 Welcome to the Justice Committee's 22nd meeting of 2015. I remind all to switch off mobile phones and other electronic devices or put them on to airport mode so that they do not interfere with the sound system. I have received apologies from Christine Grahame, which is why I am sitting in her seat today. First item 1 is the decision on taking business in private. The committee is invited to agree to consider our draft stage 1 report on the inquiries into fatal accidents and sudden deaths, etc. of Scotland Bill under item 7 and any future consideration of the report if needed in private. Are we agreed? Yes. Excellent. Item 2, subordinate legislation, our next item is the consideration of one affirmative instrument, the draft advice and assistance by way of representation of Scotland amendment 3, regulations 2015. I welcome to the meeting Paul Wheelhouse, Minister for Community Safety and Legal Affairs, and the Scottish Government officials Catriona Mackenzie, Civil Law and Legal System Division, and Alasdor Smith, director for legal services. That item allows us to gather evidence in advance of the debate on the instrument under the next item. Members will have seen the submission from the Law Society of Scotland confirming that it had no comment to make on that order. I understand that the minister does not need an opening statement. That is correct, convener. I will therefore go straight to questions from members. Are there any questions on the instrument? How was this problem detected, as it were? It is a good point. The provision for double jeopardy has only been really used. This is indeed only the third application to being made to the High Court by Lord Advocate. We were informed earlier this month that there is an individual, currently the subject of double jeopardy application, who does not qualify for ABWAR but will not be able to afford the cost of his legal representation without it. As a result of deliberations, we consider that public funding should be made available in order to secure the individual's right to effective access to justice in terms of article 6 of ECHR. Hence, given the urgency of the case, why we are here today to move the order. In terms of the financial effects going forward, any further comment on that? Are we regarding it as a one-off or do you think that this could be a trend? As I said, I repeat the point. The proceedings are very rare. This is only the third application. The change is expected to have relatively little significant impact on overall expenditure from the legal aid fund but, in the context of the nature of the case, it will be a significant case in its own right. Individual case costs are typically fairly high and we are estimating the region of £100,000 for this case. There are very few cases of this kind. As I say, those regulations will only add this kind of cost to the funding cases where a person is involved and not previously been financially eligible for ABWAR. Indeed, we cannot discuss the case itself, but the reason why it is necessary is that the individual concerned is someone who has been acquitted of a crime and, therefore, under double jeopardy procedures, is not technically yet accused of anything specifically. It is an application for a double jeopardy procedure. In broad terms, you are not concerned with the on-going financial impact? Clearly, as Mr Campbell will be aware, we are trying to manage legal aid budgets, so I do not want to say that we have no concerns about additional expense, but we think that this is a level of expenditure that can be borne within the legal aid budget and we do not have any significant concerns on that front. We can now move to the formal debate on the motion to approve the instrument considered under the previous item. I therefore invite the minister to move motion S4M-1303 that the Justice Committee recommends that the draft advice and assistance by way of representation Scotland amendment number 3 regulations 2015 be approved. Any members wish to speak in the motion? The question is that motion S4M-1303 be adhered to. Are we all agreed? Excellent. Thank you. I thank the minister for his attendance today. Thank you very much. Item 4 is subordinate legislation. Our next business is the consideration of one negative instrument. That is the All Scotland Sheriff Court, Sheriff Personal Injury Court Order 2015, SSI 2015 forward slash 213. The instrument designates Edinburgh Sheriff Court as a sheriff personal injury court to exercise all Scotland jurisdiction in cases above £5,000 and jurisdiction in cases below £5,000 for specific cases designated by the order. The Delegated Powers and Law Reform Committee is content with the drafting of the instrument. Do members have any comments on SSI 2015 213? Are members content to make no recommendation in relation to the instrument? Excellent. I suspend briefly to allow Margaret and her officials to take up their seats as witnesses. Resume proceedings now with item 5, the Apologies Scotland Bill. Our final evidence session on this piece of legislation, I welcome Margaret Mitchell, the member in charge of the bill to the meeting as a witness, along with the Scottish Parliament officials Mary Dinasdale, senior assistant clerk in the non-government bills unit and Neil Ross, solicitor with the committee and chamber team. I understand that Margaret would like to make a brief opening statement. I thank the committee for giving me the opportunity to make a few brief opening remarks about the Apology Bill. One of the main purposes of the bill is to address the apparently entrenched culture in Scotland, as one witness put it, to never apologise and do not say that you are sorry for anything. It is not indeed as some mistakenly thought to tackle any perceived increase in litigation, but rather to address the very real problem of reluctance and failure to offer an apology for fear of litigation. The bill therefore seeks to provide legal certainty that an apology cannot be used as evidence of liability in certain legal proceedings. I became aware of the existence of apology legislation when Professor Miller, the Scottish Human Rights Commissioner, spoke to the cross-party group on adult survivors of childhood sexual abuse. That was way back in April 2010. He talked then about how some parliaments had passed laws to ensure that an apology could be given. I am heartened that he remains supportive of the bill and of the view that a generic apology in the context of historic child abuse should not be admissible and that an apology law is one important element among a range of remedies and improved actives to justice to which survivors are entitled. A meaningful apology includes recognition of what has gone wrong and an assurance that the circumstances will be reviewed and, in the case of historic in-care survivors, that the state puts in place arrangements to ensure that the abuse is not repeated. With that in mind, I sought to give the opportunity for the widest possible disclosure, so historic abuse victims and others would have both the acknowledgement of the wrong done or bad outcome and a full explanation that they thought sought. The application of the bill is not restricted but is wide-ranging and it applies to civil proceedings in the public, private, third and voluntary sectors. I arrived at the definition of an apology that contains protection for statements of fact and fault after much deliberation. Evidence to the committee has focused on whether the effect of the bill could be in certain circumstances to prevent an individual securing compensation, in particular where a statement of fact within an apology might be the only evidence available. I am aware that there is a balance to be struck to ensure that there are no unintended consequences of injustice to pursuers. That has been a consistent concern of the minister and I thank him for his willingness to engage and remain open minded about the bill that he supports in principle. Having listened carefully to what witnesses and ministers have to say, I am persuaded that the wording at section 3B on statements of fact could be omitted from the bill. Stage 1 has provided the opportunity for the robust testing of the bill's provisions. There is a fear that an admission of fault can in some circumstances lead to litigation. Section 3A addresses that problem by removing the legal disincentives. However, I recognise that there may be risks in providing such protections. I also recognise here that the minister is not currently persuaded that the harm-prevented outweighs the potential risk of harm caused. I should be interested to hear the committee's views. At the end of the day, that comes down to a policy decision. It may well be that I have to accept that the minister remains of the view that inclusion of fault may be a step too far. The effect of the omissions, if they are to be enacted of 3A fault and certainly fact, brings the bill closer to the terms of section 2 of the compensation act, which I believe the minister confirmed that he would be content with. However, section 2 is a single provision within a broader act, and it does not contain a definition of an apology. My bill would still contain a definition and the ability for the apologiser to indicate that a lesson's learned exercise would be carried out, which is what the pursuer generally seeks. The indication of a possible review would be protected and may help to give the apologiser confidence and encouragement to make the apology in the first place. I confirm that I am keen to continue to engage in further dialogue with the minister on matters of detail on the bill, to which the minister referred during his evidence session last week, and to consider amendments at stage 2, where there is a case to be made for further exemptions. I thank you, Margaret, for your statement, which was very helpful in clarifying your views on how it might go forward. I invite members to ask questions. When we had our round table, there were a number of representatives from the BMA and the nursing professions who expressed some concern about the impact that agreeing and apology might have on their professional bodies' kind of code of conduct. Do you have an opportunity to discuss that with either the GMC or, indeed, with the nursing and midwifery council? Yes, there were concerns expressed during the evidence session. I have been in contact with the GMC. In fact, the committee has had correspondence from the GMC this morning, which I think is helpful in clarifying the position. It is entirely proper that the GMC under regulation 55 of the good medical practice, which became effective in 22 April 2015, expects its registrants to apologise and to offer an explanation. If they fail to do so, there is at least the possibility that the regulator would investigate that as a conduct matter. That dovetails with the duty of candor already in operation England and Wales. However, I think that what was happening at the evidence session was that those giving evidence were conflating the statutory protection of an apology and the statutory duty to provide an apology. The draft legislation does not require the professionals to apologise and will not place them in any greater peril from regulatory sanction than they would face already. I think that the letter from the GMC is very helpful, clarifies that point and gives the medical professionals who raised this point some reassurance. You mentioned the duty of candor. The minister has argued that the scope of your bill could undermine the duty of candor. He has been suggesting that that duty should be excluded from the scope of your bill. Do you have a view on that, Ms Mitchell? Yes. My fear would be that, if it was admissible, that would deter medical professionals and doctors from giving an apology in the first place. Charlie Irwin quotes from some academics who said that most experts continue to view the fear of liability as the primary barrier to the development of effective and wide-sweeping patient safety initiatives in hospital. If it is then admissible, despite all the protections around it, that could possibly deter them from giving an apology. Having said that, it is going to be up to the Government to decide its policy on the act and, certainly under the provisions of the act, it already has the duty or powers to vary and include other sections. The Scottish Minister, made by regulation, modified the list of exceptions in subsection 1 alternatively. This could be an amendment brought forward at stage 2. I think that I should refer to my legislative interest as a member of the Faculty of Advocates, but can I refer you to the evidence of Mr Stevenson of the Faculty of Advocates on 9 June, when he talked about the fact that, in the faculty's view, the bill, if enacted, would take away from people rights that they currently have. Therefore, from the point of view of access to justice, it might limit access to justice. Would you like to comment on the question of taking away rights from people? Perhaps you would like to expand on that, Mr Campbell. Can I say just to answer the question more generally? In effect, what the bill is doing is clarifying the current law and just putting it in statute, which I think is helpful. At the present time, an admission of liability can be used in evidence, especially in an admission against interest, as I think Ronnie Conway, the Association of Professional and Personal Injury Lawyers, made the same point. Under the terms of your bill, any such admission would not be admissible, so there would therefore be a limitation on the current position. It is not a reinforcement of the current position. What you have just said explains why we need the apology bill and to tease out exactly what is an admission of liability. Admission of liability certainly would not be protected, but the terms of the bill, admission of regret, of sorrow, the taking of responsibility, the offer of redress to review into the circumstances are all protected. We are debating whether we can go and admit fault, given that an admission of fault is not an admission of liability. In fact, there is very useful case law on this particular point. The leading case is Hunter v Hanley in 1955, which gives a three test for establishing liability. Usual normal practice must not have been adopted, and the course of practice must be such that no one acting with ordinary care would have taken that. The law society got a little bit further and explained the duty or how negligence is proved, which is to prove that the duty of care has been breached and that there has been loss or injury caused by that. That is a world away from saying, I am sorry, I made a mistake, or I am saying that that was my fault. Very often people do that when it clearly is not their fault. I can give a personal example of this on the N8 motorway. I was stationary at this sensation. My car was moving forward. It went into the car in front. I got out of the car and said, I am really sorry about that. I have no idea what happened. That was my fault. Here is my car. There is no damage done, but there it is if we need to pursue it further. I just so happened that way down the line when I went to East Kilbride and parked the public library, someone got out and said, I saw what happened on the motorway there, that guy running into you if you need a witness. Let me know. Now I got out. I said, sorry, I said it is my fault. It patently was not my fault. That is the difficulty. The fact that I have now excluded statements of fact means that the facts can be looked at, but the weakest law is going just now. It is accepted that admission of fault is not the same as an admission of liability. I am not supposed to be giving evidence, but would you agree that a test in Hunter and Hanley is about the test for professional lecturers who want a better word, whether there is a failure to exercise reasonable care and skill? That is not the same thing in a motor accident, for example, where things are perhaps slightly more clear cut. It is clearly established that in a professional negligence case saying you are sorry is not the same thing as saying that you have failed to exercise the degree of care and skill to be expected of a reasonably competent professional. I think that we might be conflating the two, but I am not giving evidence, so I should be careful with that. The faculty went on to say in their evidence that, in their view, the bill would disadvantage certain people. Where is the balancing advantage? How confident can we be that there would be a benefit from depriving people of the rights they currently have? They looked at the empirical evidence around the world and they cannot actually seem to find anywhere that seems to be good evidence that laws such as this actually work. Where is the empirical evidence to support this legislation? Rodri Cammbell is right that it is difficult to establish hard facts about how this legislation works. In the United States, Australia and Canada, those laws have been in place for 10, maybe 12 years and have not been altered and have not been found to be causing any problems. In fact, I can go further and give you the comment from Chris Wheeler, Deputy Ombnisman of New South Wales, who has commented that, for several years, the apology legislation has been regularly reviewed in terms of case law across Australia and Canada, in particular to see whether there have been any unintended consequences and search for media stories that might point to a downside. No evidence appears to have been found that the statutory protection for apologies has had any negative results. I am turning it around to Cammbell and saying that, if there may not be a hard and fast empirical evidence, those laws have been in place for many years now and seem to be unproblematic. The research has been carried out in New South Wales and no negative results have been found. I hope that that would give the committee some comfort. I am inherently sympathetic to that approach. You used a couple of terms in your opening remarks, and that was about an entrenched culture and a perception of increased litigation. I am wondering to the extent to which the position of, for instance, insurance companies relates to that, where they will normally exclude cover, if you have admitted liability. That is a factor that will go to create that culture. What are the implications for your proposed legislation beyond that? I am very encouraged that the Association of British Insurers have chosen not to comment on the bill, which indicates that they are broadly content with the... Is that a reasonable assumption? Having spoken with the Association of British Insurers over a period of time, I have to admit that I first came into the bill's team waving the British Columbia one page bill in front of them about three years ago, saying that it should not take too long, it is relatively straightforward. There has been a lot of in-depth study and analysis to get to the point at which we are at. Therefore, I can assure Mr Finlay that I am very encouraged by the fact that they have chosen not to comment. More than that, we know that, if fault and fact is taken out, they are perfectly happy with what has remained, which seems to be the essence of section 2 of the compensation act. It is clear that that would not void any contracts. I am encouraged that the position that we are in just now would not cause any problems with the insurance companies. In the event of the legislation being passed, how will you envisage the promotion of the legislation, because that is how you would ultimately be changing culture longer? I think that the fact that you have an apology bill in the first place goes a long way for people to have confidence to say, right, apologies, worried about it, we know stuff or are worried about it, despite all the training, despite all the insurances. Knowing that the law and legal certainty and the various how evidence plays is all contained in the apology bill, I think that it would be helpful. I do envisage and guidelines a campaign of explaining more and highlighting more and having other measures that would help the promotion of apologies and raise awareness of it and lead to better practice and better outcomes. I may have missed the position of the Scottish Children's reporter administration about the exclusion. Do you have a comment on that, please? Yes, I have met them. It would depend on the final format of the bill, whether we include fault or not, at the end of the day. If fault is included, it looks as though it would be unnecessary, it would not apply, it would not lead the exception. If fault is included, I am sympathetic to looking at that as an exception, because I understand that it is to establish the main facts that they are looking at, rather than to look at a legal proceeding as such. I would be sympathetic to that being an inclusion. Thank you very much. Do you agree that it might actually be in the commercial interest of insurers for this legislation to take place, because it potentially will restrict the rights of pursuers or plaintiffs to bring cases where otherwise they would be able to found on admission or apology, whatever you care to say? Given the terms of the legislation, it would not be possible to refer to that in subsequent proceedings, and that would be generally to the advantage of defendant insurer. Do you agree with that? Perhaps I could explain or address that question by saying just now, and I think that you gave a perfect example when you said admissions of liability, but, of course, there are admissible, confusing the idea of admissions of fault and regret, etc. All that is covered in evidence just now, and if pursuers are then encouraged to go forward by legal representatives, such as Lister for the School of Activities, personal insurance lawyers, when they have given an apology in those terms, then they are going to be disappointed at the end of the day. They are going to incur legal costs, which they shouldn't have occurred and will inevitably be there, despite the loser pay rule. At the end of the day, it could work very well to the benefit of those pursuing a claim, because the giving of an apology under those terms and the inadmissible ability of it does not stop them pursuing compensation if they are not satisfied at that sufficient redress and if they feel that there is a case to answer. The only difference would be that they are likely to keep more of the compensation payment and not pay out in unintended costs to legal representatives. I have a supplementary on that question. Regarding financial and insurance professional regulations, do you think that there will be a conflict because we are reserved matters? Yes, I can give Christian Allard some reassurance on that very point that this was looked at in the memorandum. According to the parliamentary rules, the question of it being a reserved matter that was looked at in the bill was competent. Does that answer your question? I will find it difficult, because we know how much reservation we have in the introduction of such a bill. The implementation could find a lot of difficulties if it is not recognised, if a profession does not recognise that this Parliament is reserved, it could end up being debated in another Parliament than this one. I think that we are confusing two things. The legislation is ruled to be competent under the Scotland Act in that it clarifies the law that it does not seek to change insurance, which, as you rightly say, is reserved. You might be referring to a tribunal that might have a reserved aspect and some devolved aspect, in which cases there are issues of details that could successfully be teased out at stage 2. I go back to the fact that, under section 2D, ministers have the right to make exemptions under the bill as we go along. My main question is this. It seems to be very complicated and there seems to be a lot of objection to it. Some could say minor, but my biggest problem is what you said earlier on. When you were asked about empirical evidence that such a legislation is working anywhere in the world, your answer was that there were no evidence to the contrary. In fact, such a legislation was introduced and there were no negative effect to it. I do have an objection to this. Introducing is a law which has no positive effect, which only has no negative effect. To my mind, it's a law too many. So it's very difficult to understand what difference this law will make if there is no evidence. We worked very hard in this committee to try to find evidence that such a legislation would work. We didn't find any. I think that a lot of things need to be broken up there. In the first part of your question, there is no hard facts and empirical evidence that there is, I suppose, you could see in some of the US, that's the nearest that we get it, the United States sees some evidence that, after apology has been granted then or passed, then legislation has been passed, then cases went up in the short term and then litigation team to fall away. As I said at the beginning, this is not a bill to address any perceived increase in litigation. It's to address the fear of litigation, which is unfounded. I think that, as an MSP, I would be surprised if you, Mr Allard and everyone else here, hadn't been in a situation where someone comes to you and says, look, such and such an event happened. All I want is the acknowledgement of this and apology and to make sure above all that it doesn't happen to anyone else. Now, this gives the legal certainty to the person from whom the apology is thought, to give that apology and to give that explanation and to try and make sure it doesn't happen to anyone else. I think that the benefits from that are absolutely huge. It brings closure. For years and years, people can hang on to an incident and keep going back and over it because they never, ever got an apology. In fact, that's why some apology was law introduced in Massachusetts in the very first place way back in 1986. A senator's daughter was killed in an accident and an apology was never given. I think that we underestimate just the power of an apology to make a difference. Perhaps I could suggest that, if you looked at your glass being half full rather than half empty, that would be a good way to look at the legislation. It's very difficult to find evidence and we tried very much which is a question. But when you talk about entrenched culture to never apologize, it does exist but it is about entrenched. In fact, we see that from the nursing and midwife council and general medical council, a lot of things happening to make sure that people will apologize more and more, professionals will apologize more and more. So it's not if nothing is happening, a lot of things are happening and don't you think that legislation will be better introduced like if it was in England incorporated in another bill and like the Scottish Government is thinking about doing with the duty of Canada, having it incorporated seems to be a lot more receptive from professionals, from professional bodies who seems to prefer it in England like it has been introduced or has gotten like the bill has been to introduce it? Don't you think that it would be a preferred way? No, I think that there's a misunderstanding in what you say. It's not the fact that it's incorporated in another bill that seems to have found favour. It was the terms of the Compensation Act, sorrow, regret and even the taking of responsibility and looking at redress were all considered to be protected in an apology and my bill is therefore saying that it should be inadmissible. I think that there is huge value in just clarifying what is already the law and giving real legal certainty within the apology bill so that people can have the confidence to apologise and I think that that's the value of putting on and establishing an apology bill on the statute book where people can have that confidence, they can't look to the apology legislation and it will hopefully result in this fear being taken away and people being much more encouraged to give an apology and I think that there is real value in having standalone legislation to promote that. We don't have it down south, it's not standalone legislation on that particular issue and we would have that type of legislation incorporated with the duty of Canada in Scotland. So there is a question, you would maybe think about delaying your bill and see how he would the duty of Canada, the introduction of duty of Canada will change the system, would you not think thinking about delaying your bill to see how it will be, how the legislation will be changed? I feel, you know, I'm really genuinely puzzled about you know why we should be putting all our eggs in one basket to look at medical provision under duty of Canberra and not considering the hugely widely application of this bill. If you look at the legal service at the public service ombudsman who has always been so supportive of the legislation because he knows the longer it takes to give an effect of an apology to stop giving the non-apologies like I'm sorry if you felt to really give an effect of apology and to deal with the situation the complain has docked at, the more the prices and the cost goes up and the more unsatisfactory it is for the person who's seeking that apology. In the private sphere I could give lots of examples of places where an effect of apology just comes everything down and lets people get on with resolving the issue that needs to be looked at and I think that's the real value on it. To me then the duty of Canberra can be looked at stage 2, the government can choose to make an exception that can go on in its own right. It's new legislation I think in England and Wales part of it has still to be enacted and the main part was introduced in 2014 so we're a long way to looking at how effective that is and how it's going to play out so I see no reason or no logic in not going forward with this bill because of the duty of Canberra. And last question you don't see any logic to maybe exclude the medical profession from your bill? Well I think we look at the circumstances GMC have already been supportive of the apology being given and being inadmissible in civil proceedings that came in this morning. I think the detail of how it plays out could be looked at stage 2 but we do have the general comfort that it isn't going to affect. No one's telling the medical procession that they must apologise as a result of this bill but there are some real guidelines and provisions that would give the medical profession comfort and I think it's good this morning that we've established and the GMC have confirmed that it wouldn't interfere with their guidelines or have any effect on the guidelines and the giving of their apologies that they've laid down. Margaret, the minister is suggesting that public inquiries, arbitrations and tribunials should be excluded from the bill. Would you like to make a comment on that? Yes, there again I'm quite relaxed and prepared to look at this at stage 2 if the case is made that there should be an exception then clearly the committee will decide that at stage 2 but I realise that it may not be a definitive list. It depends again on the final provisions of the bill. It might not be necessary to do that if the bill drops fault and we're left with the expression of regret and just offered to redress but in general answer to your questions I'm perfectly happy to look at these as exceptions as the bill progresses. I noted the answer that you gave to John Finnie in relation to the Scottish Children's Reporters Administration and if you were looking to remove that from the bill, it was sympathetic. I know it's the words that you gave us there. If you were doing that, wouldn't that effectively weaken the effect of what you're trying to achieve here by making all these exclusions? I think that each of the cases must be made for quite robustly by teasing out why you would want an exception and mostly it's come about with tribunals, arbitrary, all of these have to be looked at in detail but the general principle of the bill is to provide this legal certainty about being able to say sorry and express regret and take responsibility and that certainly isn't weakened if anything that provides much more assurance to people especially the undertaking to look into the circumstances and see if any lessons can be learned. Again, the detail is going to be up to a policy decision at the end of the day but the wider principles of the bill and the provisions to deliver these wider principles are ones that are worthy of going ahead regardless of the exceptions which may at the end of the day be incorporated in the bill. I wonder whether you have any thoughts or comments on how the bill will interact with pre-action protocols? My feeling is that there should be nothing in the bill that interferes with legal proceedings as they are and therefore if legal proceedings are already under way the bill would not come into effect so if apologies are already used in the media proceedings and they are under way then of course it would be the same law applying so my bill would only come into effect if there had been no legal proceedings under way and it was an apology given without legal proceedings being looked at at all. How do you think how it's drafted at the moment that covers that? Do you think that that's clear at the moment in how it's drafted at all? If it's not clear then I think there's an opportunity to make it clearer as the bill progresses. Okay and just one other thing just to clarify for me I heard you say in your statement that you're you're content to take out the reference to fact. I'm not clear on what you said about fault are you still considering that you're still talking to people about that? Yes it's clear that at the moment the minister feels that the possible risk of harm doesn't and doesn't balance with the the possible benefits of the bill now that's to be teased out I mean I think already we've heard admissions of liability being conflated with statements of fact and there are various heart of scrolls of fault before fault would be a statement of liability but at the end of the day I fully realised that this isn't a hardened and fast black or white decision it's going to be a policy decision and people will know from from their own feelings from one assessment just which side of the balance it that the inclusion of fault might fall and what I'm saying is if it's the the government's decision having looked at fault again and what would be the consequences of that that it still feels the balance is more against a pursuer then I'm happy to accept that and fault would therefore be excluded but I hope we can have that to be and it is looked at thoroughly because it can make such a difference really to people if people are able to say sorry I made a mistake whether you did or not as my example kind of proved and I think that just encourages a more more full and balanced apology. Thank you. Thanks. Any other questions? We heard obviously from the government but we also heard from the form of insurance lawyers in respect of the legislation section 2 the compensation act 2006 in England that certainly Mr Watson the insurance lawyers said that straightforward legislation such as that that made it clear that an act of apology itself did not amount to the mission of liability would have great merit which I think is a view also shared by the government why would you like to just recap why you think following the example in England would be inappropriate. Sorry I didn't hear the end of what you said. Why don't we just run with something similar to section 2 of the compensation act in England? Yes to probably add to the the quote and certainly the submission for the forum of insurance lawyers they did say yes they'd be happy with the kind of section 2 type provision but also they were happy with the provisions of the the bill if we didn't go that way then they were content with the provisions of the bill all of them to be included however your main point is really what's the added value and the added value is the compensation act doesn't give a definition of an apology now this is not prescriptive it just shows what can be included in the ecology and what helps to be included in the apology that's laid out in statute and again I go back to sorrow regret the taking off responsibility the acknowledgement the thing has happened in the first place is a pretty important things for those seeking an apology and certainly to bring closure the indication that as we've got in 3c that you can look at the circumstances with a view to seeing if any lessons can be learned I think is is also huge none of which is is really in the compensation act and so therefore I think there is certainly huge added value in going beyond that and it changes the law too in ensuring that the apology which has no legal effect and isn't taken in evidence is inadmissible so it's going a little bit further and I think that all helps and encourages the principle and intent of the bill which is to encourage and apologies. Thank you. I just go back to general medical council memorandum I didn't find anything itself to say but he was supporting the bill. The letter that's come through they have today sent a statement through which says which is helpful which said we would support an apology being inadmissible in minumiso of the legal liability in civil proceedings and they go on to talk about other but not inadmissible other certain fitness to practice etc these are other details which I can share with the committee and which again could be teased out at stage 2 but I think that that certainly suggests that they support the inadmissibility of legal liability in civil proceedings which is what the bill does. Right but we have not directly saying that we were supporting the bill at stage. I just ask a wee technical point then just at the end you exempt specifically exempt inquiries under the fatal accidents and sudden death inquiries scotland act 1976 but as you know the inquiries into fatal accidents and sudden deaths etc bill actually repeal those act might it be better I just wondered whether there would be merit in having all the exemptions defined by spots Scottish ministers in the first place well that's certainly a stage 2 type type amendment which I think may have some merit in working and is worthy of consideration that at that point is more on the detail but important detail thanks thanks Margaret and Maidenstall Neil Ross for attending the committee and we just suspend for a couple of minutes to let Margaret come back to her normal position in the committee thank you we now move on to item 6 EU issues paper 5 invites a committee to note correspondence from the European and external relations committee in relation to its work on migration and from the minister on my on migration and its EU justice work I'm going to invite Roderick Campbell as our EU reporter to say anything about the correspondence received once you provide it. I don't really think I have much to add but be on the what's already in the paper to be honest anyone who's got any specific questions invite any other members to make comments on those John simply to say it I mean it's a humanitarian disaster that's referred to in here with issues in the Mediterranean and I think there's a very positive plan there and I certainly commend the Scottish Government's approach it is one of a humanitarian and not punitive and I think that's what I would like to see as land or support to indeed. I was particularly encouraged by the Scottish Government giving its understanding of European cooperation saying its cooperation was important not isolation in its key in that particular matter and I'm very very much encouraged with the response of the Scottish Government. Any further comment? The winner to see four positive steps for taking things forward is good to see here's what can be done that's very refreshing and sometimes you spend time in here being bamboozled it was helpful to say that's what we're going to do. Excellent so members are content to note the correspondence and return to the issue after the summer recess when we are likely to have received another update from the minister. Excellent item seven the sorry I have to do that beforehand it right we agreed to act item one to move into private session for the final item item seven the draft report into the inquiries into fatal accidents and southern deaths etc scotland bell so if we can do so thank you very much