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Our second agenda item is consideration of evidence on the cost effectiveness of Scottish public inquiries. I welcome to the meeting Stephen McGowan, deputy Crown Agent, litigation, Crown Office and Procurator Fiscal Service, and David Kennedy, general secretary, Scottish Police Federation. We already have your written submissions, so we will move straight to questions.
Mr Kennedy, I have to say that you provided a hard-hitting submission, which was refreshingly direct about the issues that the committee is addressing. In it, you say that you want to
“raise concerns regarding the escalating and unsustainable burden that public inquiries are placing on policing in Scotland”
and that the
“current situation is critical.”
You mention the six major public inquiries that are on-going in Scotland—those on Sheku Bayoh, Emma Caldwell, Scottish child abuse, Scottish hospitals, Covid-19 in Scotland, and Mr Eljamel’s practices in NHS Tayside’s area—and you say that,
“collectively, they represent a crippling financial and operational burden on a service already facing the most acute resourcing crisis in over a decade.”
I could continue in that vein, but I am quite keen that you should have an opportunity to speak directly on the record.
The amount of pressure that public inquiries place on the police service’s resources—through the sheer number of tasks required of it—is quite extraordinary. I have been in the federation for nearly 20 years and, since taking up my post, I have never seen budget being set aside for the police service to work on such inquiries. Since 2013, the police service in Scotland has lost money from its budget, and the reforms that have taken place have had a knock-on effect.
Let me give an example. The cost to the police of working on the Sheku Bayoh inquiry currently sits at £25 million. Even if we take a light touch, that figure alone would give us 500 police officers. Given Police Scotland’s current resourcing levels, the costs are absolutely having a detrimental effect on policing.
The response to a recent freedom of information request made to G division in the Glasgow area, which is the biggest division in Scotland, showed that 176 rape inquiries are currently sitting with one detective inspector. He alone is in charge of those cases, as senior investigating officer. Allowing for his rest days, he will therefore be lucky if he investigates each of those cases for two days. That shows the knock-on effect that public inquiries can have on the day-to-day running of policing. We have been told that, at one point, 60 detectives were dealing with the Scottish hospitals inquiry, which illustrates the level of resource that is being used.
Seventeen officers, ranging from constables to superintendents, are currently dealing with the Sheku Bayoh inquiry. That figure covers not just the officers who are giving evidence but those who are in the background, making sure that the inquiry gets all the statements and other documentation that it requires. That shows you that a lot of money is involved. For example, the cost for those personnel, including their salaries, currently sits at £5 million.
Your submission also says:
“To believe that public safety hasn’t been compromised would be foolhardy.”
You go on to say:
“Officer wellbeing is being totally neglected”.
It is. We have senior investigating officers who are currently off sick, and we are dealing with others who will not be back. That is due to the number of inquiries that they are dealing with and the number of deaths that they are seeing. When so many officers go on to day-shift roles covering public inquiries, the knock-on effect is that the operational role is left short. That is what is happening at the moment. It is not necessarily the public inquiry work that is causing that situation. Officers who are working on those are probably getting an easier time, because they have set tasks to do. It is the ones who are left in the operational roles who are in dire straits, because their workload is unbelievable. When I saw the figure of 176 cases for one SIO who is a detective inspector, I thought that that person must be under an inconceivable amount of stress.
One could make a number of arguments, for example that the police should get additional resources—I think that there would be strong support for that. Your submission points out that
“no additional funding has been made available to cover the costs incurred”,
which is obviously a major concern for the police, particularly as new inquiries are about to begin—the Emma Caldwell inquiry, for example.
We are looking at the cost effectiveness of public inquiries. What does the federation think should be done in that regard?
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Proper budgets should be set out at the beginning of an inquiry. Before that, though, there should be an impact assessment that asks how the inquiry will affect the operational day-to-day running of the agencies that will be involved in it. They are not asked about that now; they just take on the inquiry.
The police will always say that they can manage. The people in the organisation are can-do people—that attitude is in every police officer—but in reality they cannot do it all. The police will say that they can do it, and they will do their best to do it, but they probably do not realise that that is having a knock-on effect, which is now catching up on them.
An impact assessment would allow the Government and whoever is setting up the public inquiry to ask what needs to be done to ensure that services are not impacted. My concern is that there will be more public inquiries in 10 years’ time because of cases that are being missed when people are taken off the operational side of policing to help with public inquiries.
So, it becomes a self-perpetuating cycle.
Mr McGowan, you say in your submission that the Crown Office and Procurator Fiscal Service’s approach to public inquiries is that
“One Deputy Crown Agent coordinates COPFS’ response to ensure there is an overview of the way in which inquiries are dealt with and to provide consistency in responses.”
You go on to say that
“costs incurred by COPFS in relation to Public Inquiries come together into one budget line to enable the better control of costs.”
How are those costs being controlled?
Like all of our work, our public inquiry work is demand driven. When a public inquiry is set up, we engage with it at an early stage to discuss what it wants from us. It will then ask us formally for information and we will provide it. That information is provided by senior prosecutors who are subject matter experts in the area. When an inquiry asks us to co-operate, we will give it what it requires of us.
If you are demand led, there are not really any cost controls, are there?
There are cost controls in the sense that we have a team that deals with those matters. It flexes across the various inquiries—it can work between inquiries. We are developing expertise in the law and practice of public inquiries. However, it is not for us to control the costs of a public inquiry that is scrutinising us.
Do you think that there should be cost controls? Mr Kennedy has made a couple of helpful suggestions. Every other area of the public sector, whether it is the police, the NHS or local government, has a budget and is expected to deliver on it. However, it seems to me that inquiries are almost open ended. The Sheku Bayoh inquiry has gone on for six years. There should be an assessment at the outset of what the opportunity cost will be, for want of a better phrase. If resources are being taken away from the police to put into an inquiry that may or may not come to a conclusion in a few years’ time, and that may or may not produce recommendations that may or may not be implemented, should there not be a comparison of the costs? There is also an implication for the Crown Office and Procurator Fiscal Service, relative to other areas where public money should be spent. Is that not something that you think should take place?
That is really a question for the Scottish ministers, because it is they who set up such inquiries.
I am asking your opinion as an organisation. You have given us a good submission, but Mr Kennedy’s is very direct and robust. The committee is trying to make things better not only for the Scottish taxpayer but for people who want public inquiries to result in the timeous delivery of justice, as they see it. How does it help anyone if an inquiry runs on for five or 10 years, costs hundreds of millions of pounds and makes recommendations that might not be implemented even a year or two after they were made? Surely that in no one’s interests, and that is why I am keen to have your view on it.
When ministers set up an inquiry, the process at the start should be that they set and adjust terms of reference. If the terms of reference are sharp and focused, they should take us to the place that you suggest. Once the inquiry is set up, we will work with it and support it as far as we can. We are all for transparency and public accountability, but how the inquiry is set up and what its budget is are matters for the inquiry. If you set up an inquiry that is independent, it is independent.
Surely the COPFS has a view. In paragraph 19 of your submission, you say:
“prior to the setting up of the Sheku Bayoh Inquiry, COPFS and the then Lord Advocate were of the view that there were matters in relation to the circumstances of Mr Bayoh’s death that would be outwith the scope of a Fatal Accident Inquiry and therefore there would be benefit in a Public Inquiry being held.”
You were part of the recommendation that there should be an inquiry. Should the terms of reference not include some kind of recommendation that you would want it to report within a couple of years, say, which does not seem unreasonable to normal people, with a certain cost implication? Instead, that inquiry is costing £50 million overall, including £25 million on the police side.
The Bayoh inquiry was unusual in that sense. There were matters in relation to the death—what happened post-incident and so on—that could not be dealt with within the constraints of the legislation that governs fatal accident inquiries. Those matters had to be addressed for the purposes of dealing with the state’s article 2 right-to-life procedural obligations. It needed something more than a fatal accident inquiry, which is why the then Lord Advocate made that submission. That is what we did.
You come to a fundamental philosophical point: what does independence mean? If you set up an independent inquiry and then control its budget and say that it can operate for only two years, that is a constraint on the work that the inquiry can do.
Does it not just mean that you have to focus a bit more, rather than looking at every single potential thread in an almost exponential way? Mr Kennedy’s submission says:
“The current inquiry model is not effective. Many inquiries become protracted and unfocused. Without statutory timelines or budget oversight, costs spiral, and impact is delayed.”
Do you not agree with that?
Ministers control a public inquiry’s work through its terms of reference when they set it up. Again, I come back to the point that all of that stuff can be done at the start by controlling the terms of reference of the inquiry and setting them tightly—if that is what your objective is at the start.
Do you think that there should be more transparency? Mr Kennedy’s submission says:
“The public, and contributing participants, are rarely informed about inquiry costs, remits, or extensions.”
Should more information, such as interim recommendations, be available in an inquiry, so that people can see where it has gone in the past five or six years, or whatever it might be?
Some public inquiries take that approach and work on a modular basis, where they come up with conclusions and recommendations at the end of that. The Scottish child abuse inquiry is a good example of that. It splits off each piece of work and will publish reports of its findings at that point in time.
As for the financial costs and what the inquiry has been doing, those are really matters for the inquiries themselves. As I said, I am all for transparency in and accountability for budgets. How inquiries publicise that is perhaps part of the issue, because their costs are available. As far as I am aware, costs are published in the annual reports and accounts.
Is that not a bit like marking your own homework? I will let Mr Kennedy come back in, but he said that
“Independence is essential—but it must be balanced with accountability ... while working within a framework that ensures value for public money.”
That is the philosophical question that I described—
It is not a philosophical question. Mr Kennedy has directly referred to the fact that the police service is under strain because officers are being directed into inquiries in significant numbers and, as a result, the other things that they are trying to do might be adversely affected. Any benefit to the public from an inquiry could effectively be negated by the loss of service that the police would otherwise be able to provide elsewhere. Is that not an aspect of inquiries that we should be looking at?
It is a matter that you should be looking at, although it is, as I have described, a difficult matter for me to comment on. As I said, if you set up an independent inquiry, that inquiry is independent. If you start trying to set limits on what the inquiry can and cannot do, it becomes less independent. You get that right at the start by setting an inquiry’s terms of reference. Section 5 of the Inquiries Act 2005 allows for that. If the terms of reference are set tightly, the inquiry should not be allowed to wander into other areas.
Should there be a higher bar for public inquiries? There are more public inquiries than ever in Scotland and the rest of the UK. It seems that less radical cases just go to public inquiry now. Should we look again at the advice that ministers are given on whether inquiries should or should not be launched?
As I said, we are subject to the scrutiny of public inquiries. With respect, your question is really one for the Scottish ministers. It is not for me to express that ministers—
Ministers take advice. The Sheku Bayoh inquiry was launched because of advice from your office and the Lord Advocate.
It was not launched solely for that reason, although I am sure that that was a factor that ministers took into account. That advice was given for the reasons that I have explained. There were factors that, we thought, were necessary to be considered under the state’s article 2 obligations. There was legal advice and there were legal obligations that the Scottish ministers had to fulfil. That was what was behind that advice.
Mr Kennedy, in your submission, under “Cost Monitoring”, you say:
“There are no enforceable mechanisms for monitoring costs. This leads to unchecked overruns.”
You advocate for
“Independent financial oversight ... Maximum inquiry durations unless formally extended by Parliament”
and
“Annual public reporting on progress and spend”.
Yes. Inquiries tend to run away with themselves financially. In Stephen McGowan’s defence, I do not think that the Crown Office has control over that. Right from the beginning, it has to be clear what the mechanisms are that will control an inquiry. There are no financial constraints on that. As an inquiry runs away with itself, the police service cannot stop what it is doing. It has to continue to be part of the inquiry, which is why the costs start to mount up.
You mentioned a different approach. Other tiers could be put in place, in which the issue is looked at. We could say that, instead of the overarching way in which public inquiries work, they are going to work differently now. Inquiries tend to spread and spread, and there does not seem to be a point at which we ask, “Can we afford to do this, given the financial predicament that we are in? Is there a cheaper and better way of doing it?”
In your submission, you talk about alternatives to full public inquiries. For example, you talk about
“models in Canada, New Zealand, and Ireland where inquiry frameworks are more proportionate and cost managed.”
New Zealand is probably the best example. It considered its public inquiries in 2013, and the Inquiries Act 2013 changed how it dealt with them. New Zealand now has a broader approach to inquiries. It still has public inquiries, but it also has Government inquiries and royal commissions. It has tailored inquiries to be more cost-effective.
Canada and Ireland are similar to the UK. There are positives and negatives in what they have, but each of those countries is looking at how they can achieve more cost-effective inquiries.
That is where Scotland needs to be. We have to look for a better model, in which public inquiries do not take six years. We will be running a public inquiry for something that happened more than 20 years ago. The question is what is being left behind while that takes place. That is my biggest concern at the moment. From what I am being told, the Emma Caldwell inquiry will probably be one of the biggest inquiries that we have ever had. Having looked at what has happened with the most recent public inquiries, I have a real concern that, in 20 years’ time, we will be back with another public inquiry, which looks at what happened 20 years ago.
11:30
When inquiries such as the Emma Caldwell inquiry or Sheku Bayoh inquiry take place, police resources are really impacted. Other inquiries—the Eljamel inquiry, for example—require NHS resources. Whether or not we have the same inquiry model in place, is there an argument for a completely ring-fenced fund to pay for public inquiries, so that specific service budgets are not impacted?
Absolutely. We do not have anything ring fenced for inquiries. We do not consider how much an inquiry will cost or what the impact will be on the organisation involved.
Mr McGowan, does the COPFS feel that that would be a sensible approach?
Anything that helps budget-wise is of assistance, and we are happy to work with the Government on that. Public inquiries are a pressure for us. Every year, we go into discussions on the budget and say, “We have these inquiries to deal with,” but we do not get separate funding for them. It is a pressure every year.
I have a question about the implementation of recommendations, which, as I touched on earlier, has been a bugbear for many people. About 3,250 recommendations have come forward from 54 completed UK inquiries since 1990, and hundreds of them do not seem to have been implemented. Mr Kennedy suggested that there should be
“Statutory deadlines for publication of implementation plans ... Annual reporting to Parliament on progress”
and
“Independent post-implementation review”,
which, for example, was done in Jersey two years after the child abuse inquiry there. Would the COPFS support a post-review?
In principle, there is no reason why we cannot do that. It would come with more expense, because you would be reviewing what had happened at the inquiry, but doing so is not difficult in principle.
I am sorry to cut across you, but this is about not only cost but cost-effectiveness. There is not a lot of point in having an inquiry and making recommendations if nothing happens. In the first evidence session of our inquiry, Professor Cameron said that some recommendations that were made in the Jersey inquiry had first been made in 1945, in the very first child abuse inquiry, and still had not been implemented.
A post-review would come with a cost, but, in principle, there is absolutely no problem with it, because there are ways and means of doing it. My other observation is that some inquiries make recommendations that are just that: recommendations. They need to be implemented, which means that the Government needs to take a broad view to its budgets. It is about the extent to which the Government and the Parliament consider the recommendations when they vote on budgets. In principle, there are ways of examining such things.
Would the COPFS suggest anything specific to improve the public inquiry system?
I suggested in my submission that there are other ways of holding inquiries, such as non-statutory inquiries. I gave examples of those that have worked.
The issue is that the public, or individuals who are clamouring for inquiries, now feel that they have been almost short-changed unless an inquiry is judge led.
That is the tension. I gave the example of the two inquiries on the Chhokar case. They were quick and effective. I have been around long enough to remember their impact on the COPFS; there was a fairly radical change in how we did things as a result of those reports. I also gave the more recent example of Dame Elish Angiolini’s inquiry and the co-operation that it was given.
When my organisation provides material and assistance to an inquiry, we do not necessarily do so because it has the force of law and can compel evidence from us; we do so because we welcome the transparency and accountability that inquiries bring, so we co-operate with them in any event. However, there might be a very small number of inquiries that involve balancing other rights, so powers of compulsion might be required.
Did the Chhokar case take a year, from 2000 to 2001?
It was about that long. The inquiry reported in the calendar year after it was set up. I cannot recall now whether the report was published within 12 months, but it was certainly speedy.
Mr Kennedy, do you feel that we have lost our way with public inquiries and that it is time for a reset?
Absolutely. I genuinely believe that we have lost our way and need to find it again. Your point about recommendations is fundamental. If we publish recommendations, we should ensure that they are acted on if they are in place and found to be correct. In 45 or 50 years’ time, we do not want to be here looking at the same problems about which somebody produced recommendations 40 or 50 years ago. That would be foolhardy.
We do not really want to be here again in five years, do we?
Absolutely not.
Okay. I will open up the session to colleagues around the table.
Good morning. Mr McGowan, in your submission, you referenced the Angiolini inquiry and made the point that non-statutory inquiries do not have powers of compulsion. How important is it for inquiries to have that power, given that, in that example, people seemed to co-operate with the inquiry without it?
I can speak only for my organisation, but we would co-operate with any inquiry that was set up, whatever the manner in which it was set up. As I said, we welcome transparency and accountability. As a public authority, we recognise that we are there to be scrutinised. Scrutiny can lead to improvements in the way that we do things.
In respect of the Sheku Bayoh inquiry, you say that a fatal accident inquiry was not pursued because
“there were matters in relation to ... Mr Bayoh’s death that would be outwith the scope of a Fatal Accident Inquiry”.
What would such matters typically be?
It was to do with post-incident actions and cultural matters within the organisations, including my own, that dealt with the response to the death. Under the statutory framework for fatal accident inquiries, such things could not typically be dealt with. A fatal accident inquiry finds out the facts of the death, how it happened, what caused it and what might have prevented it; it does not deal with the wider surrounding issues, which is what, in part, caused the Sheku Bayoh inquiry to be set up.
Could a hybrid model potentially be put in place, whereby the scope of fatal accident inquiries would be slightly enlarged to prevent the default position of a case from becoming a public inquiry?
At the moment, fatal accident inquiries are bound by the terms of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, which is pretty similar in scope to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 that predated it.
In paragraph 21 of your submission, you reference the inquiries into the death of Surjit Singh Chhokar. The inquiries, one of which was led by Sir Anthony Campbell,
“were set up in 2000 and reported in 2001.”
Do you have any insight as to how those were done so expeditiously yet other investigations into similar situations seem to roll on for years and years?
I was not involved in those inquiries, but I know that the methodology that they used was to gather the documents and then speak to the witnesses, which they did without going through the formality of public hearings about the matter.
I am not sure that I can provide much else, given how long ago that was, but you can see, at the moment, that Dame Elish Angiolini’s inquiry is following a similar pattern of speaking to witnesses without going through the public nature of hearings, so it is able to work its way through more quickly.
On the convener’s point about public confidence, it seems that public inquiries have become the gold standard and that the public is distrustful of anything less, yet there are examples on the public record in which we seem to have satisfied public confidence without going down the public inquiry route.
Whose responsibility is it to sell such alternatives to the public, particularly the victims, who might end up getting answers on justice more quickly, which—if the reverse of justice delayed is justice denied—would presumably help the grieving process in such circumstances?
I hesitate to go back to Scottish ministers just because they are the ones to set inquiries up. It is incumbent on everyone. There is always clamour for a public inquiry—we hear a lot of such calls. The question is whether we have looked through the other options before we go for a public inquiry, and it is incumbent on everyone to make suggestions as to whether one is needed.
It can be difficult for an organisation such as mine; we are the subject of the two inquiries that we have just discussed, and it can be difficult for the organisation that is about to be scrutinised to be out in public saying, “There is a different way to do this,” without looking as if it is avoiding scrutiny. Non-statutory inquiries are a tool in the armoury that we should remember when thinking about setting up an inquiry on an incident.
Given their nature, both the COPFS and the police are legitimately brought into the process of a public inquiry quite frequently. It has been recommended that a body be established somewhere to deal with public inquiries, rather than each organisation having to reinvent the wheel, as I think it was described. Would that aid you in your own engagement? If you were working with a constant secretariat, you would not have to rebuild relationships each time another public inquiry came along.
Yes, we would be happy to work with an organisation like that. I can see the advantages of it.
Yes, absolutely. We have to consider that. On the question of making the scope of fatal accident inquiries bigger, I would say change the legislation. That is what we need to do; we need to make inquiries better. Fatal accident inquiries are better now, and I would be asking for the law to be changed. Make it better. We have that opportunity, and we should be doing it.
You have raised the issue of the huge cost to Police Scotland. In an ideal world, you would presumably be asking for recompense from the Government, regardless of whether an inquiry found shortcomings on the part of the police. You would hope for the costs to be underwritten. If they were underwritten for Police Scotland, would that not open the doors to everybody to receive the equivalent of legal aid for whatever legal and manpower costs they incurred?
They absolutely should be underwritten. The whole point of an inquiry is to get to the facts and the truth, to find out what happened and to prevent it from happening again. Organisations can sometimes be crippled when an inquiry begins. There are organisations that would probably wish to be involved in some public inquiries but cannot afford it financially. Inquiries are a financial burden on organisations.
If the costs are set out and everybody knows that the money is set aside, more people would be willing to be part of inquiries, and they would be conducted in a more timely manner, I hope.
There is a sense that ministers are passing the buck when they put in place a public inquiry and that they want it off their desk as quickly as possible. The report might end up on their desk, gathering dust, 10 years later. If the Government and the Scottish ministers had to foot the entire bill for a public inquiry, might they think twice before instituting one, and might they be more discriminating as to what should go to a public inquiry?
Ultimately, they foot the bill, although it might be hidden or not shown in the public finances. The organisation—a public organisation such as the police or the NHS—will foot the bill, because it will not be able to do something on the other side. We have to recognise that when we set up inquiries. The organisations have to be given the money at the time because of the knock-on negative impact on them.
You have mentioned the impact on operational policing. All of us around the table understand the huge pressure that the police are under. You face the issue of gangland warfare and everything else at the moment, so I fully recognise that pressure. In relation to the points about public inquiries that you have been raising with the committee, have you specifically raised the impact on the operational capabilities of the police with ministers in the past?
Not in reference to the current inquiry, but we will raise that point with them. We have raised issues about finances in the past, however. I have asked the Cabinet Secretary for Justice and Home Affairs about the next public inquiry—the Emma Caldwell inquiry. Where is the money for the police coming from? We have asked whether the police can be funded for their part in the inquiries, given the operational impact, but I have not had an answer.
Good morning. I will start by following up on the point that Craig Hoy was asking about. It would be useful for me to understand a little more, Mr Kennedy, about the direct engagement that you have had with the Government to express your concerns about costs. You mentioned the Sheku Bayoh inquiry. That tent seems to be out there, given how long that inquiry has been running and the costs that have been incurred. You might not have been in place at that time but, at the start of that inquiry, did you express concerns about the potential implications of cost and the operational challenges that would result therein? It would be useful if you could walk us through how many meetings have been held and how frequently you have raised your concerns with the Government.
You mentioned the justice secretary. There was quite the media campaign by the lawyer representing the family of Sheku Bayoh to have the scope of the inquiry increased, and it was the Deputy First Minister who said, “No, we are not going to do that.” Have you have had any engagement with the Deputy First Minister?
I was not in post when the early interventions were made. My predecessors certainly had various conversations any time they met with Government. I can assure you that, any time we meet with ministers, cost and money are probably at the top of the agenda.
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I appreciate that you were not in post then, but it would be useful to understand from you, even anecdotally, where those conversations went. If concerns were being raised about the operational impact on your core duties, did anything arise from that, or were those concerns simply noted—or noted and put in a box somewhere not to be looked at again?
Nothing has arisen from those concerns since those conversations took place. Government will say that more budget is being given to the police service and will push some of that back on to Police Scotland.
The reality is, however, that we need only look at the police numbers to know that those concerns have not been taken cognisance of. Where we once had 17,234 police officers, we are now at 16,500. Those concerns are raised every time that we meet with Cabinet. Every time that we meet with ministers, we raise the issue of money and finances.
I know that there is no pot of gold somewhere—there is no pot of money there for Government—and, indeed, all parts of the public sector will be feeling the pain. Nevertheless, in general, the police service always raises with ministers the point that, although we have tried our best, we have had £200 million taken out of the budget, and the extent of the reform that has taken place, and which continues to take place, in policing is greater than that in all other parts of the public sector.
When it comes to public inquiries, we have written to ask where money can be put aside to assist the police with the legal costs that would certainly come from an inquiry. That does not include the operational costs that ill also come into play.
You said that you have written letters on that. Have you had responses to them?
A letter was written in relation to Emma Caldwell, and we have been given a meeting to discuss that with the cabinet secretary. However, as I have said, we do not seem to be getting anywhere—that is the easiest way to put it. The budgets that have been produced for policing are not enough, at the end of the day, for what policing has to produce.
Mr McGowan, I have a question for you. In this inquiry, we have touched on the potential perception, real or otherwise, of a conflict of interest. Have you had any initial engagement on that? I note that at point 5 of your submission, with regard to what you refer to as the “Rangers case”, you say:
“The form and nature of this Inquiry has yet to be confirmed.”
Have you had discussions with Government as to the nature of that inquiry, given the significant potential for interest? For example, it could be led by somebody from the Scottish legal fraternity, which is relatively small, with many lawyers going to the Crown Office and vice versa. Have any such discussions taken place?
We have had early discussions, because we require to keep Government up to date with what has been going on with the litigation and with the current inquiry, which is on-going and needs to be cleared before the other inquiry starts. Ultimately, those are, again, decisions for ministers. Again, there is a limit to what the COPFS, as the organisation that would be inquired into, can do and say about some of that.
Of course, but surely you would be pushing to protect yourself and your reputation. Surely your view—I am interested to hear whether this is, indeed, your view—would be that the inquiry must, ideally, be led by someone external to Scotland altogether, because of the potential conflict of interest given the Crown Office’s role in the Rangers case.
I am not sure that I would accept that there is a potential conflict of interest. At the end of the day, it is not our decision, but I am not sure that there is a potential conflict of interest in, for example, a judge from Scotland hearing that case. Judges in Scotland hear cases that the Crown Office brings every single day—we are the biggest litigator in Scotland—and they hear cases against the Scottish Government every day, and, as one can read in the media every day, they do not always rule in our favour. Therefore, I do not necessarily think that it needs to be someone from outwith the jurisdiction, but ministers will make the decision and we will co-operate with it.
I am not necessarily focusing on that. It is about the decision-making processes—and not only the question whether an inquiry should be set up, but its nature in respect of good governance. That is why I am asking the question.
I do not have anything else to ask, convener.
Mr McGowan, you previously mentioned the independence of public inquiries and said that it is a bit of philosophical question, which I kind of accept. You also suggested that, if the terms of reference were sharper and more focused at the beginning, that would—or might—solve the problem. What do you think of the idea that, alongside that, we say at the very beginning—I take the point that this should all be fixed at the beginning, not halfway through—“We want this inquiry to take two years and it’s going to cost £5 million, and these are the terms of reference”? Would that take away from the independence of inquiries?
You would have to decide what you wanted from your inquiry at the start—that is my basic point. That is what the 2005 act currently allows. If you say, “It’s going to take two years and it’s going to cost £5 million,” that might come with compromises. If ministers and the inquiry chair accept that they have to make those compromises, we will work with that.
Public inquiries have, until now, been looked at as a root-and-branch review of everything, which is perhaps why we end up where we do. In principle, I absolutely accept your point, but it comes with compromise. You could have pure independence, in which the inquiry controlled everything, including the budget and where it went, or you could have a slightly different model, as you have suggested. There is no reason why that cannot work, but, again, it brings us back to the issue of public confidence and confidence in the people who are appearing before the inquiries, and how all of that balances out. I would suggest that none of that is insurmountable, but it is a different model from the one that we have operated thus far.
Yes, and yet it is the case for other professions. A teacher will have 50 minutes, or whatever, with a set of pupils, and they will do the best that they can in that time. As an accountant, I would have to do an audit within three months—or whatever it might be—for a fixed fee. Auditors are still—I think—considered to be independent. It seems to be possible to do that kind of thing, but it seems that when we get the legal profession involved, they do not like that.
I am a member of the legal profession, but I work for an organisation that gets a budget every year; we have an ever-expanding amount of cases to take on, so we need to find ways of doing that while finding efficiencies ourselves every year. The discipline that you describe is not unfamiliar to me, certainly in my organisation. Again, I go back to the point that it is perhaps a philosophical question, but I see nothing about the model that you are suggesting that could not be made to work.
You might or might not want to answer this—[Interruption.] Sorry—my microphone is not on.
That is always a bad start, John.
As I said, Mr McGowan, you might or might not want to answer this, but when I put the same question to Lord Hardie, he said that he just would not do it if those were the conditions.
That is a matter for him—I cannot gainsay that. Again, it comes down to the meaning of independence. Do you want a judicially led inquiry, and what would be the conditions for that?
On that point, it has been suggested that for, say, an inquiry on child abuse, some kind of specialist in childcare could be the chair, or there could be a panel or a judge. Do you have any thoughts on that?
The choice of chair is, again, a matter for ministers—I keep coming back to that point. Judges tend to be chosen because, first of all, they are seen as independent, and, secondly, they have a background in ensuring fairness and in making and writing up complex decisions. That is the skill set that a judge brings with them—that is perhaps why they are reached out to and chosen.
The 2005 act, and the Inquiries (Scotland) Rules 2007 that go with it, also impose various obligations with regard to fairness, with powers to compel witnesses and evidence. Those are all matters with which lawyers are familiar. That is why we have perhaps ended up with the criticism that the process is legalistic. If we set up a forum that is chaired by a judge and impose rules that make it very much like a courtroom or a tribunal, it is perhaps inevitable that we end up with a legalistic format. In addition, the rules say that if someone is going to be criticised, they need to be warned—I am sure that the committee is familiar with all of that.
Again, we have a fundamentally legal—and legalistic—process for these inquiries. That is perhaps why judges are chosen, and why we end up with a legalistic process.
That specific point about the warning letters has come up before in evidence, and I think that there were suggestions that we could make savings in that respect.
Mr Kennedy, is there any advantage in having a judge running an inquiry, or should there be a panel or a specialist?
Stephen McGowan is correct: having a judge puts an inquiry into that legal environment. However, what we have seen happen in other areas—in, for example, medical inquiries—is that, if a doctor leads it, you might not need a lawyer, but then they will tend to listen only to doctors and not necessarily to any lay members.
It is all about taking a rounded approach. You are absolutely right that it has to be an appropriate person who understands the area of business or the area where the mistakes have been made. That might also assist those who come in, because, invariably, what happens with the costs associated with public inquiries is that the legal teams require experts to come in, and they cost money, and it just rolls on. It might be better to find a better way of controlling all that and ensuring that those people were more independent.
But if we say to judges, “You’ve got two years and £5 million to do this” and they all say, “We’re not taking part,” we are stuck, are we not?
We would just have to find somebody else.
Right.
Moving on to other issues, I note, Mr McGowan, the suggestion in your submission that you could start the process as not a statutory public inquiry but that it could be turned into one later. I am interested in that concept. Would it mean a lot of duplication? Would the costs be higher in the long run?
It would depend on how it is done. Provision is made for that in section 15, I think, of the 2005 act. You could start the inquiry with less formality or without the full panoply of an independent public inquiry, and, if it were required, you could convert it into a more formal inquiry. If the inquiry chair agreed to do that—I think that that is the way in which it is phrased in the act—you would not necessarily have to go back and revisit things. I dare say that it would all depend on the facts and circumstances.
However, the reason to convert it, I would expect, would be that you needed the powers of compulsion required by a public inquiry under the 2005 act. If that is why it is being converted, and if it has been hearing evidence quite effectively up to that point, you will not necessarily have to start from scratch, and the work that you had already done will not just be put in a cupboard and ignored. The inquiry would be converted for the particular purpose of compelling someone to appear who would otherwise not have co-operated. I suggest that you could start some of these inquiries in a non-statutory manner and that, if there were such a requirement, you would still have in your pocket the ability to use those powers of compulsion through converting the inquiry.
The 2005 act, which you have mentioned, has come up a lot. Does this Parliament have the powers to change, amend or overrule that act?
It is an act of the UK Parliament, so no. There are separate inquiry rules for Scotland—the Inquiries (Scotland) Rules 2007.
Could we pass new legislation on public inquiries that would override that act?
I do not actually know the answer to that question. I would need to go and search it out.
That is fine.
Mr Kennedy, you have listed in your submission the six public inquiries that are going on at the moment. Do you feel that the demands from those inquiries in relation to the questions that they ask and the information and evidence that they seek and that your members have to provide are just repeating stuff that is already in the public domain? Is time being wasted in going over things that people should already know about?
No, I am not saying that, because each inquiry has different elements. However, the issue is that police officers are very good investigators, which is probably why they are being used more and more in the investigation element of all those inquiries. In many of these inquiries, the police are just doing the investigation part to ensure that there is no criminality, and they will be investigating to get as much evidence for the inquiry as they can.
For me, the issue with police officers is a purely financial one. I understand that there is not necessarily anybody else that you would want to carry out that work, but, when the Government has a pot of money to set up an inquiry, it has to realise that that money is not infinite and that it will affect the organisations that it is using. That is our biggest concern at the moment, because when public inquiries are set up, we do not say, “We’ll set it up and put £40 million aside to pay for it.” That does not happen. They are set up—which is fine—but then the organisations are left to foot the bill.
I am concerned about what I am seeing operationally and the pressure that officers are under. I fear that we will have another public inquiry in years to come, because of something that they have missed and not done as a result of the pressure that they are under.
12:00
Somebody in an earlier evidence session said that there is a sweet spot when you have to question how much more money, effort and time is going to be put into the inquiry, and for what extra benefit.
The law of diminishing returns.
That is a good phrase.
Police officers are used to working to timescales, as I presume you are. As you have said, they have so many cases to look at, and they have to do it within a fixed timescale. How does that work? When you are asked to investigate something or produce evidence for a public inquiry, there is a fixed timescale. Is it right that your staff have to work to that?
Yes, they will have fixed timescales, and they will be given tasks such as evidence gathering. When you are dealing with the human element, however, it is not always that simple. If you cannot get a hold of or get to somebody, or if they are not making themselves available, that can be a drag on the inquiry’s timescales. That is one element. I suppose that it might get to the point when we just say that we cannot get that evidence, it is not there or we are not able to obtain it.
What would happen then? Would the police go to the chair of the inquiry and ask to be given a bit longer?
They would have to, or, if the inquiry allowed it, they would look at arresting that individual. If it were part of an inquiry and somebody were breaking the law by not producing evidence, the police would go to those lengths.
Yes, the police are used to timescales, but, because inquiries have no timeframes on them, they can just spiral and spiral.
Indeed. That is what I was thinking, too.
You suggested that, before an inquiry started, you could consult not just with the police, but with public bodies and anyone else who would be involved. Can you expand on what you mean by that?
Well, if we take the NHS Tayside inquiry—and if we put the police to one side, because they have a part to play in it—you would go to the NHS and say, “We estimate that we are going to have to speak to all of these people within your employment. What will be the impact of that?”
I know, having given interviews for inquiries, that they can last hours and even days, so it will have an impact on the operational side of a public body if the person is involved in that side of things. They have to look at the impact of that, and it will have a value attached to it. At the moment, that issue is not touched on when we look at inquiries.
It would just happen anyway, would it not?
It would allow the Government and ministers to say, “This will cost X, so X needs to be put aside, or else there will be an operational failure in that public body.”
So, the aim would be to clarify both the time and the money involved.
Absolutely.
The final issue that I want to ask you both about concerns the idea of who is satisfied with a public inquiry. Is it your feeling that the public, the victims, their families, or whoever is involved, or even the police, have been satisfied at the end of the public inquiries that we have had? I do not know about the Crown Office—it does not get satisfied, so to speak.
The last public inquiry that gave us recommendations was the fingerprint inquiry in 2011. There were recommendations for us on fairly minor points—they were on two specific areas about training and how we treated certain evidence. I am not sure that I can answer that question except by saying that we will read the report, make sure that we implement things and have a process for doing that.
We sometimes see the media interviewing somebody, perhaps down south or elsewhere, after an inquiry, and they are still not satisfied. I get the feeling that there is a risk with public inquiries that either no one is satisfied or at least some of the people are not satisfied at the end of the process.
I am sure that that is a risk—I recognise that as a risk—but I am not sure that I can say anything more to help you.
I think that a lot of people are not satisfied after a public inquiry. That might be because of, for example, the length of time that it has taken to complete. Ultimately, if a death has been involved, that person cannot be brought back.
The satisfaction that people get will be in the years to come, should something not happen because the inquiry has led to something being put in place that prevents it. It is really difficult, because emotions are in play a lot, particularly if somebody has died. There will be small wins in public inquiries, but people will not necessarily get the satisfaction that they want.
There will be satisfaction in organisations if policies are put in place. Those policies have be implemented, though, and it is frustrating for organisations when a public inquiry takes place but they do not see any change. Also, it could be that a recommended change is already taking place. Organisations are now looking to get ahead of the game once an inquiry is under way. They think about what they will be asked and try to do it before it is asked of them, because they do not like to be told what to do. That is why there is a lot of dissatisfaction at the end of public inquiries.
When a public inquiry starts, do you think that the public—or a limited group, such as victims or their families—have unrealistic expectations?
It depends on what their expectations are. They want answers. They might also want someone to be blamed for what has happened, but that does not always happen, as public inquiries are not about blaming someone. That is the unrealistic part of it.
At a basic level, it is like a grievance policy in the workplace. People want to raise a grievance, but, invariably, they will not be satisfied at the end of the process, because the outcome is not what they wanted. They might want blood, for want of a better term, and they are not going to get that.
Thank you.
Again, I put on the record that I represent constituents who are involved in the Eljamel inquiry.
Mr Kennedy, you have made powerful statements twice in this meeting and once in your report on your concerns about the burden that will be placed on the police force if we have more public inquiries, because pressure on the police might result in things being missed. Why do you think that there is an increase in demand for public inquiries?
There is dissatisfaction among the public about the services that they are receiving. In the case of the police, for example, people are not receiving what they should be receiving from the police service.
Do you think that that dissatisfaction is about the police service, or is there a wider issue about the delivery of public services and the public not getting answers to their concerns when public services have let them down? Is that a major influence?
I believe that it is. Public services have changed, and people’s expectations of what they should get have changed. That has happened because of the way society is: people want things tomorrow—that is, they want things now. They are not prepared to wait, and that has a negative impact on people’s perceptions.
In general terms, people are not satisfied. We only have to look at the police. If someone calls the police, nobody will come. If someone goes to their general practice, they cannot get to see a doctor. If we look at many parts of the public sector, we see that people are not satisfied—the services are not what they want or would wish for. You could say that some of that is to do with society moving on and because of technology. In general, though, the public are not satisfied with the services that they get.
If your analysis is correct—I have to say that I would agree with it—do you think that, in order to address concerns about public inquiries, we should address some of the concerns about public service delivery?
Absolutely. There is a knock-on effect. When we deal with a public inquiry, we are not looking at how it will affect the relevant public service. Unfortunately, a lot of it is down to finances. It is down to resourcing and how we deal with that.
Is there increasing complexity in some of the current public inquiries? They are taking longer, which is increasing pressure on your policing resources.
There might be increasing complexity, but organisations have to work together more. Silos appear and, when a public inquiry takes place, organisations look to defend themselves rather than asking how they can prevent the issue and work together to ensure that it does not happen again.
The problem is that, because of the way in which our electoral system and Government work, people make five-year plans and are interested only in those five years. We need a social charter to change things over the next 30 years, otherwise we will continually go through the same revolving door. That is all that we are doing, and the same issues just keep coming back. Until we get to the point of considering how we can make things better over 30 years, we will always be in this position.
Mr McGowan, do you agree with that analysis?
The public’s demands on public organisations are much greater now than they ever were. To a large extent, that is right—it is appropriate that they are different and that they have changed over the years—so I agree with that point.
From the analysis that you have done of the public inquiries that you have seen, do you feel that there is growing dissatisfaction with the delivery of public services in Scotland? Is that causing increasing anxiety, frustration and, in some cases, anger among the public because they do not feel that the money that they pay in tax delivers the quality of public service that they deserve?
I am not sure that I can speak to the broad picture that you paint, because I am one part of the public sector jigsaw. We see that the public’s demands are increasing—rightly so, as I said. I started at a time when we told victims nothing. If they asked us for a reason why we had done something, we would say, “We can’t tell you that,” and that was that. That was not too long ago.
If it were possible to address some of the concerns about public bodies not being able to give the answers to patients or victims, for example, that would make things much easier. It would ease the pressure in terms of the numbers of public inquiries that are requested if we could get the answers from the public bodies and, in some cases, from Government.
If you can do that in a way that the public are satisfied with, that might ease some of the pressure. There are choices in all of this.
I can think of three or four public inquiries that would not have happened had the answers been available through the public bodies.
We talked about the opportunity costs of public inquiries on the police—the impact on the services that the police deliver—such as officers being diverted into inquiries. Mr McGowan, you also helpfully provided a couple of tables about the impact on the Crown Office and Procurator Fiscal Service. The Sheku Bayoh inquiry has cost your office more than £1 million and the child abuse inquiry more than £4.8 million. What impact has having to deliver those inquiries had on your services? What is not being done because your staff are focusing on them?
I am not sure that I would say that something is not being done. It is not as straightforward as saying that all the staff who are spending time on and working towards those inquiries would be doing work at the sharp end in a court. Some of them would be learning lessons from other things that go on in our world in any event, but it is clear that some of them would be deployed in other, more operational parts of the business.
Last year, the cost of the child abuse inquiry was £968,277. Surely that level of cost must make it more difficult for you to deliver the other services that the COPFS should deliver.
We have to take that into account, yes. We are demand driven and that is one of the demands that are on us at the moment. If we did not have that demand, we would be dealing with other matters.
The Scottish Police Federation has been open about the impact on the service that the police provide. You are being a wee bit coy about the impact on your service. I will push you further on that.
I am not being coy. We are demand driven. Crime happens and there are deaths—
The police are demand driven as well, but the situation still impacts on their services.
I have not said that it has not impacted on our services. I have been forthright in saying that it has.
How has it impacted on your services? What has been the impact to the public? What other services that the COPFS delivers have been delayed, for example?
12:15
I cannot say anything specific. I can say that those staff would be doing something else in front-line prosecuting work. However, that would not apply to all of them. That is the point that I am trying to get across. It is not that every member of staff who, at the moment, is directed at a public inquiry would be in a court prosecuting tomorrow. They would not.
It might have delayed the prosecution of other cases, for example.
They would be doing other work. They would be helping to clear the backlogs that we have.
That is fine. I am reading between the lines a wee bit, as I am sure colleagues are.
I have a further question for you, Mr Kennedy. In the last sentence of the second-last paragraph of your submission, you say:
“Reform is not optional, it is essential.”
Do you wish to add anything to that?
Reform is essential, otherwise we will keep going through the revolving door. Public finances are not great in the UK and the Barnett funding that we get in Scotland is directly affected by that, so we must consider reform. We have to look at ways in which we can minimise the spend in order to assist. Reform must happen, otherwise somebody other than me will be sitting here, answering the same questions in years to come.
Would either of you like to make points on any aspect of the situation that we have not touched on?
Mr McGowan, is there anything that you would like to convey to the committee?
No, thank you.
Mr Kennedy, is there anything else that you would like to convey to the committee?
No. I am just glad if we can help.
I thank both of you for your evidence. It has been extremely helpful for our inquiry. We will continue to take further evidence next week. You will be glad to hear that we will report on the matter sometime in the autumn—not in 2038 or anything like that. The committee moves much more swiftly.
The next item on our agenda, which will be taken in private, is consideration of our work programme.
12:16 Meeting continued in private until 12:23.