Chamber and committees

We should not confuse risk with probability. The minister is saying that, if we do nothing, we will have complete certainty that the money will be lost. Obviously, with legal advice, anything can be challenged. We need to separate those two points. With all due respect to Mr Ross, I ask what exact remedies he is bringing forward, given that we have this situation. We have a duty to act responsibly in this Parliament, and I am interested in hearing what remedies the Tories have.

Will the member give way?

The latest version of the ministerial code came in under the current First Minister, but I note that, of course, the need for integrity and to declare friendships was in place well before 2018. In that respect, it is of interest to the committee to understand what advice was proffered, so that we can understand the decision making at that point. I ask because one of the critical issues is the independence, or not, of public inquiries. We have talked about that quite a lot in terms of costs. There is also the matter of the influence of ministers and the Government, which is an important part of maintaining trust. Therefore, any further information about the advice that was proffered would be appreciated.

I just want to pick up on one point. I do not disagree with what you have said in this respect, Deputy First Minister. I simply make this point: how can it be possible that we credit judges, who are incredibly learned in their field, with having the type of programme management skills and experience that are needed? That does not seem to be fair to them.

You made a comment earlier, which has just jumped into my head, about the issue of change control. I have been a programme manager, and there is no walk of life other than inquiries where we set someone loose with an unlimited budget and without support. We do not even have processes yet whereby we have a fixed project management office that can assist and guide these things. That is ultimately quite unfair to judges, when we look at their skill set, and it is inconceivable that that would happen in any other type of project. It just seems ridiculous.

That is all good, but the power ultimately resides with the chair, who signs off on the budget. That brings me back full circle to my opening remarks. The chair is not accountable to anybody. The secretariat that you mentioned is accountable to the chair and—I assume—to Government. That is the critical issue.

I want to talk a little more about the perception of bias. We would all agree that it was unfortunate that Lord Bracadale met Sheku Bayoh’s family five times in secret and that that led to the threat of legal action by the chief constable of Police Scotland, the threat of a judicial review by the Scottish Police Federation and, ultimately, Lord Bracadale’s resignation. His actions led to the perception of bias, whether or not that was the case, so I was surprised that the First Minister recently met Sheku Bayoh’s family but not the police officer Nicole Short, who was punched and stamped on the back of the head by, from her perspective, a man high on drugs who was wielding a knife, which left her permanently disabled and unable to work again.

I make no comment on the details of the case, but I would appreciate the Deputy First Minister’s thoughts on how the First Minister’s meeting could lead to the perception of bias, regardless of whether that is the case, especially on top of the perception of bias with Lord Bracadale.

Thank you for that answer—I do not disagree.

In the letter that you wrote to us on 30 May, you reiterated the alternatives to public inquiries could take place over

“shorter timescales and/or at less overall cost than public inquiries.”

You added:

“Such considerations would be part of a decision-making process, alongside other relevant factors.”

Given that, will you walk us through the decision-making process as to why the Sheku Bayoh inquiry should continue in its current form? Who made that decision and why? What assessment have you made about the cost, given that it has cost the public purse £26.2 million in direct costs thus far?

That is correct, but, again, there is the circular aspect, whereby, if we are emphasising the independence of the inquiry, it is incumbent on ministers to be very careful about any perception of bias. That is the point that I am making.

On ethics, one of the long-standing Nolan principles underpinning ministerial office is integrity. Ministers

“should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends.”

So, I was pleased to note that, in March 2024, the former First Minister Humza Yousaf declared an interest in his friendship with Aamer Anwar, the campaigning lawyer, who has a key role and a critical beneficiary interest in the Scottish Covid inquiry. I will put on the record what he said:

“I have a friendship with Aamer Anwar, who is representing Scotland’s Covid bereaved in the UK and Scottish inquiries”.

As you point out, Deputy First Minister, Mr Yousaf was Cabinet Secretary for Justice from 2018 to 2021, and the Sheku Bayoh inquiry was announced in 2019, with Mr Anwar, the campaigning lawyer, being a beneficiary of significant public funds. Mr Yousaf subsequently became First Minister in 2023, and the Emma Caldwell inquiry was announced the same year, with Mr Anwar, the campaigning lawyer, again being a beneficiary of public funds. Therefore, my question is this: if there was an ethical requirement to put the friendship on the ministerial record for the Covid inquiry in March 2024, why was there no requirement to do so in 2019 and 2023?

Good morning, and thank you for joining us for this part of our inquiry. I welcome your interest.

I want to ask some more questions about cost, governance and ethics. If I refer to specific inquiries, it is because they form the most useful examples—I am very clear about the scope of our inquiry.

You have already referenced section 17 of the Inquiries Act 2005, particularly in relation to the need to avoid any unnecessary cost to public funds. However, my concern is that there is surely a fundamental conflict of interest in that provision, in that the chair is responsible for controlling the costs but is also the person who authorises spending. By any measure, there is a lack of independent oversight and the accountability mechanisms are weak—you have recognised that inquiries have a demand-led budget and that the most that you can hope for is to have sight of costs. There is considerable ambiguity around the meaning of what would be an “unnecessary” cost, and, of course, that ultimately comes down to the chair’s judgment. The risk of scope creep is also a major concern.

Do you agree that the 2005 act needs reform? What are your ideas for resolving the tension between the chair’s independence and the need to improve accountability in relation to funding? That seems to be quite critical.

That is the line that has been taken by a variety of witnesses. However, I refer back to the convener’s comment about how other countries manage to do inquiries. There are precedents that we can consider. There are countries where the public has a high degree of trust in inquiries, which are considered to be authentic, and there is cost control. If other countries such as Sweden can do it, why can we not do it in Scotland and the UK?