Call for law changes to ensure ScotGov public inquiries are effective

The Herald Scotland

2 days ago

It has come as it emerged the Scottish Government has admitted there is no legal requirement to monitor whether lessons learnt recommendations from inquiries are actually acted on.
Those inquiries cover 20 years and range from the Edinburgh Tram Inquiry, the Vale of Leven Inquiry investigation into the occurrence of C. difficile infection to the the Stockline inquiry into the 2004 explosion at the ICL Plastics factory in Glasgow and the public investigation into the integrity of the fingerprint service.
The current cost of all live inquiries has soared thirteen-fold over ten years to stand at nearly £180m and it is estimated the overall costs has reached nearly £250m since 2007.
The cost of the five live major inquiries that are currently running eclipses the solitary one that was live ten years ago - and even those costs are spiralling.
At the start of last year the live inquiries were costing £120m. Ten years ago the solitary major inquiry at the time into the Edinburgh Tram project came at a total cost of £13m. It was set up to establish why the capital's trams project incurred delays, cost more than originally budgeted and delivered significantly less than was projected.
Edinburgh Trams were subject of an inquiry into soaring costs and delays But there are concerns that overall cost figures for inquiries could well be a lot higher as they do not include the costs to government departments, other public bodies and those participating.
The Scottish Government was asked by a group of MSPs how many of the 197 recommendations, including 11 interim and a plan of action from a series of public inquiries since 2007 were implemented and what its role is in monitoring and ensuring lessons are learnt.
But they were told that the law does not require ministers to act as overseer in this area, even though under the Inquiries Act 2005, the chairman of an inquiry must provide a final report to the ministers, setting out the facts determined by the inquiry panel and any recommendations where its terms of reference lay that out.
Deputy First Minister Kate Forbes, response to questions about which recommendations were actioned did not spell out what of the 200 lessons were actually acted upon from inquiries formally established by ministers.
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Instead she states that the Act "does not contain any provision for centrally monitoring over whether the accepted inquiry recommendations are actually implemented".
And she added: "There is no legal obligation to respond to a report."
The questions related to recommendations of concluded public inquiries since 2007, and also include the Penrose infected blood probe.
She further states in answer to questions about what lessons have been learnt, that in practice, an area of government "will be identified as responsible for taking forward recommendations (where appropriate) and ensuring delivery where they are accepted".
She said recommendations may also be made by an inquiry relating to other parties, such as public bodies, "which would be for their consideration".
The current cost of the two live inquiries into health-related issues including the Covid-19 pandemic currently stands at £64.3m.
There were no live health-related public inquiries ten years ago, although in the decade previously, there were two which together cost £22.8m.
Over £12m of legal and administrative costs has been incurred by NHS bodies alone responding to public inquiries since 2021.
NHS National Services Scotland (NSS) which is a core participant in the long-running Scottish Covid-19 pandemic inquiry and has participated in two further public probes says it has spent £3.1m since 2021/22 in responding to public inquiries through legal and other administrative costs. On top of that a further £9m in legal services for public inquiries was provided to NHS Scotland boards by the NSS's Central Legal Office.
NSS, which reports directly to the Scottish Government, and works at the heart of Scotland's health service, providing national strategic support services and expert advice to NHS Scotland, suggested an independent advisory body could be established to decide whether a public inquiry should be held and hold to account those probes that did go ahead.
It suggested that the current processes for monitoring public inquiry costs are "inadequate" saying that they are not reimbursed "or reported consistently".
The NSS said that the advisory body could have a role in assessing the costs.
"Tight terms of reference are essential when a public inquiry is established to ensure value for money" they said.
NSS said that the inquiries' effectiveness "can vary considerably".
It said that work was needed to look at each concluded inquiry in Scotland against its terms of reference and examine what the has been achieved. It said that that would allow effectiveness "to be measured in more detail".
It said a new advisory body could examine what opportunities there area for learning lessons, whether it would be effective and whether it would be value for money. It could also ensure a consistency of approach and oversee costs that are incurred.
And it suggested that a law could be introduced to ensure that lessons are learnt from public inquiries, indicating that in terms of lessons learnt "consistency and cascading out can be challenging".
The independent advisory body could "support consistency in cascading lessons learned".
Section 28 of the Fatal Accidents and Sudden Death etc (Scotland) Act 2016 introduced a requirement that those to whom recommendations are directed must provide a response within eight weeks to set out what changes have been made or are proposed. Alternatively it has to provide the reasons why no action is being taken.
It suggested a similar law that is brought in for public inquiries "requiring participants in public inquiries to report to parliament with their written response to the inquiries' reports".
Lord Hardie, the man in charge of the Edinburgh tram probe has admitted there were limitations when inquiries like the one he oversaw was established by the Scottish Government as non-statutory, which he says he was not consulted over.
He has said in correspondence seen by the Scottish Government that this led to him being unable to access material held by the City of Edinburgh Council and resulted in the refusal of key witnesses to co-operate.
The most expensive and longest running of the current probes is the Scottish Child Abuse Inquiry into historical abuse of children in residential care that was formally established in October 2015 - ten months after the Scottish Government announced that it would happen.
Concerns have been raised about delays and mounting costs - which was running at £78.211m at the start of last year and has risen to £95.3m as of March 2025.
The second most expensive live public probe is the Scottish Covid-19 inquiry which started in August 2022 to examine Scotland's response to and the impact of the pandemic and to learn lessons for the future.
It had run up costs of £12.816m by the start of last year. And by December last year it was at £34m.
The Scottish Hospitals Inquiry chaired by Lord Brodie QC which is examining issues of safety and wellbeing issues at two Scots health establishments had cost £14.33m at the start of last year after opening in August 2020. It had risen to £23.6m in December 2024.
It is examining complaints around the Queen Elizabeth University Hospital (QEUH) in Glasgow, and the Royal Hospital for Children and Young People (RHCYP) and Department of Clinical Neurosciences in Edinburgh.
Its final report is expected to be issued at the end of next year after calls for further evidence.
The latest inquiry into Sam Eljamel, who harmed dozens of patients and left some with life-changing injuries, was launched last month and has racked up £1.08m in costs so far - before hearing any evidence.
Mr Eljamel was head of neurosurgery at Dundee's Ninewells Hospital until his suspension in December 2013. He resigned a year later and is now believed to be operating in Libya.
At the start of last year, the Herald revealed the cost of live inquiries at that point was at £120m, while the Scottish Parliament launched an inquiry last month into their cost effectiveness last month. MSPs are to further consider the role of public inquiries today.
Research suggests the total cost of all public inquiries launched over the last 18 years, in today's prices, is at £230m so far.
A Scottish Government spokesperson said: 'Public inquiries are set up when no other avenue is deemed sufficient given the issues of public concern. In many cases, such as the Scottish Covid Inquiry, they are set up with the support of, or in response to calls from, the Scottish Parliament.
"Public inquiries operate independently of government and the chair has a statutory duty to avoid unnecessary costs.'