Chamber and committees

Absolutely. I had hoped that, in answering the committee’s questions today, I would give a very strong sense of my appetite to read your recommendations and to take action as a result. I have tried quite hard not to be too defensive—whether that has worked or not is for you to determine—as though we are set in the ways that we have always done things, because I think that there is certainly room for us to learn from the committee’s review.

All of that is done by the chair. There is probably little value in my responding to that question—

I think that you do them a disservice if you do not recognise some of the costs to them. For some of them in particular, the added dimension of public scrutiny that comes with an inquiry is challenging. It speaks to the challenges that we have across the public sector these days in recruiting good people because of the difficulties that are inherent in a very visible role like that.

Chairs are extremely well supported by secretariats. When I engage with a chair, I am engaging with the chair and the secretariat—I do not think that saying “chair and chief executive” would be particularly accurate, but there is an important role for the secretariat. You are absolutely right that chairs are largely in the chair, convening and managing, but they are extremely well supported by their secretariat, and the relationship between the secretariat and the sponsor team is extremely strong. That is probably the strongest link, unless Don McGillivray tells me otherwise, between Government and the public inquiry.

No. I thank you very much, as always, for your broad questions, for your unexpected questions and for the manner in which you ask them.

Thank you, convener, for the opportunity to give evidence today. The committees always hold interesting evidence sessions, but I have followed this one with particular interest in the past few weeks, because the issue is really important.

The committee will know that public inquiries play a vital role in establishing what has happened, restoring public trust and recommending improvements. However—I know that this has been a theme of your inquiry—they also need to deliver value for money, and I welcome the committee’s consideration of how best to achieve that.

Decisions to hold public inquiries are never taken lightly. We always consider alternatives, such as non-statutory reviews, independent panels or other mechanisms that might be quicker, more flexible and less costly. Those options are then carefully assessed in light of the circumstances of each case, and as part of that we try to engage directly with affected parties, such as victims and survivors, to understand their perspective.

The legal framework for public inquiries is set by the United Kingdom Inquiries Act 2005 and the Inquiries (Scotland) Rules 2007. Under the 2005 act, ministers are required to meet the costs of holding inquiries and chairs have a duty to avoid unnecessary costs. The costs of an inquiry are largely shaped by the independent chair’s decisions on how it should be run, but the scope and remit that are established by ministers set the parameters in which those decisions are made. The terms of reference that are agreed at the outset is the key lever that ministers have to ensure that an inquiry is cost effective and that it delivers timely outcomes. We need to strike a careful balance at that point, by offering clear direction but not compromising the inquiry’s independence.

I know that the committee heard calls for indicative timescales to be set for inquiries, and setting expectations for duration could be one way of reassuring those affected and it could help to manage public expectations. We must also be mindful of ensuring that inquiries have the time that they need to investigate thoroughly and to follow up on evidence that emerges.

Once an inquiry is established, it is completely independent of ministers. A sponsor team in the Scottish Government provides the budget for the inquiry and maintains regular contact with the inquiry team. We have also produced guidance to support the establishment and operation of inquiries that sets out ways of delivering value for money on aspects such as procuring information technology and agreeing leases, although those are ultimately operational decisions for the chair.

Every public inquiry incurs unavoidable costs, including staffing, accommodation, legal services and engagement, but decisions on those matters are taken by the chair. Other drivers of cost are more challenging to predict, such as the length of time that is taken to gather evidence, the number of hearings and the complexity of drafting reports. Some inquiries require the provision of trauma-informed support for victims, witnesses and inquiry staff. As the committee has heard during evidence, inquiries can also generate costs for other public bodies and core participants.

Under the 2005 act, there is no fixed mechanism for monitoring the implementation of recommendations made by inquiries, but our practice is to publish a response to the inquiry’s final report, setting out which recommendations are being accepted. A team in the Government is then responsible for overseeing the delivery of those recommendations. When recommendations are directed at a public body, it is also normal for that body to respond to those recommendations.

Public inquiries are specifically designed to support an independent, thorough and trusted investigation of the facts. I recognise, however, that there might be tensions between building confidence that an inquiry has the necessary time to conduct a thorough investigation and follow evidence where it might lead and delivering value for money. We must therefore strike a careful balance, offering clear direction without compromising the inquiry’s independence. I am interested in the committee’s conclusions on getting right that balance.

The committee will also be aware of the Public Office (Accountability) Bill, which seeks to strengthen transparency, frankness and candour obligations in public inquiries. The reforms aim to ensure that inquiries, whether statutory or non-statutory, are supported by clear duties on public bodies to provide full and accurate information, while giving chairs additional powers to compel evidence and enforce candour without the need for a full statutory process. That could make non-statutory inquiries a more viable and cost-effective option in some cases.

The bill also gives ministers the power to extend the duty to more types of investigations. For those who do not comply with the duty, the bill sets out clear criminal sanctions. It is a UK Government bill, but we have been working constructively with the UK Government on it, and we want to work with the Cabinet Office to consider the wider policy and operational framework around inquiries, following the report on those issues from the House of Lords.

I am very happy to answer questions. I have a team of officials with me, particularly for when it comes to the detail of any specific inquiries, because not all of them sit directly under me.

As you say, the guidance was laid in Parliament on 5 August 2024, and it sets out a number of areas that the committee is interested in. My apologies if that was not brought to the committee’s attention appropriately.

On the guidance itself, it deals with complex issues. It is intended to address the tension that exists in relation to the operational independence of inquiries. You will appreciate that I engage with the chairs of public inquiries and, in my engagement, I must be really careful and clear about where the chair is fully operationally independent to make his or her own decisions.

I am very conscious of that, and I heard the evidence that the SPF gave on that issue. Often—we have all been through this—the demands for an inquiry do not just come from within Government. There is often a widespread call for an inquiry from across the parliamentary chamber and beyond. The issues that you have just identified are matters that we all need to be cognisant of when calling for an inquiry or deliberating over whether a public inquiry is the best vehicle for examining an issue. In my opening remarks, I went through some of the alternatives.

You mentioned the costs of inquiries. Costs are determined to a large extent by how an inquiry is run by an independent chair. That is why we do not set a fixed budget or a cost limit for an inquiry. You can see in a debate such as this why doing so might be attractive, but as soon as you start broaching that publicly, it undermines the thoroughness with which an inquiry might want to pursue an issue and it starts to infringe on its independence.

In terms of the opportunity costs for public bodies, I saw the evidence that NHS Scotland gave to you. It is for public bodies to determine whether to apply to be core participants in some cases and the extent of legal representation that is required, so there are some areas that are for public bodies to determine. However, I disagree with you in the sense that the costs are not just for the inquiry itself; they include those of other public bodies that might be involved.

We are in the midst of a budget process. I am engaging with the Cabinet Secretary for Finance and Local Government on what level of budget I believe that I will need for inquiries. However, those budgets are entirely demand led. That means that, although there may be forecasts at this point in proceedings, those forecasts will inevitably be revised. Sometimes, they will also be revised in terms of an inquiry’s length—that is, how many more years an inquiry might last. It is, therefore, not just about the annual cost but about how long the cost lasts for a public body.

I have spent a lot of time with folks to understand the limits on what I can do as a minister. I have had to go through that process because there have been calls for changes to an inquiry’s terms of reference and concerns about costs, so I am very conscious of the limitations within which I operate, given that the legislation is fixed.

We could go through the process of changing the legislation. If there was an appetite in the Parliament to make fundamental changes, particularly off the back of the committee’s recommendations, I think that the Government would be open to considering such changes. That would need to be done on a cross-party basis. There is scope for changing the legislation, but primary legislation would be needed.

I will make one quick point on transparency, and I will then ask Don McGillivray to come in.

Transparency is an iterative process between us and the inquiry. I have talked about the process of budget setting. We push hard to have comprehensive forecasts and to be informed as quickly as possible if there are any changes, so that we can manage our budgets in light of that.