Apologies in public administration

The National Ombudsman of the P.O. Box 93122 2509 AC The Netherlands Tel: (+31) 070 356 35 63 Fax: (+31) 070 360 75 72 A.F.M. Brenninkmeijer www.nationaleombudsman.nl NationalSamenvatting Ombudsman of the Netherlands Apologies in public administration

A.F.M. Brenninkmeijer National Ombudsman of the Netherlands Introduction

Where do apologies fit into administrative law? This is a topical question, since discussions about whether What is an apology? or not the government should apologise for certain wrongs are increasingly common. The Prime Minister In this paper, I will use the word ‘apology’ for all manner of excuses and expressions of regret, himself recently stated in a parliamentary debate that the phrase “I apologise” often results in the speaker including asking someone’s pardon and - in the modern parlance - saying one is sorry for something, in the sense of “Please forgive me for…”. In the social sphere, apologies are subject to abstraction. being held legally responsible for whatever it is he is apologising for; he himself therefore prefers saying It sometimes seems that the very expression “I hereby offer my apologies” forms the core of the that he finds certain courses of action “regrettable”, rather than apologising for them outright. apology. Usually, the person apologising will simply say, “I’m sorry”. However, the apology can be rendered much more concrete by first making explicit what exactly is being apologised for. Socially speaking, apologies can be of great significance. For instance, the former Mayor of Furthermore, many people use apologies carelessly. Since people apologise all the time, often without Rotterdam, Mr Ivo Opstelten, once caused an uproar by refusing to apologise for the fact that eight just cause, apologies are subject to erosion, i.e. in danger of losing their powerful social significance. hundred football fans had been detained in dreadful conditions following their arrest. However, This is not just happening in everyday social intercourse, where a person causing another person any Rotterdam’s Attorney General, Mr Henk Korvinus, did offer apologies for the way in which the fans inconvenience will mumble an offhand “Sorry”, but also in politics, where failed policies seem to had been treated. For his part, the Mayor of , Mr , refused to apologise for the lack serious consequences, and where apologies tend to be the best form of redress wronged parties wrongful arrest (by heavily armed special forces) of several individuals of Moroccan descent who were can expect to get. suspected of planning an attack on IKEA. Mr Cohen declared that there could only be grounds for an apology if a serious mistake had been made. However, in his opinion, the arrest had been lawfully The German expression ‘Entschuldigung’ (‘schuld’ in English means ‘guilt’) provides an appropriate made. Finally, Dutch national newspaper De Telegraaf recently demanded that the Minister of the description of what apologies are all about - the guilty party takes the blame for something and asks Interior and Kingdom Relations, Ms , apologise for allowing the security intelligence the wronged party to take the guilt off them again.2) Socially speaking, apologies are associated with branch - in some cases without due cause - to tap journalists’ phone calls. However, the Minister recognition, responsibility, liability, regret, remorse, repentance, making amends, accommodation, refused to comply with the newspaper’s demand. and reconciliation. The word also has a few negative connotations: repayment and retaliation. Apologies may result in a pardon or forgiveness, and may help prevent retaliation or revenge. Then The above cases were notable because they all received a great deal of media attention. However, there again, they may also denote an attempt to defend or justify one’s actions - i.e., a reason why it is not are many more less publicised situations in the daily routine of public administrators where apologies necessary to offer an apology.3) A convincing justification may be accepted by the other party. If this may or may not be in . In the guidelines appended to his report entitled Dealing Properly with 1) National Ombudsman, happens, the case is usually closed. 1) Damage Claims, the National Ombudsman has stated that certain conditions may call for apologies : Behoorlijk omgaan met schadeclaims, Apologies tend to be either a contributing factor to or a prerequisite for forgiveness. This being the report No. 2009/135. “The government is very much aware that financial compensation is only a partial 2) A. Lazare, On Apology, Oxford case, apologising can be said to be a transaction, which may or may not be answered with acceptance solution. It is just as important to respond in a timely manner, pay sufficient attention University Press, New York, of the apology or the stating of conditions on which it will be accepted. Apologies are not free of to the cause of the citizen’s injury, provide convincing arguments for choices made, and 2004. obligations (except when they are a one-sided, offhand “Sorry”), as demonstrated by the French 3) A. Lazare, On Apology, Oxford make an apology.” University Press, New York, proverb, “He who apologises, condemns himself” (Qui s’excuse, s’accuse). This proverb shows us what 2004. apologies are all about - the acknowledgement of that for which one is apologising. What significance do apologies have in public administration? Where does apologising for wrongful 4) N. Tavuchis, Mea Culpa: A Sociology of Apology and decisions fit into the General Administrative Law Act? Is it desirable to offer apologies as well as Reconciliation, Stanford Remarkably enough, relatively little research has been done into the nature of apologies. Apologies financial redress when awarding administrative compensation? Is it necessary to abolish any existing University Press, Stanford 1991. play a special part in our culture, and particularly in our literature. In the twelfth century, the Jewish legal impediments to making formal apologies, or does it suffice to determine those circumstances 5) A. Lazare, On Apology, Oxford philosopher Maimonides wrote the first and, for a long time, only scholarly treatise on apologies University Press, New York, in which administrators can make their apologies without any concomitant legal consequences at 2004. (primarily related to repentance), Hilchot Teshuvah (The Laws of Repentance). 1991 saw the 4) the same time? In exploring this subject, it may be useful to check how other countries deal with 6) N. Smith, I Was Wrong: publication of Nicholas Tavuchis’ Mea Culpa: A Sociology of Apology and Reconciliation. In 2004, such cases. From a social point of view, offering formal apologies may frequently be a prerequisite The Meanings of Apologies, Aaron Lazare discussed the psychological aspects of apologies in his book On Apology.5) In 2008, Nick Cambridge University Press, for reconciliation or a restoration of fractured relations. Such reconciliation can be a significant step New York 2008, (bibliography Smith took a philosophical approach towards the subject in his expansive I Was Wrong: The Meanings 6) towards resolving grave societal conflicts. on p. 259). of Apologies. Tavuchis, Lazare and Smith all write from an American perspective. It is worth pointing

Apologies in public administration 2 3 the National Ombudsman of the Netherlands out here that the subject of apologies receives greater attention in the United States than it does in The value of an apology Europe. Furthermore, apologies are important in peace-building efforts and receive ample attention 7) Y. Bar-Soman-Tov (red.), From 7) Conflict Resolution to Reconciliation, in that context. Oxford University Press, New In personal relations, apologies are an indispensable part of social life. Sometimes, apologies are York, 2004. For reconciliation made or demanded years after the fact. Citizens who feel they have been treated unjustly by the In his research group at VU University Amsterdam, Professor A.J. Akkermans has investigated the processes, see A. Ellian, Een government may go on to become very argumentative and uncooperative complainers for years onderzoek naar de Waarheids- en significance of apologies in private law, particularly in personal injury matters. In criminal law, Verzoeningscommissie van Zuid afterwards. In such cases, a belated apology by the government (even one issued years after the fact) apologies can be used in mediation between offenders and their victims. Whether or not the accused Afrika (An Investigation of may be enough to stem contrary behaviour, unless this behaviour is the result of certain psychological party has apologised to the injured party is sometimes used in determining the sentence. As for the the South African Truth and conditions. Reconciliation Commission), political aspects of apologising, former minister discussed those in his book entitled De 2003 Tilburg University sorry-democratie: recente politieke affaires en de ministeriële verantwoordelijkheid (The ‘Sorry’ Democracy: dissertation, Wolf, Akkermans and others have observed that apologies come with two important attendant consequences. Recent Political Affairs and Ministerial Responsibility).8) 2003. Firstly, when it comes to claims for financial compensation, offering an apology will often cause 8) Van Gennep, Amsterdam, 1998. 9) See note 7. the claimant to change his mind. Injured parties who have not received the apologies they feel they If the findings of the above-mentioned authors are anything to go by, apologies are a complex 10) For the United States, see are owed tend to focus on financial compensation, even if this is not their primary concern. In phenomenon, both in individual cases and collective ones.9) Public administrators have to issue both B.T. White, Say You’re Sorry: more general terms: if no apologies are offered and if there is insufficient recognition of the injured Apologies as a Civil Rights individual apologies and apologies on behalf of ‘the government’. Such apologies generally involve Remedy, Cornell Law Review, party’s position, the injured party will often seek legal redress as a way out, as a next-best solution. several steps. Lazare lists the following steps: admitting that a standard was breached; providing an 2006, vol. 91:1260 et seq. The injured party may remain unsatisfied even after financial compensation has been offered if the explanation for the breach; expressing regret; offering redress. According to Smith, a real, ‘categorical’ 11) See also Peter H. Kim, Donald compensation does not come with an apology.11) Therefore, both financial redress and apologies L. Ferrin, Cecily Cooper apology should feature no fewer than twelve characteristics he uses to judge the veracity of the and Kurt Dirks, ‘Removing should be employed in the effort to bring about a reconciliation. apology. In addition, Smith distinguishes eight different kinds of apologies e.g. the ambiguous the Shadow of Suspicion: apology (which does not really sound like an apology), the expression of sympathy (which is less The Effects of Apology Secondly, apologising has a curative effect, in the sense that someone who is recovering from an Versus Denial for Repairing meaningful than an actual apology), and the apology by proxy (an apology made by a party not Competence Versus Integrity- illness or a surgical intervention may make a quicker recovery after receiving an apology for the directly involved in the case). It is self-evident that a complete and genuine apology has a different Based Trust Violations’ (2004). cause, or for any medical malpractice; in effect, the apology serves as a kind of remedy.12) In this significance than an expression of sympathy or an apology by proxy. Journal of Applied Psychology, process, it is vital that the responsibility be acknowledged. In more general terms: apologies have Vol. 89, No. 1, pp. 104-118, February 2004; Marshall School a curative effect in any kind of recovery process, even when the victim has received ‘injury’ at the Apologies do not only serve a purpose for the party concerned. They also serve the common good by of Business Working Paper No. hands of a government agency. contributing to a proper recognition of standards. As far as administrative law is concerned, relevant MKT 06-09. Available at SSRN: http://ssrn.com/ examples include the recognition of the validity of a certain principle of proper governance or of a abstract=398221. It is interesting in this context to have a look at the Principles for Remedy developed by the certain basic right in a particular context. In addition, apologies may result in certain policies being 12) A.J. Akkermans and Parliamentary and Health Service Ombudsman for the United Kingdom.13) In Dutch, the word confirmed or revised. K.A.P.C. van Wees, ‘remedie’ (remedy) simply means, ‘a means to recovery’. Unlike its English counterpart, the word ‘Het letselschadeproces in therapeutisch perspectief’ (Injury does not have any legal connotations. The English term ‘remedy’, however, refers both to the system Apologies may also be made in the making of a decision within the meaning of the Dutch General Claims from a Therapeutic of legal remedies and to the resolution of a dispute. One of the Principles for Remedy proposed by Administrative Law Act, even though this law makes no reference to apologies. For instance, a letter Point of View), Tijdschrift voor the British Ombudsman is: Vergoeding Personenschade (TVP), outlining a government decision may also contain an apology. Apologies may also be made in a 2007, No. 4, p. 103 et seq. court of justice. However, in keeping with the tenets of administrative law, a judge in administrative 13) www.ombudsman.org.uk. “Apologising for and explaining the maladministration or poor service. (…) law will never order anyone to make apologies,10) even though the General Administrative Law The UK Parliamentary Acknowledging the failure, accepting responsibility for it, explaining clearly why the Ombudsman also serves 14) Act allows a court of law to order the government agency to “perform an additional action, whilst as the Public Health Care failure happened and expressing sincere regret for any resulting injustice or hardship.” complying with its verdict”. In current practice, an apology contained in a decision or offered at a Ombudsman. England, Scotland hearing is considered an incidental circumstance, irrelevant from a legal point of view. and Wales each have their These Principles were established after extensive consultation with other British institutions and are own Ombudsmen. For more background information, see being applied by other ombudsman institutes as well. Apologies are certainly relevant where common decency is concerned. The National Ombudsman http://www.ombudsman. sometimes recommends that a government agency offer its apologies, since there are circumstances org.uk/improving_services/ Apologising could be used as an instrument in public administration, e.g. apologising to prevent principles/remedy/consultation. where not to do so would be negligent. After consulting all the Dutch ministries on this matter, this html. complaints and legal procedures, to avert claims, etc. Apologising could even be abused as a means matter is dealt with in the above-mentioned report, Dealing Properly with Damage Claims. 14) See p.7. to prevent claims for financial redress, or to reduce the amount sued for. However, such a cynical

Apologies in public administration 4 5 the National Ombudsman of the Netherlands approach would render apologies less valuable. In my opinion, citizenship is partly developed by decision. In addition, it is possible for a government agency, even without any objections or appeals taking citizens seriously and treating them with respect. Apologising when necessary - in the way being lodged, to rectify a mistake by revoking a decision and possibly issuing a new decision. All the English Parliamentary Ombudsman prescribes - is an indispensable part of treating one’s citizens this is perfectly legal. From a legal point of view, violations of written or unwritten rules of law or with respect. Apologies are known to improve the injured party’s opinion towards the party offering general principles of justice come with the option of either demanding or awarding compensation. the apology, which should count for something in the relationship between governments and their Furthermore, victims can be awarded compensation even if their injury was not caused by an citizens. unlawful act.

More and more attention is being paid to apologising in Dutch private law.15) Dutch property law is Whether or not a complaint is upheld depends on whether the act concerned is felt to be in breach of primarily concerned with legal relationships which can be expressed in monetary terms. However, any of the standards of proper conduct as formulated by the Ombudsman over the years.17) Sometimes the development of law has shown that property law is not adequate to flesh out underlying social government agencies make mistakes which do not result in an objection or appeal being upheld. In developments in which meeting immaterial needs is becoming increasingly important. In private law practice, such mistakes are often referred to as ‘minor flaws’. In some cases, the National Ombudsman terms, recovery from injuries is not something which can be expressed purely in terms of money; may judge that such ‘minor flaws’ nevertheless constitute unacceptable conduct. apologies may be relevant here. Akkermans even argues that there should be a legal obligation to apologise in medical malpractice cases.16) The foundations for such a legal obligation could be found This basic survey shows the way in which the Dutch General Administrative Law Act deals with in the compensation in kind which is required for a victim’s genuine recovery. Pursuant to the Dutch mistakes (by which I mean wrongful or improper acts or conduct) in administrative law. I will not Civil Code, victims who have suffered bodily injury may be entitled to compensation for “damage deal with the question of whether apologies are appropriate in the event of such mistakes, nor how of a non-financial nature”. Akkermans also argues that apologising could be considered a means of such apologies could be applied to administrative law in practice. What I will do in this exploration damage control. The civil law principle of equity might provide another possible foundation for is first look at the primary administrative process, then at the stage where objections and appeals are instituting a legal obligation to apologise. 14) The Royal Netherlands Medical lodged, and finally at internal and external rights of complaint. Association also recommends apologising in the event of medical malpractice. See Arts en There are many situations in the primary process in which the official dealing with a case, the Intermediate conclusion omgaan met fouten (Dealing with relevant government agency, or the administrator ultimately responsible could offer an apology, Mistakes as a Doctor), KNMG, either verbally or in writing. Being a good public administrator means apologising for any mistakes Utrecht, 2000. Apologies play an increasingly significant role in society. People are becoming more aware that 15) See also Leslie H. Macleod, you make. Citizens are entitled to ask for apologies, and if they themselves have made a mistake, apologies play a valuable part in interpersonal relationships. Relationships which have become B.A., LL.B., LL.M. (ADR), apologising in turn would do them honour. All this is considered a normal course of action in social unbalanced due to improper acts or conduct can be rendered properly balanced again, or restored to A Time for Apologies: The relations. Apologies are not strictly connected to wrongful or unlawful behaviour. Rather they are a Legal and Ethical Implications their former state, by means of a genuine apology. Apologies prevent conflicts, and therefore lawsuits. of Apologies in Civil Cases. response to mistakes belonging to a wider category, i.e. that of negligence and failure to act properly. So where do apologies fit into administrative law? Cornwall public inquiry phase-2 An apology is in order when someone who has applied for something does not receive a reply within research and policy paper, final the set period, or when an unjust decision is being revoked. In such cases, apologies do not merely paper, 12 April 2008, Toronto, Ontario. serve to restore the government’s relation with a citizen, but also to explicitly recognise and confirm Apologising in administrative law 16) Akkermans (ed.), ‘Excuses in the validity of certain standards. het privaatrecht’ (Apologies in Private Law), Weekblad It is nearly impossible to do one’s work without ever making a mistake. Working for the government voor Privaatrecht, Notariaat en One can also think of situations where no actual mistakes have been made, but an apology might still means dealing with large, generally complex projects in which mistakes are all but inevitable. Many Registratie (WPNR) 6772, be in order. This is where administrative compensation comes into play. Administrative compensation countries’ legislation reflects this fact. In the Netherlands, the consequences of such work-related October 2008, p. 778 et seq. is compensation for a governmental decision which, while rightful and lawful in itself, puts certain 17) P.M. Langbroek and mistakes have been incorporated into the objections, appeals and complaints procedures of the P.P. Rijpkema, citizens at a disadvantage. If administrative compensation is in order, an apology may be in order General Administrative Law Act. Such procedures usually result in one of the following scenarios. If ‘Ombudsprudentie in as well, depending on the circumstances. Sometimes there will be no grounds for administrative a government agency is found to have made a mistake, it will be told one of three things: to revoke ontwikkeling’ (Developing compensation of a financial nature, but there might be reasons why compensation in the form of Prudence in Ombuds Institutes), the previous decision (when the objection is upheld), or to make a new decision (when the appeal Werken aan behoorlijkheid: 25 jaar an apology might be desirable. Consider, for instance, a situation where, due to a change of policy, is upheld), or that its conduct was improper (when the complaint is upheld). Objections or appeals Nationale ombudsman, p. 269 et a certain citizen is put at a disadvantage. Suppose, for instance, that the Ministry of Defence were are upheld if a written or unwritten rule or general principle of law within the meaning of the seq., Boom Juridische uitgevers, to decide to start using its military practice grounds for a different purpose, causing someone who The Hague, 2007. 18) General Administrative Law Act has been found to be violated. However, an objections procedure may 18) National Ombudsman, has been hosting survival trips there for years to have to cease these activities. Or suppose the involve an administrative review which may comprise more than an analysis of the rightfulness of a report No. 2006/225. local authorities were to cordon off a road. While it might be within their rights to do so, it would

Apologies in public administration 6 7 the National Ombudsman of the Netherlands be appropriate if the authorities apologised to the neighbours for their inconvenience, even if no In my opinion, the decision to apologise or not to apologise is not primarily the result of a legal administrative compensation is owed. In this context, I find it remarkable that the Dutch Ministry consideration but rather of an assessment of where people stand in relation to each other in society. of Waterways and Public Works, whenever it performs road works, uses signs which - rather Apologies are not appropriate in all cases discussed above. For instance, the revision of a decision imperatively - read, “Thank you for your understanding”, even though “We apologise for the in a complaints procedure due to a complete administrative review based on further arguments inconvenience” would, in my opinion, be more appropriate. put forth by one of the parties involved does not provide grounds for an apology. On the other hand, apologies may be appropriate in the event of a complaint which has been upheld, or of a Given the nature of the objections procedure - prolonged administrative decision-making - it would decision issued well after the term set for such decisions. Where does one draw the line? I think the make sense to apply the above approach to the process to objections as well, both in terms of the following could be useful as a criterion for whether or not to apologise: an apology is not necessary actual decision process and of the way in which the objection is treated. Errors in an objections if a government agency acquits itself in an appropriate manner of what it can be reasonably expected procedure may be grounds for an apology. An apology from a government agency may be expressed to do, pursuant to the General Administrative Law Act or other relevant legislation. If a case has in a court’s findings or in a submission. Alternatively, it may be expressed on the agency’s behalf at been dealt with somewhat negligently (e.g. dealt with tardily or carelessly), a simple apology will the hearing. do. If a case has been dealt with very improperly, or if a very unjust situation is being rectified, a complete and sincere apology is in order. Complete and sincere apologies also apply if a party Procedures are no different when appeals are brought before a judge in administrative law. Apologies receives administrative compensation for an event or situation which was clearly to its detriment. for mistakes which have resulted in a case being treated unjustly may be offered in both formal Considerable attention should be paid to apologies for mistakes which have affected the injured party correspondence and informal meetings. Alternatively, a judge may press a government agency or to a significant degree. It is important that the apologising party know beforehand whether or not the its representative to apologise at the hearing. As shown above, the General Administrative Law Act apologies will be appreciated, something which could be discussed beforehand. Proportionality should enables the judge to order a government agency to apologise as an ‘additional action’. However, be an important guideline in all these considerations. To keep things proportional, administrators such a decision seems a little out of place in the practice of administrative justice, and besides, one may want to consider offering kind words derived from a genuine apology, such as an expression of may wonder if such imposed apologies are desirable. Then again, a case could be made for extending sympathy. Akkermans’s argument for making apologies in private law mandatory to administrative law.

Internal complaints procedures are an excellent example of procedures in which apologies may be What if apologising has adverse consequences? offered for improper conduct, be it in an informal setting or a formal one. In the event of external complaints procedures judged by an ombudsman, the ombudsman is himself able to judge whether As the above suggests, there are many situations in which apologies can be made in addition to, or or not a failure to offer apologies at any stage of the administrative process can be considered instead of, legal means so as to restore relations between two opposing parties. An important question inappropriate. In such cases, the ombudsman may recommend that belated apologies are offered after that needs to be addressed here is whether apologising can come with legal consequences which all. may make it unwise for an individual or organisation to offer their apologies. To put it briefly, isn’t apologising tantamount to admitting liability? It is worth pointing out here that increased use of mediation methods in administrative law provides administrators and injured parties with another way to either request or offer apologies. Mediation As I have mentioned before, research has shown that many people value apologies more than involves an open discussion between administrators and citizens. During such discussions, apologies compensation, and that compensation without apologies is generally felt to be unsatisfactory. may turn out to be a prerequisite for a restoration of trust.19) In complex cases where apologies are Therefore, apologising can be said to be a bit of a paradox. On the one hand, apologies do not cost a sensitive issue, mediation is even recommended to ensure that the apologies are brought about anything, they are valued by many people, and they often prevent injured parties from filing large carefully. claims. On the other hand, many administrators fear that apologising may be construed as admitting liability. To a certain extent, this fear is of a psychological nature. If there is a personal aspect to the Apologies issued by administrators are particularly sensitive, as such apologies do not merely have decision-making process (i.e. if the administrator concerned is personally responsible for the mistake administrative significance, but may also carry political significance. This paper is not the right place that is at the heart of the conflict), said administrator will have to overcome his pride to apologise, for a lengthy discussion of this subject. However, it is worth noting that fear of political fall-out - which may be difficult, especially since apologising may be construed as a loss of face. If, following a e.g. a call for resignation - may make administrators less inclined to apologise. Conversely, apologies hard-fought legal procedure, a judge rules that a previous decision was unlawful or unjust, the person which do not actually entail any consequences are offered so freely in today’s politics that they are in 19) D. Allewijn, Met de overheid responsible for the unjust decision may suffer a painful loss of face which may make it harder for him aan tafel (Negotiating with the danger of becoming less credible. Government), SDU, to apologise - despite the evident need for such an apology. In such situations, it takes courage to The Hague, 2008. overcome one’s feelings and apologise, in addition to doing as the judge has ordered. Moreover, since

Apologies in public administration 8 9 the National Ombudsman of the Netherlands experience shows that an apology from an administrator may indeed, in certain cases, result in the Conclusion injured party filing a large claim, with all attendant adverse complications and additional expenses, it is no wonder that some administrators have to think twice about apologising. Apologies play a major part in society. Therefore, it is hardly surprising that they are a recurrent topic of discussion at all levels of society. In private law and criminal law circles, there is increasing Fear of large claims has led Australia, Canada, and certain states of the United States to pass laws support for the idea of giving apologies a place within the legal system. In public law circles, debates which pre-empt liability claims following apologies.20) These laws generally state that apologising about whether or not to apologise are increasingly common. There are well-founded reasons as does not equal an admission of guilt or liability, and that apologies once made cannot be taken into to why apologies by or on behalf of a government agency should be treated as an essential part of account when determining the extent of a party’s guilt or liability. Such legislation is less appropriate our administrative law repertory. Apologising for a wrongful decision on the government’s part in the Dutch context. As far as Dutch administrative law is concerned, it would be more relevant to is an expression of sound administrative function, on a par with compensation or administrative have a look at the current limits of government liability, as it is unlikely that offering an apology in compensation. In practice, it seems many administrators object to apologising, but their objections itself would be considered evidence of guilt. Moreover, it is quite possible to phrase an apology in can be met. Remarkably enough, people are more likely to file for compensation when administrators such a careful way that it is perfectly obvious what exactly is being apologised for. A well-phrased fail to apologise for putting them at a disadvantage. Offering a genuine apology may prevent such apology could focus on the appropriateness and/or lawfulness of a disputed decision, so as to steer troublesome cases from unnecessarily evolving into claims for compensation. the injured party away from seeing the apology as an admission of liability. If a previously issued decision has been found to be wrongful or unlawful, and if an apology is being offered when the wrongful decision is being rectified, it is advisable not to apply other criteria to government liability than would have been applicable had there not been an apology. This applies in cases where there is a compulsory assessment of the claim for compensation in the event of an appeal which has been upheld, or of compensation after an appeal has been withdrawn. In this context it is worth reminding the reader of the new Penalty and Appeals in the Event of a Late Decision Act, which came into effect on 1 October 2009.

It is important that public administrators be open and above board when dealing with liability issues, as explained in the paper Dealing Properly with Damage Claims.21) It would not be proper for a government agency to adhere to a policy of only awarding compensation after a judge has ordered it to do so. What this means is that government agencies should be prepared to offer and award compensation of their own accord, if the situation calls for it. By the same token, they might want to change their approach to apologising. If a government agency accepts its responsibility in a given situation, it should operate from the premise that the apology it is offering should be accompanied by an analysis of whether or not to accept liability. Government agencies should always ask themselves whether maladministration should be followed by apologies and possibly compensation. The same applies to cases where there might be grounds for administrative compensation. It is worth reminding the reader here of Nick Smith’s ‘categorical apology’, which involves an explicit assessment of whether or not to offer compensation of one’s own accord, in addition to an apology.22) 20) For an Australian example, see this paper by the New South Finally, a government agency might choose to leave aside the question of liability as such, and opt Wales Ombudsman: Apologies: instead for fair compensation of a kind which does not involve an explicit admission of liability. A Practical Guide, which refers to the relevant legislation: www.ombo.nsw.gov.au. 21) National Ombudsman, Behoorlijk omgaan met schadeclaims, report No. 2009/135, also featuring compensation guidelines. 22) See note 8.

Apologies in public administration 10 11 the National Ombudsman of the Netherlands Production credits

Publication: National Ombudsman’s Office, The Hague Translation: DBF Communication, Alphen a/d Rijn Design: Zwart op Wit, Delft Printing: Van Tilburg, Waddinxveen March 2010

Apologies in public administration