To ask the Scottish Government, for each of the 46 recommendations in the report An Investigative Review into the process of establishing, managing and supporting Independent Reviews
in Scotland that it decided to accept, whether it will set out the evidence in each case that demonstrates that the recommendation has been implemented.
Set out below are the Scottish Government's responses to the accepted recommendations.
Chapter 1: Background and Process
1. We recommend that appropriate data on the frequency and nature of ‘Commissioning Inquiries, Reviews and Panels’ is collected, recorded and reported. This will help provide an understanding of the review process more generally and inform best practice for future reviews.
In view of the wide variety of inquiries and reviews, The Scottish Government are not convinced of the relevance of collecting data on the frequency and nature of inquiries and reviews. The Scottish Government guidance provides future reviews or inquiries with an understanding of the process and inform best practice.
The guidance also requires inquiries to produce a “lessons learned” document when the inquiry is being wound up and it seems more appropriate for a new inquiry or review to refer to lessons learned documents from previous inquiries which investigated issues similar to those at hand.
2. We recommend that a distinction is made between those which have been established within a statutory framework and those which have not. Including this detail on a website will inform the public understanding.
The guidance explains the difference between those which have been established on a statutory or non-statutory basis.
It cites the example of the Edinburgh Trams Inquiry as an inquiry which was converted into a statutory inquiry.
Chapter 2: The title, remit and terms of reference of a review.
4. We recommend that, where possible, the chair is involved in the decision of what the title of the review should be.
The name of a review or inquiry does not seem as critical as its actual remit, given it is Ministers that agree on inquiries and reviews to be held and agree the terms of reference with the prospective chair, it seems that they should have principal responsibility for its title.
5. We recommend that material or key terms contained in a title should be explicitly defined and agreed by members.
The name of the review or inquiry will be an indication of its purpose and seems likely to be settled on by Ministers, and the proposed chair, before other members of the panel are appointed.
7. We recommend that the interests and expertise of all members are considered when drafting and agreeing the remit.
The members of the panel of an inquiry or review will be chosen for their expertise in the subject matter of the inquiry and will be appointed usually after the inquiry has been announced. Most public inquiries are chaired by a judge sitting alone, however, and s/he will be chosen for his or her expertise in the likely remit of the inquiry.
8. We recommend that the rationale for the remit is clearly agreed.
Under section 5(4) of the Inquiries Act 2005, the terms of reference for an inquiry under that Act will be discussed with the proposed chair by Ministers.
9. We recommend that consideration should be given as to who sets the terms of reference. For example, this could be the chair or the commissioning Minister or a combination of both.
Inquiries (or reviews) are set up by Ministers to investigate events which have caused public concern. Although inquiries or reviews are independent of Government, they exist to investigate matters set out by Ministers in the terms of reference.
Ministers have the statutory power to set out the terms of reference for statutory inquiries (section 5(1)(b) of the Inquiries Act 2005) and to amend them if in the public interest (section 5(3)). Under section 5(4), however, the Minister, before setting out or amending the terms of reference, must consult the person s/he has appointed or proposes to appoint, as chair of an inquiry under that Act.
10. We recommend that all members of a review should have the opportunity to contribute to the development of the terms of reference.
As above, the terms of reference of an inquiry or review will be set by Ministers in consultation with the proposed chair. It seems likely that the terms of reference will be set before members of the panel other than the chair are appointed.
11. We recommend that the Government consider providing a guide and template to drafting terms of reference. It should be generic in nature to meet the diversity of investigations.
As above, Ministers have the statutory power to set out the terms of reference for statutory inquiries (section 5(1)(b) of the Inquiries Act 2005) and to amend them if in the public interest (section 5(3)). The diversity of investigations, reviews and inquiries suggests that a template would be difficult to set up and would be rendered largely redundant by the discussions between Ministers and the proposed chair.
12. We recommend that a period be set aside to consult on the terms of reference. This would enhance legitimacy, promote transparency, confidence and trust in the review process. We recognize that this must be offset against other possible limitations, for example, constraints on time.
A formal period of consultation on the terms of reference would delay the start of an inquiry. The fact that the terms of reference will be the subject of consultation between Ministers and the proposed chair will enhance legitimacy and promote confidence and trust in the process.
Chapter 3: Independence and conflicts of interest/declarations of interest.
13. We recommend that the chair identifies areas that may have the potential to compromise the independence of the investigation. This is part of his or her overall duty to ensure an effective inquiry process and public confidence in the outcomes and recommendations.
Experience from the past suggests that the chairs of inquiries and reviews are very conscious of the need to protect their independence and indeed are very protective of the inquiries or reviews they chair. The guidance emphasises the independence of such bodies from the Scottish Government. It lays great stress on the relationship between the sponsoring Scottish Government Directorate and the inquiry team and the need for an arm’s length relationship while permitting proper monitoring of an inquiry’s progress.
14. We recommend applying a test of ‘impartiality’. This would allow someone with prior knowledge or involvement in the subject matter to be a potential member on the basis that their involvement was disclosed and evaluated.
Section 9 of the Inquiries Act 2005 makes it clear that Ministers must not appoint a person as a member of an inquiry panel if it appears that the person has:
- A direct interest in the matters to which the inquiry relates, or
- A close association with an interested party, unless, despite the person’s interest or association, the appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
15. We recommend that a process should be in place to identify and measure potential conflicts of interest to ensure that a proportionate response can be made.
Prospective members of the panel must inform Ministers if they become aware (before the setting up date or during the course of the inquiry) of any interest or association which might affect their impartiality. They should not subsequently (during the course of the inquiry) undertake any activity which could reasonably be regarded as affecting their suitability to serve. Although this is prescribed for inquiries under the Inquiries Act 2005, the same principle is applied to other inquiries and reviews.
16. We recommend that the chair has responsibility to lead the members of the review in discussion to consider possible conflicts of interest.
As above, it will be made clear to all members of the panel that they must inform Ministers if they become aware (before the setting up date or during the course of the inquiry) of any interest or association which might affect their impartiality. They should not subsequently (during the course of the inquiry) undertake any activity which could reasonably be regarded as affecting their suitability to serve.
17. We recommend that the importance of transparency and accountability in the completion of Declaration of Interest should be explained as part of a general induction process.
This point is covered above and the sponsor team within the Scottish Government ensures that the chair promotes accountability and confidence in the inquiry process.
19. We recommend that the commissioning party should ensure that the chair possesses skills specific to the nature of the inquiry. The commissioning party should also have a continuing responsibility to ensure that the chair promotes accountability and confidence in the inquiry process.
Under section 8 of the Inquiries Act 2005, the Minister must have regard:
- to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry; and
- in the case of the inquiry panel consisting of a chairman and one or more other members, to the need for balance (considered against the background of the terms of reference) in the composition of the panel.
The same principles are applied to other inquiries and reviews.
Public inquiries are usually chaired by judges or retired judges, though if the subject matter of the inquiry is particularly technical then other panel members or assessors may sit with the chair. This was the case with the Piper Alpha inquiry, for example.
The continuing responsibility of the commissioning party to ensure that the chair promotes accountability and confidence in the inquiry process is met by the sponsor team within the Scottish Government monitoring the inquiry process.
20. We recommend that support and some sort of induction, including background materials be given prior to undertaking the role. The former is especially important if the prospective chair is undertaking the role for the first time.
This is covered in the guidance.
21. We recommend that a system of mentorships be established and a pool of those who have had experience chairing a Government review be available to draw upon to support a novice chair.
A chair already has a medium by which they can access support through their sponsor team within Scottish Government and as outlined above there is also guidance available.
22. We recommend that potential appointees have no perceived conflict of interest which may raise doubts on impartiality and independence.
The guidance refers to section 9 of the Inquiries Act 2005 stipulates that a Minister must not appoint a person as a member of the panel if the person has a direct interest or a close association with an interested party unless, despite the person’s interest or association, the appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
Furthermore, section 9 of the Inquiries Act 2005 requires that before a person is appointed to the panel they must notify the Minister of any matters that could affect their eligibility. Once appointed a member must not undertake any activity that could be regarded as affecting his suitability to serve.
23. We recommend that the chair should be involved in the selection process of potential review members.
Under section 4 of the Inquiries Act 2005, before appointing a member other than the chair, the Minister must consult the person s/he has appointed or proposes to appoint, as chair. It is inconceivable that this would not be the case in relation to other inquiries and reviews as the effectiveness of the investigation would be compromised if panel members were appointed whom the chair did not want or believed were unsuitable or unqualified.
Chapter 5: Selection and composition of members of a review
24. We recommend that guidelines should be developed detailing the procedure which is required to establish an independent review. These guidelines should be in a form which can be modified and standardised over time. We believe that the more widely used they become, the more accepted they become.
The Scottish Government has developed guidance on the setting up, running and closing down of public inquiries under the Inquiries Act 2005, but the principles and advice contained therein will apply to all inquiries under the Inquiries Act 2005 and, where appropriate, to non-statutory reviews. It is accepted that the requirements for an inquiry under the Inquiries Act 2005 are significantly more onerous, time and resource intensive than is the case for non-statutory reviews and it may be that something cannot be done in line with the Act or indeed the guidance.
25. We recommend that the process for the selection of members should be as independent of the subject or area under review, as possible.
Scottish Ministers appoint the chair and members of an inquiry, not the area or subject being reviewed. If the subject being reviewed was a part of the Scottish Government, then another part of the Scottish Government and Minister would take the lead in appointing the review or inquiry team.
26. We recommend that criteria should exist to determine the composition and balance of review members in relation to the subject matter under review.
While the Inquiries Act 2005 provides for the impartiality of the chair and members of an inquiry panel, it may be necessary to appoint assessors to assist the panel due to the complexity or technical nature of the subject matter in issue. This is provided for in section 11 of the Inquiries Act 2005.
Section 9 of the Inquiries Act 2005 stipulates that a Minister must not appoint a person as a member of the panel if the person has a direct interest or a close association with an interested party unless, despite the person’s interest or association, the appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
In view of the impartiality required of the chair and members of the panel, a balance of views within the panel should not be a consideration. In addition, public inquiries are usually chaired by a member of the judiciary sitting alone.
27. We recommend that the chair should be the first appointment and that members should be either selected by the chair or in consultation or approved by the chair.
Under section 4 of the Inquiries Act 2005, each member of an inquiry panel must be appointed by the Minister by an instrument in writing. Before appointing a member other than the chair, the Minister must consult the person s/he has appointed or proposes to appoint, as chair. The guidance makes clear that other inquiries and reviews should follow the same process.
28. We recommend that the degree of external control of a review may also have to be considered within the – sometimes competing – interests of constraints on time and costs. The process for evaluation and selection should be transparent and accountable and if possible, undertaken by someone outwith the area or subject being reviewed.
Scottish Ministers will appoint the chair and members of an inquiry, not the area or subject being reviewed. The sponsorship role within the Scottish Government will not be undertaken by the area or subject being reviewed if this happens to be within the Scottish Government.
It is important to remember that the inquiry terms of reference, the inquiry management statement and the Ministerial determinations under sections 39 and 40 of the Inquiries Act 2005 are the only significant controls over a public inquiry that are available to Ministers since the review or inquiry is independent of the Scottish Government once the chair and any other members of the panel have been appointed. These documents will set necessary limits on the scope and cost of an inquiry, either of which may otherwise spiral out of control. Ministers remain responsible for meeting the costs of an inquiry, even though it is independently conducted.
Under section 39 of the Inquiries Act 2005, Ministers may determine the remuneration and expenses of the members of the inquiry panel, any assessor, counsel or solicitor to the inquiry and any other person engaged to provide assistance to the inquiry.
Under section 40, the chair of an inquiry is permitted to award reasonable amounts to persons for:
- Compensation for loss of time;
- Expenses properly incurred, or to be incurred, in attending the inquiry (or otherwise); and
- Legal representation of core participants and witnesses (including parties who are required to produce any document or other evidence).
29. We recommend that an evaluation of the merits of having special interest representation in a review should be guided by the nature and requirements of the review.
“Special interest” representation seems to be represented by the designation of core participants at a public inquiry. Alternatively an inquiry can benefit from specialist knowledge by the appointment of an assessor to sit on the panel.
30. We recommend that alternative approaches be considered in whether it is more appropriate to have this representation as part of a sub group with an effective spokesperson to feedback discussion to the core group
It is open to inquiry panel members to record a view which dissents from the majority view, but setting up a sub-group within an inquiry or review which is second-guessing the view of the main panel seems like a recipe for confusion, delay and further expense.
Chapter 6: Role and conduct of the chair and members of a review.
31. We recommend that a process be established to manage any changes to the membership of a review. The process should include matters such as intimation of any resignations and consideration of replacements and quoracy.
Section 4 of the Inquiries Act 2005 permits Ministers to select and appoint an impartial person as the chair of the inquiry and, after consulting the chair, may appoint other members of the inquiry panel and any expert assessors who may be required to assist the inquiry.
Section 7 of the Inquiries Act 2005 permits Ministers to fill a vacancy that has arisen in the panel or to increase the number of members of the panel.
Section 12(3) of the Inquiries Act 2005 permits Ministers to terminate the appointment of a member of an inquiry on grounds of physical or mental illness or for any other reason that the member is unable to carry out the duties of a member of the inquiry panel. The provision also permits Ministers to terminate an appointment:
- on the ground that the member has failed to comply with any duty imposed on him by this Act;
- on the ground that the member has–
(i) a direct interest in the matters to which the inquiry relates, or
(ii) a close association with an interested party, such that his membership of the inquiry panel could reasonably be regarded as affecting its impartiality;
- on the ground that the member has, since his appointment, been guilty of any misconduct that makes him unsuited to membership of the inquiry panel.
It has happened in the recent past that the chair of an inquiry has had to be replaced due to ill-health and one chair resigned when the formal procedure to remove her was instigated.
The guidance expects that other inquiries and reviews will follow the model set out in the Inquiries Act 2005.
32. We recommend that a review should agree, at the outset, what it is seeking to establish and the methodology of how this can be achieved. Whilst we would anticipate that an investigative/inquisitorial approach may be the norm it would depend on the nature and requirements of the review.
The terms of reference of a review or inquiry will set out what it is seeking to establish. Under section 17 of the Inquiries Act 2005, the procedure and conduct of an inquiry are to be such as the chair may direct. The guidance indicates that the chair must agree with any other members of the panel what methodology is to be used to evaluate evidence.
An inquisitorial approach is the norm in inquiries and in view of the fact that a review or inquiry will have no powers to attribute blame or guilt in the civil or criminal sense (as stated in section 2 of the Inquiries Act 2005), an adversarial procedure would not be appropriate.
33. We recommend that group members of a review have equal access to information and points of contact.
This is covered in the guidance, which suggests that all public inquiries will require a document management system to store and make documentary evidence instantly available to the inquiry team and also to core participants.
34. We recommend that consideration be given to providing members of a review with appropriate training and induction covering matters such as conduct and responsibilities, as well as matters pertaining to confidentiality, information sharing outwith the group and how to manage enquiries from the media.
The sponsor team within the Scottish Government ensure that the chair and members of a panel are familiar with the Scottish Government guidance which covers conduct, responsibilities and matters relating to confidentiality and information. It is a matter for an independent review or inquiry as to how enquiries from the media are managed – the guidance points out that some inquiries have engaged external PR consultants.
Chapter 7: Management and evaluation of the evidence
35. We recommend that a methodology to evaluate evidence should be understood and agreed by all members of a review.
This is covered in the guidance. It is expected that all inquiries will adopt an inquisitorial approach to the consideration of evidence.
The House of Lords Select Committee which carried out post-legislative scrutiny of the Inquiries Act 2005 noted that there were often significant advantages in the appointment of a serving or retired judge to chair an inquiry, especially in inquiries where the need for independence, proven integrity and authority are the greatest. Judges are used to weighing the merit of evidence and aware of the difference in relation to obtaining evidence at a public inquiry compared with the adversarial approach in civil or criminal proceedings.
Chapter 8: The composition and production of a review report.
36. We recommend that it is clearly defined who has editorial control for the structure and composition of any report.
This is covered in the guidance. While drafting the report is the formal responsibility of the chair, s/he is likely to ask other members of the inquiry team to assist. If an inquiry panel is in place, then each member of the panel must also sign the report. This does not preclude the submission of notes of dissent where panel members consider them necessary. In accordance with section 24(5) of the Inquiries Act 2005, if the panel is unable to produce a unanimous report, the report must “reasonably” reflect the points of disagreement. The chair must be content that the report is consistent with evidence given and decisions taken throughout the inquiry, that it gives a proper evidential base to recommendations and that the contents do not go beyond the inquiry’s terms of reference.
37. We recommend that there is a clear understanding of who has responsibility for the printing and publication of any report.
This is covered in the guidance and in section 25 of the Inquiries Act 2005 for statutory inquiries. If Ministers advise the chair before the setting up date of the inquiry that she/he is responsible for publishing or, if at any point after that, the chair is invited to take responsibility for publishing and accepts, then the chair has the duty to publish the report. Otherwise that duty falls to Ministers.
It is therefore recommended that, prior to the setting up date, full consideration is given to where this responsibility should lie. If it is considered that the chair should have this responsibility it could (although such inclusion is not mandatory) usefully be included in the Instrument of Appointment as a means of providing clarity from the outset.
Publication by the chair may be perceived to better maintain the independence of the inquiry and for that reason publication by the chair should be the norm.
Chapter 9: The timeframe, administration and budget of a review.
38. We recommend that there should be a clear and realistic indication of the timeline of a review. This should be included in the terms of reference.
This is covered in the guidance. While the terms of reference for some inquiries do not contain any projected timescale, those set for the Child Abuse Inquiry required that it reports within four years. An estimated timeline may help to maintain focus and speed, but it may become a source of criticism of the inquiry if it runs over due to the volume of evidence to be considered or other delaying factors which may be unavoidable, for example the chair of the inquiry becoming ill.
39. We recommend that the commissioning party should provide oversight and support to the chair to manage and review any lapse in timescale.
This is covered in the guidance which suggests that the sponsor team within the Scottish Government will provide ongoing liaison with the independently operating inquiry and can therefore discuss any lapse in timescale.
41. We recommend that the ultimate responsibility for the content of the minutes rests with the chair.
The chair has ultimate responsibility for all matters arising within the work of an inquiry.
43. We recommend that a budget should be identified at the beginning of any discussion on the commission of a review.
This is covered in the guidance. Ministers should be assured of value for money by the chair’s duties to avoid unnecessary expense (section 17(3) of the Inquiries Act 2005).
It is worth noting that in the terms of reference for recent public inquiries in Scotland, there is no mention of the budget for the inquiry. It will be extremely difficult to make a meaningful estimate of the likely cost of a public inquiry over its lifetime and an early, probably wholly unrealistic, estimate is likely to simply constrain the inquiry’s ability to perform its function, as well as offering an obvious target for criticism in the media once the estimate is exceeded, as it almost invariably would be.
The guidance contains a large section on the budget and finances of an inquiry.
44. We recommend that the chair and members should be advised if there is to be remuneration for membership and, if so, agreement should be reached on the terms of any remuneration.
Under section 39 of the Inquiries Act 2005, Ministers may determine the remuneration and expenses of the members of the inquiry panel, any assessor, counsel or solicitor to the inquiry and any other person engaged to provide assistance to the inquiry.
If a serving judge is appointed to chair an inquiry, s/he would remain on their existing salary, which would be a saving to the overall cost of the inquiry.
Chapter 10: The management of external influences.
45. We recommend that if there is reason to believe that the subject under review will attract media and wider public interest, there should be support and media training for both the chair and members of the review.
It is essentially a matter for the chair to decide what media strategy is appropriate for a particular review.
At least one recent public inquiry has appointed an external PR agency to deliver a media and PR strategy for the duration of the inquiry.It was commissioned to prepare press releases and to engage pro-actively with the media at critical points in the inquiry’s lifespan, such as the call for evidence, the launch of the inquiry’s website, the start of public hearings and subsequent extensions to hearings. The agency prepared media briefings as required and provided a media monitoring service on press coverage of the inquiry. Media training was provided to senior members of the inquiry team.The inquiry team found the engagement of an external PR agency valuable in ensuring that the media and the public were kept informed of the inquiry’s progress, while permitting inquiry team members to concentrate on the work of the inquiry.
There is of course a possibly significant financial cost in engaging an external PR agency which should be acknowledged at the outset in the inquiry’s budget.
46. We recommend that training should be provided and reassurances given to members that advice and support to manage media scrutiny is available.
As above, media training can be provided to senior members of the inquiry team.
