Equalities statement: law of apologies
Updated 29 April 2024
Applies to England and Wales
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This publication is available at https://www.gov.uk/government/consultations/reforming-the-law-of-apologies-in-civil-proceedings/equalities-statement-law-of-apologies
1. Policy summary
This Equalities Statement considers the likely equality impacts of the proposals set out in the consultation document ‘Reforming the Law of Apologies in Civil Proceedings in England and Wales’. It should be read alongside the consultation document to which this statement is an annex.
Whilst the substantive proposals are explained within the consultation document, a summary of the proposals are to consider:
- whether we should clarify or amend the current law in section 2 of the Compensation Act 2006 (the Compensation Act) with the aim of providing legal certainty to the status of an apology, and removing the barriers, perceived or real, to making an apology;
- whether any legislative reform to the Compensation Act should be along the lines of that introduced in Scotland in the Apologies (Scotland) Act 2016, which includes a definition of an apology and covers other types of civil proceedings; and
- amending the Compensation Act to make clear that the provision on apologies extends to cases involving vicarious liability for child sexual abuse.
2. Public Sector Equality Duty
In line with our Public Sector Equality Duty (PSED) requirements under section 149 of the Equality Act 2010, we have paid “due regard” with the need to:
- Eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act;
- Advance equality of opportunity between people who share a protected characteristic and those who do not; and
- Foster good relations between people who share a protected characteristic and those who do not.
In carrying out this duty, Ministers and the Department must pay ‘due regard’ to those factors with respect to people who share any of the nine ‘protected characteristics’ set out under the Act, namely: race, sex, disability, sexual orientation, religion or belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity.
The Ministry of Justice has a legal duty to consider how the proposed policy proposals are likely to affect those people with protected characteristics and, in particular, to take proportionate steps to mitigate or justify the most negative effects and advance the most positive ones.
3. Equality considerations
3.1 Direct discrimination
Our initial assessment is that the enforcement reforms in the Reforming the Law of Apologies in Civil Proceedings proposals are not directly discriminatory within the meaning of the EA Act as they apply equally to all people whatever their protected characteristics; we do not consider that the proposals would result in people being treated less favourably because of any protected characteristic.
3.2 Indirect discrimination
Consideration has been given to the likely impact of the proposed changes to the Compensation Act on court users against the statutory obligations under the Equality Act. The consultation proposals will also affect claims that do not go to court, but it is difficult to make a judgment on the equalities impacts for such cases where an apology maybe offered, as we do not possess sufficient data on their characteristics of these cases.
The combined effect of the proposals, if enacted, are not designed to create any differential treatment between the different classes of claimants and defendants, or between those who share one or more of the protected characteristics and those who do not.
In addition, the proposals will not force those defending a claim to issue an apology as it will remain an “encouraging” measure.
We also consider that the consultation proposals will be of benefit to all civil court users, by ensuring that any obstacles or hesitation in offering an apology, including in child sex abuse claims, are eliminated as far as possible. It will of course remain an “encouraging” measure, but it may potentially pave the way for the offering of more apologies, which, in turn, may reduce adversarial behaviour and lead to settlement without recourse to litigation. This will benefit all civil court users, regardless of whether they share one or more protected characteristics. Therefore we do not believe the proposals are indirectly discriminatory to people whatever their protected characteristics. Even if the consultation proposals could be seen to indirectly discriminate, we believe the proposals are a proportionate means of achieving our legitimate aim.
3.3 Limitation of evidence base
There is insufficient data about the extent to which the Compensation Act has been used generally, including data on civil court users who share one or more protected characteristics. Our initial understanding is the giving and receiving of apologies are most likely to be used in claims for damages such as in personal injury cases, whereby a claimant seeks compensation for a loss or injury by the act of another. Where an apology is offered by those defending a claim it may go unrecorded, or form part of the settlement process and therefore is not made public. In that regard, we are unable to quantify the number of apologies offered to date and the characteristics of those giving and receiving apologies.
However, the 2015/16 civil court user survey[footnote 1] provides an insight to the demographic makeup of claimants bringing civil claims generally. This data is for 2015/16 and the characteristics of court users may have changed since then, however this is the most recent data available. Inference from 2015/16 data suggests that claimants are more likely to be males who have issued significantly more claims in each of the different claim type category (i.e., unspecified money, specified money or possession/rent arrears) making them over-represented among civil court users. In addition, individuals aged between 45 and 74 years old are also over-represented among civil court users and are likely to bring significantly more claims in each of the different claim type category (i.e., unspecified money, specified money or possession/rent arrears).
A survey of users of court reformed services published in March 2022 contained data on users of the online money claims process by protected characteristics[footnote 2]. This shows that men and people with disabilities were slightly over-represented in bringing claims and that there was a fairly even spread between age groups using the online process.
Based on the limited data available, we do not consider the proposals are likely to result in any unlawful direct or indirect discrimination for civil court users, including those who share one or more protected characteristics. We also consider it likely that the proposals may be of benefit and, therefore, could advance equality of opportunity for some users with protected characteristics who are over-represented amongst civil court users. The proposals are open to all users so it will treat everyone the same without creating any differences. It is up to the user whether they wish to use it as it is an encouraging measure and not a compulsory one.
The offering of apologies may lead to more settlements without recourse to formal legal action, which is beneficial to all civil court users. The offering of apologies in child sex abuse claims, for example, may also help victims with social healing by giving them confidence that lessons have been learnt by the institutions and others they saw as responsible for their abuse, and a formal acknowledgment of the harm they suffered. The proposals would also benefit cases before they reach court in the same way.
3.4 Discrimination arising from disability and duty to make reasonable adjustments
It remains important to make reasonable adjustments for disabled people to ensure appropriate support is given.
3.5 Harassment and victimisation
We do not consider there to be a risk of harassment or victimisation as a result of these proposals.
3.6 Advancing equality of opportunity
Consideration has been given to how these proposals impact on the duty to advance equality of opportunity by meeting the needs of people who share a particular characteristic, where those needs are different from the need of those who do not share that particular characteristic.
3.7 Fostering good relations
Consideration has been given to this objective that indicates it is unlikely to be of particular relevance to the proposals.
- The consideration of the impact of the proposals and the implementation of any proposals is an ongoing duty. We will publish a government response to this consultation in due course which will set out those reforms we intend to implement. At that stage we will also publish a revised Equalities Statement in light of the consultation responses.