Commentary on Sections The structure of the Act Section 2 – Legal proceedings covered
6.Section 2 sets out the legal proceedings which are covered by the Act.
7.Under subsection (1) all civil proceedings are covered, with the exception of certain types of inquiry under the Inquiries Act 2005, proceedings under the Children’s Hearings (Scotland) Act 2011, fatal accident inquiries (FAIs) or other inquiries under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, and defamation proceedings.
8.The exception of inquiries (including joint inquiries) which the Scottish Ministers cause to be held under section 1 of the Inquiries Act 2005, or which they convert (under section 15 of that Act) into inquiries under that Act, means that an apology will continue to be admissible as evidence in these proceedings.
9.The exception of proceedings under the Children’s Hearings (Scotland) Act 2011 means that an apology will continue to be admissible in, and capable of being relied on as evidence in, proceedings (under that Act) before a children’s hearing, a pre-hearing panel or a court.
10.Under subsection (2) a further exception applies to apologies made in the context of the duty of candour procedure set out in Part 2 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill, introduced on 4 June 2015 and, at the time these Notes were published, still before the Scottish Parliament (SP Bill 73, Session 4 (2015)). Under Part 2 of that Bill, an apology made in the context of the duty of candour procedure does not of itself amount to an admission of negligence or a breach of a statutory duty. The inclusion of this exception avoids any overlap between this procedure and the Act in terms of how apologies made in the context of the duty of candour procedure are treated.
11.While the Act applies to most civil proceedings, it does not cover criminal proceedings and this is confirmed by subsection (3).
12.Subsection (4) enables the Scottish Ministers, by regulations, to modify the exceptions in subsections (1) and (2). The power can be used to add an exception, vary the description of an exception or remove an exception.
13.Regulations made under subsection (4) are subject to the affirmative procedure (subsection (5)): that is, any such regulations require the approval of the Parliament by resolution.
14.By virtue of subsection (6), those regulations can include transitional, transitory or saving provision.