Edinburgh Tram Inquiry

Scottish Ministers should undertake a review of public inquiries to determine the most cost-effective method of avoiding delay in the establishment of an inquiry, including consideration of establishing a dedicated unit within the Scottish Courts and Tribunals Service and publishing regularly updated guidance for people involved in the establishment and progress of public inquiries.

In November 2023, Màiri McAllan, Cabinet Secretary for Transport, Net Zero and Just Transition, stated to the Scottish Parliament that ministers were "working through all of these recommendations", adding that additional guidance on the efficient establishment and delivery of public inquiries was in development and had been shared with recent inquiries (Màiri McAllan response, Nov 2023). The record holds no update since the Scottish Government's response of November 2023 (Màiri McAllan response, Nov 2023).

In any event Scottish Ministers should not appoint as the sponsor of any public inquiry any department, agency or other government organisation where it, or any of its employees, has had any involvement in the project or other event giving rise to the establishment of the public inquiry.

In November 2023, Cabinet Secretary for Transport, Net Zero and Just Transition Màiri McAllan stated that the Scottish Government was working through the recommendations, adding that "additional guidance similar to that suggested is already in development" regarding the establishment and delivery of public inquiries and had been shared with recent inquiries as they were established (Màiri McAllan response, Nov 2023). The record holds no update since the Scottish Government's response of November 2023 (Màiri McAllan response, Nov 2023).

The guidance mentioned in the first recommendation should include: advice concerning the circumstances in which civil servants in the inquiry team may properly transfer to posts, other than promoted posts, within other government departments or agencies; which positions within the administration of a public inquiry may be filled by the employment of agency staff; and whether longer-term contracts as temporary civil servants are more appropriate for particular positions that cannot be filled by permanent civil servants.

In November 2023, Cabinet Secretary for Transport, Net Zero and Just Transition Màiri McAllan stated to the Scottish Parliament that the Scottish Government was "working through all of these recommendations" (Màiri McAllan response, Nov 2023). The Minister reported in November 2023 that additional guidance regarding the efficient establishment and delivery of public inquiries was already in development and had been shared with recent inquiries as they were established (Màiri McAllan response, Nov 2023).

In the interests of protecting the public purse and maximising the benefits from public expenditure on major projects, the Scottish Ministers should contemplate establishing a joint working group consisting of officials in Transport Scotland and representatives of the Convention of Scottish Local Authorities (“COSLA”) to consider how best to take advantage of: • tolerating the risk of cost overrun that is always a possibility in risk assessments by including all public-sector light rail projects in the portfolio of large projects undertaken by the Scottish Government, including those to be constructed wholly within the geographical boundaries of a single local authority; • the greater experience within Transport Scotland of managing major projects in the public sector; and • the necessary skills and expertise within Transport Scotland to deliver the project on time and within budget.

In November 2023, the Cabinet Secretary for Transport, Net Zero and Just Transition, Màiri McAllan, stated that the Scottish Government would "consider that recommendation on a case-by-case basis", noting that while its focus on light rail limited applicable cases, evidence regarding the separation of roles also remained relevant (Màiri McAllan response, Nov 2023). The record holds no update since the Scottish Government's response of November 2023 (Màiri McAllan response, Nov 2023).

Where a company, including an ALEO, knowingly submits a report or other information to local authority officials that is misleading by reason of the inclusion of false statements or the omission of relevant facts or where such officials knowingly submit misleading information to councillors, whether or not councillors act upon that information, the Scottish Ministers should consider whether there should be an appropriate sanction in damages against the relevant individuals within the company responsible for the false statements or omission of relevant facts, as well as against the company itself, and against the relevant local authority officials involved in misleading councillors.

In November 2023, Màiri McAllan, Cabinet Secretary for Transport, Net Zero and Just Transition, stated that ministers were giving "careful consideration" to the recommendation, noting the view that the civil law of delictual liability might already provide for such sanctions but confirming that they would continue to consider the matter (Màiri McAllan response, Nov 2023). The record holds no update since the Scottish Government's response of November 2023 (Màiri McAllan response, Nov 2023).

In addition to any civil liability arising from any sanction introduced in accordance with Recommendation 22, the Scottish Ministers should consider whether there is a need for a statutory criminal offence involving strict liability once it is established that the information and/or report was misleading by reason of the inclusion of false statements or the omission of relevant facts.

In November 2023, Màiri McAllan, Cabinet Secretary for Transport, Net Zero and Just Transition, stated that consideration was being given to creating a statutory criminal offence, noting an initial view that provision might already exist under the criminal common law of fraud (Màiri McAllan response, Nov 2023). The Minister confirmed that work to consider the recommendation would continue (Màiri McAllan response, Nov 2023). The record holds no update since the Scottish Government's response of November 2023 (Màiri McAllan response, Nov 2023).

The Scottish Ministers should also give consideration to the need for legislation to impose a similar duty of disclosure to that owed by policyholders to their insurers upon a company, its directors, employees or consultants and upon a local authority and its officials towards representatives of OGC or of Audit Scotland undertaking any review of a publicly funded project. Any such legislation should determine the appropriate civil and/or criminal sanctions to be imposed for breach of the duty of disclosure.

Speaking to the Scottish Parliament in November 2023, Màiri McAllan, Cabinet Secretary for Transport, Net Zero and Just Transition, stated that ministers would continue to "very carefully consider each of the recommendations", noting where action had already been taken or reflected best practice and identifying where further steps could be taken (Màiri McAllan response, Nov 2023). The record holds no update since the Scottish Government's response of November 2023 (Màiri McAllan response, Nov 2023).