Apologies in public administration The National Ombudsman of the Netherlands P.O. Box 93122 2509 AC The Hague 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 Amsterdam, Mr Job Cohen, 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 Guusje ter Horst, 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 order. 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 Ed van Thijn discussed those in his book entitled De 2003 Tilburg University sorry-democratie: recente politieke affaires en de ministeriële verantwoordelijkheid (The ‘Sorry’ Democracy: dissertation, Wolf, Nijmegen 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