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Baroness Ashton of Upholland: My Lords, this could be the moment to return to it. The principle behind the noble Viscount's anecdote is absolutely right. Saying, "I'm sorry", even if it means, "I'm sorry I didn't see you because you just did something stupid", is as relevant as saying, "I'm sorry I didn't see you because I just did something stupid". I agree with that, but I cannot accept the amendment because my advice from parliamentary counsel is that we cannot find a way of doing it that would not alter the law, and noble Lords know that that is not what we seek to do. However, I undertake that this issue will be taken very seriously. I shall report back to your Lordships on how we propose to tackle it and how we propose to deal with the very valid and genuine concerns raised by the noble Lord, Lord Hunt of Wirral.
Viscount Bledisloe: My Lords, I find it impossible to understand, given the noble Baroness's advice, how anyone could say that you cannot distinguish between a mere apology for being the unwitting and unblameful cause of someone being hurt and an apology which contains, as well as that, an admission of guilt through saying, "I did it because I didn't see you". If the noble Baroness has had advice to that effect, would she be prepared to share it with us so that we can explain to her how misguided it appears to be?
The Earl of Erroll: My Lords, if I may intervene, the noble Baroness can probably answer the two points at the same time. I do not understand from the previous discussion why the common law cannot evolve a definition of what is an okay apology and what is not if it is in the Bill. Surely we just proceed and the courts will soon sort it out.
Baroness Ashton of Upholland: My Lords, the common law evolves all the time, and in this legislation
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we have tried to ensure that we do not interfere with the evolution of the common law. Certainly the courts make decisions all the time, as the noble Viscount indicated in terms of the Lord Devlin decision. The courts consider what is and what is not an apology.
I am always delighted to share advicein fact, I am always prepared to arrange meetings where that advice can be taken forward. I have pushed and probed on this matter because I totally accept the principle behind it. But noble Lords would not expect me to rule against the best advice that I have from parliamentary counsel that the amendment would have a potentially detrimental effect on the law.
I take the noble Viscount's experience and knowledge extremely seriously. Perhaps, between now and Third Reading, he and I can have a conversation with parliamentary counsel and if, at the end of it, with the noble Lord, Lord Hunt, involved, it is felt that we should return to the matter, I shall be very happy to do so.
Lord Hunt of Wirral: My Lords, this has been a very good debate. Rather like the noble Viscount, Lord Bledisloe, I cannot understand how to judge whether this is the best advice. If one goes to parliamentary counsel, who drafted not the Compensation Bill but the NHS Redress Bill, which now allows the National Health Service to say sorry
Lord Hunt of Wirral: My Lords, perhaps I may finish my point. I recall that the noble Baroness said that she would report back on the idea that was put to her in Committee about the NHS Redress Bill and I look forward to hearing further.
Baroness Ashton of Upholland: My Lords, I apologise to the noble Lord, as I had intended to refer to the NHS Redress Bill. That Bill deals with apologies after liability has been established, not before, so it was difficult to see how we could translate that across to this Bill.
In any event, I suppose that where I take issue with those who have doubts about the amendment is over their constant reference to the courts. I do not want the courts to be involved. I know that the courts can easily differentiate between an apology and an admission of liability, but we want there to be a change of attitude and perception. I certainly do not want to change the law, but I would like to change the perception that you cannot say sorry. I do not see what is wrong with that; I would like people to say sorry.
The noble Lord, Lord Goodhart, has expressed reservations, which I can readily understand. However, I say to him that I am dealing only with perception. I suppose that he opposed Clause 1 on the
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ground that it could complicate the situation. I hope that what I am proposing will simplify the situation, so that cases do not have to go to court. Insurance advice would no longer be that you cannot say sorry; it would be, "Well, you can say sorry, but don't admit liability".
I recognise that parliamentary counsel are always worried about the law of unintended consequences. I can well understand why they are, as there have always been far too many unintended consequences from legislationlike the present Government, I speak with some scars. The noble Earl spoke about sending a message. We want to send a message to people that they can say sorry.
I am prepared to make an offer to the noble Baroness, as she made one to me and, I think, to the noble Lord, Lord Goodhart. I would like to test the opinion of the House, but I am not wedded to this wording; I am wedded to the concept of making it possible to say sorry. There may well be a need to refine the language that I am using. If we could have discussions with parliamentary counsel on a way forward, I would be very happy to accept any tidying-up changes that do not go to the fundamental concept but which perhaps improve the provision in the way that parliamentary counsel would like. I am very open to that. I am not entirely sure when Third Reading will be, although I think that it may be on 27 March. I am perfectly happy first, however, to test the principle. I feel that the principle of people saying sorry and offering redress is a very good one and I would like to know whether the House agrees. I wish to test the opinion of the House.
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