The Edinburgh Trams Inquiry published its long awaited report at the end of September.
The Report includes 24 Recommendations, four of which focus on inquiries generally. The remainder of the recommendations relate to the broader subject matter of the Inquiry, covering a range of subjects including major projects promoted by public authorities, risk, value for money, procurement strategy, governance structure, and accuracy of information provided for scrutiny.
The Report has been much awaited, with the Inquiry first convened in 2014. Perhaps not unsurprisingly, it addresses some of the causes of the delay in Chapter 2 on the Establishment and Progress of the Inquiry. Broadly, the Chapter sets out the various administrative and procedural steps the Inquiry took, and some of the hurdles it encountered in investigating and reporting. As part of this Chapter, the Report sets out four recommendations which we look at in more detail below.
An interesting observation the Report remarks upon is the challenge the Inquiry had in retaining staff while the Scottish Child Abuse Inquiry (SCAI) commenced, as the SCAI could offer longer term employment. This will likely be a challenge for many ongoing inquiries as the Scottish Covid-19 Inquiry progresses. Other practical issues, such as IT and broadband connectivity, and high document volume, are also discussed.
The recommendations
Recommendation 1 is directed towards the Scottish Ministers, and recommends that there should be a review to identify the most cost-effective method to avoid delays to inquiries. This could include a dedicated unit within the Scottish Courts and Tribunals Service which currently operate courts in Scotland. This recommendation also suggests publication of updated guidance for those involved in public inquiries. If adopted, this would be a significant change to how they currently operate, as inquiries operate independently, with significant latitude for the Chair to determine how their specific inquiry should progress. This means there are divergent approaches to investigation and procedural stages. This is clearly something Lord Hardie thinks could be improved on, with some frameworks for the operation of inquiries being recommended.
Recommendation 2 is that Scottish Ministers should not appoint as the sponsor of any public inquiry any department, agency, or other government organisation where it, or any of its employees, has had any involvement in the project or other related event giving rise to the establishment of the public inquiry. In this case, the sponsor department was Transport Scotland, whose officials had played a role in the tram project, which was the subject of the inquiry, and would reasonably expect to be witnesses. The Report is clear that the sponsor department did not interfere with the work of the Inquiry, and that there was no conflict of interest, albeit there could be a possible risk of apparent (but not actual) bias. This ties with Recommendation 1; if inquiries sat within SCTS rather than with a sponsor department of Scottish Government, then this would remove any risk of perceived bias.
Recommendation 3 builds on Recommendation 1 and provides more detail of what should be included in guidance published by Scottish Government. The report considers that the guidance should address in particular the issue of staffing of an inquiry, and the interplay between government department roles and inquiry roles for civil servants.
Recommendation 4 deals with costs, which has been a sensitive topic for this Inquiry, attracting much media commentary. The Report sets out some of the various factors which impacted on the duration and cost of the Inquiry. Following on from this, the Report recommends that in future, when reporting the cost of a public inquiry, Scottish Ministers should report its net cost to the public purse, after discounting expenditure already incurred on accommodation, staff, and other resources, as well as the total cost appearing in the accounts of the sponsor department. Some of the costs in running an inquiry would be incurred by the sponsor department (or SCTS if Recommendation 1 were adopted), e.g. certain staffing costs: it follows that including these in the inquiry costs increases the overall sum attributed to that specific inquiry. It is not surprising that costs are addressed in this way, given the scrutiny there has been over this Inquiry’s costs.
A difficulty all inquiries face is the inability to enforce or follow through with any recommendations. As the Report has only recently been published, all relevant parties will take time to digest the detail and recommendations. Against the current backdrop of multiple inquiries running concurrently, any recommendations adopted could have a significant impact. Whether Scottish Government will look to adopt these recommendations going forward remains to be seen.
Our team is experienced in managing responses to high profile inquiries and regularly works with boards and key stakeholders to identify liability, reputational and strategic risk. If your organisation is likely to be impacted by any ongoing or future inquiries we are well placed to assist.
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