John Sturrock KC

The “bill for public inquiries is now running at more than £230 million”. Are costs “out of control”?

I was asked this question by Michael Marra, deputy convener of the Scottish Parliament’s Finance and Public Administration Committee, at an evidence-gathering session on the cost-effectiveness of Scottish public inquiries, at which I was privileged to give evidence.

The Committee wished to explore my experience in conducting a review into, and reporting on, allegations of bullying and harassment in NHS Highland back in 2019. That review had taken approximately 18 weeks to complete.

I began writing this article before Lord Bracadale’s resignation as chair of the Sheku Bayoh Inquiry. Nothing in this article is intended as comment on the conduct of any current inquiry, each of which has its own dynamic and remit to fulfil. Everyone is doing their best in the circumstances in which they find themselves.

However, as the Committee is doing, we might pose the question: generally, might there be more effective and less costly ways of carrying out some of this work?

It seems ironic that the time and cost taken to set up and conclude inquiries may replicate the circumstances being investigated. Often, duration of projects and concerns about public expenditure are also the issues being inquired into (think Trams). However, delay in learning the lessons may itself compound the original problem. It may take years for proposed changes to be implemented, if indeed any action follows from a public inquiry’s recommendations. During that time, the same mistakes may be repeated, not only in the particular matter in question but elsewhere (think CalMac ferries and the possibility that the same mistakes are still being made in public sector procurement). Ponder also the Covid inquiries – surely we need urgent recommendations so that we can take preventive steps before the next pandemic?

Might there be quicker and sufficiently effective ways of addressing some of the difficult situations which arise from time to time? To take the Sheku Bayoh Inquiry, the cost (including police time) is said to be in excess of £50 million over its five years’ duration. Suppose that the underlying issues could be addressed in a different way – and the costs greatly reduced?

Suppose that someone had suggested that the parties intimately affected be invited to participate in a form of carefully facilitated dialogue (we might call it mediation) with a carefully selected independent facilitator. How many of the issues which have led to lengthy and expensive proceedings could have been addressed in that way? Perhaps not all – and perhaps there is a public interest in some of the issues being addressed in a public forum – but might there have been a significant narrowing of the issues? And less associated stress and trauma?

I think also of the protracted tribunal hearing involving NHS Fife, a nurse and a transgender doctor. It is reported that NHS Fife alone has incurred legal fees of £320,000 so far. Could a different process have reduced this considerably?

I recall listening to a senior Australian barrister years ago describing how he had mediated serious child abuse cases in his country. The costs associated with our own child abuse inquiry are said to be in the region of £100 million. In future, might similar situations be approached differently?

Some public inquiries, such as Dunblane and Piper Alpha (respectively 4 months’ duration and £2.4 million cost and 13 months’ duration and £6 million cost, at today’s prices) are clearly essential. But we must hope that the Parliamentary Committee will be bold in suggesting other approaches too.

John Sturrock KC is a mediator. A shorter version of this article first appeared in The Scotsman.