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The Earl of Erroll: I support the amendment; it is extremely sensible. There is certainly a public perception that you should not say sorry, especially after a bump in a car or something like that, because it immediately prejudices your case and will be the first thing that the insurance company will worry about. If we are told that it does not matter whether or not you say sorry—as we probably will be—why do we not state that clearly in the Bill? We are trying to make some declaratory statements at the start of it to ensure that people understand the current law.

On the other hand, if saying sorry makes you liable, we should change the law because, in that case, the law is an ass, because that is the natural thing that the civilised community say, and it will often stop something escalating. I recommend the words of Elizabeth France, who is head of the telecoms ombudsman Otelo, which is an alternative dispute resolution service. I remember her saying in her annual report that a lot of the time the cases are just a misunderstanding between one company and a subscriber and often just a small discount—as she put it, the equivalent of a bunch of flowers—will put everything straight. The person will be pleased as punch, happy with the decision and the whole, expensive procedure need not have been started at all if only someone at the beginning had just said, "I am terribly sorry. We may be in the right, but you clearly misunderstood and here is the equivalent of a bunch of flowers". We should have that in any civilised society, and we should have it in the Bill because that would clear up the situation.

Lord Lucas: I entirely agree with the spirit of the amendment. Indeed, I record my thanks to the staff at Clapham Junction station who, last time that an incident occurred, for the first time that I have ever heard said, "We apologise for the inconvenience that this will cause you", rather than that horrible phrase, "this may cause you", which I really hate hearing.

It is important to consider in what form an apology must be to be effective. If my car runs in to that of my noble friend Lord Erroll and I go round to his window and say, "I am terribly, terribly sorry. I was listening to the match on my phone and Chelsea just scored a goal", I think that he would be seriously upset if the new clause were in the Bill. Just because that is an apology, why should he not be able to take as evidence the facts of what I was doing? I might not repeat it when I realise the consequences. On the other hand, if you get an apology that is just, "I am sorry", followed by a list of exculpations—the reasons why they are not liable—you would be even more upset than if you had not received an apology. You must receive an apology that says, "I am sorry" and then has something by way
 
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of elucidation or explanation that gives an understanding of what has happened if it is to be accepted as an apology.

Take the case of my cousin, whose wife died of an infection acquired in hospital. What could that hospital have said? Sorry would have been wonderful, and the fact that it has never said sorry is a great cause of anguish. To say, as might have been appropriate, "We did not notice. She seemed all right to us. These symptoms could have been something else; that was the judgment that the doctor made and it is terrible that it turned out to be something else", would be a proper apology. But how could one do that without opening oneself up to an admission of negligence? I do not know the answer; I should be delighted if the noble Baroness does.

Baroness Ashton of Upholland: The noble Lord, Lord Lucas, has hit the proverbial on the head about the problem that the new clause would create. However, I start by saying that I completely agree with the sentiments that underlie what noble Lords seek. Especially in the last example given by the noble Lord, Lord Lucas, one of the great things about the NHS Redress Bill that I know that colleagues in the Department of Health are keen to ensure happens properly is that it will provide redress in its widest form, including apologies. From my experience as chair of a health authority, what people often wanted was someone to say, "I am really sorry". That would have made a huge difference.

The stress and anguish that is caused in some circumstances is to a degree relieved if someone says, "I am really sorry". The difficulty with translating that strong sentiment and desire for people to be sorry that something happened—not to say that it is their fault, but to say that they are sorry—is that it is very difficult to put into law. The danger of the amendment is that it does exactly what the noble Lord, Lord Lucas, said. If you said to someone, "I am really sorry that I ran into the back of your car; I was listening to the cricket; it is entirely my fault", that would not be allowed in evidence. It surely must be.

The Earl of Erroll: The amendment does not say that an admission of guilt after saying sorry will be ignored. The example of running into the back of someone's car is a bad one, because one may well then blurt out that one was listening to the Test match, or something idiotic like that. That is an admission of guilt. I am thinking more about someone, let us say, twisting his ankle on a step in a park somewhere and the owner of the park says, "Oh, gosh, I am sorry". This step is there, and there will be a huge issue about whether the owner of the park is liable for the step or for a pothole which has grown over a while. There are lots of instances where a little word of sorry may well sort out the matter where there is not really a huge liability issue. There is a huge difference between the two things.
 
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4.30 pm

Baroness Ashton of Upholland: I can understand what the noble Earl wants the amendment to do, but I must tell him what it will actually do. The difficulty is that it would mean that, even if you have in the apology a clear admission of fault, it would not be allowed under the amendment. That is the reality of the way in which the amendment would work. I agree with what noble Lords are seeking to do, which is saying that we need to move to a position where saying you are sorry for something is not saying, "Therefore I am guilty". I have some difficulties, and noble Lords will appreciate that in every Bill one wishes to see things in legislation that frankly I cannot see a way of putting in because they do not really belong there. The noble Earl is seeking to create almost a cultural shift with people feeling able to apologise and not feeling that is a relevant factor in a case. My understanding is that it is not, but if the apology included, "I ran into the back of your car because I was listening to the cricket", it should be, because you have said that it is your fault. Anyone who has been on the receiving end of, say, a motor accident where someone has clearly been at fault and says so is probably mightily relieved that at least the person has admitted it so he can move on with the rest of his life.

One of the areas where this will be addressed, and where this will be of huge benefit, is in the NHS, where in so many cases it would have made a really big difference, even where it is not a case of someone having suffered terribly, but, in a sense, it has been a contributory factor. People have felt that no one admitting anything, or just saying sorry that it happened, has been a really big issue. I am not disagreeing with the noble Earl; it is just unfortunate that it does not quite work in the law in the way in which the noble Earl would wish. I would not want to rule out those apologies that go alongside the, "It was my fault, I will sort it" statement, which would be covered by the amendment, unfortunately.

Lord Hunt of Wirral: What is the response of the noble Baroness to the amendment? I heard her response to my noble friend; I was just wondering whether she has anything to add in responding to the amendment.

Baroness Ashton of Upholland: I thought I had responded to the amendment. I was saying to the noble Earl—perhaps I should have been looking at the noble Lord—that the amendment would rule out those cases where individuals say, "I am sorry I ran into the back of your car. I was listening to the cricket". We find that unacceptable for the obvious reasons. I apologise if I was not responding appropriately.

One of the great joys of doing a Bill, and something that is a personal privilege, is that I get to learn about something new. In the Higher Education Bill, I had the great good fortune to be opposite the noble Lord, Lord Forsyth, and I learnt about fishing. Clearly with the arrival of the noble Lord, Lord Greenway, the treat that I have in store is sailing, about which I know
 
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absolutely nothing, but I fear I will by the end of the Bill. I am extremely grateful to him, because it is one of the nice side benefits of doing these Bills.


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