Meeting of the Parliament

Meeting date: Tuesday, December 18, 2018

Official Report 1136KB pdf

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Conduct of Reviews and Inquiries

The next item of business is a statement from Humza Yousaf on the conduct of reviews and inquiries. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

15:06  

As a Government and as a society, we are all committed to ensuring delivery of public services that treat all people with kindness, dignity and compassion, that respect the rule of law and individual rights, and that act in an open and transparent way.

When something goes wrong in the delivery of public services, actions should be taken as close to the point of delivery as possible, with the opportunity for errors to be acknowledged, action to be taken and lessons to be learned promptly.

In a small number of instances, however, whether because of the scale of the harm that has been caused or the wider lessons to be learned, the issues that are raised can be addressed appropriately only through the initiation of a statutory public inquiry or a focused review. Such inquiries and reviews place significant demands on the individuals who have been affected and the organisations that are involved, and they should not be considered or progressed without careful consideration and planning.

As Cabinet Secretary for Justice, I therefore warmly welcome the work of Professor Alison Britton of Glasgow Caledonian University, who was commissioned by the then Cabinet Secretary for Health and Wellbeing to conduct a review of the process of establishing, managing and supporting independent inquiries and reviews in Scotland. I and my fellow ministers thank and pay tribute to Professor Britton and her team for their efforts and for giving of their time to produce a thorough, detailed and informative report that will assist in informing future decisions about when to consider a formal inquiry or review, and how they are commissioned and conducted.

The report makes a number of valuable recommendations and, in particular, is helpful in emphasising the importance of thinking carefully in the critical early days when a review is a possibility, in order to ensure that the right questions are being asked. What type of review or inquiry? How is the chair to be chosen? Is the remit being drawn with sufficient precision?

Professor Britton was, of course, invited to undertake the review as a result of concerns that were expressed about the process of the independent review of transvaginal mesh implants that reported in March 2017. Although Professor Britton has rightly highlighted the mis-steps that were taken during that review, it is important to make three things clear. First, although I wish in no sense to minimise where the mesh review went wrong, it is only fair to point out that Professor Britton’s conclusion was this:

“we were satisfied that no one involved in the Mesh Review was acting in bad faith. On the contrary, public citizenship and sense of duty were the main factors in volunteering to be part of the Mesh Review.”

Secondly, it is important to remember that Professor Britton’s review did not re-examine the evidence that was looked at by the mesh review, nor did it reconsider its findings. Indeed, Professor Britton noted:

“We found no evidence to support the claim that evidence was deliberately concealed.”

The statistical evidence that was considered by the mesh review was published in the internationally recognised medical journal The Lancet in December 2016 and, as such, the chief medical officer accepted the mesh review’s recommendations at the time of the publication of the final report.

Thirdly, it is important to recognise that the majority of reviews and inquiries are conducted carefully, officially and in a manner that commands public confidence. I say that with two current public inquiries in mind: the Scottish child abuse inquiry and the inquiry into the Edinburgh trams project. I wish to be abundantly clear that nothing within Professor Britton’s report casts any doubt on the work of any other reviews or inquiries, and that the response to the report will not in any way delay or have an impact on the work of the statutory inquiries that are under way.

Before commenting further on Professor Britton’s review—and being mindful of the fact that it was prompted by what happened during the mesh review—I say that I am deeply sorry that the suffering of the women who have been affected by mesh has been compounded by what went wrong with the process of the review. Members will be aware that, in September, the Cabinet Secretary for Health and Sport announced a temporary halt to all transvaginal mesh procedures. That temporary halt will be lifted only when a restricted-use protocol is developed and in place. It will be informed by new evidence-based guidelines from the National Institute for Health and Care Excellence and it will ensure that, in the future, transvaginal mesh will be used only in the most limited of circumstances, subject to rigorous process.

Both the Cabinet Secretary for Health and Sport and I hope that that action, which goes beyond that which has been taken elsewhere, gives reassurance that the Government treats the issue with the utmost importance, and that it goes some way towards addressing the disappointment that was felt after the mesh review.

I will not address all of Professor Britton’s recommendations today, but I will touch on some of them. We are considering all the recommendations carefully, and I guarantee that the experience of the mesh review will be used to inform all such future inquiries and reviews. The Scottish Government has developed guidance that will be available to all policy teams that are undertaking considerations of calls for a review or an inquiry. The guidance covers the early consideration that I referred to a few moments ago and it addresses questions regarding the practicalities that come after the initial decision to hold a review. Does it need panel members to assist the chair? Where will suitable premises for the review be found? How will it be staffed? What information technology support is required? It includes questions around transparency, accountability and partiality. How will good governance be ensured for matters such as recording of decisions and the preservation of records for historical record?

The guidance is near to finalisation. I am happy for it to be published on the Scottish Government’s website in due course. It will also be publicised internally, so that, across Government, a more consistent approach is taken to consideration of the issues. In addition, my officials, who have drafted the guidance, are available as a source of advice and support when there is a matter of public concern that has given rise to calls for a review or an inquiry.

However, I am clear that, although we wish to achieve consistency, there is no one-size-fits-all solution. Sometimes, it is obvious that nothing less than a full public inquiry is required to restore public confidence, to get to the bottom of what has gone wrong—independently of Government—and to identify how it can be avoided in the future.

Public inquiries are not quick solutions and, as I have said, they can place significant demands on those who are affected and the organisations that are involved. Sometimes, a well-focused review reporting swiftly—albeit unhurriedly—is a preferable solution. Sometimes, there are statutory bodies whose job is independent scrutiny of a particular sector. For example, statutory inspectorates play a vital role in identifying both strengths and areas for improvement in certain key public services. That is the job that they are there to perform. Similarly, a fatal accident inquiry, conducted by a sheriff, is the right mechanism to establish the facts and learn lessons following an accident or sudden death. Of course, decisions about whether to progress a fatal accident inquiry rest with the Lord Advocate, other than in those instances where such an inquiry is mandatory.

The chair of a historical public inquiry identified the following elements of a successful inquiry: that the interested parties believe that a thorough inquiry into the issue that had caused public concern has been conducted with obvious fairness; that the final report is neither overwritten nor underresearched; that the interested parties feel that they have been given an opportunity to present their views; that the inquiry reaches conclusions that are justified by the evidence; and that the inquiry produces a report that people understand.

That summarises quite well the critical objectives of any review or inquiry. The review that was undertaken by Professor Britton is of great assistance in ensuring that those objectives will be achieved in every review and inquiry. I am determined that future inquiries and reviews learn the necessary lessons and ensure that those who have suffered harm, and the country as a whole, are confident that a fearless, independent and robust investigation has taken place.

The cabinet secretary will now take questions on the issues that were raised in his statement. I will allow around 20 minutes for that.

I thank the cabinet secretary for advance sight of his statement. The Britton report will be valuable, not least in ensuring that the right questions are asked at the outset and that parameters are clear. It is good to hear that the recommendations will be considered carefully and that guidance has been delivered.

However, I wish to focus on a particular point that the cabinet secretary made. He said, rightly, that sometimes it is obvious that nothing less than a full public inquiry is required in order to restore public confidence and, independent of Government, to get to the bottom of what has gone wrong and how it can be avoided in the future.

He was unquestionably right to say that, which is why I was surprised and—dare I say it?—troubled to receive his response to the joint letter from Willie Rennie, Daniel Johnson and me in which we called for a public inquiry into the tragic death of Craig McClelland. The cabinet secretary stated that he is

“not persuaded that a full Public Inquiry is the ... way forward”,

and he also says that

“an inquiry is first to determine the details of what happened and to make recommendations that can help prevent a similar incident happening again.”

He is absolutely right.

Surely, however, that is applicable to the McClelland case. What would it take to persuade him that it is a case in which nothing less than a full public inquiry is required in order to restore public confidence? What weight does he afford genuine cross-party calls for an inquiry? Will he reconsider that decision in order to ensure that all lessons are learned and that such tragic events can never happen again?

I thank Liam Kerr for the question and for the tone in which he asked it. There is nothing that I can do to reduce the grief that the McClelland family have faced. I have met them on three occasions to listen to their concerns, to help to assemble the information from the relevant agencies and to gain a better understanding of the circumstances of Craig’s death, while also ensuring that wider lessons are learned. I think that Liam Kerr would accept that a decision to move forward with a public inquiry, or not to do so, is a difficult one that must be taken under extremely careful consideration.

The Scottish Prison Service, Police Scotland and the Scottish Government accepted all 37 recommendations that were made by two independent inspectorate reviews, which have already examined the home detention curfew scheme, including the circumstances of James Wright’s release and subsequent breach of his HDC. I have written to the family of Craig McClelland to provide them with more information and with direct answers to the 34 questions that they asked of the SPS, Police Scotland and the Scottish Government. To add an element of independent scrutiny, I have asked HM inspectorate of prisons for Scotland and HM inspectorate of constabulary in Scotland, as part of reviewing how the recommendations are being implemented, to consider the responses and whether they raise further issues or concerns that need to be addressed.

I would address the matter in a slightly different way from Liam Kerr—by asking whether we are ensuring that lessons have been learned from what was a terrible tragedy. Two independent inspectorate reports have made 37 recommendations, all of which have been accepted. That will lead to changes in the HDC regime, some of which Liam Kerr has been calling for for a time. After the six-month review that will take place, if the inspectorates come back to me and say that more changes need to be made and more questions need to be answered, I will be willing to have further conversations about what more can be done.

I thank the minister for his statement and Professor Britton for her very good report. I have been involved in forcing the Government to undertake three major reviews of policy—two on policing and one on transvaginal mesh. The first resulted in the police investigating the police; the second will report next year.

The mesh review has caused me most angst. It was characterised by systematic and repeated failures that are all identified by Professor Britton in her report. The review was supposed to take one year, but took three. The review’s chair resigned, as did three other panel members. It was riddled with conflicts of interests and the chairs were chosen without any consideration of the skills that were required. The review acted under direction from Scottish Government officials rather than autonomously, sub-groups were established that excluded members of the review, and agendas were directed by officials. The final report excluded important information that had been included in the draft report. Those are just some from the catalogue of errors and problems.

Professor Britton’s report is good; it exposes serious failures and proposes 46 recommendations for change. Will the Government implement all the recommendations? The Government has had the report since June, and it was published in October. How many of the recommendations will the cabinet secretary accept today? Is there any intention to revisit the mesh review?

After months since the report’s publication, today’s statement is pretty pathetic. We do not want written guidance from the Government; we want all Professor Britton’s report’s recommendations to be fully implemented. Will the cabinet secretary bring the matter back to Parliament, or will the guidance be sneaked out at some point?

Please come to a close.

It is clear that the cabinet secretary wants to shelve the recommendations and the report, but we will not let him do that.

That is not the intention. First, it would be churlish not to pay credit to the work that Neil Findlay has done on the plight of the women who have suffered due to transvaginal mesh issues. However, he is incorrect: I will try to explain the reasons why.

I said very clearly that we would publish the guidance on the Scottish Government’s website. I can make sure that Neil Findlay gets a link to it when it is published.

The member asked whether we will accept all the recommendations. We will accept the vast majority. There are at least a couple of recommendations with which I take issue, but I would be happy to have a discussion with him—or, indeed, Parliament—about that. The recommendations with which I take issue will be obvious from the guidelines. For example, there is a recommendation about having in the Scottish Government a centralised unit for directing inquiries. My and the Scottish Government’s view is that from a logistical and governance point of view, that is better done in portfolio areas, so, for example, the health portfolio would take the lead on transvaginal mesh, the justice portfolio would take the lead on justice-related inquiries and so on.

I absolutely accept the vast majority of the recommendations, but I am giving further consideration to a few others. Once the guidance is published and Neil Findlay has the link to it, if he or the rest of the Opposition have more questions, I will of course be open to having those discussions. Many of the review recommendations, certainly the central ones, make a lot of sense to me, especially those on impartiality of members and there being more transparency about remits and terms of reference.

The transvaginal mesh review is a matter for the health secretary, but the Government will not rerun that review. There are a few reasons for that, including the fact that the process has been looked at by Professor Britton. There was no re-examination of the evidence, and its findings are in line with findings from England, Australia and the European Union. Further, the health secretary has introduced an effective temporary ban on transvaginal mesh procedures until a restricted-use protocol is in place. That is an important outcome, which should be welcomed by members from across the chamber.

The two opening questions have taken much more time than would normally be acceptable. I allowed that because of the important and sensitive nature of the questions. However, unless other members are quick with their questions and the cabinet secretary is fairly quick with his answers, I will not be able to get everybody in.

The Britton review

“found that the Mesh Review was ill-conceived, thoughtlessly structured and poorly executed.”

It also raised concerns about the wellbeing of those who took part in the review: it said that some members left meetings crying and were “traumatised” by publication of the final review.

I appreciate that the cabinet secretary has said that he is determined that lessons will be learned, but will he advise what mechanisms will be put in place to prepare and support people who will be taking part in what could be very challenging processes?

That will be part of the guidance. The point that Alison Johnstone has raised is very important. The reason why we have public inquiries and reviews under statute is that such issues are of huge importance to people. Often, the issues are controversial and can have huge emotional impacts on people. Further consideration of the wellbeing structures that we have put in place will absolutely be part of the guidance.

On the mesh review, I go back to the point that I made to Neil Findlay. I do not wish to labour the point, but as far as outcomes are concerned, I believe that the action that the health secretary has taken will be welcomed across the chamber. The findings are in line with those of mesh reviews that have been conducted elsewhere in the world. The central point that Alison Johnstone made about the wellbeing of people who take part in reviews is absolutely critical, and is not lost on the Scottish Government.

Before lessons can truly be learned, it is necessary to understand what has gone wrong. That has not happened in the Craig McClelland case, which is why we need a public inquiry.

In his statement, the cabinet secretary referred to fatal accident inquiries. One of Professor Britton’s recommendations is about the speed of conducting inquiries. We have still not had a fatal accident inquiry into the M9 crash, and the Clutha inquiry will not happen until next April. What influence will the Britton review have on the speed of fatal accident inquiries in the future?

I disagree with Willie Rennie about the Craig McClelland case, on which there have been two independent inspectorate reviews that have made 37 recommendations. The Government has not only accepted all the recommendations, as have the SPS and Police Scotland, but; has changed the HDC process and will look at how it can further reform it. It is therefore wrong to suggest that lessons have not been learned.

Where there are further questions, Opposition and other members can, of course, come with them to me directly, to the SPS or to Police Scotland, and we will do our best to answer them. If independent scrutiny is needed, there might be roles for Her Majesty’s inspectorate of constabulary in Scotland and Her Majesty’s inspectorate of prisons for Scotland in that.

On his second question, Willie Rennie knows very well that FAIs come under the remit of the Lord Advocate. They were not specifically within the focus of Professor Britton’s report, which was about inquiries and reviews. The Government has given money to the Crown Office and Procurator Fiscal Service to help to speed up fatal accident inquiries. That issue has been raised with me—and, no doubt, with the Lord Advocate—by many members from across the chamber, so clearly there is further discussion to be had about how to speed up the many FAIs that are outstanding. Although FAIs are not directly part of the review, I continue to have conversations with the Lord Advocate on the matter.

The executive summary of the investigative review states that

“we were satisfied that no one involved in the Mesh Review was acting in bad faith”.

How can we ensure that, when conducting reviews, adopting the best of intentions results in the right outcomes?

Implement the report.

I hear Neil Findlay shouting that we should implement the report’s recommendations. He is absolutely right, and we will look to implement the vast majority of them—

All of them.

Mr Findlay, it is someone else’s question.

I hear Mr Findlay shouting again, saying that we should implement all of them. We have a genuine concern about a couple—or, as I said, perhaps even a few—of the recommendations, but we will accept the vast majority of them. If members wish to come back and ask for our reasons for not accepting all of them, I will be more than open to having such conversations.

The answer to Rona Mackay’s question lies in the Britton report and the guidance that we are developing. By following steps to ensure that the right people are appointed and that they have the right support, by drawing up remits carefully and appropriately, and by identifying conflicts and managing them at an early stage, we can ensure that reviews command public confidence. I reiterate that that is what happens in the overwhelming majority of cases but, clearly, we want every single one of our inquiries and reviews to command public confidence.

From what we have heard, it is clear that the devil will be in the detail of the recommendations. We have heard that the Scottish Government is working on guidance that will be published, and it is important that we get that right, so that the public can have confidence in the system. I want to ask about two specific points: impartiality, and putting in place the recommendation for identifying potential conflicts of interest. What work is the Government doing to take those points forward, and will the cabinet secretary share that guidance with parties before it is published?

We have been considering the report since its publication, and the answers will be in the guidelines. I have looked at the report in great detail and its points about impartiality and conflicts of interest are well made. We are giving serious consideration to those points, and I think that they will leave us in a better place when it comes to the conduct of inquiries and reviews in the future.

I am very clear that the points about impartiality and the potential for conflicts of interest, which are related to public confidence, will be dealt with explicitly in the guidelines that we produce. Thereafter, if Miles Briggs wishes to have further conversations with me, he can. The Government believes that Professor Britton’s important points, which Mr Briggs has reiterated, will help us to make the process for inquiries and reviews better, more robust, more transparent and more accountable in the future.

I have to say that neither the questions nor the answers are any shorter or snappier than usual.

As the cabinet secretary knows, reviews often involve personal tragedies. How can we ensure that reviews are always realistic about what they can achieve, so that those who have experienced life-changing events can also have clarity on what reviews can achieve?

That is a really important point. We do not want to raise unrealistic expectations. Professor Britton’s report touches on the fact that it is incumbent on all of us—politicians, people in the media and others—to temper people’s expectations, because they will often relate to controversial issues that carry a huge emotional impact for individuals.

However, we must be absolutely robust when it comes to the transparency, independence and fearless nature of inquiries and reviews. Of course, that does not mean that all stakeholders will like the answers that emerge from inquiries or reviews. Self-evidently, a review cannot heal a loss, but when there has been a tragedy, it is right that we seek to find out the truth of the matter. The fact that reviews and inquiries are not there to allocate criminal or civil blame, or to hold people to account, is a point that perhaps needs to be made clearer from the outset.

The attempt by the justice secretary, a week before Christmas, to dismiss calls for a public inquiry into the failures that led to the murder of Craig McLelland is as shameful as it is insensitive. Two reviews have indicated that there were 37 failures, but they have not answered Craig’s family’s most important question about why those failures were allowed to happen. Why were they allowed to happen?

Given that the cabinet secretary has been unable to answer that question—we simply do not know—why does he continue to ignore the calls of Craig’s family and a majority of parties in the chamber for a full inquiry?

It is extremely disappointing that Neil Bibby has chosen to politicise and characterise the issue—we are talking about a death—in the way that he has. I find that not just shameful, but incredibly upsetting.

I have met the family on three occasions. [Interruption.] They wrote to me with 34 questions—

Mr Bibby, would you stop shouting from a sedentary position, please?

The family wrote to me, the Scottish Prison Service and Police Scotland with 34 questions. Responses to those questions have been given to the family. To provide an additional level of independence, I have asked HMICS and HMIPS to look over those responses. If, in the six-month review that they are carrying out, those answers raise further issues that must be looked at, the Government will be open to looking at what those further issues might be.

Of course the questions that we are considering are difficult to answer. The decision that I have taken bears no weight at all when it comes to the grief that the McClelland family have suffered. I do not take that away. [Interruption.] Mr Bibby can shout from a sedentary position all he wants, but he should recognise that—

Mr Bibby, would you kindly stop being so rude and let the cabinet secretary finish his answer?

I finish on the point that Professor Britton’s report suggests that politicians and the media should be careful not to fuel unreal expectations when it comes to inquiries and reviews. I say to Neil Bibby that the politicisation of this issue is completely wrong-headed.

The investigative review says that media involvement, among other things, can often create “pressure or emotional stress” for members of a review. What lessons can be learned about how to manage that inevitable feature of prominent reports in the future?

A key learning point is that there should be consideration of whether the subject matter is likely to give rise to a strong media interest. In most cases, when an inquiry or a review is held, there will be an intense amount of media and indeed political scrutiny. In such cases, as Professor Britton recommends, support, advice and perhaps even media training should be made available to the chair and the panel members as required. However, I go back to Alison Johnstone’s point and note that it is important that appropriate support and wellbeing structures are in place for those who take part.

I can allow one more question. I call Gordon Lindhurst.

Willie Rennie mentioned the length of inquiries. Thinking of the Edinburgh trams inquiry, my question to the minister is this: will consideration be given to setting in advance of inquiries being conducted the length of time that will be allowed and the budget that will be spent?

To clarify, I make the point to Gordon Lindhurst that Willie Rennie was asking about fatal accident inquiries. It is really important that we do not conflate fatal accident inquiries with inquiries and reviews.

I will not go into the specific example of the Edinburgh trams inquiry, but it is important to note that the report that we are discussing stresses the importance of transparency and accountability around inquiries and reviews. If a Government minister was to limit the budget or the time for an inquiry, questions would arise as to whether it was being rushed or limited and whether the Government was interfering unnecessarily.

In the trams inquiry, as the member knows, there were literally millions of documents—6 million, if I remember correctly. If the minister or cabinet secretary who made the decision had limited the time or the budget for the trams inquiry, it might not have been able to examine and explore those 6 million documents in the required detail.

I understand Gordon Lindhurst’s point, which comes from a good place, I think, and a desire to get to the truth and get answers as quickly as we can, but I would have concerns about limitations because they could cause inquiries or reviews to be rushed.

That concludes the ministerial statement on the conduct of reviews and inquiries. I am sorry that I was unable to call Stewart Stevenson, Daniel Johnson and Tom Arthur. Perhaps all members will consider the time that they take to ask questions and give answers.