goes far enough in giving the confidence and trying to allay the fears people have about apologising just now if the definition of apology isn't there I'm lucky I don't have to are I as met I'm feeling a little more confused you know I think the definition of apology needs to be absolutely clear and the notion of whether there would be some discretion at a later point about whether a fact was admissible or not actually just muddies the waters for me further thinking about what do I say and when do I say it when actually all I want to do is step in very quickly, preserve my relationship with a patient, fix whatever problem has arisen this is going to trigger off a whole other cascade of thoughts for me may jeopardise my immediate response to a patient's needs at that time just a bit of looking you have to speak as such is my power however it partly is working Doctor Martin I was just going to agree with Doctor Winning it's a very easy thing to say because again we help doctors to respond to complaints and I think if things were confusing for us as an organisation it would be difficult for us to advise our members to be with him, Doctor Winning the duty of candor point I think that's still in consultation it's been implemented in England and not in Scotland but I think if what you're looking for is full disclosure yes exactly oh has it passed? yes it's now introduced so it's now going to the health committee okay fine I think if what you're looking for is full disclosure particularly for and openness and learning from organisations as opposed to their apologies Bill now I'm pretty mad down because if I say I don't see anybody else asking questions hands go up a quick glance round I think we've concluded and exhausted that can I thank you all very much for your evidence interesting as usual and I'm going to suspend for another five minutes to allow the desk to be cleared and the next going to item 3 thank you we're on to item 3 inquiries into death Scotland this is an evidence session on the members bill introduced by Patricia Ferguson members will see in their papers that the Scottish Government provided written views on the bill in advance of this session Margaret Mitchell is back with us in her capacity as committee convener for this and the other items on the agenda welcome back Margaret I welcome the reading Patricia Ferguson MSP and Patrick Maguire from Tomson Solisters and as usual and Patricia you're away with this just sat here before I'm going to ask from members Margaret then Roddie anybody else from making a list Elaine, thank you good morning you'll know and it's clear from you Bill Patricia that delays are a huge problem with fatal accidents I wonder if you could talk a little bit about your idea of the timescales and also comment on Ms Ferguson the Crown Office's intention to publish a milestone charter well thank you very much convener for having us to the committee today I think actually the whole issue around timeframes really goes to the heart of the changes that we want to see made because we think the balance needs to be corrected in that we think that bereaved families and those with an interest in the possibility of a fatal accident inquiry should be central to the entire process and feel that they're not in that situation today so one of the areas that seems to be of most concern and where there has been I think probably most discussion around the whole issue of inquiries into deaths is about the amount of time it takes for a decision to be made about whether or not an FEI can be held and I think we've all probably collectively seen some of the cases at least explained or talked about both in the press and elsewhere so we are of the view that what we now need to do is have a point at which the Lord Advocate will formally communicate to families and those with an interest the likelihood of his decision or the decision that he has made we're suggesting six months for that where there hasn't been criminal proceedings and where there has been criminal proceedings three months now we're not being completely rigid about that we're saying that the Lord Advocate can give an explanation as to why that's not possible in my personal experience of dealing with families they understand where there are complex issues or where there are matters that require particular kinds of investigation that it might take a while, it might take a year it might take 18 months or longer to be able to come to that decision but they would like to know at an early point what that discussion is what these hold-ups might be why they are occurring so that's why we've said six months but with the option of the Lord Advocate at that point saying it will now take us a further 18 months or we will come back to you and tell you that we need another extension but we think it's important that those reasons are given to those with an interest at an early stage obviously this is a new idea that the Crown Office has come up with having a charter and I read that with a great deal of interest I think it might help but as far back as 2013 the then Cabinet Secretary for Justice told me that in an answer to a parliamentary question that the Crown Office and Procurator Fiscal Service had largely implemented all those elements of Cullin that were for them to implement without the need for there being legislation although legislation would ultimately follow so it seems to me that that is something that they could have done a long time ago and I welcome the fact they've now got to that point but I do think that it really does need to be underpinned by legislation to give it the kind of credence and the importance that family members expect it to have if you'd want to add Patrick Thank you, I think the only thing I'd like to add is in respect that when we turn to the Charter of Milestones time scales that this issue arises in relation to other aspects of the Patricia's proposed bill in respect that we're being told that there is a recognition that the current system isn't fit for purpose we do have a competing bill but we also have practices and procedures that have been put in place by the Crown Office and Procurator Fiscal Service this proposed charter being one of them and it seems to me being said that let's just rely on informal practices, procedures and policies let's not put it on to a statutory footing and my response to that would be if you're already doing something if you want to strive to achieve the best for the victims then fear not putting it on to a statutory footing embrace that Of course have that charter quotes before stage 2 at which point the committee can take a view on it and whether or not perhaps reference might be made in the legislation whichever legislation to a charter just that there will be a charter and then the charter sits aside the legislation that's always a possibility so I think at that stage we're able to examine how powerful that would be how useful it would be I think it's certainly I think Patricia first should admit it's a move forward by the Crown Office we've managed to move them forward I think there has been movement from the Crown Office over the last couple of years but I think if you're at the point where you have two pieces of legislation before Parliament that want to reform or change this system and one of them is suggesting mandatory underpinned by law timeframes that the idea that there would be a charter which we haven't yet seen obviously I can't comment really on it because I haven't seen it and I don't know how good it would be but I do think that Patrick is absolutely right that if you think something needs to change then why not change it why wait for a new idea around a charter just to avoid something being laid down in law that seems to me to be slightly counterproductive I wonder if you comment on the early hearing that the recommendation on carlin made and to see would that compliment your mandatory to join skills would it help? To be honest we had actually looked at a very early stage as to whether or not there was the possibility of having some kind of early hearing about perhaps the facts of the case but we didn't really see how that could fit in with the kind of enquiries that we have in Scotland because I think as the sheriffs pointed out when they gave evidence to the committee a couple of weeks ago until the point at which the Lord Advocate has decided there will be a fatal accident enquiry they have no jurisdiction and it would actually be I think against the original Scotland Act albeit that's been changed but not in this area over time to try to do something different in the meantime but I honestly just would struggle to know who would have the jurisdiction to do that because until such times as the sheriffs are told there is to be an FAI they have no role so it seems to me it would be slightly out of sequence although I have a lot of sympathy for the aims of the idea of an early enquiry We've got Rod followed by Elaine please The issue of kind of opt out under section 9.5 in relation to fatal accident enquiries relation to industrial disease or relying on the discretion of the Lord Advocate this list of general gave evidence on that point and I think in your financial memory when you say that your bill would only need to about one or two additional fatal accident enquiries per year why are you again discretion We're absolutely not against discretion in fact we have made discretion a key element of the bill that you have before you but what we do think is that the balance has to be changed as I mentioned earlier we think that the deceased individual and their family have to be more part of what we do so all through the changes that we are proposing and the elements we are introducing we've tried to make that the case but what we've said about industrial diseases is that if I'll not read out what we've said here but I'll tell you what I think it should mean and what it does mean and that is that if the conditions that have led to a particular industrial disease have not yet been explored then there could be a fatal accident enquiry in those circumstances or if it's a new technology or a new process that is coming through I'm conscious of the fact and I know members around the table have an interest in for example asbestos and asbestos related diseases and we all think that we know how people contract lung disease and other illnesses through exposure to asbestos but there is evidence in England and Wales of young people very young people becoming ill with diseases that are normally associated with that kind of exposure and we do not know why that is the case so if and hopefully there won't be but if there were to be a case like that in Scotland then it would be possible for the Lord Advocate to decide that there would be a fatal accident enquiry into that case but he would have to consider it and I think that's the important point that this would be on him to look at that If I may from my perspective having dealt with far too many families over the years who have lost loved ones through industrial accident and industrial disease it is an absolute truism that the victims that the families that are left do not see any distinction between losing a loved one to an industrial disease as opposed to an industrial accident on the primary level I see this section of the bill as putting those two types of victims on an entirely equal footing that victims of accidents and victims of industrial disease are treated in the law the same and are viewed by the law as the same which was not the case until now and actually our starting point is to achieve that firstly and to thereafter look at how the exceptions for holding enquiries on violence is properly struck and I suppose really on a personal level it comes down to the simple fact that there is in the minds of the families a difference between having a right to something that can be taken away with a full written explanation which is the case that we're looking for in relation to both categories as opposed to not having a right at all until the Lord Advocate decides that this matter is so sufficiently serious that it could be an FEI and for us it's simply about striking that ballad fairly What you said Are you... Wrong microphone You in no way reassured by this list of general's evidence as to the kind of situations in which she would envisage if her last inquiry would take place What's the practical difference going to be? The practical difference is going to be that there is a presumption that there will be until it's decided that there won't be if that is the case and that would be a discretion that the Lord Advocate would actually exercise but it is as Patrick said about changing the balance or improving the balance in terms of those who are most affected by these incidents or diseases But the Lord Advocate would still get a discretion under section 95 so somewhere in the equation the Lord Advocate is still exercising a discretion Yes they are At the moment they can exercise the discretion to do it We are saying it should be the other way around that you would have to exercise your discretion not to do it but also that you would have to explain why you came to that conclusion that you as the Lord Advocate were satisfied that the matter had already been thoroughly explored elsewhere or that there was no additional information that could be gleaned from having an inquiry at that stage OK Could I perhaps just move on to the question of the force of sheriff's recommendations and you have heard the evidence from Lord Cullen and indeed others on that point Sorry Roddy So we have three categories then we have mandatory FAIs one where there's a presumption there should be an FAI and one where there's just the discretion of the Lord Advocate on the balance No there are only two Two at the moment but you're talking about where there would be a presumption it's not mandatory in these circumstances but there would be a presumption which must be rebutted by the Lord Advocate Am I not correct? Not entirely there are currently two categories I know there's two at the moment but what does this state mean? Exactly the same there will be two categories mandatory and discretionary Indeed and under the mandatory as is currently the case the Lord Advocate may exercise a discretion not to hold an FAI of certain if certain conditions are met and simply we are expanding the mandatory category beyond simply accidents to industrial diseases and the factors that the Lord Advocate will take into account to determine whether or not So this is actually just to say that within these categories there'd be just a presumption which is what you're saying which was the difference you were making to Roddy that the presumption would be that there should be one into a new or unexplored industrial disease that there will be an FAI unless otherwise it's a different test Sorry Roddy Can I just recap in terms of the evidence we heard from Lord Cullen and indeed others about sheriffs recommendations and the difficulties that would be involved were those recommendations to be legally binding Your comments on that I actually thought it was very interesting that one of the arguments being used was that we would be turning what was an inquisitorial inquiry into an adversarial one Actually if you've ever and I'm sure you have been at any of these inquiries they can actually be quite adversarial The fact of the matter is there's a presentation on both sides and there will be argument about the facts of the case and different cases will have different submissions and different evidence to back up any claims or any assertions being made So I don't think that is really a fair assessment to put on what we're suggesting but frankly if it means changing it into that kind of setting then maybe that is the right thing to do because at the moment we are having cases where the sheriff cannot make recommendations and therefore vital information or vital points are not perhaps being implemented which may cause further loss of life or further injury further down the line and that is not an uncommon thing to happen and my own view is that we need to be in a situation where we are preventing loss of life and injury as well as finding out the reasons for it and in a sense knowing the reason is worth less if you can't do not worthless but worthless if you can't do anything about it and that's the situation that we're actually in at the moment and that's what I would like to see change I've mentioned when I've been in sitting with the committee asking questions of other witnesses the example of the Belgrove and Newton train disasters which is one example but from my own personal experience of the stockline investigation and inquiry and that wasn't even an FAI that was a hybrid inquiry but the reason for that particular accident at the end of the day was that a pipe transmitting LPG into a building had been buried accidentally under a car park at an earlier period and therefore could not be inspected for signs of erosion it did erode gas leaked into the company's offices, someone switched on a light and the building exploded with the tragic loss of nine lives Lord Gill who presided over that particular inquiry highlighted that that was what had caused the accident wrote to both secretaries of state because it was a hybrid inquiry about that but to my knowledge there has been no change in legislation as a result and it cannot be the only workplace or the only setting where there is a buried pipe somewhere that is transmitting LPG so it just seems to me that we really need to get to the point where we can properly learn the lessons from these inquiries and again the sheriff doesn't have to make a mandatory recommendation but if the sheriff feels strongly enough about it then he or she may do that I'd only add to that that if you were to distill down one purpose for this PC legislation is this is to make Scotland safer not just industrial settings but to make Scotland safer in order that any incident where lessons are to be drawn they will be drawn and steps will be taken to make things safer and we believe that the only way that can properly be achieved is by going beyond simply recommendations and making them enforceable and I think that came through quite clearly in the responses to the consultation document that all those who were in favour of the recommendations becoming enforceable trade unions organisations all supported that very strongly because they saw that as a very important objective to be achieved and to the contrary people who did and there were people who expressed less enthusiastic views on whether or not that should be the case we took their objections to be more of a technical nature like picture the primary purpose and believe that if this bill is to do anything it's to make Scotland safer and that's how it was achieved I hear what you say but would you agree that if we were to adopt that line the bill would need to be in broad terms much more radical and would require a complete revamp of the existing system I actually think that this bill does provide a complete revamp of the existing system and we've been very careful we haven't called it Faith Lights and Inquiries Scotland we've called it Inquiries into Death Scotland Bill because we do think that what we're proposing is as radical as you can be with a member's bill because there are some limitations on what an individual member can do but we've tried to be as radical as we possibly can starting with Lord Cullen's recommendations and trying to build on those things so that we can, as Patrick says, make Scotland a safer place On the issue of deaths while in legal custody you seem to go a bit wider than the Government Bill which has doesn't extend it for example to child detention secure accommodation Do you think that your proposals are more in line with Lord Cullen's original recommendations? I do and there are also points that were made to quite forcibly in the consultation exercise as well that these were areas that needed to be covered and I think it is very important that we see these kinds of unfortunate and tragic circumstances as worthy of this kind of inquiry so I absolutely think that we are more in the spirit of what Lord Cullen was suggesting We were also very conscious that some of the tribunals and investigations that can be held into some categories of deaths particularly in the mental health side of the issue didn't really conform to the provisions of HCR and we were very keen to try to offer an alternative that would conform and that would give more opportunity for proper investigation into these particular kinds of deaths Some of the evidence on the other side of the argument that we took during the Government's stage 1 process on their bill suggested that there could be a evidence where somebody died for example in secure accommodation whether the cause of their death is fairly obvious and doesn't really require a fatal accident Is how is that reflected in your ability? Again, as with any other FEI at the end of the day the Lord Advocate has a certain element of discretion that can be used there and we would expect that as with other deaths he would use that discretion where it was obvious that this had been a death through natural causes or where perhaps a postmortem had confirmed that there was a case with other deaths too Do you want to add anything? How do you see your bill sitting with the Government's current bill and is it an alternative? Is it something that we do both? Does it amend the Government's bill or is it really one or the other do you think? Well my bill came out of some frustration on my part I have to say at the slow pace at which Lord Cullen's recommendations were being implemented because they have been on the table since 2011 and it's only now in 2015 that we're seeing a bill as a result of those recommendations come forward and I did try pursuing that through the usual questions and answers type process and it seemed to me that we weren't getting very far and that's why I spoke to Patrick based on our shared experience of the stockline inquiry and the disaster itself about what we could do to try and push it along and we published our draft bill three maybe four years ago now because we felt it was important it's not normal to publish a draft bill at that point when you're issuing the consultation but because it was technical and it was a change and it was about legal matters we felt it was very important to issue that draft bill and I was quite intrigued by the Government's response that we replicate certain sections and mayors actually I think they've replicated many sections of ours so we'll take that as flattery and we'll be pleased about that but I think that my bill does undoubtedly seek to go further than the Government's bill and I think it's a judgment as to whether the two bills go through separately if that's the case or whether there need to be amendments to one or other to bring the two closer together we've said all along that we're very open to discussion with the Government we've had I think probably about four meetings now with various Government ministers about it we've got common ground on much of the territory that we're both looking at but there are some areas where we don't think the Government are going far enough and I would certainly want to pursue those areas to the nth degree from my perspective I echo all of that entirely and it's a matter entirely for the member as to whether she wishes to continue pursuing this bill and my view from a technical perspective is that she certainly can do so that there's no question to take up Roderick Campbell's point that we believe this bill is radical and it does things far more radically than the Scottish Government's bill and it will have a more profound impact on the safety of Scottish people than the Scottish Government's bill and I think from a technical perspective it's telling that the standing order's not withstanding the Bureau agreed that this bill could go forward because it clearly is so different and again echoing Patricia Ferguson's point we do recognise that the inquiries that are set out in this bill are very different to those under the 1976 act as it is and yes it is something different but most importantly it will do something different and it will therefore make a difference The current Government Bill could be amended to be a lot more like you would that be a possible to handle for twice your concern? I'm not sure whether the scope of the Government's bill would lend itself to much amendment as I would like but that's something that would have to be tested out with the parliamentary authorities as Patrick said the fact that I was allowed to introduce my bill not withstanding the fact that the Scottish Government had their own bill suggests that the two are sufficiently different but whether there's enough similarity in the proposals I think would be how it would be judged to allow one to be or the Scottish Government bill as you suggest that it would need to be to suit me I'm genuinely not sure we'd have to take guidance on that from the parliamentary authorities John I don't know if you're sighted I assume you will be on the correspondence from the Scottish Government dated 4th of June where we take 10 pages to take what many would consider a very negative approach to a lot of your recommendations Can I pick up on that as the legal enforceability of recommendations This committee had very compelling evidence from families against corporate killing and the implications of a delay indeed had been highlighted as being responsible for the cause of a death and there were several other deaths ensued as a result of failure to act Public perception is very important and I take the view that if sheriff's recommendations aren't acted upon then it undermines the system but you must surely recognise that if a lot of issues are health and safety health and safety is a reserved issue that there are challenges around that Yes We've had sight of the Scottish Government's letter very recently so haven't had an opportunity to properly digest it My first assessment of it would be it's not nearly so hostile because the consultation on their own bill was about my bill so maybe we're having a bit of a very approached one there that would be nice but I think you're absolutely right to highlight the problem with delays because one of my real concerns genuine concerns about delays is that if it's an issue about an industrial practice and it's four years or five years before there's a fatal accident inquiry that then discovers that there was a problem with that industrial process or that way of working then that's four or five years where we've not been able to act on that particular issue that's now come to light where you may have had other people exposed to danger or in fact injured or killed as a result of not moving on so delay really is a factor in that progression I understand what you say about health and safety executive and that is undoubtedly an issue as it is with a number of other aspects about this particular bill and indeed about the Governments because we can only put into this bill what would be legally competent so that's what we've tried to do and I can assure you we've tested that to the limits in a number of areas and that's partly why it's coming a little bit later than I would have hoped it did because we really did try very hard to make sure that where there was an issue of competence that we tested that as far as we could but ultimately we have to make it compliant and that's what we've done so there isn't very much that we can do about that but what we can do is make sure that lessons are learned and that matters are explored and that where the sheriff wants to make a recommendation and can do so within the devolved competencies that they have the power to do that so it's about giving people as much power as you can in the current situation We did hear from someone from the health and safety executive and I don't recall how I framed the question but I certainly gained the impression there wasn't any unwillingness to act if necessary and that's a problem with that Is it protocol need to be in place if there's something short of legally binding that would work? I don't think there's a way around it I mean we've looked at this and argued this backwards and forwards I don't think there's a way around it without having the legal enforceability element of it there Health and safety executive are very very good and will help wherever they can and are very proactive about many of these issues so they actually prevent deaths and accidents that might otherwise have been the subject of an FAI so they do what they can but if you consider that the proportion of deaths and industrial incidents in Scotland is so much higher than the rest of the UK then I think we have a requirement upon us an obligation upon us to do as much as we possibly can and I think by making the sheriff's recommendations enforceable and make some progress as well Do you want to add anything, Patrick? Simply to I would agree with absolutely everything that Patricia Ferguson said the HSC do everything that they can but of course they are extremely stretched and in this time of austerity they are stretched even further statistics that we do know exist show in this is more closely allied to the problem that is section 69 of the Enterprise Act that came from Westminster and God knows what's going to be next but statistics show that the HSC are only able and I use that word deliberately because it is about resources are only able to prosecute in 0.5% of breaches of health and safety regulations so relying only on the HSC what we don't think is enough we recognise entirely the issue of reserved matters in relation to the original Scotland Act and we've reflected that as we've had to in subsection 5 of section 25 we recognise the sheriff's recommendations as you relate to reserved matters and that would include health and safety matters cannot be enforceable but there will be lots of other recommendations that will be enforceable and that therefore will make a difference and as the member said perception does matter incredibly and when that is clear to the public that if they do not follow through with these recommendations they will be prosecuted I think we'll certainly see things change what the bill does do is provide a framework that when I think everybody around this chamber would now embrace the day maybe not this time around but when health and safety does get devolved to this Parliament we'll be able to just make a very slight amendment to the bill and that will also be enforceable You mentioned Mr McGuire about you viewing that there's been a public safety issue is there any further whose ministry do you think that should come under should it be Mr Wheelhouse and should there be more proactivity from a Government point of view whoever forms the Government I think public safety should be I agree with that entirely OK, thank you very much It's just really following up that do you think it's appropriate for sheriffs to be involved in the process after it's finished then in terms of monitoring it holding hearings and things like that a little bit more about that Clearly if you are to say that a sheriff's findings can be enforceable then you both have to offer appeal to those against whom a finding might be made just in terms of natural justice and ECHR so we've done that and similarly I think it's only right that the sheriff can give some kind of time frame against which they think that recommendation can be implemented and that they can then call back the person against whom the order was made or whatever the recommendation is and find out from them what action they have taken to implement those recommendations and it may be at that point the personal organisation would perhaps say it has not been possible to do it in this time frame but we think we can do it if you give us another six months or a year we can do it but here's the progress we've made and we think that it's only right that the sheriff should be able to review that and listen to what is being said whatever action he or she thinks is appropriate at that point but we think that those two sides of that particular part of the exercise need to be there I wonder if you've quantified the kind of workload that that might generate and the impact that it would have on other sheriff court business I think there's perhaps a separate issue about the resourcing of fatal accident enquiries and I've been told that one of the problems that sometimes occurs is that there's not somewhere appropriate for the enquiry to be held and that you might have one week in an enquiry in one location and another week in another so it seems to me that actually one of the jobs that Crown and Procurate Fiscal Service might want to do is to have a look at all of that in the case of the stockline enquiry for example a community hall that had been used to house the people who were waiting for news of loved ones in part converted into an enquiry venue and that has been subsequently used for the Penrose enquiry as well so it's possible to make small adaptations to venues to make them appropriate and I don't think there's enough of that happens I think there's too much of an alliance in using Crown and Procurate Fiscal Service premises so actually I think that by looking at all of that that would be part of that discussion that you would actually look to see what there is a way of making that more streamlined and of making it possible for all Fagal accident enquiries to happen more smoothly in any case and to take it forward in that way so it possibly is part of another job that needs to be done but doesn't need legislation to make it happen I mean to digre entirely that there will be a cost and the sheriffs will be spending more time particularly when the bill first passes into law but I'd say firstly that I think is a cost that is well worth paying for two reasons firstly because it will bring to book people who do want sheriffs recommendations and that that will start to have an impact and that really what's at the heart of the entire section of the bill about enforcing recommendations sheriffs keeping an eye on things and bringing a prosecution necessary is changing behaviour that's what's really at the heart of that section of the bill that after the first, second or perhaps no more than third prosecution brought under the bill that when the second or third person flaunts the recommendations in the I've brought to book that's when you'll start to see word filter out that's when you'll start to see behaviour change and actually we hope that flaunting recommendations will be a thing of the past so we think it's a price very well worth paying that if you take my example of the Belgrove and Newton train disasters if those recommendations had been enforced you would have both prevented one serious fatal accident but you would also have reduced the requirement for the number of fatal accident inquiries in a very practical point of view so actually in the longer term we hope that it would actually reduce the number that had to be held because lessons would be learned and action would be taken to make sure that there were not similar incidents in the future I've got a couple of points to just raise about the enforceability of recommendations which is obviously very attractive but and I'm sure the force of why you have proposed this but some of the difficulties that arise one is that and I think you alluded to it in fact you stated it in your one of your answers was that many FAIs are already adversarial so what difference does this make because this would in my view make it more adversarial but then they're not all like that but they may change the culture and nature of all FAIs I know your conch and inquire isn't death but if this proceeded it would do it and the second thing is which looks to me like a lengthy and pretty cumbersome appellate procedure which not only of itself is long from sheriff to sheriff principal possibly from sheriff principal he never wrote might go on there to the supreme court who knows and at that time it's going through the recommendation is suspended so not only have we got this cumbersome procedure it may be counter counteractive to what you want to achieve at the end of the day so there's several issues round about it that are perhaps when it seems to be a really good idea that are enforceable when you look at all the issues that were raised by the sheriffs and then you look at the issues raised here it's just a difficult one to sort without ending out with something that you don't want at the end of the day but it could take years the pellet procedure well I think the corollary of that would be however can be now that you would have recommendations that could ultimately be enforced whereas at the moment you don't but my point you see I'm making is that you don't make a recommendation but it's suspended it can't be enforced while the pellet procedures going through I mean it's not a disagree with your purpose it's just would this be helpful especially if there be an instance and more and more things are going through as far as the supreme court might go to the European court of justice there are issues extending beyond our own jurisdiction that might just make it we just need to look at the minimum unit pricing battle how things can go on long pass legislation well at the worst the issues would be in the public eye and there would also be I think anonies on the person against whom the recommendations were made to consider that as they went forward but ultimately you would have the opportunity to bring that recommendation to the fore to make it have the force of law so it's a balance of opportunities either you do nothing as it currently is and you have a recommendation that has no force or you take forward a situation where just because of natural justice and all the other things we have to think about you have to have an appeal process I mean that would be my own way of looking at it but I don't know if you want to add anything we also judicial review thrown into the pot as well if a party is subject to a recommendation that they didn't know anything about the inquiry going ahead or the FEI going ahead in your case an inquiry and it becomes almost Dickensie in the extent of legal battles it could fall hopefully not my response to that would be to firstly echo Sia Ferguson's comments that it comes down to a straight choice do we want a system where recommendations are enforceable and if so that comes with a certain price or do we not but I don't accept that this will result in a situation where there will be appeals judicial reviews left right and centre I am very confident that the appeal process will be used very much as the exception rather than the rule on what basis on the basis that if I were a major company and something were being a major company with pots of money and the sheriff's recommendation was enforceable and I just didn't want to comply with it wherever it was it could be a minor recommendation but something that had ramifications from our business you might fight it like Donald Trump uphill and downhill till the end of the road and at the end of the day the recommendation has no force what's at will as it would now just as a recommendation challenged now challenged as a recommendation which it wasn't previously I think that this Parliament has a very proud history of being beaten by big business and there's no finer example than that of that than the plural plaque bill that was appealed all the way to the Supreme Court and that the Supreme Court put a big business in the insurance industry in its place and that if a company such as you described, convener, appealed a matter all the way yes, pro tem the recommendation would be on ice but assuming that the court wherever it got to supported the original sheriff's recommendations then that recommendation at that point would become enforceable so the companies would have a big choice and appeal doesn't kill the recommendation it simply delays it coming into force and when it does come into force then it will at that point be a worthwhile exercise but can I just stop you to say that that stage you see prior to that under if it's not enforceable it is a recommendation that is not challenged in the same way as if you make it enforceable and it's going to be challenged through litigation through all the courts it is therefore the sheriff's recommendation is being challenged thoroughly to me it has even less it could have even less force but the alternative convener if I may is that if it's not enforceable then it can be ignored I appreciate that easy to cure this what we're trying to avoid so I think even if it were appealed ultimately it would have the additional force of having been taken through a particular process and would be all the more remarkable for that but it's also worth noting though that we're not suggesting that every FAI will result in the sheriff making these kinds of enforceable recommendations it may be that the sheriff will want to highlight something he or she may want to draw something to someone's attention an organisation's attention they may want to recommend to the Scottish Government that they pass legislation there's a range of things that a sheriff could do in the current situation but what we're saying is that in a case where the sheriff is of the view that recommendations that he or she can make can actually make a difference and can prevent incidents or accidents arising in the future and will have the right to make those recommendations and as Patrick McGuire myself have said then ultimately that will be challengeable but frankly I don't think there's very much any of us can do about that and at the end of the day it's a choice of something that might be challenged or something that might be ignored and I would come down on the side of the thing that might be challenged and I think just to come in there if I may and those self sane companies that you painted a picture of madam convener who will run the appeal all the way they're undoubtedly the same companies who would ignore the recommendations anyway so all paths lead to the same result except that ultimately we'd hope the court will support the sheriff's recommendation another thing I think is to pick up and hopefully it will only be for a certain period of time the comment in relation to health and safety being reserved of course there will be no enforceable recommendation in relation to health and safety matters and so that will remove perhaps a very contentious aspect where there might be appeals I've got a system the same issue it's actually gone a long way to actually addressing that but in terms of section 22 it enables the sheriff to make recommendations it doesn't mean that every recommendation or every statement the sheriff may want to make about the results of inquiry has to be legally enforceable it's only if the sheriff believes it ought to be legally enforceable that it would be that's absolutely right because we've endeavored as much as we possibly can to have our flexibility here because we recognise that there are FAIs and there are FAIs and some of them will be looking at very weighty, very serious matters indeed all of them are looking at a very serious issue in that they involve the death of one or more individuals but the outcomes from those and therefore the recommendations or the decisions that might follow will vary according to the circumstances so we have been at pains to try and build in that flexibility so that it's not one-size-fits-all Nancy, ground so dispute but why is somebody challenging why have you made this one enforceable when we think it ought not to be so it's just difficult for me it's difficult as I think it is for some of our witnesses who look at your purpose which is very laudable but it's trying to find a way of dealing with it where there's not unintended consequences which takes away from the purpose which is that I don't know if I've got there yet but do I have anybody else asking questions on something else Gil enforceable and I wondered about enforceable on third parties and I think you stated about LPG being buried underground and I would suspect because it's a kind of area that's actually working that it wasn't because it was buried underground it was because it wasn't protected to be buried underground so if it was enforceable in that regard then I think the challenge in that particular case I think a recommendation could be picked up and taken on by the health and safety executive but a third party some other place I mean I find it very difficult to believe that it would be impossible if it was a case how would that kick in I would believe that a third party might challenge that although they weren't directly involved in that case I'm not sure that getting into the technicalities of that actually helps but my recollection and Patrick Maguire will be able to correct me if I'm wrong, my recollection of the stockline inquiry was that it was entirely about it being buried underground because there was already guidance if not legislation that said that it should not be buried underground so it was the fact that it had been at some point it was accidentally done it wasn't done deliberately a car park level was raised and therefore the pipe was termact over and forgotten about basically so that's my recollection of that particular one but from memory there were disputes about who was responsible for that who should have been responsible for making sure it didn't end up in that situation and who was responsible for looking at the whole issue of LPG and those were disputes that were held elsewhere because there was actually a criminal case that preceded the inquiry in that particular one and at the end of the day it was the two companies responsible that were fined in court but as I say I'm not quite sure that that particular case helps us to progress the question you're asking is more the third party who is not involved in that in a particular case that shares recommendation being enforceable how it impacts on them is the case that a safety measure in one location is adhered to somewhere else because it might be removed because of a particular instance we did give that quite a lot of thought and I hope and it was certainly intended to be sufficiently covered off in the bill because there is two stages to the recommendation becoming enforceable and you may actually take a step back and say there's potentially a third stage I'm assuming based on your question that the people involved are truly a third party and the reality is of course that other parties than the deceased's relatives and perhaps the employer can be brought into inquiries and be allowed to fully take part and it is perhaps slightly distracting but using a stock line as an example GAO were a party throughout and they were able to lead evidence and cross-examine witnesses and there's firstly in fact the opportunity for other parties to be involved in the inquiry throughout and therefore to make submissions on whether or not recommendations should be made but even assuming they are truly third parties they've not been involved at all the first stage is for the sheriff to make recommendations and at that point they are no more than that that recommendations would go to a third party and under the bill is drafted a third party and has the opportunity to respond to that and if the sheriff believes that those recommendations aren't being sufficiently followed through then the third party is again asked to explain themselves and this would be no doubt the stage would be making the points that you have Mr Patterson just made and only at that point and only if the sheriff's not convinced by that argument would he or she go to the point of making the recommendation enforceable I think it would be very seldom that that would happen and we certainly drafted it very carefully to ensure that those safeguards were present OK, thanks for that John Can I perhaps go back to the question of recommendations and what format they might indeed take because there seems to be a perception indeed it's sort of followed through in the response from the minister I alluded to earlier the small passage from that there would be difficulties there would be other difficulties in making a sheriff recommendations legally binding the previous one referred to as Lord Cullen's suggestion it's at the presently unconstitutional recommendations are made as to how death and similar circums may be avoided in the future which we would all understand as the purpose they do not dispose bestow legal rights or obligations on anyone a sheriff cannot be considered to be an expert in all fields we would agree with that and it's surely better that a sheriff's recommendations are considered by the regulatory and safety bodies in that relevant field it would be your understanding Ms Ferguson that the sheriff's recommendations would be based in evidence he had taken from these very this isn't a lay person's notion this is an informed and evidence recommendation Absolutely and we've actually been at pains to make that point too Exactly what would happen I mean a sheriff's determination to use it in a variety of sense has to be rational which is to say it has to be based on the evidence that was led it would be utterly irrational for a sheriff to make recommendations based on things that were not led in evidence so I don't accept that criticism at all to be honest Thank you very much Do we have any Christians on here? But sheriff could make a recommendation to the Scottish government to introduce legislation then thereafter I heard that a third party could be cool to explain themselves why they are not taking on the recommendation of the sheriff Don't you think there is a constitutional issue about having a sheriff having that kind of power and do sheriff really want to have this power of asking a government to introduce legislation or to recall taking on a government who has not followed recommendations I wasn't suggesting that one of the enforceable actions that a sheriff might suggest would be that the government should legislate I was really just making the point that in any case with or without my bill as things stand at the moment or as things might be in the future that a sheriff could recommend anything that they thought was relevant so a sheriff could say to the Scottish government right now I think you should do this but there is no onus on the government obviously to take that on board at all Do you think there should be an onus on the government if the sheriff wants to? Well personally I think that if there has been the kind of inquiry that I've seen up and under the FAI legislation as it's currently drafted and enacted never mind anything that might come in the future then I think government should certainly take very seriously any recommendation that came from a sheriff who'd had that kind of inquiry in front of them because they have considered the matter very deeply and if they go to the length I'm suggesting to the Scottish government or anyone else that they should take action then they must feel very seriously indeed about it too They might want to or not but the question is would a sheriff have the power to go back to the government and asking that the recommendation will be taking forward is that not a constitutional grammar or a constitutional problem? I see no constitutional problem with going back to the Scottish government asking will they legislate absolutely no problem with that constitutionally at all I can well see that forcing the Scottish government to legislate which doesn't exist in this bill could well in terms of separation of power be an issue but that's not what's been recommended asking why not absolutely no difficulty with that at all Can I just ask it a short question on 34 section 34 J and cave not quite clear what they mean and this is the quota session may be act with the current provision for or about and it says in J the financial assistance which may be given on such conditions as may be specified in the rules to enable such representation to be given is that to do with legal aid or what and cave the expenses payable to persons attending inquiry proceedings now the expenses bit I think is fine but I don't understand the bit about financial assistance this is no more than an enabling provision and it allows it allows rules to be created whereby if it was thought politically experienced that parties to an FEI could receive expenses to be legally represented or alternatively to recover costs for appearing it's similar to legal aid but it's not under the legal aid bill or provisions I'd say it's more closely aligned to the provisions that currently exist under the rules in relation to public inquiries where there are provisions and procedures whereby a party to a public inquiry could be legally represented the important thing to remember is that the state would pay and that's why through the legal aid system I don't understand that's exactly why it's no more than an enabling provision that the bill does not say the state must or the Scottish Government must go down this road it simply creates a framework whereby if it was considered politically experienced to do that would the legal aid rules have to be changed as well I think that's not what was done under the 2005 inquiries act nor is it what was done under the inquiries rules so that's why that's the analogy that's followed it would be state money but it need not come out the legal aid bill just to know what pot of money would come out of where would it come from where any other money that the Government makes it's a political decision just testing it because I didn't understand what it was it's the same pot of money that money for the inquiries come out of at the moment right okay so you create this fund this fund would be created okay just wanted to know about that and it's not legal aid alright you're finished thank you very much for your evidence and we're now into private session