Official Report 838KB pdf
The next item on our agenda is to take evidence on the cost-effectiveness of Scottish public inquiries. I am pleased that we are joined by Ross Greer. Ross had the difficult job of being in two places at once this morning, but it is great that he is with us for this session.
This is our first evidence session in our inquiry. As stated in the committee papers, our aim is to foster greater understanding of the current position with public inquiries in Scotland; to enhance clarity around the purpose, framework and decision-making process for establishing public inquiries and their terms of reference; to ascertain whether public inquiries deliver value for money; and to identify any examples of good practice or alternatives to the current model. However, we will not make recommendations on the merits, or otherwise, of individual Scottish Government decisions on whether to hold a specific public inquiry, or on recommendations made by individual public inquiries.
I am delighted to welcome to the meeting Professor Sandy Cameron CBE. Professor Cameron, we have your fascinating and thought-provoking written submission, so we will move straight to questions. I have to say that your submission is a bit of a showstopper. It is short, sharp and certainly to the point, so let us get into it. You said that you can
“confidently predict that ... inquiries will last longer than anticipated and cost more than budgeted for.”
Why is it that inquiries always seem to overrun, both in cost and time?
That is based on the evidence in your papers in relation to inquiries that have been set up, how long they have taken to run and their budgets. Before the Scottish child abuse inquiry began, I was asked to do some preparation with colleagues in the Scottish Government. One of the things that I said was that you can be almost certain that the inquiry will last longer and cost more than you think it will. Why is that the case? It is perhaps because we do not have a mechanism for striking a balance between ensuring the independence of inquiries and focusing on how our costs are to be contained and constrained.
You were directly involved in the Jersey care inquiry, which was supposed to last six months and cost £6 million. However, it cost £23 million and took two years, so it was four times longer and more expensive than anticipated. You said that
“The cost level was in many ways ... the result of difficulty in managing the legal costs and holding the solicitors to the Inquiry to the budget.”
To what extent are legal representatives motivated to keep the cost in the budget to a minimum?
Legal colleagues work very much on the basis of doing what they believe that they need to do, rather than looking at how to contain and manage costs. The expectation is, “This needs to be done. We will do it and we’ll keep going until it’s done.” There is a reluctance to look at other ways in which they might have done it and other ways in which they could have contained costs. To some extent, that is about the way in which legal colleagues always practice.
One question that I have is whether we could find alternative ways of conducting inquiries that would manage the costs more effectively and deliver more rapidly for people. One problem is that, when inquiries last for a very long time, the public lose interest in them—they lose sight of the inquiry. For inquiries involving victims or survivors, there is the issue of how long it feels for them that the inquiry is taking to get to a conclusion. The Jersey inquiry was long, at two years, but other inquiries have taken much longer than that and are continuing to take longer than that.
There are a number of things in your answer. First, are firms motivated to limit costs? There seems to be no real incentive for them to do so.
I do not think that there is an incentive for costs to be limited. Inquiries are set up in a quasi-judicial way, with firms there to do the job. In many cases, they do a very good job, as they have expertise and what have you. However, the focus is not on containing the costs. The attitude is, “If it has to be done, it has to be done, and that is the cost.” There are models for other ways that elements of inquiries can be undertaken—they can be undertaken by people who might not cost so much to do them. The question is, what would the options be, and how can the costs be constrained?
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Independence is fundamental, as is justice not only being done but being seen to be done. However, is justice done if an inquiry takes five, 10 or 15 years? Some survivors of an incident might not still be alive after five, 10 or 15 years. One wonders whether the frustration of waiting to see justice delivered perhaps has a very deleterious effect on survivors.
I am sure that it does. People have often waited a long time for their day and for an inquiry to be set up. Once the inquiry is set up, people have high expectations that it will resolve issues for them. They want their voice to be heard, and that is important. However, if the inquiry goes on for a long time beyond that, it may well add to the sense that people are not being heard or understood, and that they have been lost sight of.
As you say, there is the risk of inquiries taking a long time, particularly with inquiries into historical issues, as was the case in Jersey. For those inquiries, we are talking about a population of witnesses who may be quite elderly and frail and may not see the end of the inquiry. That is an issue when we are dealing with inquiries—how can we make them sharply focused and get to the point for people so that they do not drag on forever?
The Scottish child abuse inquiry has already cost more than £95 million and has been going for nine or 10 years. That is clearly a concern.
You have made suggestions on alternatives. People who demand inquiries are often looking for a judge-led inquiry, because they say that that is the gold standard. However, in your evidence, you say that witnesses, when meeting round a small table with a panel to give their evidence,
“either individually or in small groups”,
and when
“lawyers were not involved”,
found that to be
“much less formal and intimidating”
but that it
“nonetheless added considerably to the information the panel were able to take into account.”
Your view is that that is probably a more expeditious, less expensive and—for the people who are giving evidence—less daunting prospect.
Yes. The Scottish child abuse inquiry is now nearly 10 years old, and I do not know whether there is any sign of it coming to an end. How long will that go on for?
In Jersey, we had the opportunity to try a different way of dealing with gathering evidence. A substantial part of the inquiry was held in the traditional format, with statements being taken and with counsel to the inquiry and the panel questioning witnesses in a quasi-courtroom setting. However, for the final part of the inquiry, we tried having a meeting in a much smaller room, round a table that was a bit smaller than the one that we are sitting at now. Our view was that that worked. In many ways, it was similar to what the committee is doing here. It gave the opportunity to have a conversation with people, not necessarily just on their own but sometimes in smaller groups, about their experience and what they thought.
We did that in public, with the public being able to sit round or behind the table—it was still in a public environment. However, it was quite close and it felt quite intimate. People felt comfortable having those conversations. We were able to gather the information that way, without the panoply of legal processes and statements and the way in which the courtroom setting works.
When inquiries have completed their deliberations, one area of frustration is that the report can take donkey’s years to write. You said that you tried with your report—which still took a year to write—to make the recommendations “as short as possible” and that there were eight recommendations. Some inquiries have as many as 86 recommendations and some have only one. Are you suggesting that they should try to make recommendations as punchy—for want of a better word—and impactful as possible?
For some inquiries, the report runs to several volumes, which raises the question of who will read it and what will happen with it. The Jersey report came in three sections: one set out the basis of the inquiry, the second was a large volume that contained the evidence that had been heard and a shorter final document contained the findings and recommendations. We determined that we should write that document in clear and simple terms, be quite specific about the recommendations and why we were making them and keep the number of recommendations as small as we could. If we reached a conclusion, we made sure that it would make a difference in that jurisdiction.
Outwith the eight recommendations, we also made a final recommendation that the panel should go back in two years to check progress against the recommendations. We did that because we were concerned that inquiries can sit for a long time, write voluminous reports and make recommendations, but then we do not know what happens to them. What do we know about whether the recommendations were the right ones? Do we research that? Were they implemented fully, and if not, what are the reasons for that? Inquiries make recommendations, and the Government or other parties might not accept them, but they need to be clear as to why they do not accept them.
In the Jersey inquiry, we made the recommendation that we go back in two years, and that was accepted by the Chief Minister of Jersey. We went back after two years, at which point we met for two weeks and visited a range of people to ask for their thoughts and hear their views. After that, we speedily produced a short report on the progress that had or had not been made. After two years, some of the recommendations had been implemented or were in the process of being implemented, but some were still quite far away from being implemented.
One issue with going back was that many of the victims and survivors, who were particularly concerned, asked whether we would go back again in another two years. We took the view that we should not do that, because there had to be a point at which the States of Jersey took responsibility on its own and delivered on the recommendations. I suspect that we would have been very welcome if we had gone back after another two years, and then maybe after a further two years.
All of that is a challenge, but there needs to be a process and mechanism for following through on the recommendations as part of identifying whether there was value for money in the inquiry.
The fact that you followed up on the recommendations by going back two years later was of great interest to me. You are absolutely right that some inquiries spend years taking evidence, then a report is published, something is published in the media and the Government might make a statement in Parliament, but that is it. Whether the recommendations are delivered and in what timeframe is an issue. The Government might say, “We will accept these recommendations,” but it does not say that it will implement them in a year or in two, three, four or five years. It does not say that it will implement them by date X.
That goes back to the issue of getting justice for the people for whom the inquiry was set up in the first place. As you will be aware, inquiries are sometimes set up by Governments that are under pressure and think that an inquiry is a good way of kicking things into touch. However, I was quite amazed that you seem to be the only one who has actually followed through and used the process of returning. That jumped out from your statement, as did many other things.
In your written submission, you state:
“The first UK Inquiry was held into the death of a foster child Dennis O’Neil in 1945. It was chaired by Sir Walter Monkton KC who commenced in March and reported in May. His report was 15 pages long and the recommendations he made have been repeated in every child care inquiry since then.”
Basically, you are saying that, in some inquiries, there is a reinvention of the wheel whereby recommendations that were made some 80 years ago, which would probably still have some validity now, have still not really been implemented.
We often hear from victims and others that they need an inquiry so that lessons will be learned and the situation will never happen again. However, sadly, when we look at the history of inquiries, particularly child protection inquiries and child abuse inquiries, we find that the same issues—such as failure to do certain things, failure of communication and not looking deeply enough at issues—come up over and over again.
That raises the question of how well we learn the lessons from inquiries. Some of the things that Monckton said all that time ago in that very early child protection inquiry into the death of a child in foster care are still coming up over and over again. We need to think carefully about whether we actually learn the lessons and, if we do not, whether there is a reason for that.
Yes. One would think that we should also learn lessons from other jurisdictions. Similar issues happen in other places at other times, and one would think that looking at what is happening elsewhere might be better than starting afresh on every occasion.
I have a couple of points on that. There are differences in jurisdictions. I understand that, in Scandinavian countries, different processes are in place, which means that things are dealt with differently and more speedily. Looking at the information on the Covid inquiries in your background papers, it is striking to see how long they have taken and what they have cost in other jurisdictions compared with what is happening in the UK and Scotland. That raises questions about whether our much more expensive inquiries are more effective, or whether other jurisdictions are able to do those things equally effectively.
You mention the fact that, in the Jersey inquiry, two solicitors were required to be involved, “at considerable hourly rates”. In the Scottish Covid inquiry, the rate for senior counsel was capped at some £200 an hour, with around 40—but possibly 60—hours a week, which means that, for that individual, the rate could effectively range from £8,000 to £12,000 a week. So far, the Scottish Covid inquiry has cost £34 million and is still on-going; the UK one has cost £164 million. That is a lot of hours for lawyers, is it not?
It is indeed a lot of hours. Jersey is obviously a small place, so it did not have a whole lot of resource and we, as a panel, had to do quite a lot of the legwork at the start of the inquiry. The Jersey inquiry’s panel was set up with a chair—Frances Oldham QC, now KC, who is a very experienced barrister—and my colleague Alyson Leslie and I sat as panel members. We had to do a lot of work to set that up.
At that early stage, we had to appoint solicitors to the inquiry. We interviewed a number of companies, and part of the process was negotiating the fees down as low as we could, because we were aware of what those fees would amount to. Counsel is expensive—in Jersey, we were paying senior and junior counsel to the inquiry something in the order of that £200 an hour. Once we got into the process, we found that solicitors to the inquiry were saying that the statements needed two people—the first to ask the questions and the second to write the basis of the statements, which would then go backwards and forwards.
A lot of process goes on, all of which costs money, because all of it is done on the basis of billable hours, and you then have that dilemma of how to control those hours. How do you say to a solicitor that they have spent too much time doing something when they answer, “Well, this is the time that it took—it needed to be done”? That is where you get into those difficult dilemmas about ensuring the inquiry’s independence and that it has been done properly, but equally asking whether it really needs to be that way and whether we could find other ways of doing it.
I believe that the Sheku Bayoh inquiry has, so far, cost £17 million in legal fees alone. That means 85,000 hours for senior counsel—although they are not all senior counsel—even at £200 an hour. Eyebrows have certainly been raised over the costs of those inquiries.
Let us compare with elsewhere. Australia is not greatly different from the UK in many areas, and its Covid inquiry took 13 months and cost £4 million. New Zealand’s inquiry has been on-going for two years but it has cost £7 million so far—so a lot less than Scotland’s. Norway, Sweden and Finland have all concluded their inquiries within a year or so, so there are ways in which the process can be done more efficiently and effectively.
You have talked about an inquisitorial approach, for example. Could there also be a more standardised approach to the practicalities in relation to start-up time and reduced costs? We have already heard that the Caldwell inquiry took some 13 months to be set up after it was announced. That family had to wait day in, day out, wondering when it would happen, for more than a year. We are also aware that more than £1 million has been spent on the Eljamel case before any evidence has even been heard.
11:30
We need to look at whether we could set up a structure or unit to be the starting point for inquiries, so that everything is ready and we do not have to reinvent the wheel for every inquiry. That was one of the considerations in the work with universities that was led by my colleague Alyson Leslie to look at expert views on the matter. We hoped that we might get to a point of being able to argue a case that a unit could be set up, perhaps in a university or elsewhere, that could form the basis of supporting inquiries and training people to get over that initial period.
As you say, it can take a long time for an inquiry to get under way. There is all the setting up to do. There are many practicalities around premises and document management systems—for example, the Jersey inquiry had well over a million documents to deal with, and other inquiries will have much larger amounts. There are also the arrangements for transcription. Many practical things that the public do not see need to be put in place behind the scenes. Much of that could probably be standardised. There could be a ready-made approach, but part of that has to be about what model will be used.
The reality of the judge-led inquiry model that we have, although we see it as inquisitorial, is that it tends to be adversarial, because that is how people in that environment work. Could we find an inquisitorial method that would be much more interrogative in terms of trying to find out what happened? Perhaps things could be done much more speedily.
To go back to the issue of reviewing recommendations, one of the issues is that, when the inquiry is finished, it no longer has status, but we were able to get around that in Jersey and say, “Irrespective of that, we will go back. We do not need powers to summon witnesses and documents—we are beyond that.” The kinds of issues that are thrown up can be resolved. If we have the will, we can resolve those issues and say, “Let’s do things differently. Let’s try things out and see if they work.”
My degree was in economics, so I love to read the phrase “opportunity costs” in a submission, and you raise an important point on that issue. People see the costs. In Scotland, £230 million has been spent on public inquiries, and the figure in the UK is £1.5 billion, but those are only the above-the-surface costs. Inquiries can be like an iceberg—you see only the bit above the surface.
You talk about the hidden costs to participants, such as local authorities, for redaction, the preparation of documents and staff time. You also talk about the emotional impact on not just the victims or alleged victims, but people who give evidence from a professional point of view. We understand that, in at least one of the inquiries that we have been looking at, the real costs, if you want to call them that, are double the stated costs, because of those opportunity costs. Those costs have to come out of a public service or local government, so that money is not being spent on public services if it has to be redirected into the cost of an inquiry. Could those hidden costs be brought more into the public domain, so that people can see the true impact of inquiries?
It would be important if inquiries reported on the total costs of everything that was involved in the inquiry. When I was doing the briefing and preparation for the Scottish child abuse inquiry, I also did some work with local authorities. I said to them, “You need to get ready for this. This will take you time. You will need look out historic documents and files, and you will need to look at redacting those. Your services will need to devote staff time to that.” There is a cost that goes along with that, and, if the inquiry goes on for a long time, that cost goes on and becomes an ever-accruing cost.
The other aspect of the opportunity costs relates to the total cost. What might we have done in relation to the issue that the inquiry is looking into? In Jersey, for instance, at the start of the inquiry, I met various organisations to tell them about the inquiry and what we would expect from them. I was conscious of the fact that the inquiry was expected to cost £6 million while I was meeting representatives of third sector organisations in Jersey that were having their budgets cut. It felt awkward for me, as a former director of social work, to say that we were going to be having an inquiry that would cost all that money—although it was important and we needed to have it—while those organisations were potentially having to shut down services. That was a difficult balance to think through in relation to opportunity costs.
I will ask one last question. Colleagues are, understandably, keen to come in.
On this issue, you have said:
“There is a need to examine ways in which the costs of inquiries can be contained without being seen to compromise independence. Could inquiries be expected to work to set budgets and timetables as opposed to the somewhat open ended arrangements which pertain at present and which too often result in escalating costs.”
Surely, they should be expected to do that. I cannot think of any other area of government where there is an open-ended timescale or budget. We do not set a capital contract and say, “Just take as long as you like and spend as much as you want.” That is not said explicitly to inquiries, but it is almost said implicitly. No one says it, but that is almost the way it appears to be when one considers how inquiries are rolled out.
In the Vale of Leven inquiry, for example, the health secretary at the time said that they were looking for a report within 15 months. The judge said, “We’ll do it as soon as possible,” but that turned out to be five years. Do you believe that there should be parameters for costs and timescales, as there are in any other area of the public sector?
You should certainly consider how you can set parameters and hold inquiries to account for delivering. You might say that you want to get a report by a given time, but it may well be that issues emerge and there is a case to be made for extending the inquiry. At least there would then be a reference back and a process for agreeing an extension of the timescale, rather than the current situation whereby inquiries just go on for as long as they want to.
There is also an issue of conflict of interest when legal firms that are directly involved in a specific inquiry are themselves suggesting a deepening and widening of that inquiry.
That is one of the challenges. I do not know whether that happens consciously, but we may ask what interest there is in a legal firm suggesting, “Let’s do this more quickly,” or “Let’s cut this down.” It is always possible to say that there is more to be examined—“Let’s look at this aspect,” for instance.
There needs to be discipline and a clear focus on not going down that route: “We are dealing with what we are dealing with.” Some of that needs to be embodied in the terms of reference at the outset, so as to be clear about what the inquiry should be looking at. Inquiries can sometimes diverge or grow arms and legs into other areas, which extends the timescale. Few people who are involved in an inquiry are likely to ask for the process to be cut down or slowed down.
Thank you. That will have whetted the appetite of colleagues around the table.
Good morning, and thank you very much for joining us. I, too, was intrigued by your written submission. It is worth quoting one sentence that jumped out, as it is compelling:
“It has to be recognised that inquiries are a source of substantial income for some large legal firms and as such the question arises as to the extent to which they are motivated to keep costs to a minimum and within budget.”
That is a very powerful sentence.
In preparing for this evidence session, I looked up your background and I found that you have a very long and compelling hinterland. Is there any other arena that you have dealt with, in the course of your career, where there is no cost control whatsoever although millions of pounds are involved; where the terms of reference do not ordinarily contain a budget; where there are no stage gates or phasing of the inquiry; and where there is no active monitoring? Have you ever come across that in any other walk of life in your career?
No, I have not. You are aware of the legal processes involved and how all of that works, but, once you embark on the inquiry, you have no real way of knowing what the costs are going to be. That worries me, as the worry about costs can be a reason not to engage in some of those legal processes. Inquiries, in particular, are set up and are then open ended.
You might look at the bloody Sunday inquiry, which went on for a very long time and cost a great deal of money. Lord Saville, who chaired that inquiry, said that the lawyers were “expensive, very expensive”, but he was very resistant to the idea that he should curtail the inquiry or stop it. His view was simply, “That’s the way it is, and if you want me to do the job, that’s what it will be.”
To go back to the convener’s earlier comment, we have seen examples of lawyers acting on behalf of clients making a call in the media—which can be vigorous—for a public inquiry. One can take the view either that the lawyers are doing the right thing for their clients or, alternatively, that they understand that the opening of a public inquiry means that their costs are going to be covered by the Government of the day.
I know that your experience was with Jersey, but are you aware of any checks and balances in the process whereby people think, “Wait a minute—if this action goes to a public inquiry, it is, in effect, a licence to print money”? Were you subjected to checks and balances, or was it you yourselves who were putting the checks and balances in place?
We were putting the checks and balances in place. Because of the experience of the other panel members, we were very conscious of the fact that the inquiry could end up costing a lot of money, so we did our very best to constrain the costs. Arguably, we failed miserably, given that the initial figure that had been worked out by a firm of consultants, which was based on what they thought would need to happen, turned out to be far from the truth. We had a very difficult process in that we had to say to the Chief Minister in Jersey, “This is going to cost more.” However, he was basically in a corner at that point, because he could not really say, “No—we’re not going to fund it.” Having started the process, he could not say, “No, that was the wrong idea; let’s pull back from it.” That is one aspect.
Clearly, there are lawyers in Scotland who are very important in ensuring that people are properly represented and that their cases are heard. Underlying it all, however, there is a business aspect as well, and we need to acknowledge and recognise that, particularly if we are thinking of whether there is another way to do things. There will be resistance to doing inquiries differently, and we need to be alert to that business aspect in looking at whether they could cost less and be delivered more speedily.
In the inquiry that you were dealing with, how much pressure did you come under from Government to keep a lid on costs? How much active monitoring was there by Government, or was it you yourselves who were pointing that out? You mentioned that you had to go back and say, “Look—costs are going to increase.”
We were not put under pressure by the States of Jersey, in all fairness to them. We were having conversations with them about the costs. They were anxious about the costs, and we were doing our best to manage those. Again, it comes down to the balance between pressure from Government and the need for independence. If you are seen to be pressured by Government, particularly in inquiries where there are victims, they will end up feeling that justice has not been done.
In Jersey, there was a lot of suspicion. The term “the Jersey way” was often used, and it was believed that there was a conspiracy against people. We had to be very clear—and the Chief Minister was very clear from the outset—that nobody from Jersey could be involved in the inquiry, so that it would be seen to be independent. That was a real strength of the inquiry, but it highlights some of the potential dilemmas.
I presume that, within that, there was active consideration of where potential conflicts of interest might occur.
People say that the good thing about Scotland is that everybody knows everybody and that the bad thing about Scotland is that everybody knows everybody. I imagine that it is similar in Jersey. It sounds as though Jersey was very aware of the potential for conflicts of interest where there were existing relationships that might be mutually beneficial.
Yes. We were very conscious of that. Jersey has a population of just over 100,000 and measures 9 miles by 5 miles. People recognise one another. It also has very different structures for how things work. It was absolutely right that, at the outset, the Chief Minister, in appointing the panel, who were all from outside Jersey, made it clear that he wanted nobody from Jersey to be involved in the running of the inquiry. We had a liaison person from the States of Jersey, and, interestingly, after the first week, one of the victim witnesses said, “What’s he doing here?” They recognised that that was not what he normally did. We made sure that, from then on, he was not on the premises other than when he had to be. It can be as sensitive as that. Scotland is much bigger, but, in the arena of such inquiries, people will know one another.
11:45
It is about the principle.
You comment in your submission about the further cost of redacting statements and allude to the fact that that is very expensive. It would be useful, given that we are at the start of our inquiry, if you could set out why that is so expensive. Is it simply about time?
It is about time. It is about going through documents and identifying what needs to be redacted. When documents are going to end up in the public domain, you have to be sensitive about what can be included in them. Redaction is quite a long and slow process, because you need to be sure that all documents are being checked, and, if that is being done by solicitors on hourly rates, the cost is high. The question arises whether other people could be trained to do the redaction, although you do not want information to get into the public domain that could present a hazard to somebody. Redaction is an important element of what goes on in an inquiry, but people tend not to be familiar with it.
You have mentioned the concept of billable hours, as has the convener. There really is no other walk of life in which someone would charge on a billable-hours basis without some attempt at negotiation to fix the costs up front, particularly when the costs are going to be significant. Is that just precedent—is it just the way that lawyers like to operate?
It is the way that it works. I do not know. You would need to ask lawyers about that.
I think that we will.
These days, there is more pressure from clients to look for a fixed price. Can you do that? It would be very difficult to do that for an inquiry. The issue is the negotiation to get the rates down. We used the Treasury rates as the baseline for getting the rates down as low as we could, but it is a contentious issue.
I have one last wee question. One of the people who gave us evidence commented on the unintended impact of what was called the Maxwellisation process, whereby somebody in the report had the opportunity to have early sight of the report and seek modifications to it. To what extent could that affect the outcome?
The Maxwellisation process, which is a safeguard for people who have given evidence, is important. But, again, it is a process that can take quite a long time.
And therefore money.
I do not think that it affects the findings or the recommendations, but it will potentially affect the evidence that is summarised in the report.
Thank you.
I declare an interest in that I am a chartered accountant. I think that some of my colleagues charge by the hour.
I was going to draw a kind of comparison. A company’s accounts have to be audited, and I think that most people would say that, although auditors get it wrong at times, they are independent. However, the financial arrangements for companies are very different. There is a legal requirement for financial accounts to be submitted, usually within nine months or thereabouts, and audited. In the case of banks, the timeframe is even shorter than that. I come from that background and might be biased, but do you think that there is scope for an audit of a public inquiry? That would still be independent. You spoke about finding the balance between independence and controls. Could the legal side learn from the accountancy side?
I think so. An audit process would at least raise questions about why expenditure was necessary—and expenditure should be justified rather than the Government simply saying that that is the way things are done.
Is there a different mindset? If I have it correct, you said that if something has to be done, it has to be done. Within the accountancy profession, someone would know that they had a month in which to do the very best that they could, and that principle applies in other workplaces, too—the cleaners in this building do the best that they can in eight hours, and the cooks in the canteen do the best that they can in a set amount of time. There is a different kind of mindset in inquiries, and I sometimes wonder whether it is impossible to change that.
I am not sure how easy it is to change the way that the legal profession works, so the question is whether there are other ways that inquiries might operate. Does everything have to be done on that basis? Some of it might well need to be, but there might be other ways for inquiries to work, with people carrying out interviews or doing other elements of the investigation in ways that would cost less.
There is an idea that inquiries must be chaired by a judge, and we seem to have got into a position whereby there is a hierarchy. People think that it would not be good to have a politician chairing an inquiry but that having a judge in the chair is the gold standard, which means that everyone wants that. It is difficult to unwind that, is it not?
There is now a public—or media—perception that where there has been an issue there should be an inquiry and that it should be judge led. That is what is said. I do not know whether there is a lot of thinking behind the idea that inquiries should be judge led—it is not a legal requirement. The UK inquiry into child sexual abuse was chaired by Professor Alexis Jay, who is a social worker. So, it can be done by other people, and they will bring a different perspective.
I have worked alongside judges on the Parole Board and in other places, and I have great respect for them, but they operate in a particular way because that is how they have been trained and that is the environment that they operate in. They might be uncomfortable with the suggestion that we should find another way of doing things. We do, though, need to raise the question of why every inquiry is judge led. There is an opportunity cost to that, because of the number of judges and retired judges in Scotland who are tied up in inquiries that go on for a long time.
I understand that you were involved in the inquiry in Jersey because, although you were an outsider, you are an expert in that field. I would have thought that, in a specialised area such as medicine, there would be a strong argument for having a medical person rather than a legal person in charge of the inquiry.
There is an argument for considering who would be the best chair for an inquiry, based on the terms of reference and on what that person would bring to it.
The other element is the question of whether to use the Jersey model, as has been done with the independent inquiry into child sexual abuse—IICSA—in London. That would mean having someone chair the inquiry but also having a panel of people with different expertise. In Jersey, the inquiry was chaired by Frances Oldham KC, who was a defence barrister in the main but who also had experience of sitting as a judge, and she had a panel consisting of two of us who came from a social work background. We worked together and our important role was to question witnesses on the basis of our experiences and expertise.
There were three people on the panel. In retrospect, was that good or would it have been better to have had five people on it?
It was sufficient to have three, because that meant that we were able to work as a unit. If you add more and more people to a panel, you just add complications. We could also divvy up the day-to-day management of the inquiry and the report writing between us.
Someone else raised the point that people are hoping to get different things out of a public inquiry. The victims or their families, or the survivors, are the group that is key to the whole process, and they are often the ones who are demanding a public inquiry. In your experience, or as far as you know, are they, on the whole, normally satisfied with the public inquiry when it gets to the end? Jersey would be one example.
I think that the answer to that question is that we do not know, and we should know. We need to ask people who have been victims or survivors, and those who have been witnesses in the inquiry, whether, at the end of the day, they felt that justice had been done and their voice had been heard. People may feel that, if they have their day at the inquiry, that will bring closure for them, but unfortunately it quite often does not. In some cases, it brings back the issues that they have experienced, so there needs to be proper support for people who end up distressed as a result of giving evidence. We do not know enough about that aspect.
We sometimes see people on television who have got the result of an inquiry and are very open about the fact that they are not satisfied with it. They may want revenge or somebody’s head to roll, and, if that does not happen, they are not satisfied.
Yes—to some extent, in that respect, we have to make it clear to people what the inquiry is about and what is going to happen.
The victims and survivors want their voice to be heard, and they want to be believed. We cannot say, “We’re going to believe everything you say,” because we need to test that out. Essentially, however, they want to be in an environment where their voice is heard and they are believed. They want to understand what has gone wrong in the past, and there is undoubtedly an element of wanting—arguably—to apportion blame. Perhaps, to put it more positively, they want to be able to attribute responsibility in that regard. They need to feel that those objectives have been achieved for them, and I think that we do not test out sufficiently regularly whether those things are being achieved for people.
In Jersey, we asked people about that informally after we had published the report. The victims, who were the main group of people who had been calling for the inquiry, indicated that they were satisfied, not least because we had made recommendations about things that they had not expected us to touch on in that environment. People thought, “They won’t do that,” and we did. In many ways, that was important for people.
Maybe I should have known that. Was blame part of your conclusions? As you just said, some people expect that. Does that vary among public inquiries in that some would attribute blame while others would not?
I think that there is an issue around responsibility. In our report, and in taking evidence from and questioning people, we would have said, “Why didn’t you do this at the time?” We need to hold people to account for the actions that they took or the failures that resulted, or for why they behaved in particular ways. It is important that we do that. Sometimes, there is a misconception among people that they would like to see prosecutions. However, in the main, there is agreement that there will not be prosecutions based on the evidence in an inquiry.
I do not know what knowledge you have of other countries, but we are hearing that the Nordic countries are doing inquiries in a much simpler and quicker way. Have you any idea of whether the public in those countries are satisfied with that?
No, but it would be worth finding out about the perception in that regard, given that we, in Scotland and the UK, have got to the stage of having so many inquiries that are so expensive and so long.
That is great. Thank you.
I call Liz Smith, to be followed by Craig Hoy.
Before I ask my questions, I put on the public record that I am very heavily involved in providing case notes to one of the inquiries—on a non-pecuniary basis, obviously—which might be used in evidence as that inquiry progresses.
Professor Cameron, when it comes to the decision whether an inquiry is judge led or not, to what extent is the main deciding issue about compelling witnesses to appear? That has been a concern for many of the victims who have been involved; they are very keen indeed—rightly so, in my opinion—to see specific witnesses compelled to give evidence.
That is a feature of it, but that does not mean that a judge needs to chair the inquiry. There certainly needs to be legal involvement in the process. The power to compel witnesses and documents in many inquiries is important, so that people feel that there is no escaping from giving evidence.
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Do people demand judge-led public inquiries, because they believe that that person will have the legal authority and standing to get more out of the evidence?
People might think that that is the case. I think that, when people call for that sort of thing, they are thinking that the process will be—and should be—like a court, whereas if we had a more inquisitorial model, it could be a different kind of environment.
In answer to Mr Mason, you implied that the demand for public inquiries was growing. Is one of the reasons for that increase the fact that public services in the UK, not just in Scotland, are not delivering satisfactory answers when something goes wrong?
It is difficult to know why there is growing demand. It has almost become the automatic response to an issue; people say, “We need a public inquiry”—which, often, becomes a demand for a judge-led inquiry—instead of their saying, “Yes, we need to find out what went wrong, but is there another way to do that?” Often, because these things happen a long time after the event, it can take a long time to argue that corner. Public authorities need to be open about the issues that they have got wrong and they need to be able to say so.
My personal view, which is not just a result of the inquiry that I have been involved with but from reading extensively about other inquiries, is that victims do not feel that there is sufficient accountability in public authorities. In other words, the reason for the demand for public inquiries is that people are dissatisfied with the lack of accountability of different public bodies. If that is the case, that is a major issue. Therefore, in order to ensure better accountability, should there be more Government input into ensuring that whistleblowing is effectively responded to, or should there be other structures in the Government that can hold bodies to account?
It is important to hold bodies to account—absolutely. Victims or survivors—if it is that type of inquiry—need to feel that the people concerned, if they are still in post, are held to account for the actions that they took. That is not a matter for the inquiry itself; what is a matter for it is its report and what it says has gone wrong. It is then for those institutions to decide how they are going to deal with that, and that will be part of the follow through.
Indeed—I really think that that is quite a serious issue, and it is one of the reasons for the increasing demand for specific public inquiries. Actually, I think that it is also a reason why inquiries are taking longer—the to-ing and fro-ing that is needed to get the information required takes an awfully long time, and the costs multiply. It is partly the hidden costs that result in the process taking such a long time; redaction, for example, is vital for data confidentiality and so on.
However, there is a real issue with the amount of time that the process itself takes. There is frustration with that, because some of the answers should have been provided before by some of the agencies that have been accused of a lack of accountability and of not taking responsibility. That is a major issue. Do you have any thoughts about what we can do to improve that?
When I look back at my career as a director in social work, I can say that my approach was always that, if something had gone wrong, we would deal with it straight away. Sometimes, colleagues in other places thought, “We’ll wait till there’s an inquiry.” My view was that it would be better for us to deal with the matter internally and to take whatever action was necessary so that, if it came to an inquiry, we would be in a position to say, “That has been addressed—and here is what we did.” There is a process so that we do not let things settle but are seen to be dealing with them and doing so openly.
My last question is a general one—I am not talking about any specific inquiry. Do you think that there has been an increasing temptation for the Government—any Government, not just those of a particular political colour—to accept a public inquiry because doing so gets it out of the responsibility of taking decisions that perhaps it should have been taking?
That is certainly the suspicion of many people. It feels as if an inquiry might be a way of, as Kenneth Gibson has suggested, kicking something into the long grass. Once an inquiry has been announced, it allows central or local government to say, “I cannot say anything about that, because it is the subject of an inquiry.” If that inquiry goes on for years, it moves the matter away altogether. There is an issue about how to keep it in the moment.
Thank you.
Good morning, Professor Cameron.
I have been looking back at the use of royal commissions in the past, and I counted that, in the 1970s, there were 12 such commissions. Now they are very rare; presumably, the Government, the Parliament and the public weaned themselves off that form of inquiry and found different ways of making those big decisions. Is that the kind of seminal tipping point that we have got to now, do you think? Should we be looking at a fundamental alternative to public inquiries?
I think so. The fact that you are having this inquiry is welcome, because you are at the point of asking, “Could we be rethinking what we do? Is there a different way of doing this?” Have we reached the point of saying, “We cannot keep going like this”, and are now thinking of other ways of achieving justice for people or finding out what went wrong and ensuring that we learn the lessons from it? So, yes, this could be an important point.
I hate to dampen your optimism, but the other problem is that, when we look back at other Parliaments and other public inquiries, we see that they, too, carried out retrospective analyses that identified the shortcomings that we are identifying here.
For example, the Thirlwall inquiry looked at past recommendations on healthcare issues and found that many had not been acted upon; subsequently, we have seen the same issues happening. The Grenfell tower inquiry recommended that there be
“a publicly accessible record of recommendations made by select committees, coroners and public inquiries”,
which the Government was to use to track the progress of implementation or, otherwise, explain why it had failed to implement recommendations. That has not happened. Moreover, only last year, the Public Administration and Constitutional Affairs Committee held an inquiry similar to this one, which came to some of the same conclusions that we will, rightly, come to.
One element, which you identified in relation to Jersey, is the scepticism about Government engagement with public inquiries once they are established. However, there should not be a similar level of scepticism about parliamentary engagement in oversight. We do not want to make work for ourselves or be accused of a power grab but, on the basis of your experience so far—not that I want to short-circuit our inquiry—do you think that the Parliament is the solution to some of the problems that we see here? Instead of the Government being in the driving seat, once an inquiry was established, the Parliament would have oversight and an on-going commitment to observing what was happening.
It is important that there is a degree of independence in reviewing what the outcome has been in relation to the recommendations. You could argue that the Parliament is independent from the Government in that sense, so it could have that role. Whatever happens, there is a need to look at what can be put in place to look at the recommendations, what has happened with them and whether they have been followed through. That is a major gap in inquiries at present; as you have highlighted, things get repeated over again when changes have not happened, and that undermines public confidence—if there is still public interest.
That is the other thing about this issue. If an inquiry goes on for years, the people who might have been fired up at the beginning of it lose track of where it is at over those many years.
On the issue of royal commissions, it is very like Sir Humphrey Appleby in “Yes Minister” to call for a royal commission to kick an issue into the long grass. Do we need greater engagement with the public on such matters? Their first demand will be for an inquiry, and a judge seems like an independent person, but the outcome is that, 10 or 15 years later, nothing has happened; people have died; and victims are left without answers. Should the conversation be more inclusive than it is at the moment and should we level with the public that such an approach is not working for them?
Yes. One of the issues is that we do not know what the public really think, and we do not know what the parties, or the victims, have thought about the inquiries in which they have been involved. Did they serve their purpose? Those are gaps in our knowledge, because we do not do those things routinely.
On the issue of judge-led inquiries, Sir John Sturrock, in his submission, bemoans the fact that there is a “judicial, detailed forensic approach”, which he calls “overly legalistic”, and which he says leads to an adversarial system. However, it does not have to be that way, does it? Presumably, we can smash that approach and start again.
As I said, the inquisitorial mode worked very effectively in Jersey. We sat around a table with people and had a conversation with them, just as we are doing now. You can probe, you can ask for more and you can get the information; you do not need to have very formalised questioning by counsel against a statement that has been made. A concern often felt by people was that they had gone through the process of drawing up a statement that had been expensive and what have you, and then when it came into the hearing room, counsel basically asked the same questions. It felt more like a process than engagement.
People need to feel that they are being engaged with and that they are able to tell their story. An awful lot of an inquiry, particularly when there are victims, comes down to the need for people to be able to tell their story.
Finally, in relation to mission creep and budget creep, I presume that there are downsides to setting a limit on or a budget for an inquiry. Based on your experience, what could be the negative consequences of such a move?
The obvious danger is that you curtail the inquiry and miss out on what needs to be there. You can set a budget with the opportunity for it to be increased, provided that a case can be made for that, so that it does not just drift on. To some extent, that is what happened in Jersey; the initial budget was £6 million, but it became apparent that that was not going to be enough money. We had to go back, make representations as to why more was needed and get that agreed.
Thank you.
I should point out that New Zealand’s Covid investigation is a royal commission. It is chaired by an epidemiologist, and the panel is made up of a former Government minister and a treasury secretary rather than a judge. Its deadline for concluding is next February.
I call Michael Marra.
Thank you, Professor Cameron. Your evidence so far has been very stimulating and useful evidence. Why did you take on the role on the independent Jersey care inquiry?
I thought that it would be interesting, and that I would have something to contribute from my experience. I had been chairman of the Parole Board for Scotland until just before the approach was made, and I thought, “Well, I have the opportunity to go and do that.” It was a learning experience for me. Being in that setting was a new experience, and because of the people with whom I worked on the panel, who had different experiences, it was a very valuable experience, too.
People say to me that it must have been very harrowing. We were dealing with difficult issues and hearing difficult evidence, but, equally, we felt that we had something to contribute. When it came to the recommendations, I was able to apply my experience to the things that needed to be done as a result of the past failings.
Do you think that it was worth while?
I think that it was worth while for Jersey, because it needed to move on from the global publicity that it had attracted over the Haut de la Garenne issue. As you might remember, it was believed that bodies had been buried under that children’s home, but at the end of the day, no bodies were found. There was no evidence of that.
Jersey needed to move on, not least of all because of the adverse publicity that had been attracted, which was potentially affecting its trade and business, mainly in the finance world, but the victims, who felt that they had not been heard, were certainly sceptical at the outset. Would we really delve into the issues? Would we really question people and hold them to account? At the end of the day, when they saw that that was what we did, they were very positive about it.
Jersey has a population of 100,000 people, and the inquiry budget was £23 million. You have already mentioned the budget restraints in social work departments, which, indeed, you have led. At the same time, social workers are protecting lives in those communities, and you were quite conscious of that, too. Would you call it a trade-off?
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Yes, absolutely. We were cautious about the cost of the inquiry against the pressures of the budget. People assume that Jersey is a wealthy island but, although there is a lot of money there, it has the same budget constraints on its services as other places. After the inquiry, we felt that we particularly needed to revisit some of the work that Alyson Leslie had begun with the Scottish Universities Insight Institute to look at whether inquiries could be done differently, on the basis that there must be a better and more cost-effective way of dealing with those issues.
I just want to follow up on some comments that colleagues have made. First of all, it strikes me that there is an issue with the design of inquiries—I will come to their method in a moment. There is often a lack of trust around the state’s role in the delivery of a service or justice, and the Government is often pushed into a position where, often under pressure, it must find a means of trying to find some solutions to that question. As a result, there is often a bit of a one-size-fits-all process.
It is not just about inquiries being judge led—we have talked about the tendency towards that approach and our perhaps becoming fixated on that aspect. Is it possible that, in different fields, entirely different approaches to dealing with some of those issues might be appropriate?
I would have thought so. The subject matter will vary, and we need to explore different models that fit different purposes. The approach to the Edinburgh trams inquiry, for instance, will differ from the approach to the child abuse inquiry, because the trams inquiry is not dealing with victims or survivors but looking into a whole range of technical and legal issues. That is one type of inquiry. Inquiries that involve victims or people who have been directly affected—whether it be the child abuse inquiry, the Sheku Bayoh or Emma Caldwell inquiries or whatever—might well lend themselves to a different approach.
At the moment, in the Scottish system, who do you think designs the public inquiry?
I think that, at the outset, each inquiry is designed by its chair, with Government, as it needs to agree the terms of reference. How the inquiry will be set up is one of the issues, which brings us back to the question whether we could have a more standardised approach to the design of the inquiry and how it will work.
So, you think that there is a discussion between the chair, once selected, and the Government. There must be a process where, in essence, the Government pre-designs the inquiry, because it must appoint the appropriate person; for a Covid inquiry, that person might be a senior epidemiologist, as the convener suggested, or, for a legal situation, the person might be a judge. There is some pre-construction of what will happen by the Government.
Arguably, that is where there would be merit in the Government having an array of options available to it. It could consider what would work best for the situation and say, “This is how we will approach this issue”, instead of being pressured to go down one route, with a one-size-fits-all approach.
Would it not be better if we had, perhaps, a judge-led public inquiry unit? Once the Government had pressed the button, the entire design, including the question of who was to be the chair and that of the independence of the structure, would be passed to that group. The group could then be charged with, say, going back and making representations if the budget had reached its threshold and a case had to be made in that respect, as you have suggested.
Whether that public inquiries unit would need to be judge led is a moot point, but there would certainly be merit in having such a unit—that is, a body that could look at developing the approach to inquiries, deal with their mechanics and help with standardisation of some of their processes in order to say, if you like, “Here is your starter for the inquiry.”
In my head, I am trying to consider how we deal with the trust issue. People are looking for a high bar and threshold. My view is that the decline in trust in public institutions and politicians is part of the question that must be dealt with and on which people are seeking recourse.
That is where you must be sure that whatever process is followed is seen to be credible and to have integrity, so that the public can have faith in the expertise and integrity of the people leading it. That is really important.
You have talked about methods and said that the redaction of documents and so on—and we are talking about potentially huge screeds and massive volumes of evidence—is being charged at an hourly rate. Surely some of that work does not need to be done by hourly-rated solicitors.
I think that we could find other people who could do that work. They could be trained to do it, would know what they were doing and could be employed in the business. Redaction officers could deal with the first go, at least. Although there might be a need for some oversight by legal eyes at the end of the day, a lot of those processes could be done by other people.
Thank you. I should, like Liz Smith, put on record my involvement with a public inquiry as a constituency MSP who will, in all likelihood, provide information and testimony to it.
Liz, did you want to come in?
I have just a very short question. Do you think that the Parliament needs to look at the Inquiries Act 2005?
That would be part and parcel of considering what the future should be.
Okay. Thank you.
Thank you very much. I really found this opening session of the inquiry fascinating. Would you like to add anything further to the evidence that you have provided today before we wind up, Professor Cameron?
No. I will say only that making the changes will not be easy, because there will be resistance to them. However, I believe very strongly that it is important to bear in mind the need to satisfy victims and the need for people to feel that the process has been worth while. Anything can be changed—it is possible. We do not have to do things that way. Having been director of social work in the Borders, I am very familiar with the phrase, “It’s aye been,” and a degree of that applies here, too. However, it does not always have to be that way—we can do things differently.
Yes, I do not think that we are pushing at an open door here, to be honest with you. Nevertheless, we shall certainly valiantly pursue our aims.
Thank you, Professor Cameron, for your very helpful contribution, for taking the time to speak to the committee and for your excellent submission. We will continue to take evidence on the inquiry next week, when we will hear from two panels of witnesses.
That concludes the public part of our meeting. The next item on our agenda, which we will discuss in private, is consideration of our work programme.
12:22 Meeting continued in private until 12:53.Previous
Scottish Budget Process in Practice