Official Report 833KB pdf
The final item on our agenda is to take evidence on the cost-effectiveness of Scottish public inquiries. I welcome to the meeting Patrick McGuire of Thompsons Solicitors Scotland. Good morning, Mr McGuire, and thank you for your written submission. I want to express how glad I am that you accepted the invitation to give evidence—it is greatly appreciated by the committee.
We will move straight to questions. I will start by quoting a question that was raised by Professor Cameron, who was one of the first people to give evidence on this matter. You may have seen what he said:
“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 quite a question.
You must have known that it was coming up—come on.
One may have anticipated it.
That question needs to be broken down into several component parts. It begins with the point that threaded its way through my submission, which is that public inquiries are a force for good. The victims of mass wrongs are the only people I have ever represented in public inquiries—you will have seen from my paper how many public inquiries I have represented such groups in—and it is essential for their participation in a public inquiry that, as the Equality and Human Rights Commission said so forcefully in relation to the Grenfell inquiry and otherwise, those victims’ involvement must be real and must not be illusory, and that necessarily involves their having legal representation. That legal representation comes at a cost—that is inevitable and I do not think that anyone should pretend otherwise. Nor should there be any embarrassment about the fact that, if someone is representing a group, they should be paid fairly for doing so.
For two reasons, I flatly deny the suggestion that law firms allow costs to run away with them. First, having been involved in so many public inquiries, I am acutely conscious that I am being paid by the public purse, and that comes with a heavy weight of responsibility. Secondly, as I set out in my paper, the suggestion that there is some kind of blank cheque for the law firms that represent core participants is simply incorrect. Every single public inquiry has cost protocols, and it is the chair of the inquiry—the independent judge—who sets those protocols, decides on the work that can and cannot be done, and forensically scrutinises every single bill of costs that is submitted. They regularly knock back work that is undertaken.
There absolutely are controls on the work that is done by solicitors who represent core participants. That is not allowed to run away with itself; every single bill of costs is assessed and scrutinised by the chair.
No one is casting any aspersions on you or on Thompsons, but there is a strong case whereby legal costs seem excessive—certainly to laypeople. For example, Police Scotland’s direct costs in supporting the Sheku Bayoh public inquiry—I understand that you were not involved in it—are £25,409,629, of which £18,087,494 is directly attributable to legal costs. So far, the cost of that inquiry, which has run for six years, is £51 million. The Scottish Police Federation has said that the police contribution to that is equivalent to employing 500 police officers for a year.
Although justice for the alleged victims in any public inquiry is important, the opportunity cost is something that we, as representatives of the Scottish Parliament, have to consider. Is that public inquiry more viable than, for example, another 500 police officers on the streets—or whatever else? We are not saying that we should throw the baby out with the bath water and that there should be no public inquiries. The committee is not saying that that public inquiry should not have happened or that another one should have. We are asking how we can deliver the same level of justice or, indeed, better justice more efficiently and effectively and at lower cost to the public purse.
We have seen in the evidence that some inquiries go on for some time—I just mentioned the Sheku Bayoh inquiry, which has gone on for six years. They go on for years and there is a law of diminishing returns—in terms of public interest, apart from anything else. Public interest goes down, the reason for holding the inquiry becomes more obscure and the cost goes up.
In weeks to come, we will be looking at systems in other countries but, given your wide experience, I would like to hear your views on the level of justice that you are seeking. I am aware of the points that you have made about, for example, the inquiries into infected blood—you believe that one was inadequate, while the other was done more thoroughly and produced a better outcome. With the system that we have, how can we become more efficient and effective in delivering what everyone wants—that is, better outcomes?
11:00
That is a very difficult question, and, again, there are several points to make. It might assist the committee to reflect on the fact that at least three different sets of legal costs—four, in fact—impact in some way on the public purse in conducting a public inquiry.
First, there is the cost of the inquiry staff and chair; that is one set of costs that you cannot get away from. Secondly, there is the cost of providing representation to core participants, such as those whom I have represented over the years. Thirdly, there is the cost to public bodies of choosing to become core participants in the public inquiry, and they must bear the cost of that representation from their own budgets. I apologise—there are only three costs.
The point is that all three of those costs are, to my mind, unavoidable. The secretariat and the public inquiry staff must be paid, and the core participants must be represented. As for the public bodies, whether it be the national health service, Police Scotland or those involved in all the other public inquiries that have taken place, that is ultimately their choice. Police Scotland, for example, could choose not to be a core participant and could simply allow the inquiry to run itself. That is unlikely to happen, but the point is that that is its choice, just as it was the choice of the Scottish Government to be a party to the infected blood inquiry, and just as it was the choice of various NHS arms to become involved in those inquiries, too—
So—
I apologise for going on, convener.
I understand—we just have a lot to get round. My question was very long, and I apologise for that, too.
Some witnesses have told us that a number of things can be done to make inquiries more efficient and effective, such as having a proper secretariat that has built up some institutional memory of how inquiries are successfully conducted, instead of having to reinvent the wheel, as we seem to do with every inquiry.
Tens of thousands of documents often have to be duplicated, but why does a trained lawyer have to do that? Can it be done by a paralegal or someone else? Would that reduce the cost? Apparently, it has a significant impact on the overall cost of any inquiry to have qualified lawyers copying 100,000 documents. All that I am saying is that, even with the system that we have and even if you accept that the system as it is should continue, there must be ways of reducing the costs to the public purse. After all, the cost of an inquiry might ultimately mean fewer officers on the street. It does have an impact.
That is very fair. What I bring to the committee is my knowledge of representing core participants, and that is why my submission is all about the fact that that cost cannot, I think, be diminished in any way, if public inquiries are to achieve what they need to achieve for the victims of mass wrongs.
That said, I completely agree with your point about having a secretariat with institutional knowledge. I also agree with the point that, to be frank, flows from that, which is that, if we had a secretariat with that sort of institutional knowledge, why would we pay a two-year-qualified solicitor to photocopy things? I am being a bit pejorative—of course, that is not going to be the case—but it is a very fair point.
I have seen the benefit of that, to an extent, with the Scottish Covid inquiry, which appointed—albeit some months in, if not slightly longer than that—a chief executive, in the form of Ian Duddy, who has a lot of experience in these things and did an excellent job of making things run more smoothly. I accept entirely that both of those suggestions are very good.
Do you have any other suggestions? Given your detailed involvement in some very high-profile public inquiries, have there been any areas where you thought, “Do you know what? We could have done that more efficiently, more effectively and more timeously”?
It is difficult. I read Lord Gill’s submission, in which he tells us how well he did at controlling his budgets and at bringing the inquiry to a conclusion as quickly and as efficiently as he did. Having been involved in that inquiry, I would say that it came very close to the bone at being at the expense of the participants being fully represented. It just perhaps managed to allow full participation, but it was close.
Secondly, I am sure that the committee will recognise that the compass of the ICL Stockline inquiry was very small. The subject matter was not large.
Sure.
I will say no more than that about Lord Gill’s comments, but I think that it was easier for him to achieve that than it would be for, say, the chair of the Scottish Covid inquiry. It is important to recognise that public inquiries come in different shapes and sizes and have different scopes and compasses. The issue is therefore difficult.
That said, I think that the burden ultimately rests—as you have alluded to—on the secretariat and the chair, and different chairs take different approaches. I know that the question has been asked whether the chair needs to be a judge rather than, say, a sheriff, but I would say that it should 100 per cent be a judge, if we want public confidence in the inquiry. Frankly—I mean no disrespect to those on the shrieval bench—sheriffs just do not cut it.
Some have asked whether there should be oversight of the judge. I understand the point, but I think that it would be difficult to achieve that. After all, the judge must be independent—indeed, it is the single most important thing that a judge must be in a public inquiry. How can any institution oversee an independent judge and bring pressure to bear on them? I struggle with the concept, although I understand the point. Everywhere you turn to try to find cost savings, you will find that doing so is really difficult, although the point about the secretariat is a very good one.
New Zealand and Australia managed to bring in Covid inquiries in the space of a year or so for £5 million, whereas the UK one has already cost more than £200 million and the Scottish one has cost more than £34 million. I have not been aware of any real outcry in Australia and New Zealand that the process was not adequate, although we will be investigating that in the weeks ahead.
I understand what you say about judge-led inquiries being a gold standard, but the fact is that we have only 36 senior judges in Scotland. The Lord President has explained that appointing a judge has a substantial knock-on effect. A judge will sit for 205 sitting days, which equates to 34 criminal trials; currently, three judges are chairing inquiries, which means that there are 10 per cent fewer sitting days to hear cases. That means that other people are being denied justice.
The argument seems to be that the public inquiry subsumes everything else. For example, when there is an inquiry into a health board, the board has to redirect money from hip operations, heart surgery or whatever it happens to be, and that work gets delayed or has to be reduced, because of the impact on funding. The question that I am asking is why public inquiries should be in a situation where there seems to be no limit on the amount that is spent. The Sheku Bayoh inquiry, for example, has cost £51 million so far and counting.
Every other area of the public sector—health boards, local authorities, colleges, all other aspects of justice and so on—has to work within a budget, but you seem to be arguing that all of that goes out the window for a public inquiry, and that it is more important than anything else that happens in the public sector, including having police in the streets and operations being carried out in our hospitals. That seems to be the implication, because I am not hearing any ways in which we can really do things better, other than my suggestion in relation to the secretariat and all that stuff.
I am not sure that it is fair to say that I said that public inquiries should take precedence over everything else and the rest of the public purse be damned—
But hold on—you are saying that there should not really be any financial limit. There is no other area of the public sector that I am aware of that has an unlimited budget. I suppose that you could say that welfare is demand led but, other than that, everyone else has a specific budget that they have to adhere to.
I am saying that, to achieve a public inquiry’s two most basic functions of ensuring that the victims have confidence and that those who are affected by the act are being investigated and put under the microscope, the victims need to be legally represented, and a cost is inevitably associated with that. I have already said that that cost is not unlimited. The cost to the solicitors who represent the core participants is scrutinised by the chair, and it is limited.
Equally, it is not fair to say that the other associated costs are unlimited. The chairs are expected to keep an eye on budgets and to act accordingly, and we have to trust that they are doing that. I am not really sure what we are saying, if we are saying that we do not trust them to follow that through, because one of their core functions is to ensure that the inquiry is delivered in the quickest time possible while covering the subject matter and the terms of reference as fully as possible. That burden rests on the chair of the public inquiry.
I do not therefore think that it is fair to say that the costs are unlimited. On the point that you make that the money that is being spent on a public inquiry can be spent elsewhere, I quoted in my submission and will repeat the words of Lord Penrose, who said on the opening day of the first preliminary hearing that every penny spent on the inquiry was a penny taken away from the NHS. He sat as the chair of an inquiry into the infected blood scandal—for it was such, as we finally found out when we saw the full picture through the UK-wide inquiry. He sat in front of a room full of victims of the infected blood scandal and uttered those words, and it was appalling. It set the standard for the rest of that public inquiry.
I understand what you are saying about that particular issue, but I do not think that he meant to say it with that level of insensitivity. Although it is not said, people still think it—it is still in the background, and there is an element of reality to it.
One of the frustrations is that a Government—whether it be the UK Government, the Scottish Government or whatever—sets up a public inquiry because, frankly, it is politically expedient to do so. It gets the matter off the minister’s desk and kicks it into touch, and the minister will not be in office in five or 10 years, when the inquiry is concluded. Then we get the recommendations, which the Government says it will look at, and another year or two elapses, so there is surely still an element of frustration for the people who have been victims of the wrong that the public inquiry was set up to right. Could there be a situation in which the recommendations would have to be implemented? It would be difficult, because some recommendations might take time and would not be implemented overnight. What should the mechanism be to ensure that the recommendations are implemented rather than just left to the Government?
I recall that the Plotnikov inquiry, which took place about 24 or 25 years ago, made 42 recommendations but, two years after it concluded, only one recommendation had been implemented. After all the evidence that has been given, all the emotion for the people who were the victims, all the money that has been spent and all the time that has elapsed, we get recommendations and then nothing happens. What can we do to enhance the delivery of those recommendations?
I recognise and completely agree with the point that you have made. It is interesting—I hope that this is not a parenthesis—that Sir Brian Langstaff, who was the chair of the infected blood inquiry, did something very novel to try to ensure that that did not happen. When he produced his report, he sent a letter to the minister saying that he was not able to say that the inquiry had fulfilled its terms of reference. When a chair says that the inquiry has fulfilled its terms of reference under the statute, that is it—he or she can do no more. He did that so that he could keep the inquiry open and continue to hold the Governments’ feet to the fire, to ensure that his recommendations were followed through—and we have seen that, because the compensation scheme is up and running. There were issues with how the scheme operated, and the chair took another two weeks’ worth of evidence about that and produced an additional report. That is one way of doing it, but it is unusual and he used that method because he had no other mechanism for doing it.
11:15There absolutely should be a better mechanism. It strikes me that there should be some body—the Parliament itself, or a committee and then the full Parliament—that the relevant minister must report to timeously, which would involve the minister saying, “I have the report, and here are the recommendations that we are going to obtemper and the timeframes within which we are going to do that.” That would allow committee members to ask questions if they do not like what they have been told, and it could lead to a debate in the chamber. That would be a good approach to the issue that you have highlighted.
I will let colleagues come in, but I am really enjoying our discourse. The Scottish child abuse inquiry has cost more than £100 million and has been on-going for 11 years, but the inquiry team has produced interim reports so that people can see what is happening in the inquiry. It is not one of those inquiries that seem to be sealed off and from which you then get a big splurge at the end. Should that mechanism be routinely introduced to inquiries, so that victims of an injustice can see that progress is being made?
This is not the most parliamentary language, but I am a big fan of interim reports, because they achieve exactly what you said. There are some occasions when producing them is not possible. It would have been difficult with the infected blood inquiry, because the chair wanted to do it all at once and it was one big jigsaw piece. However, where it is at all possible, it should absolutely be adopted as a way to, as quickly as possible, share the lessons that have been learned and share potential interim recommendations. That goes back to your previous discussion about how recommendations might be implemented, notwithstanding the fact that the inquiry would continue.
Thank you for that.
Good morning. Thank you very much for joining us. I will ask you some questions that reflect more on the integrity and reputation of the legal sector around public inquiries. Today, you will stoutly defend things where you deem it appropriate, and I have no issue with that. However, I want to explore with you situations in which a conflict of interest, or a potential conflict of interest, could ultimately affect the legal profession’s reputation.
I ask you to bear in mind the fact that we see that a lot as politicians. If a person says, “I would never do that,” that does not necessarily mean that it could never happen. For example, we have seen lawyers use the media to whip up demand for a public inquiry. In some instances, they have done so very successfully, because it has helped to trigger an inquiry. They have brought out people who have been terribly wronged, whose view is that there should be an inquiry, and stories run about it and so on.
That seems to be quite a departure from how your firm does things. In the first instance, what is your perception of how you can add your voice on whether there should be a public inquiry, as opposed to going direct to the media and using it? What is your sense of that as a company?
As I said in my submission, I have previously worked with groups to campaign for public inquiries and have done so successfully. Our approach has never been to go straight to the media; we have always campaigned hand in glove with members of the Parliament who agree with us and our victims’ groups that a public inquiry is needed. If what we were doing was inappropriate or involved a conflict of interest, that would have applied equally to the parliamentary colleagues working with us, but that has never been the case. Some groups began at the public petitions committee, which resulted in questions being asked; others had questions asked in the chamber.
Ultimately, and inevitably, that type of campaigning has led to press interest, and it would be foolish not to utilise that as part of the campaign to hold a public inquiry. I can see why going straight to the press might rile, but, at the same time, I am not in a position to—and would never—criticise somebody who, if they firmly believe that there is a need for a public inquiry, does that. I make the point about the realpolitik of all this: ultimately, it is surely up to the minister who decides to determine whether the case has been made, if the campaign groups have made their best fist of it. If their case was not a good one, the minister would just say no, and that would be that.
There are quite a few points to pick up on, but let me be absolutely clear. You see it as appropriate to do your campaigning—we accept that, when an issue has come to light, campaigning is absolutely legitimate; nobody has any issue with that—through the mechanisms of the Parliament, including the public petitions committee, which you mentioned, and through members, in order to create that groundswell of opinion, instead of going direct to the media. What are your reflections, from an ethical perspective within the legal profession, on a situation in which a lawyer who is a close friend of a Government minister is able to use that route to seek a public inquiry?
I suppose that there are two sets of ethics to consider in that question. I assume that it is a real situation, but let us imagine it as a university exam question. I would say that there are two sets of ethics to consider—that of the solicitor and that of the minister, who may or may not be able to make the decision. The ministerial code is as much to be considered in this question as the rules of the Law Society of Scotland. In this hypothetical situation, are there any breaches of the Law Society of Scotland rules? Probably not—I cannot think of any off the top of my head. Of course, you will say that ethics and a code of conduct are not always one and the same. I would not want to take my answer any further than that, to be honest with you.
We have raised this question before. The Law Society of Scotland said that it was not clear whether it would simply be a case of the lawyer exercising their freedom of speech. Compass Chambers said that it is not a relevant conflict of interest if the lawyer is advancing their client’s position. I took from that response that it is somewhere that it did not want to go.
Going back to the reputational and ethical aspects of it, there can often be a perception of a conflict of interest regardless of whether there is. I am trying to explore the question of removing that perception. There might well be a tipping point. Nobody is suggesting that rules have been broken—that is not the point. I am more trying to advance the question of perception. Can I take it that it is not the normal route—certainly for your company—to go direct to the media instead of lobbying Parliament? Do you have experience of how other law firms bring a matter to the public’s attention?
Because there is such a small pool of law firms that do this, it is very difficult to say what is normal and what is not. All that I can talk about is the path that I have normally followed, which I think is an effective and appropriate way to campaign for such things. It is very difficult to say what is normal and what is not.
I should say that our discussion was around ethics. I struggle to see it being a conflict of interest per se, because, as you alluded to, either Compass Chambers or Michael Clancy said that they were still always pursuing the interests of their client. The conflict of interest would arise if you were doing something that was in conflict with your client’s interests. Whatever else that hypothetical question might involve, I do not think that it strays into the area of conflict of interest.
Yes, Michael Clancy said that it was unclear whether a lawyer would be exercising their freedom of speech. Compass Chambers said that it would not represent a conflict of interest if the lawyer was advancing their client’s position.
I will link it to the financial element. Lawyers will be advocating for their client’s position. We could make a case that the more successfully they advocate for that position over the maximum length of time, the more appealing it is for them. The convener has already raised our perception of the lack of financial controls. A lawyer could attach themselves to an inquiry that they were able to trigger through successful use of the media. If the inquiry was on-going for a long period of time and the lawyer potentially sought to extend its scope, thereby increasing the length of time that the inquiry would take, the result would be huge fees for the lawyer concerned, which is an appealing position. Can you understand from a public perception point of view why that sort of example would pique the committee’s interest and, ultimately affect the perception of the success or desirability of public inquiries?
I fully recognise your point and the narrative that you have described. I would temper it slightly by pointing out that, in the scenario that you have painted, a minister set up the inquiry in the first place and decided whether to extend the scope. The chair of the inquiry has to decide how deep they need to dive into the evidence and, therefore, how long the inquiry should take. The chair will scrutinise, or not, the monthly bills and costs of the hypothetical solicitor and they will determine how much money they will make. I apologise for repeating myself, but, in my experience, every bill that Thompsons Solicitors has ever submitted has been forensically and fully scrutinised, and they have certainly not been paid in full every time.
To finish on this point, I will ask about culture. Chairs will vary. I raised the question previously—apologies, but I have forgotten who was giving evidence—and I think that the witness alluded to the fact that he would take a dim view of the kind of scenario that I have set out. I respected what he said.
To what extent is there a culture in which some lawyers do not like to challenge other lawyers? If you are coming from a position in which ethics and propriety should be at the very heart of what you do, which you would sign up to from the start of your career, that culture would make it quite hard to challenge someone. What is your experience of being challenged by a chair on your submissions to various inquiries?
In terms of submissions?
I mean fee submissions. I should have been clear.
Indeed—thank you. I have never been on my feet, metaphorically, before the chair of a public inquiry.
The short answer is that, yes, that has happened regularly, going all the way back to the ICL public inquiry. I have spoken previously about Lord Gill’s approach. The one novel thing that the solicitor to that inquiry did was allow work to be undertaken on a block basis. For example, if they released a set of disclosure documents, they would say, “You should take no more than X hours to read this.” That was done in advance.
11:30What has happened in every inquiry since then is that the disclosure will be released, the bill of costs will be submitted and it will then be pored over line by line. Comments will be made such as, “Hang on—cumulatively, it’s taken five hours to read all this.” The language that tends to be used is that it is “disproportionate” or “unreasonable”. Those words come up all the time, because inquiries have a law accountant whose job it is to pare back as much as they can. That results in the type of discourse that you are talking about, which involves people saying, “That was too much—justify yourself,” or, “That was too much—don’t even bother justifying yourself, because we’re not paying it.” That is absolutely fine—that is the way that it goes.
The Scottish Covid inquiry has appointed a gentleman called Stewart Mullan, who has a background as a law accountant, to pore over every bill of costs before the chair even sees it. He has spent his whole life arguing over judicial accounts, and I can tell you that he is absolutely ferocious.
That is good to hear. That is heartening for the committee, notwithstanding the huge sums that have been spent thus far.
You were asked about Lord Penrose’s statement, in which he said that every penny spent on the contaminated blood inquiry was a penny less for the NHS or front-line services. That might have been a bit insensitive, but would you agree that it was a true statement?
I suspect so. I am genuinely not avoiding the question, but I do not know for certain that the NHS budget was the only budget that was used for that public inquiry. I am not evading the question, but I do not know whether that was the case. If there is evidence that that was the case, of course I have to accept that the statement is true.
It came out of public sector spending, so some of it might have been found from the colleges budget, some of it might have been found from the schools budget and some of it might have been found from the NHS budget.
It is 100 per cent true to say that it came from the public purse.
Fair enough.
You said that all the different parties have to have lawyers. I wonder whether that is the case. Could we have a more inquisitorial approach and a less confrontational approach in public inquiries? I am also on the Education, Children and Young People Committee, which is looking into children’s hearings. There is a strong argument to be made that an inquisitorial approach should be taken in that system, with information being found out by asking the children and the families, rather than by the two parties having lawyers. Do you think that we could have public inquiries without having lawyers on both sides?
My first point is that the public inquiry system would probably be better described as a hybrid system. It is not fully adversarial, nor is it fully inquisitorial. I know from my experience of representing victims of mass wrongs that there is probably a sweet spot in that respect. I cite what the Equality and Human Rights Commission has said, which could not be clearer: core participants must have meaningful, not illusory, participation. That cannot happen if they are represented only by the inquiry team, because, inevitably—
I am sorry—can they not represent themselves?
My answer would be no, because in every public inquiry that I have been involved in, the evidence has been deep, dense and complicated.
Would the chair ask them unfair questions? Surely the chair should adapt the questions to what the participant can deal with.
The core participants have a statutory right to make opening and closing statements, to consider documents in advance and to suggest lines of questioning, and all of that requires legal representation.
But we are considering changing the statutory requirements, so none of that is fixed.
I would say that those are the bare minimum levels of participation that participants should have. If the committee’s inquiry was to recommend that those rights should be cut and if the Parliament was to enact primary legislation that removed them from the Inquiries Act 2005, that would be a sad day and a retrograde step for a Parliament that is famed for being progressive, inclusive and following what the Equality and Human Rights Commission says. It would be a sad day if the committee was to make such recommendations.
You say that participants should be properly heard, and I agree with that, but I get constituents who, if I let them, would speak to me for five hours on their housing needs, their medical needs or whatever. I just do not have that time, and I have to restrict the time that they have to speak to me. I get the main points, they get a bit longer to explain the situation and then I have to draw the discussion to a close. A general practitioner gives people eight or 10 minutes. Should there not be a bit more control, so that the participants and the lawyers do not get to speak for as long as they want to?
I am an accountant, and audits have to be done in a certain time. You do the best that you can in three months for a million pounds or whatever the cost to do that might be. Could we not go down that route?
There is perhaps a slight misunderstanding about what core participants do and what they bring to public inquiries. It is not just about giving them their day in court, to use that terrible euphemism, and allowing them to speak. Throughout the entire inquiry process, they receive the disclosure that the inquiry obtains. With their lawyers, they interrogate that. They make recommendations and offer ideas as to the direction of the inquiry’s investigation and the questions that should be asked of the plethora of other witnesses, beyond the core participants, who will be brought before the chair to give evidence under oath.
There is no better example than the UK-wide infected blood inquiry, in which Prime Ministers and former Scottish ministers were interrogated fully by the counsel to the inquiry. The level of interrogation was partly and significantly due to the involvement of the core participants, in advance, looking at the documents, working with their lawyers and putting forward lines of questioning. A core participant does not just get heard—they do much more than that.
I hear what you are saying, and I realise that that is what is happening at the moment. We are trying to explore whether there is a better or different way of doing it.
I will make two points. My answer would be no. However, I am aware that there will be a closed session after I have given evidence. I think that my no will be echoed as a resounding no by those who will be giving evidence later.
It is good for us to hear a range of evidence. I accept that.
One of your suggestions is that the victims or people who are affected should be satisfied by the inquiry or should get closure, or however you want to describe it. You have been involved in four public inquiries. Have you found that all the victims have been satisfied by the procedures?
Yes, but, to be frank, the victims of the contaminated blood scandal were satisfied only at the conclusion of the UK-wide inquiry. If I had been sitting here with only the Penrose inquiry having taken place, I would be saying that that victim group was not satisfied. That shows the stark contrast between a well-run public inquiry, where the victims are at the heart of the inquiry, and one that is not, and it shows the significant danger of taking an overly cost-based approach to the level of participation. There can be no better example when we compare and contrast those two public inquiries and the conduct of the two chairs.
Were all the victims in relation to the Queen Elizabeth university hospital and the Royal hospital for children and young people satisfied by the Scottish hospitals inquiry?
That inquiry is on-going, Mr Mason.
Okay. What about the victims in relation to the Vale of Leven hospital inquiry? Were they all satisfied?
Very much so.
Were all those in relation to the ICL Stockline inquiry satisfied?
Yes.
The police put forward the argument that public inquiries inform public debate. Is it not a problem when they go on for so long? Take the Edinburgh tram inquiry, for example. Did that end up helping the public? Did it help anyone, really?
I was not involved in the tram inquiry. I am probably as sceptical about it as many people in this room.
You and I are both victims, in a sense—
Indeed.
—although not in the same way as if we had been in the hospital. The trams cost about £500 million, so we all paid about £100 each for them, so we are victims. However, as a victim of the tram project, I do not feel particularly helped by the inquiry taking so long.
There is a difference between a victim in the sense that you have described and a victim in the other circumstances that we have discussed. We are not particularly aggrieved or distressed by the cost of the trams, or by the inquiry into the cost of the Parliament building.
I will make the point that I made in my paper about realpolitik. A minister may set up an inquiry cynically, for politically expedient reasons, as the convener said. That is where the issue lies. Should they be able to do that? They know what the costs will be. When a group of victims of a mass wrong campaign for and win a public inquiry—not for political expediency but because it is the right thing to do—they should be properly and fully represented at that inquiry and they should have the level of participation that the EHRC says that they should have.
I take your point that a major decision is made when a minister agrees to a public inquiry. It just seems that, once such a decision has been made, it is a bit of an open field. I know that you do not like the term “blank cheque”. However, I asked one of the previous witnesses, Lord Hardie, what he would do if we gave him £5 million for two years and asked him to give us the best result he could in that time. He said that he would not do it. Others have said that they would. Would you agree with him?
It comes back to comparing and contrasting the Stockline inquiry with the Covid-19 inquiry. The figure of £5 million would certainly not be enough for the Covid-19 inquiry.
For the trams, it might have been.
I would like to think so, but I question whether a public inquiry should ever have been set up in relation to the trams, given the cost that we all knew it would involve. I question whether there should ever have been a public inquiry into the cost of this building. I question there ever being public inquiries unless there is a real lack of public confidence and there are real victims of real wrongs. That is when there should be public inquiries, and, when such inquiries happen, they should be properly run and fully funded.
That was a helpful comment.
For the record, I am representing former NHS Tayside patients in the Eljamel inquiry.
I apologise for interrupting, but you have just brought to mind an excellent point that is not in my paper.
Thompsons represents a relatively small number of victims of Eljamel. We, along with another firm, applied for core participant status in the inquiry and for funding at public expense. The other firm had 10 times as many clients. Lord Weir, probably correctly, made the decision to knock us back and allow only one group to be legally represented and to serve as core participants in the inquiry, which again shows that a good chair can control the funding and say no. Apologies again for interrupting.
That is helpful. I was aware of that circumstance, but thank you for raising it, Mr McGuire.
Witnesses who have attended the committee have put it to us that one of the reasons for the increasing demand for public inquiries is because of the failure of some public services. I think that it was John Campbell KC who said to us that inquiries are a convenient way for politicians to say, “Well, it’s not on our desk now—it’s off to a public inquiry.” Do you agree that the reason for the increase is that there is evidence that more of the public services, particularly in health, are not functioning as well as they should be?
Yes. It strikes me as almost self-evident that, because there have now been so many issues that require public inquiries, it must be the case that things are not being run as they should be. We can reflect on some of the decades-long failures and cover-ups, such as with the infected blood inquiry, but that is probably a different matter.
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That is certainly the case for the patients I am representing, because the issue has been going on for a very long time. However, as we try to move forward to make sure that the public inquiries that happen are as effective as possible, is there anything that we can do to understand that some of the inquiries would not be necessary if we could solve the problems that exist in the way that public services operate? Is that a difficult thing to do? Is it possible?
Again, it is self-evident that, if public services were to be run better and there were to be fewer scandals—let us pray for none—there would be no need for these types of public inquiries.
My concern is that, when public services have not been functioning as well as they should have been, particularly when that is over a long period of time, the trust of the victims and people who will be involved in a public inquiry will be diminished. They will feel a complete lack of trust, which makes it difficult for the public inquiry to try to regain that trust. For a public inquiry to work well, it is essential that the victims have trust in the process. If that trust has already been diminished because they feel that they have been let down badly by public services, it is difficult to get it back.
I completely agree. However, I have witnessed chairs of public inquiries win that trust back. It is possible, but it is difficult. To return to my point about trams and hospital buildings, when the first draft terms of reference were prepared for both the Vale of Leven hospital inquiry and the Scottish hospitals inquiry, I made strong submissions to the effect that they read more like inquiries into the bricks and mortar and the buildings than inquiries into significant failures in the NHS. The draft terms did not have the victims at their heart. Those terms of reference were significantly redrafted and the language of victims and patients being at the heart of the inquiry was placed into them. That made a significant difference to the mindset of the people I represent at the inquiry.
There seems to be a growing number of public inquiries in which it is a likely possibility that the terms of reference will have to be modified or expanded because of the fact that new information comes out through various victim statements. If victims feel that, over a long period of time, they have been undermined in the way that their cases have been approached, it is important that the terms of reference can reflect their interests as well as those of the Government minister who set up the public inquiry. Is that something that you are concerned about?
I would not say that I am concerned. If terms of reference need to be changed for the reasons that you have highlighted, they should absolutely be changed, and that should not be seen as a criticism of the chair—or anyone else, for that matter. There is an absolute need for the terms of reference to be as you have described, which is wide and covering the areas that the victims are concerned about. If the terms of reference do not cover those types of matters, the inquiry will be lacking.
To an extent, the UK-wide infected blood inquiry, the Scottish hospitals inquiry and, effectively, the Eljamel inquiry all, within their terms of reference, look at the extent to which there was a cover-up. It can make an enormous difference to the confidence of the core participants to have something like that in a public inquiry, whereby we are ultimately saying that it was the state that got it so badly wrong and that there were decades of things not being looked at.
My final point is that there are some circumstances where the terms of reference are bound by legislation in Scotland, but, in relation to some cases—I refer again to the Eljamel inquiry—there are circumstances within UK jurisdiction that are important with regard to exposing some of the details. Do you have any views about how, in such circumstances, the Scottish and UK Governments should liaise to ensure that all the points, whether they are devolved or reserved, can be brought together?
It is certainly possible to do that, and it should be done, if at all possible. Lord Gill’s inquiry into the ICL Stockline explosion was the first and, I think, the only public inquiry to have been set up by both Westminster and Holyrood. There was good liaison on that, and it was, effectively, a UK-wide inquiry that was held in Scotland. I think that the mechanism was simply that Westminster basically gave permission for Holyrood to set up the inquiry and look at everything, and it flowed from there. That allowed a much deeper interrogation of the issues than would otherwise have been the case. There are other benefits of such an approach. For example, there has been significant liaison between the overlapping Covid inquiries, and any evidence that has been heard by the UK inquiry automatically falls into the evidence for the Scottish inquiry, which saves costs.
That approach is important, so that nothing is kept under cover because of constitutional arrangements.
Thank you for your evidence so far, Mr McGuire. I put on record my involvement in the Eljamel inquiry, as a representative of one of the victims.
You mentioned different categories of inquiry—a bricks-and-mortar inquiry, a service-failure inquiry and so on. Would something approaching a standardised model of operation for an inquiry help with the setting up of inquiries and address your concerns about the initial drafting of the terms of reference requiring significant amendment?
I can see the benefit of that and of making greater guidance on those types of things available from the outset to the minister who is setting up the inquiry and the civil servants who are drafting the terms of reference. There should also be liaison between the minister and the recognised victims, while the terms of reference are in draft form. That has made a significant difference—I say “has made” because things have moved in that respect since the Stockline inquiry said, “There are the terms of reference, and there will be no more discussion.” That was also the approach that was taken in the Vale of Leven hospital inquiry, although, luckily, those terms of reference were quite wide reaching, and, of course, Penrose was Penrose.
However, if we fast-forward to the Queen Elizabeth hospital inquiry, the Eljamel inquiry—Mr Marra can confirm what I am about to say—the UK-wide infected blood inquiry and the Scottish Covid-19 inquiry, we can see that, in those cases, there was a degree of discussion and interaction around what the terms of reference should be. Providing victims with that level of input at that early stage goes a long way towards building confidence in the inquiry.
From your evidence, it is clear that your practice is focused on that kind of interaction with victims, particularly in relation to cases of service failure.
You mentioned bricks-and-mortar inquiries. Are there other categories that you can think of into which any of the current public inquiries and the plethora of public inquiries that we have had over the past decade might fall?
I do not know how you would categorise the Covid inquiry, to be honest. There is clearly a victim aspect. I know that the care home relatives and core participants are here and were very much victims of the harsh lock-out approach that was taken with regard to care homes. However, there are aspects of that inquiry that are far-reaching in terms of their impact on health and safety, so I do not know how you would categorise it.
That is fair. Could I venture a slight categorisation of that, in relation to the need for quick lessons to be learned? We are told that we are still highly vulnerable to another pandemic, but, as the convener referenced, the inquiries will roll on for years and years. Setting the expense issue to the side, I worry that we will not learn the lessons in time to do something differently. Is that not a concern? We have talked a lot about money, but is the issue not how long it takes for all such inquiries to have an impact on people?
I recognise the high-level point that we want an inquiry to conclude as quickly as possible, but that has to be done in the context of all the evidence being brought to ensure that all the lessons are learned. It is difficult, and every chair recognises that problem.
We get closer to an answer to your point through, as the convener said, regular interim reports, which are how we square that circle. We invited the chair of the Scottish Covid-19 inquiry to issue an interim report on an aspect of the care home experience. There was a hearing on it—it was finely balanced, but he ultimately decided that it was not quite the appropriate time to issue such a report. It is what it is, but interim reports go a long way to squaring the circle that you identified.
That is useful.
My closing point is that you have set quite a lot of store in your evidence about people campaigning for justice through the process and winning a public inquiry. That involves gaining impetus for change and justice, but we see a pattern in which recommendations are forthcoming many years after the initial events when some of that impetus has perhaps dissipated, because Governments face no real pressure to follow through and deliver on the recommendations that have been made. Do you worry about the lack of implementation of recommendations, and are the delay in time and the dissipation of impetus part of the problem?
I worry about the ability of both Governments to accept or implement recommendations. I absolutely have concerns about that, and I have offered one view on how that might be approached.
The length of time might be a factor, but the level of public interest in and scrutiny of the publication of the infected blood inquiry, and the full-throated apology by the then Prime Minister, shows that it can be done. Interest can reignite, so time does not prohibit interest and implementation.
Thank you.
Earlier, we talked about the fact that there is no formal mechanism to ensure that public inquiry recommendations are implemented promptly or at all, whereas the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 sets out a requirement that those to whom fatal accident inquiry recommendations are directed must provide a response to an FAI determination within eight weeks.
Does such a time period sound reasonably sensible for public inquiries? Advocates said that it would take several months, but they did not specifically define the period length.
Yes, something like that would be very helpful. To declare an interest, I assisted Patricia Ferguson in drafting her competing bill on fatal accident inquiries that was before the Parliament at the same time as the one that is now on the statute book. Ms Ferguson’s bill went further than that because it imposed a criminal offence in the event that an FAI recommendation was not implemented without proper explanation.
I am not sure that we want to haul the First Minister before the courts, but the law certainly needs to have as much teeth as possible. I suspect that the equivalent would be a committee and then the full Parliament saying, “Explain yourself.”
Interestingly, Professor Cameron, who was involved in the Jersey child abuse inquiry, was the first witness in this inquiry of ours. He said that the public inquiries team should do what the Jersey inquiry team did, which is to revisit the situation a year or two after the inquiry’s conclusion to see what had been done on the ground.
12:00I want to ask you about the threat of a public inquiry. If, for example, the NHS or Police Scotland—or whoever might become subject to an inquiry—finds out that there has been a miscarriage of justice or an alleged miscarriage of justice, they would not just sit there staring into the headlights, waiting for the public inquiry to run them over. They will look at their systems as soon as they find out and say, “What did we do wrong? What can we change? What can we improve?” They might find that people need disciplinary action to be taken against them. Do you think that the threat of an inquiry has the impact of changing the activities of organisations?
I do, yes. That is a very good point.
On an inquiry team revisiting a year later, I suppose that it is a bit like what Sir Brian Langstaff did in relation to the infected blood inquiry, which I described earlier. By statute, when an inquiry’s report is published, that is it. Generally, the chair says that he has fulfilled the terms of his reference and he is gone. Sir Brian had concerns, and therefore he did not do that. One wonders whether, if we are going to change primary legislation at all, we should change that bit about when an inquiry closes. Perhaps the statute should say the opposite—that after the report has been produced the inquiry will stay open for a year and hear evidence at that point on whether its recommendations have been implemented.
We are really looking at justice for victims, but, at the same time, we should ask what we can do better next time for everyone else.
Police Scotland has also suggested that “Rapid independent reviews” are done six to 12 weeks into an inquiry
“to deliver urgent lessons where speed matters most.”
We have talked about having interim reports, but Police Scotland is asking how we can restore public confidence sooner than waiting five years for something to come out. I do not know how long the Emma Caldwell inquiry will take, but, as I said earlier, the Sheku Bayoh inquiry has taken six years already and does not seem to be near a conclusion, as far as I am aware. Is Police Scotland’s suggestion reasonable?
It is not unreasonable, but I do not know, off the top of my head, how that would work in practice. Obviously, the inquiry has to consider all the evidence. Would it do that by breaking things down?
They might set out terms of reference. Police Scotland is not here today; we invited them, but they declined, unfortunately. That is one of the reasons why we are so pleased that you accepted our invitation. I mean that sincerely. It is important that we have one of the legal firms that are involved in the matter here. I really appreciate your evidence today, and I know that my colleagues do as well.
I am speculating on what Police Scotland is suggesting, but I think that it is along the lines of saying “These are the terms of reference, and over the next six to 12 weeks, this is what we are going to do straight off to try to make things better”.
Would that be—
It would not derail an inquiry as such. Our inquiry is not about whether an inquiry should or should not take place, but about how to make inquiries more efficient and effective in delivering justice and value for the taxpayer at the same time.
Would that be the affected public bodies saying, “Here is what we will do to improve things”, or would the inquiry be saying that?
I think that it would be the public bodies saying to the inquiry, within six to 12 weeks, “This is what we will do”. However, that does not preclude the inquiry taking evidence from people subsequently.
The first thing that the inquiry would do is hear from the bodies about what they propose to improve—to mark their own homework, for lack of a better phrase. I think that that is a very good idea.
The issue of marking their own homework is important. The reason why the inquiry would still take place, even in those circumstances, is to ensure that the result was not, “Okay, everything is fine—we will just move on”.
The last point that I will make is about capacity. I mentioned earlier that there are 36 senior judges, and if three of them are involved in inquiries, that will have an impact on trials. What do you think is the maximum number of inquiries that can run in Scotland at any one time without derailing the day-to-day delivery of justice in Scotland through ordinary criminal trials?
That is very difficult. One may say that we are already at capacity in that respect; however, if another tragedy comes along, we cannot say no, can we? I have read—
But that is the dichotomy, is it not? That is why I was talking earlier about opportunity costs, and why a number of other organisations and, indeed, jurisdictions—Australia, New Zealand, Canada, Sweden and Denmark, all of which we will be considering in the next two weeks—do this differently. They do not have the gold standard of a judge, because of the impact on their systems, but they are able to deliver these things in a different way.
I thought that there was a degree of irony in the suggestion that was made. I cannot remember whether it was the current Lord President or Lord Carloway; in any case, they both made the same point, as they would, which is that there are not enough judges and, in effect, we need more. However, on the suggestion that sheriffs could preside over a public inquiry, I have made it quite clear why I do not think that that is a good idea.
What can happen—and happens regularly—is that a sheriff is appointed to act up, for want of a better phrase, as a judge, which gives more capacity to the upper bench.
You have talked about bricks-and-mortar inquiries. I highlight the trams inquiry, which took nine years and cost £13.8 million, and then came out with a report running to 30,000 pages. Who read them?
Absolutely.
Should that have been led by a judge? One might argue for having a judge if there are victims involved, but is it necessary for a bricks-and-mortar inquiry?
No—I am only speaking about groups of victims. I have been quite candid in wondering whether either inquiry that we have talked about in that respect should have been set up at all, but certainly there is no need for upper-bench judges to preside over them—none at all.
Finally, you say in your submission:
“The ECHR advocate that victim groups must have active and meaningful, not illusory, participation in Inquiries.”
I think that we would certainly all agree with that, but when it comes to core participants, what capacity does an inquiry have in that respect? With the Covid inquiry, for example, how many potential victims can there be? A thousand, 10,000, 50,000 or even 100,000 people could theoretically give evidence about the death of a loved one; there will be a lot of overlap and duplication in what they are saying, but they will be giving their own stories. Should there be a limit on that capacity, or can just anyone who wants to be a core participant become one? Obviously, having thousands of people give evidence will not necessarily add to the quality of what is happening. It will just delay things, and cost more.
I suppose that you do not want to say to one person, “You can come to court” and to another, “But you can’t”. However, perhaps you should, if, at the end of the day, they are not saying anything different from what others are saying and if the inquiry is on that sort of scale.
Sure, and on one level, I do not disagree. However, that is down to the discretion of the judge, and you would hope that he would exercise that discretion sensibly, so that, as you have said, a group on the periphery of the issue that was being explored, who were perhaps not true victims—if that is not an inappropriate way of phrasing it—might not be granted core participant status.
I highlight my earlier point about Lord Weir’s approach in the Eljamel inquiry. As I have said, I think that he made the right decision in rejecting my smaller group’s application for core participant status and, as a result, our application to be funded at public expense. That is not to say that I did anything wrong by making the application, but he weighed it up and said, “This is how I propose to make best use of the public purse.” That sort of thing can, and does, happen.
My mother had dementia, but you could have a conversation with her, and she was still doing sudoku and reading the papers every day. Then there was lockdown, and six months later, she was unable even to speak. Obviously the disease was advancing, but isolation was a factor, too.
Theoretically, then, I could give evidence to the Covid inquiry; I am not intending to, of course, but the bottom line is that we are talking about a huge number of people, and it just becomes very difficult. You get what is called in economics “diseconomies of scale”. The quality of the inquiry is at a certain level, but then you get so much information that the quality ends up going down, and all that happens is that the time for deliberation gets extended.
Not just the Covid inquiry, but all the inquiries in which I have been involved have grappled with that fairly well. It is all about making representative organisations, if you like, the core participants.
So, you have one person speaking on behalf of 50 people.
Absolutely, and not everyone who provides a written statement to the inquiry or who says that they have a story to tell will be invited to attend open court and give evidence at a hearing. Again, what tends to happen is that a representative group of people will be picked to collectively tell a story.
I know that this is a hard question, but is there an optimum number of core participants?
It depends entirely on the inquiry—
A maximum number, then.
I mean, the Stockline inquiry was so different from the Covid inquiry.
So, some might have only five, and others might have 50.
Absolutely.
I understand that, but when you get to 500 or 1,000, it becomes—
It sounds too much.
Okay. I am sorry, Michael—did you want to come in?
The convener has highlighted an event that affected all five and a half million of us in profound ways, and the issue of how to garner the information. However, we are trying to use the same process for the Covid inquiry as we are for the tragic circumstances that happened one afternoon in Kirkcaldy and which involved about 20 people. That inquiry has been going on for six years now. Are we not trying to have a one-size-fits-all legislative approach to incredibly different things, and is that not partly why we are coming up against these challenges?
I do recognise the point, but what I would say in response is, first of all, that the legislation—that is, the Inquiries (Scotland) Act 2005 and the Inquiries (Scotland) Rules 2007—is very much enabling legislation. The acts provide, to an extent, the bare bones, and they place a lot of discretion in the hands of the chair. Therefore, how the two inquiries that you have referred to are run will be down to the chair of each inquiry, based on those two pieces of enabling legislation.
Instead of the primary or the secondary legislation being changed, what might start to provide a solution is the type of guidance that we talked about earlier, and the institutional knowledge of the secretariat. I think that that would start to make a change.
Thank you very much, Mr McGuire. Before you go, do you have any final points to make, or is there anything that we have not touched on that you want to emphasise at this point? The floor is yours for the last word.
I have enjoyed the session, but there is something that I thought about only a couple of days ago, and therefore after I had made my submission. We have been on the periphery of this point for a lot of the discussion, but what happens if a campaign group is unable to convince a minister that there should be a public inquiry? At the moment, that will be it for the group, other than its continuing to campaign, which, of course, would be a fruitless exercise.
This might be judged as going against the grain of what the inquiry is looking at, but I wonder whether there should be a mechanism by which such a group is able to come to a committee of the Scottish Parliament. You might say, “Well, there’s the public petitions committee”, but I feel that there should be a properly constituted public inquiry committee, or some such thing, whereby the minister who has decided not to hold a public inquiry must set out clearly in writing why the decision has been made and the decision would be open to the scrutiny either of a committee or even the entire Parliament. That would bring more openness and candour to the process. There is now a very similar process in the fatal accident inquiry legislation that you quoted from earlier, convener. Perhaps that is a final bit of food for thought.
I am tempted to comment on that. I think that a lot of these issues are raised by members in members’ business debates and in the chamber, and ministers are put under pressure in any case. After all, inquiries are not just decided; there tends to be a build-up of pressure, with a lot of public angst, media inquiries and so on. Your point is well made, though, and it is certainly one that we will consider.
Thank you very much, Mr McGuire. Again, we greatly appreciate your taking the time to come along and give evidence—it is a really important part of the work that we are carrying out. I should say that we will continue to take evidence for the inquiry over the rest of this month and into the next, and we will be reporting on our findings not in five years, but in December.
Meeting closed at 12:14.