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Chapter 2: Establishment and Progress of the Inquiry

Background to the Inquiry

2.1 The background outlined in Chapter 1 (Introduction and Overview) resulted in widespread public concern throughout the course of the Edinburgh Tram project (the “project”). That concern was not confined to residents and businesses along the route of the proposed tram lines throughout the prolonged period of the works when it was apparent that little or no progress was being made on the project; public concern extended throughout the city and beyond, not only because of the impact on the lives of its citizens caused by the apparent lack of activity suggesting that such disruption was unnecessary, but also because of the damage to the reputation of the city of Edinburgh, and of extended journey times to commuters for no obvious benefit to them or to the wider community.

2.2 As was discussed in Chapter 1 (Introduction and Overview), on 25 October 2007, City of Edinburgh Council’s (“CEC’s”) approval was sought for version 1 of the Final Business Case (“FBCv1”) in respect of phase 1a (Edinburgh Airport to Newhaven). In the report to councillors by the Director of Finance (Mr McGougan) and the Director of City Development (Mr Holmes) the cost of phase 1a was forecast at £498 million, including a risk allowance, and phase 1b (Haymarket to Granton Square) (also referred to as the “Roseburn spur”) at £87 million, based upon non-concurrent construction with phase 1a if a decision to construct phase 1b was made before March 2009 [CEC02083538]. On 20 December 2007, CEC’s approval was sought for version 2 of the FBC prepared by Transport Initiatives Edinburgh Limited (“tie“). The report provided by the Director of Finance and the Director of City Development confirmed that the estimated cost of £498 million, including a risk allowance for phase 1a, remained valid [CEC02083448]. CEC’s budget for line 1a was £545 million. On the basis of the figures provided in these reports to CEC it was apparent that line 1a as well as a significant part of section 1b could be constructed within that budget. In a report to CEC’s Policy and Strategy Committee on 13 May 2008, CEC’s Chief Executive advised the committee that the estimated cost of phase 1a was now £512 million (with a further contingent payment of £3.2 million if phase 1b was not built) and sought and obtained approval to authorise tie to enter into the infrastructure contract (“Infraco contract”) [USB00000357; CEC01891564, page 0007, item 11]. Following that meeting the Infraco contract was signed in the expectation that line 1a would be constructed within the budget of £545 million. While that budget would not also enable line 1b to be completed, the figures in the report to CEC made it clear that a significant part of line 1b could be constructed within the available budget of £545 million.

2.3 The delivery of a tram line from the Airport to York Place (the “truncated route”), as opposed to the promised route extending to Newhaven plus at least part of the Roseburn spur (the “entire route”), and the increased reported cost of £776 million for the truncated route in contrast to the original estimated cost of £545 million for the entire route resulted in significant public concern on a national scale.

Announcement of the Inquiry

2.4 In response to a question from Marco Biagi MSP during First Minister’s Questions on Thursday 5 June 2014, the then First Minister, Mr Salmond MSP, announced to the Scottish Parliament that Scottish Ministers planned to commission a public inquiry into the handling of the project.

2.5 On 12 June 2014, Mr Salmond announced that I would chair the Inquiry and that its Terms of Reference had been agreed in the following terms:

“to inquire into the delivery of the Edinburgh trams project to establish why it incurred delays, cost considerably more than originally budgeted for and delivered significantly less than was projected through reductions in scope”.[8]

2.6 In making that announcement, the First Minister indicated that he would be looking forward to “a swift and thorough inquiry”. As became apparent from some comments in the media, the phrase used by the First Minister created an expectation in the minds of some that the Inquiry would be concluded within a short timescale. Every inquiry should be conducted as swiftly and as thoroughly as possible, consistent with the need to fulfil its Terms of Reference. Having said that, the timescale for any inquiry will depend upon its particular circumstances, including its likely scale, the likely number and size of documents that it will need to consider in advance of, during, and after the oral hearing, the likely number and whereabouts of witnesses required to give evidence, whether in writing or orally, and the extent to which others co-operate with its investigations.

2.7 At the time of my appointment I was not asked for, nor could I have provided, an estimate of the likely timescale of the Inquiry. Unlike the position in many other inquiries, there was no basic data, such as police statements of witnesses to the events under investigation, or other statements or files relating to individual patients or victims or bereaved families, upon which the investigation could build. Nor did I have any clear indication of the volume of material to be recovered, the number and whereabouts of witnesses to be interviewed, and the complexities of that process having regard to the passage of time and the number of documents affecting many of the witnesses. These and other challenges will be considered in more detail below.

2.8 In the course of the Inquiry’s investigations it became apparent that even those who had been directly involved in the project had no concept of the volume of material relating to it. Accordingly, the phrase used by the then First Minister should be interpreted in the general sense mentioned above. I am reinforced in that view by the omission of any reference to a particular timescale within which I had to submit my report. In many inquiries the Terms of Reference include a reporting date, whereas no such date was stipulated by the then First Minister in his parliamentary statements or in the subsequent Letter of Appointment issued to me.

The scope of the Inquiry

2.9 By letter dated 12 July 2014, the then Deputy First Minister, Nicola Sturgeon MSP, appointed me as Chairman of the Inquiry. The First Minister’s description of the Terms of Reference of the Inquiry in his announcement dated 12 June 2014 provided a broad outline of the scope of the Inquiry, but the Letter of Appointment detailed the Terms of Reference which had been agreed between me and Scottish Ministers prior to 12 June 2014. The Terms of Reference agreed with the Scottish Ministers, and included in an annex to the Letter of Appointment dated 12 July 2014, are as follows:

“1. To inquire into the delivery of the Edinburgh Tram project (‘the project’), from proposals for the project emerging to its completion, including the procurement and contract preparation, its governance, project management and delivery structures, and oversight of the relevant contracts, in order to establish why the project incurred delays, cost considerably more than originally budgeted for and delivered significantly less than was projected through reductions in scope.

“2. To examine the consequences of the failure to deliver the project in the time, within the budget and to the extent projected.

“3. To otherwise review the circumstances surrounding the project as necessary, in order to report to the Scottish Ministers making recommendations as to how major tram and light rail infrastructure projects of a similar nature might avoid such failures in future.”

A copy of the Letter of Appointment is contained in Appendix 1.

2.10 The scope of the Inquiry was defined by the Terms of Reference outlined above. While that may appear to the enlightened reader to be self-evident, there were indications in the evidence and closing submissions that some participants failed to appreciate that constraint upon me or, if they did, sought to introduce irrelevant considerations. For example, in his evidence on 6 October 2017, Mr Harries volunteered that Edinburgh now has an excellent, reliable and technically sound tram system that operates well [PHT00000016, page 44]. The written submission on behalf of DLA included the following statements:

“DLA acknowledges that the project ran into considerable delay and exceeded its originally stated budget and that identifying the causes of this is a matter of considerable public importance.” [TRI00000288_C, page 0002.]

2.11 That statement respects the limits imposed upon me by the Terms of Reference of the Inquiry. Unfortunately, it continued as follows:

“However, it will also be submitted that the project has ultimately been a significant success for the City of Edinburgh. At least from the City’s perspective, it has acquired a very significant, profit generating asset which has brought with it many social and economic benefits to the City. Particularly in light of the grant provided by the Scottish Government, the asset now owned by CEC is bound to be worth vastly more to the City than the City had to spend to acquire it. Prior to embarking upon the project CEC considered that a tram would bring many social and economic benefits to the City of Edinburgh. It would be inappropriate to speculate on whether all of the anticipated benefits have been obtained. However, the project has been such a success that CEC intends to extend the line further.” [ibid, pages 0002–0003.]

2.12 Although such a statement might have some relevance in the context of the Court of Session action at the instance of CEC against DLA, the issues raised are not within the remit of the Inquiry. Moreover, it would be inappropriate for me to express any opinion on the merits of any aspects of that Court of Session action or any other litigation. Suffice it to say that I have not found such comments helpful in fulfilling my remit.

2.13 For the avoidance of doubt, the scope of the Inquiry does not include issues such as the need for a tram network, the political and economic justification for it, or the operating success or otherwise of the truncated route from Edinburgh Airport to York Place.

Establishment of the Inquiry

2.14 It would be understandable for the public to have the expectation that the announcement of the commissioning of the Inquiry and my appointment as its Chair would mean that the work of the Inquiry could commence immediately in accommodation and with staff resources already in place. That would certainly have been consistent with the then First Minister’s comments about the speed and thoroughness of the Inquiry.

2.15 However, that is not how the system of public inquiries in Scotland operated at that time (and still does). Upon the announcement of a public inquiry its chair must find suitable accommodation, in this case with the assistance of officials in the Scottish Government, and appoint senior staff, notably the Solicitor to the Inquiry and the Secretary to the Inquiry. In turn they are responsible for identifying staff and other resources necessary to fulfil the remit of the inquiry. In short, each inquiry must appoint its own administration but there is no single department within the Scottish Government with responsibility for the establishment and funding of public inquiries.

2.16 The House of Lords Select Committee on the Inquiries Act 2005 (the “Act”) published its Report on the Post-Legislative Scrutiny of the Act on 11 March 2014.[9] In that report the Committee concluded that the need for the Secretariat of every inquiry to start from scratch was a major cause of the unnecessary length and cost of inquiries. Accordingly the Committee recommended that there should be a unit within Her Majesty’s Courts and Tribunals Service responsible for all the practical details of setting up an inquiry. In the Scottish context the creation of such a unit within the Scottish Government would address such issues and would have the added advantage of providing reassurance on concerns about potential conflicts of interest, which are discussed below. The Scottish Courts and Tribunals Service administers courts and tribunals in Scotland that frequently deal with cases involving the Scottish Ministers in a manner that is beyond reproach, even although the ultimate funding for such courts and tribunals is provided by the Scottish Ministers through the Justice Directorate. The creation of such a unit would also be consistent with the third recommendation in the Report dated 25 October 2018[10] of the Investigative Review into the process of establishing, managing and supporting Independent Reviews in Scotland.

2.17 Each inquiry is allocated to a sponsor department within the Scottish Government. The sponsor department for the Inquiry was Transport Scotland, an executive agency of the Scottish Government. Although the sponsor department did not interfere in the work of the Inquiry, throughout its duration the Secretary had to remind the sponsor of the delineation between the work of the Inquiry and the interests of the sponsor department and the Scottish Ministers. Consequently, discussions between officials in Transport Scotland and the Secretariat were confined to issues relating to the funding of the Inquiry. Nevertheless, there might be a perception that it was inappropriate for the Scottish Ministers to allocate that agency as the sponsor for the Inquiry, particularly as officials in Transport Scotland had played a significant role in the Tram project and ought to have anticipated being potential witnesses in the context of the Scottish Ministers participating in the Inquiry as core participants.

2.18 Although there was no actual conflict of interest between the Inquiry and the sponsor department, most cases concerning a possible conflict of interest are concerned with apparent – as opposed to actual – bias. The creation of a unit within the Scottish Courts and Tribunals Service would remove concerns about potential conflicts of interest where the sponsor department has been actively involved in the subject-matter of the inquiry. If Scottish Ministers were to agree to establish such a unit it would be prudent for them, pending its creation, to take steps to ensure that the sponsor department in any future inquiry has had no prior involvement in the subject-matter of that inquiry.

2.19 Following the announcement of my appointment on 12 June 2014, I considered that it was necessary to take steps to establish the Inquiry at the earliest opportunity and to commence work as soon as reasonably practicable, particularly in view of the First Minister’s comments mentioned in paragraph 2.6 above. I realised that I would require the assistance of a Solicitor to the Inquiry and Counsel to the Inquiry, as well as a Secretary to the Inquiry. While it was possible for me to appoint the senior members of the legal team, including the Solicitor to the Inquiry and Counsel to the Inquiry, soon after the announcement of my own appointment, the appointment of the Secretary to the Inquiry involved a more protracted process. For that reason, pending the appointment of a full-time Secretary to the inquiry I appointed an interim Secretary to assist me in taking preliminary steps to establish the location of the Inquiry and to commence its investigations.

Inquiry accommodation

2.20 Following the First Minister’s announcement on 12 June 2014, steps were taken, with the assistance of officials in the Scottish Government, to secure accommodation for the Inquiry Team and for holding the oral hearings. On 20 June 2014, I visited Waverley Gate along with the Solicitor to the Inquiry and the interim Secretary and other officials responsible for accommodation within the Scottish Government. At that location there was vacant office space leased by the Scottish Government and allocated to the budget of Creative Scotland. The office space was adjacent to a larger area that was used infrequently by Creative Scotland and which appeared to me to be a suitable venue for future public hearings. The vacant office space had the appearance of a modern office fitted with adequate portals for the use of modern information technology (“IT”). No indication was given of any possible IT issues. Unfortunately, the inadequacy of the IT provision within the office accommodation soon became apparent and delayed the progress of the Inquiry. This matter is addressed in paragraphs 2.58-2.62 below.

2.21 In considering the suitability of any accommodation it seemed to me that a number of factors were important. The first was the capacity, convenience and accessibility of the hearings venue for witnesses, the media and members of the public, particularly those affected by the issues encompassed by the Terms of Reference and wishing to participate in the Inquiry process or simply to observe the public hearings. Secondly, I considered that the office accommodation for the Inquiry Team should be able to accommodate the maximum number of people whom I anticipated might be involved in the investigations and preparations for any public hearings, and should have modern facilities including computer access. Thirdly, although in some inquiries the inquiry office is remote from the venue for any public hearings, I did not consider this to be ideal for the Inquiry and wished the office accommodation to be as close as possible to the venue for holding public hearings.

2.22 I selected the accommodation at Waverley Gate because the office accommodation and the adjoining room were each sufficiently large to accommodate the anticipated needs of the Inquiry. In particular, I considered that the room identified for the purpose of the public hearings was large enough to accommodate the legal representatives of the estimated number of core participants and the anticipated number of visitors and members of the media. Having the Inquiry offices and the hearing room adjacent to each other with connecting doors assisted in the efficient conduct of the public hearings. I also considered that it could be used for the purposes of the public hearings without causing undue inconvenience to other occupiers of the building. There was the added advantage that the accommodation was already leased by Scottish Ministers but was used infrequently by Creative Scotland, the agency for which the accommodation had been acquired and which was willing to abandon its use of it in the interests of economy. It could be made available as soon as required.

2.23 The office accommodation, also leased by Scottish Ministers and allocated to Creative Scotland, was vacant and available for immediate occupation. The rents being paid by Scottish Ministers, and allocated to Creative Scotland’s budget, were £100,000 per annum and £150,000 per annum for the office and adjoining room respectively. The Inquiry occupied only the office accommodation initially, with the annual rental of £100,000 being allocated to its budget. Occupation of the adjoining room was delayed until it was required by the Inquiry. By using the accommodation at Waverley Gate the Inquiry incurred no additional cost to the public purse for its accommodation, even although for accounting purposes the rent was included as a cost of the Inquiry.

2.24 Following the public hearings, in the interests of economy the Inquiry Team moved to vacant office space within the Scottish Government offices at Victoria Quay. The rent allocated to the Inquiry’s budget for accommodation reduced from £250,000 per annum to less than £13,000 per annum.

2.25 In any review of the conduct of public inquiries, consideration should be given to the need to avoid delays by ensuring that at the time of announcing the inquiry there is suitable accommodation available, or at least identified, with any necessary links to the SCOTS network discussed in paragraph 2.60 below.

Appointment of the Secretariat

Secretary to the Inquiry

2.34 All inquiries need a dedicated Secretariat, led by the Secretary to the Inquiry, to provide the necessary administration to support their work. In this case, as with many other inquiries, the administrative duties were extensive and varied, including:

  • the procurement of a document management system
  • the analysis of documents
  • managing the process of taking statements from witnesses
  • the procurement and installation of equipment for the public hearings
  • maintaining the website
  • the citing of, and managing, witnesses attending the public hearings
  • supervising the budget

and many other tasks.

2.35 Ms Martin commenced as Secretary to the Inquiry on 1 September 2014. The delay between the announcement of the Inquiry and her assuming the role of Secretary to the Inquiry was attributable to the procedures associated with the recruitment of staff from within the Scottish Government, including advertising the post, inviting applications from those interested in the role, interviewing candidates and securing their release from the department currently employing them. Such a delay was replicated in respect of most, if not all, of the civil servants who were ultimately recruited by the Secretary to populate the Secretariat. There was a general reluctance on the part of departments to agree to early release of successful candidates because in many cases such employees would not be replaced due to budget constraints imposed on departments by the Scottish Government, or because of a delay in securing a replacement. These delays adversely affected the progress of the Inquiry, and any review of the conduct of public inquiries should address this issue, particularly if Scottish Ministers wish such inquiries to be concluded quickly.

2.36 Apart from appointing civil servants to the Secretariat, the Secretary also appointed agency staff to undertake tasks such as reviewing and coding documents recovered by the Inquiry, interviewing witnesses and preparing statements for their approval, and undertaking various research projects. More significantly, the Secretary recruited an agency worker to undertake the responsibilities of document manager. These members of staff had contracts that permitted them to leave after giving one week’s notice of their intention to do so. Equally, the Secretary could terminate their contract by giving an equivalent period of notice. In the section on staffing in paragraphs 2.42–2.45 below, I consider the implications of such arrangements and the appropriateness of using agency staff for certain tasks, as well as the need for careful management of such staff to minimise the risk of their leaving with a significant amount of work unfinished.

2.37 On 16 August 2016, an agency worker who had been allocated the task of taking statements and preparing them for the use of the Inquiry, and ultimately core participants, resigned following a disagreement with the Secretary about the quality of his work. At that stage he had a number of statements outstanding and it became apparent that the management of the process of statement taking had failed to take account of the risks associated with the departure of a statement taker before he had completed the work allocated to him. That failure contributed to further delay and expense involved in completing the statements, including re-interviewing witnesses and rewriting draft statements. The Secretary took medical leave of absence early in September 2016 and resigned as Secretary on 7 November 2016.

2.38 On 12 September 2016, I appointed the Deputy Secretary to the Inquiry, Ms Worth, to be the interim Secretary until Ms Martin clarified her intentions. Following Ms Martin’s resignation I confirmed the permanent appointment of Ms Worth as Secretary to the Inquiry. She had had sole responsibility for the procurement and installation of services and equipment in the room for public hearings and had undertaken numerous other tasks within the Secretariat. From my discussions with Ms Martin when she was in post as the Secretary, as well as my own experience and observations, it was apparent that Ms Worth had fulfilled all tasks allocated to her efficiently and with due regard to economy. The added advantage of her appointment was that she was familiar with the work of the Inquiry and did not require a prolonged period to familiarise herself with the work of the Secretariat. From experience of other staff changes it usually took about three months for a new member of staff to be fully operational, as there was what one former Deputy Solicitor described as a “steep learning curve”. Ms Worth reorganised the structure of the Secretariat and saved Inquiry funds by deciding not to appoint a Deputy Secretary or Assistant Secretaries, while at the same time providing me with the necessary support.

Staffing

2.39 To support its work the Inquiry recruited legal and administrative staff from within the Scottish Government. There is a challenge in securing staff from within the Scottish Government who have the required experience for projects of this nature. Ideally, it would be helpful to have a suitably qualified and experienced group of staff within the Scottish Government who are available to undertake the legal and administrative work associated with the establishment and progress of a public inquiry as necessary, or to assist inexperienced staff to do so and to provide support and advice thereafter. I recognise that public inquiries may not be commissioned with sufficient frequency to justify retaining such staff solely for the purpose of administering inquiries or acting as consultants to others involved in that task, and that it will be necessary for them to be allocated to other duties in the absence of any public inquiry. However, having such an experienced group of staff available to undertake the legal and administrative duties required for a public inquiry or to assist others in doing so would mean that staff would be available to step in at short notice and undertake the required work, taking advantage of the experience gained in other inquiries. The alternative is to allow inexperienced staff sufficient time to understand the obligations imposed on an inquiry team and address issues without knowing that others had faced and resolved similar issues. It would also assist experienced and inexperienced staff alike if written guidance, regularly updated, were to be available, dealing with the requirements of establishing a public inquiry and recording issues that had arisen in other inquiries and how they had been resolved.

2.40 The consequence of not having such a dedicated group of staff is that the inquiry staff will often be undertaking this work for the first time, without the availability of guidance from those with experience of similar inquiries. That proved to be the case for this Inquiry. As a consequence, such staff faced a steep learning curve but on this occasion they addressed these challenges as required. However, it did mean that there was a delay in staff becoming fully conversant with not only the subject-matter of the Inquiry, which is unavoidable, but also with the procedural aspects of its conduct.

2.41 There is a risk that lessons learned from undertaking previous inquiries are not retained when people engaged in them move on to other work. Although members of the Inquiry Team were able to speak to people who had been engaged on previous inquiries, and were grateful for the assistance given in that regard, that arrangement should not depend upon goodwill and would be better structured within a formal setting such as the provision of written guidance that is regularly updated and the assistance, as required, of members of the experienced group mentioned in paragraph 2.39 above.

2.42 In many inquiries it is not possible to recruit sufficient personnel from within the Scottish Government to undertake all the tasks necessary for the inquiry to fulfil its Terms of Reference. In that event, temporary members of staff must be recruited through agencies. This Inquiry was no different in that regard. The investigation undertaken by the Inquiry Team included the task of reviewing documents, the scale of which will be appreciated when one considers the number of documents recovered and the size and complexity of some of them. Many of these documents were technically complex, and it was necessary to train document reviewers to identify what was relevant from that material and to make the necessary connections between documents. Although there is an obvious commercial advantage to the public sector in using temporary staff for this task, the risk and potential disadvantage of doing so is that employees who have been trained and have acquired such additional skills may leave the inquiry at short notice. Although there was some turnover of agency staff involved in reviewing documents, most document reviewers remained as part of the Inquiry Team for substantial periods of time, and the task of reviewing documents was completed before the commencement of hearings.

2.43 As noted in paragraph 2.36 above, the task of taking statements was another function delegated to temporary members of staff. As would have been the case with permanent members of staff, it was necessary to ensure that those recruited to take statements had sufficient understanding of the background to the Inquiry and the key issues that needed to be explored with witnesses. To that end, documents relevant to a particular witness were identified by members of the Legal Team and were collated for the use of the witness and the statement taker. In addition, Counsel to the Inquiry prepared a note of the issues that Counsel wished to be explored with the witness at interview. The risk associated with this use of temporary members of staff was that the period between interviewing witnesses and completing a draft statement often exceeded the period of notice that staff recruited through an agency required to give. This risk is distinct from the increased risks arising from allocating numerous interviews to a particular statement taker, which are mentioned in paragraph 2.37 above.

2.44 An added complication was that the Scottish Child Abuse Inquiry commenced after this Inquiry, and a number of statement takers and document reviewers sought and obtained employment as agency staff at that inquiry, particularly in the latter stages of the investigation stage of this Inquiry. In reporting that occurrence I do not intend any criticism of the agency staff who moved to the Scottish Child Abuse Inquiry. It was perfectly understandable that they should do so, particularly as that inquiry could offer them employment as document reviewers or statement takers for a much longer period. However, the loss of such skilled employees before the end of the investigation stage of this Inquiry presented serious challenges for it, but four statement takers volunteered to complete the interviews of prospective witnesses and the drafting of their statements. The Secretary and I were extremely grateful to them for their professionalism in completing that task, particularly as we knew that the majority of them wished, in due course, to obtain employment with the Scottish Child Abuse Inquiry.

2.45 Agency staff were also used as researchers within the Legal Team and as the document manager, who had been appointed by the original Secretary as part of her responsibility for staffing the Secretariat. The use of agency staff for such an essential role as document manager, and arguably for certain researchers, is a high-risk strategy having regard to the ability of such members of staff to leave at very short notice. In any future inquiries, careful consideration should be given to the appropriate tasks that can be undertaken by agency staff without a serious risk of compromising the work of the inquiry. In the absence of the availability of suitably qualified permanent civil servants to undertake skilled tasks such as legal research, or document managers, consideration should be given to the employment of people with the necessary skills as temporary civil servants for the duration of the inquiry. Suitably framed contracts of employment for such temporary civil servants would have the benefit of removing the risks associated with the departure of skilled employees at short notice.

Progress of the Inquiry

General approach

2.46 Section 17 of the Act provides that, subject to the Act itself and to the Inquiries (Scotland) Rules 2007 (the “Rules”), “the procedure and conduct of an inquiry are to be such as the Chairman of the Inquiry may direct”. Although the Inquiry was initially established as a non-statutory inquiry, I followed the procedures of a statutory inquiry, so far as possible. At the outset of the Inquiry the priorities were to identify and contact those witnesses who appeared to have had a significant role in the project, and to recover at an early stage documents that might be significant in fulfilling the Terms of Reference. I appreciated that this would be an iterative process because it was likely that witnesses, or documents themselves, would provide information leading to the necessity to recover other documents and contact other witnesses. On 26 August 2014, in Inquiry Procedure Direction No 1 I issued guidance concerning the production of documents to the Inquiry. That guidance was published on the Inquiry website, as was all future guidance.

2.47 As will be noted in paragraph 2.49 below, difficulties arose in contacting prospective witnesses and in recovering documents. Although such difficulties persisted after the conversion of the Inquiry to a statutory inquiry, the availability and use of statutory powers resulted in persuading witnesses to provide statements and in the recovery of significant documents. Even then, as will also be noted below, there were occasions when documents were not produced when they ought to have been.

Conversion to a statutory inquiry

2.48 When announcing the decision to commission a public inquiry the First Minister advised that the Inquiry would be conducted on a non-statutory basis. This was said to be for two principal reasons:

(i) by operating on a non-statutory basis Ministers anticipated that the Inquiry could be concluded more expeditiously, and

(ii) the Minister for Transport and Veterans had been assured by CEC that it would provide full co-operation and full documentation on all aspects of the Project.

2.49 While there is no reason to question the sincerity of the assurance given by CEC that it would co-operate with the Inquiry, it quickly became apparent that this assurance would not be sufficient, for the following reasons:

(a) In the course of preliminary discussions with officials of CEC the Inquiry Team provided them with a list of members of staff at CEC who had been involved in the Tram project and were of interest to the Inquiry. Some of these CEC employees had since retired or otherwise left the employment of CEC. The Inquiry Team requested that CEC officials provide the Inquiry with the contact details held by CEC for all individuals on the list. The then Solicitor for CEC, Ms Campbell, provided the Inquiry Team with the contact details of most of the people on the list who had confirmed that she was authorised to release such details. However, she stated that she could not disclose the contact details for specified individuals because they did not consent to any private address or other contact details held by CEC being disclosed to the Inquiry Team. The specified individuals were: Ms Lindsay, who had been Solicitor to CEC at a relevant time; Mr McEwan, the Business Improvement Director at tie; Mr Poulton, Director of Transport and Tram Monitoring Officer at CEC; and Mr Rimmer, also a Director of Transport at CEC. Ms Campbell also forwarded a letter from Ms Lindsay to her, which suggested that Ms Lindsay would not be willing to co-operate on a voluntary basis with the Inquiry’s investigations [PHT00000027, pages 195–204; TRI00000163; also TRI00000162; TRI00000169; TRI00000164; TRI00000170; TRI00000167]. As Chair of a non-statutory inquiry I lacked the power to compel anyone to participate in the Inquiry process and to co-operate with the Inquiry’s investigations.

It was not possible for the Inquiry to make contact with people who were unwilling to have their addresses or other contact details disclosed without potentially time-consuming and expensive enquiries being made to trace them. Furthermore, even if contact could be made it was apparent that there was a real risk that those potential witnesses would not co-operate voluntarily, and in particular would not meet members of the Inquiry Team to discuss their involvement in the project, and there was no means of compelling them to do so.

(b) In addition to considering the actions of CEC the Inquiry would also need to consider the actions of other bodies and individuals involved in the project. CEC could not make any commitments on behalf of any of the other organisations involved in the project or their employees, either current or former, regarding their disclosure of material to, and co-operation with, the Inquiry.

(c) CEC considered that the provisions of the Data Protection Act 1998 would act as an impediment to its providing the Inquiry with full access to relevant material in its possession. In particular, CEC could not provide personal data to the Inquiry in the absence of a statutory basis permitting release of that material. Similar issues would arise in relation to material held by others.

(d) In 2013 CEC had raised separate court proceedings in the Court of Session against DLA and tie Limited. The proceedings in both actions had been sisted (suspended), and CEC expressed concern that full participation in the Inquiry could prejudice its position in relation to those proceedings. It was, therefore, unwilling to provide full co-operation with the Inquiry where it felt that to do so could prejudice its position in relation to those proceedings.

2.50 In addition, I concluded that the immunity from suit afforded to witnesses and members of the Inquiry panel by section 37 of the Act should provide a reasonable degree of comfort to prospective witnesses that their participation in the Inquiry process would not expose them to the risk of litigation against them. The co-operation of such witnesses would assist in preparing a comprehensive report.

2.51 Although Ministers had anticipated that an Inquiry could proceed more quickly if conducted on a non-statutory basis, I am satisfied that no meaningful inquiry could have been conducted in the face of the reluctance of some essential witnesses to assist the Inquiry unless compelled to do so. The project had been the subject of much publicity over the years, and there had been widespread criticism of the apparent impact on the reputation of the City of Edinburgh allegedly due to mismanagement of the project. Having regard to such publicity, it is not surprising that professional people who had been engaged in the project might want to distance themselves from their involvement in it. Accordingly, the reluctance of key witnesses to participate voluntarily might reasonably have been anticipated, whatever assurances had been given by CEC concerning its willingness to co-operate. In my view, it was unrealistic to proceed with an inquiry of this nature on a non-statutory basis. A non-statutory inquiry might be concluded more quickly than a statutory inquiry, because it would have limited access to relevant witnesses and documents and would have no power to gain access to material that had been withheld by organisations and individuals. However, for identical reasons a non-statutory inquiry would certainly not have been thorough and would have been of little value in providing answers to the widespread concerns surrounding the project.

2.52 It should be noted that although I have recorded the response and apparent unwillingness of some current and former employees of CEC and former employees of tie to co-operate with the Inquiry, that should not be interpreted as a criticism of the individuals or the relevant organisations. In the absence of statutory powers of compulsion there was no obligation on individuals or their employers to co-operate, and they were therefore within their rights not to do so even although that was a decision that obviously was a cause of some disappointment to me.

2.53 I have focused on the response of current and former employees of CEC and former employees of tie simply because, prior to the conversion of the Inquiry to a statutory basis, assistance had only been sought from CEC and its current and former employees and the former employees of tie. Other participants in the project had not been contacted or asked to provide assistance before the decision was taken to convert the Inquiry to a statutory basis.

2.54 Against the background outlined above, on 30 October 2014 I submitted a request to the then Deputy First Minister that the Inquiry should be converted to a statutory inquiry under section 15 of the Act. Ministers agreed to that request and the then Deputy First Minister issued a Notice of Conversion on 7 November 2014. Copies of my letter and the Notice of Conversion are contained in Appendices 2 and 3 respectively.

Use of statutory powers

2.55 In the course of the investigations I issued a total of 207 notices under section 21 of the Act to require prospective witnesses to provide a statement to the Inquiry, to secure the recovery of documents and other material in the possession or control of the recipient of the notice, and to require witnesses to attend public hearings to give oral testimony. Had the Inquiry not been converted into a statutory inquiry it is likely that evidence in the form of such statements and documents, as well as other material, would not have been recovered. Nor could I have enforced any request for a witness to give evidence at a public hearing.

2.56 Although the use of statutory powers resulted in the recovery of evidence, the Inquiry Team endeavoured at all times to seek the voluntary co-operation of prospective witnesses and of those in possession of documents or other material of interest to the Inquiry. Notices under section 21 of the Act involved additional work for the Inquiry Team and consequently resulted in overall delay. An extreme case of such delay was the statutory notice served on Bilfinger Berger (“BB”), which resulted in litigation. This and other difficulties relating to the production of documents are mentioned in paragraphs 2.77–2.90 below.

2.57 Although the conversion to a statutory inquiry provided me with additional powers to secure evidence, it was not possible to compel witnesses and organisations located outside the UK to co-operate with the Inquiry. Nevertheless a number of such witnesses and organisations did co-operate with the Inquiry, and I am grateful to them for that. While it was possible to have the Inquiry converted to a statutory basis without difficulty, this did result in an unwelcome delay in making progress. Had Ministers decided at the outset that the Inquiry should proceed as a statutory inquiry, that delay would have been avoided.

Provision of IT services

2.58 Although the Inquiry occupied premises designed to accommodate the IT requirements of a modern office, and the accommodation was chosen in part with that in mind, a considerable amount of time was taken in setting up the IT systems required to allow the office to function effectively. The existence of local network infrastructure for computer connections created the impression that staff could use them to work effectively and efficiently. Nothing could have been further from reality.

2.59 Soon after the Inquiry took occupation of the office at Waverley Gate, it became apparent that connectivity to the SCOTS network, explained in paragraph 2.60, over a secure virtual private network was extremely poor, and connections were frequently lost. Often disconnections occurred several times per day. Accordingly, I requested a meeting with officials from the Scottish Government (“SG”) Information Services and Information Systems Division (“ISIS”) to discuss the IT provisions for the Inquiry and to put in place a solution to the disruption to the work of the Inquiry caused by the frequent loss of computer connectivity. The outcome of that meeting on 14 July 2014 was the proposal of a permanent solution to the Inquiry’s IT problems, discussed in paragraph 2.61 below.

2.60 Although some offices in Waverley Gate were leased to the SG and occupied by public bodies, they were not connected to the SCOTS network, which the tram inquiry intended to use. SCOTS is the SG IT secure network that provides a common hardware and applications infrastructure to core SG departments and associated agencies and organisations. It is managed to information security standard ISO 27001 and forms part of the wider UK Public Services Network. Its users have access to corporate and popular desktop applications and systems, internet, printing, telephony and data storage. SCOTS also provides access to eRDM, the corporate Electronic Records and Document Management System. To ensure that information generated by the Inquiry remained confidential, and was not accessible to other staff in the SG, a customised file plan was developed in eRDM for the sole use of the Inquiry, and access was restricted to Inquiry staff only. Thus, using the SCOTS network enabled the Inquiry to take advantage of the security and resilience of the Government’s IT systems without compromising the confidentiality, security and integrity of the documents created or recovered by the Inquiry.

2.61 Prior to that meeting in July 2014, Creative Scotland had provided the Inquiry with broadband connectivity, which the Inquiry used to access the SCOTS network. As was noted in paragraph 2.59 above, connectivity was frequently lost, often several times per day, and the work of the Inquiry was disrupted. The permanent solution recommended by officials within ISIS was to install a direct fibre link to the SCOTS network in St Andrew’s House. This would include installing a data cabinet in the Inquiry’s office and laying down and connecting to it the required cabling. SG had a contract with Vodafone for such installations but there was a lead-in time of 90 days during which time Vodafone was expected to negotiate any wayleave agreements. Within that timescale, on 22 and 23 September 2014, Vodafone installed the internal cabling in the Inquiry’s offices but did not install the data cabinet or provide connectivity to the SCOTS network. The consequence of that partial installation was that the existing broadband connections were lost and the Inquiry Team had to use mobile broadband devices to connect their computers to the SCOTS network. Such devices used SIM cards on a specific mobile network to connect to the internet and, due to fluctuations of the mobile signal strength, computer connectivity to SCOTS was frequently lost.

2.62 As well as undertaking the partial installation within the Inquiry office mentioned above, Vodafone attempted to install the new link from St Andrew’s House to the Inquiry offices in Waverley Gate on three separate occasions but failed to do so. Its first attempt was frustrated because other work was being undertaken at Waverley Gate. On the second attempt it was denied access to St Andrew’s House to connect the cable at that location because the security officers there had not been advised to expect its employees and allow them access. On 16 October 2014, Vodafone installed the data cabinet into the Inquiry office at Waverley Gate and connected it with the internal cabling that it had installed earlier but could not carry out the SCOTS fibre work at Waverley Gate because it had not negotiated a wayleave agreement with the building managers. Negotiations between Vodafone and the building managers were protracted and not resolved until 21 November 2014 when the wayleave agreement was signed. Thereafter Vodafone completed the fibre work at Waverley Gate, and completed and tested the connection to the SCOTS network at St Andrew’s House, which enabled the Inquiry Team to have reliable computer access from 4 December 2014.

2.63 It is questionable whether the matter would have been resolved on 21 November and the connection made by 4 December without the intervention, at my instigation, of the relevant Directors within SG in early November or without my request on 17 November for a meeting with senior representatives of Vodafone and the building managers, coupled with a threat to issue a press release about the matter.

2.64 Until 4 December, the Inquiry Team had to work with sub-optimal equipment that frequently lost connectivity and with inadequate systems that affected the efficiency of the Inquiry in the first year of its operation. The time spent by the Inquiry Team in seeking to resolve the difficulties associated with inadequate IT facilities detracted from the work of setting up the Inquiry and procuring the other systems required.

2.65 If the timescales for setting up an inquiry’s offices and the necessary IT facilities cannot be shortened, Ministers should take account of that anticipated delay and should make allowance for it in assessing likely timescales before commissioning an Inquiry.

2.66 Separate arrangements were necessary for the hearing room. In order to provide internet access throughout the Preliminary Hearing and, later, the Oral Hearings, a separate line was commissioned through the SG Procurement framework and installed in the hearing room. This provided secure wired and wireless internet connectivity for the sole use of the core participants and the general public attending the Hearings. In addition, ISIS provided wireless connectivity to SCOTS. This was used only by Inquiry staff supporting me and by Counsel to the Inquiry during public hearings.

Document management

2.67 As will be indicated in paragraphs 2.77–2.81 below, the volume of material that the Inquiry needed to recover from prospective core participants was substantial and significantly more than had been recovered for previous public inquiries. It far exceeded what had been expected. This required the procurement of a document management system capable of handling an extremely large volume of material.

2.68 On the basis of advice from a consultant who had been involved with previous inquiries in the UK, the Inquiry procured the Relativity document management system, a litigation application for collecting, storing, sharing, reviewing, searching, managing, categorising and coding documents. In discussions prior to the procuring of the system, the Inquiry Team had requested that the system had to be able to manage effectively duplicate copies of documents. The consultant referred to this as “de-duplication” and stated that this was a feature of Relativity. In the event, the system was not as effective at discarding duplicate copies of documents as had been advised, in that the system would not recognise documents as duplicates in circumstances where a person reviewing the material would treat them as such. That had implications for the time taken to review material and make it available to core participants. Nevertheless the system was extremely effective in reducing the number of documents to a more manageable number.

2.69 It was also necessary to procure a separate system for the display of documents during the oral hearings, because these were attended by members of the public and the media who did not have access to the documents available to core participants. The document display system used during the oral hearings worked well and no significant difficulties were experienced with the display of documents during the hearings.

Core participants

2.70 Rule 4 of the Rules is in the following terms:

“4.(1) The chairman may designate a person as a core participant at any time during the course of the inquiry (but only with the consent of that person).

“(2) In deciding whether to designate a person as a core participant the chairman must have particular regard for the desirability of including as core participants persons who–

(a) played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;

(b) have a significant interest in an important aspect of the matters to which the inquiry relates; or

(c) may be subject to significant or explicit criticism–

(i) during the proceedings at the inquiry, or

(ii) in the report (or any interim report) to be delivered under section 24 of the Act (submission of reports).

“(3) The chairman may, before the end of the inquiry, specify in writing that a person ceases to be a core participant.”[11]

2.71 On 27 May 2015, I issued Inquiry Procedure Direction No 6 – Core Participants – relating to the procedure for applying for core participant status. In response there were nine applications for core participant status. In considering these applications, I took into account the Terms of Reference of the Inquiry and the criteria specified in rule 4(2). I rejected the application on behalf of an organisation because it appeared to me that the members of that organisation wished to explore the extent of compliance by CEC with the Aarhus Convention, which was an issue beyond the scope of the Inquiry. I also rejected an application by an individual, on the ground that he had failed to satisfy any of the particular criteria specified in the rules. At the preliminary hearing on 6 October 2015, I announced the identity of those who had been granted core participant status. Their names and the names of their legal representatives are contained in Appendix 4.

2.72 I was concerned that tie had not applied for core participant status, and I expressed my concerns at the preliminary hearing. As was noted in Chapter 1 (Introduction and Overview), tie was a company incorporated in 2002, and wholly owned, by CEC to deliver a number of projects, including the Tram project, as part of CEC’s New Transport Initiative. Although tie was a separate legal entity from CEC it was intended that it would deliver CEC’s policy objectives. tie still exists, although it is not currently active, and its name has changed to CEC Recovery Limited. The sole Director of CEC Recovery Limited is an official of CEC.

2.73 For the purposes of this Inquiry CEC took the decision that it would not represent the interests of tie at the Inquiry. That is a decision that was properly one for CEC to take. However, CEC was also not prepared to fund separate representation of tie and its former employees at the Inquiry, notwithstanding that it might reasonably have been anticipated, even at an early stage of parties’ consideration of the issues, that tie and its office bearers and employees might be the subject of criticism by other core participants, whether justified or not. Consequently although tie was a key participant in the project, and could almost certainly have satisfied the requirements for designation as a core participant in terms of rule 4 had an application been made on its behalf, it was not represented as such at the Inquiry.

2.74 As was noted in paragraph 2.70 above, rule 4(1) enables me to designate any person as a core participant, but I may only do so with the consent of that person. Therefore in the absence of an application for core participant status it was not possible for me to determine that tie should be designated as such. It was undesirable that a body that had such a key involvement in the Tram project, and might be subject to significant criticism, should not be represented at the Inquiry. In 2017 a number of former employees of tie sought, and were granted, designation as core participants. They were represented by the same firm of solicitors and Counsel, and used the acronym “SETE” (Selected Ex-tie Employees). They did so as individuals, and not as representing the interests of the company, which meant that the company remained unrepresented and liable to criticism by other core participants without having the opportunity to present a corporate view of its position.

2.75 The individuals granted core participant status in 2017 are listed in Appendix 4.

2.76 On 15 March 2018, I received a notice from Mr Dickens, one of the special managers (without personal liability) of Carillion Utility Services Limited (in liquidation) (“Carillion”) that Carillion would require to withdraw from the Edinburgh Tram Inquiry (see Appendix 7). Accordingly, on 5 April 2018, I specified that Carillion ceased to be a core participant with effect from that date.

Recovery of documents

2.77 The volume of material recovered by the Inquiry was substantial. At the outset I took the decision that all core participants should provide the Inquiry, preferably in electronic form, with all material that they held which I considered to be relevant to the Terms of Reference. At an initial meeting with me, CEC officials offered to supply all the material that they considered to be relevant to the Inquiry’s Terms of Reference. Although the offer was no doubt made in good faith, with a view to assisting the Inquiry, I recognised that there would be presentational difficulties if the Inquiry had restricted its investigations to material that a core participant had selected on the basis of what it considered to be the key issues for the Inquiry.

2.78 Core participants were asked to estimate the likely number of documents that they could supply to the Inquiry to enable the Inquiry Team to assess the scale of the task facing it. Initially the total number of documents identified was approximately 2 million. However, following further discussion between the original Secretary to the Inquiry and core participants it became apparent that the total number of documents in their possession jointly could be in the region of approximately 500 million. It was likely that this would include a very large number of duplicate copies of documents, given the tendency to send an email with the same copy documents attached to a number of individuals. Even allowing for such duplication, the number of documents in the possession of core participants exceeded what the Inquiry had anticipated and it was clearly impracticable to manage what was likely to be hundreds of millions of documents.

2.79 In order to reduce the number of documents to a more manageable level, members of the Inquiry team undertook targeted searches in Relativity, based on an initial assessment of the likely key issues for the Inquiry. This helped to filter out material likely to be of minimal relevance to the Inquiry’s Terms of Reference and resulted in a significant reduction of the number of documents to approximately 6 million. Further refinement of the search criteria resulted in the reduction of the number of documents held on the Inquiry’s database, known as Waverley, to approximately 3.065 million.

2.80 In the course of their consideration of the material, and in preparation for the Oral Hearings, Counsel to the Inquiry identified the material on the Waverley database that they would wish to put to witnesses when taking their evidence either in a written statement or at a public hearing or both. Such material was copied to a separate database, known as Haymarket. A total of 16,916 documents were saved on the Haymarket database, to which only the Inquiry team and all core participants were given access. This increased to 17,172 after the conclusion of the hearings and during the preparation of this Report.

2.81 It is understood that the number of documents recovered by the Inquiry far exceeds the volume of material recovered and considered by other inquiries in Scotland, and possibly in the UK. Therefore the Inquiry had to adopt an untested method of managing and saving documents and, by undertaking a review of them, to select documents that were considered to be of particular relevance to the Inquiry’s Terms of Reference and to discard the rest. This selection process had to be started at an early stage in the Inquiry’s work, but the Inquiry team kept under review the material saved on the Waverley and Haymarket databases as its understanding of the relevant issues developed. It was recognised that, whichever system for identifying relevant material was used, there was a risk that relevant material would be discarded and irrelevant material retained. To address this concern, at the Inquiry Preliminary Hearing on 6 October 2015 I explained to core participants the process that had been adopted for selecting relevant material. I asked them to consider the material on the Haymarket database, once it was made available to them, and to advise the Solicitor to the Inquiry if they were aware of any material not included on the database that they considered to be relevant to the Inquiry’s terms of reference. In adopting this approach I recognised that some core participants would not wish to disclose material that was adverse to their interests, but a different view could be taken of that material by other core participants, resulting in the likelihood of disclosure. The lack of response to that request reassured the Inquiry team that the documents recovered and made available to core participants on the Haymarket database were essentially the most significant.

Difficulties in the recovery of documents

2.82 The Inquiry experienced delays in recovering productions from various core participants. It was often necessary to send repeated requests for documents in an effort to obtain them on a voluntary basis without resorting to statutory notices. However, in certain instances, statutory notices had to be used to recover documents within a timescale that was convenient for the progress of the Inquiry as distinct from the priorities of the person in possession of the documents.

2.83 Problems concerning the production of documents arose with CEC. As indicated in paragraph 2.77 above, I had an initial meeting with CEC officials concerning the nature of the material held by them. Thereafter there were regular meetings involving the then Secretary and representatives of CEC and Mr C Smith who had acted as a consultant to CEC following the appointment of Dame Sue Bruce[12] as its Chief Executive. These meetings identified material to be produced and the form in which it was required. A considerable amount of material was recovered in this way. However, analysis of the material identified that records of significance to the Inquiry were missing, notably those relating to Dame Sue Bruce. Nevertheless, prior to the commencement of the public hearings on 5 September 2017 Inquiry officials had been given verbal assurances by CEC officials that all relevant documents in the possession of CEC had been produced. It was, therefore, a matter of extreme concern for the Inquiry to receive a voicemail message followed by an email dated 27 September 2017 from Mr Clarke, a Senior Solicitor with CEC, notifying the Inquiry that he had “very recently discovered 13 files that appear to be Sue Bruce’s paper files in respect of her dealings with the trams” [CEC02087291]. These files were delivered to the Inquiry and required to be analysed by the Inquiry team at the same time as witnesses were giving evidence and after most witnesses from CEC had concluded their evidence. In November 2017, Mr Clarke again contacted the Solicitor to the Inquiry and advised him that further files relating to Dame Sue Bruce had been discovered. This was confirmed by an email dated 10 November 2017, which included the following information:

“… the Chief Executive is moving out of his office. During the clear out that resulted further Sue Bruce papers were discovered. It is obviously of great embarrassment to the Council that this has occurred and I offer an unreserved apology to the Inquiry for this.” [CEC02087290]

2.84 Although the communications mentioned in paragraph 2.83 emanated from Mr Clarke, I do not attribute personal responsibility for CEC’s omissions to him. As a senior solicitor within CEC it is unlikely that he was directly involved in searching for documents; rather, it seemed to me that he was merely reporting the outcome of CEC’s investigations to the Inquiry.

2.85 On 13 November 2017, the Inquiry received 16 further folders plus paper bundles and Dame Sue Bruce’s notebook, all of which had been “discovered” as officials cleared out the Chief Executive’s room. The Deputy Solicitor to the Inquiry requested officials in CEC to provide an inventory of the documents produced, and on 15 November 2017 CEC delivered a removable media device containing electronic inventories of files. Following the conclusion of the evidence on 13 December 2017, prior to the Christmas break, the Inquiry team undertook a detailed examination of the material delivered in November and requested that CEC deliver five boxes of material identified in the electronic inventories. These were delivered in January 2018, following the festive break. The late delivery of material by CEC caused inconvenience and was disruptive to the planned progress of the Inquiry. In my view, it also calls into question the sincerity of the assurance mentioned by the then First Minister that had been given to the Minister for Transport and Veterans by CEC “that it would provide full co-operation and full documentation on all aspects of the Project”. Such assurances were repeated on numerous occasions following my appointment, and while it is undoubtedly true that the Inquiry received a considerable amount of co-operation from CEC in its investigations, the history of production of documents after the public hearings had commenced is, to my mind, inconsistent with the concept of full co-operation and production of full documentation. An obvious location for paper files and other documentation kept by the Chief Executive at the time of the Tram project would be her office. The discovery of that material, when her successor was moving out of that office, suggests a superficial approach to the search for relevant material and the failure of CEC to devote adequate resources to implementing its commitment given to Scottish Ministers prior to the commencement of the Inquiry. In any event, it is apparent that the systems for keeping and recording documents within CEC were inadequate as it appears that no one was aware of the existence of the records produced in November and December. Whether such deficiencies in record keeping extended beyond the records of the Tram project or continue to do so are beyond the scope of this Inquiry.

2.86 Difficulties also arose with the production of documents by Scottish Ministers. They failed to produce a memorandum from Ms Savage, Head of Programme Management at Transport Scotland, which had been sent to Mr Reeve in Transport Scotland and copied to Mr Morrissey in Transport Scotland as well as to Mr Davis in Cyril Sweett [SWT00000056] and a record of views expressed by Dundas & Wilson about the Infraco contract. The failure to produce these documents is considered in Chapter 3 (Involvement of the Scottish Ministers).

2.87 In a different context, delays to the progress of the Inquiry were incurred as a result of the actions of BB. The documents in question are the monthly progress reports made during the Tram project by BB to Bilfinger Group Management in Germany. The existence of such reports was disclosed on 5 December 2017 by Mr Foerder in his oral evidence. Having considered the matter it appeared to me that the content of monthly contemporaneous reports could be relevant to the issues to be considered by the Inquiry. Accordingly, I instructed the Solicitor to the Inquiry to request sight of monthly reports written between October 2007 and the date of completion of the Tram project. On 11 December 2017, the Deputy Solicitor to the Inquiry sent an email to BB’s solicitors to that effect. Thereafter, correspondence continued between the Deputy Solicitor and Pinsent Masons, solicitors for BB, by way of updates on progress in producing the reports to the Inquiry. On 17 January 2018, Pinsent Masons wrote to the Inquiry, stating that the reports contained highly sensitive commercially confidential information and offering to provide the reports with that information redacted. I rejected that offer because it was not appropriate for a core participant or their solicitors to decide upon the nature and extent of any redaction. However, having regard to concerns about apparently commercially confidential information, I authorised the Deputy Solicitor to provide an undertaking to the effect that BB would be notified of any decision to make the material available to core participants and would be given time to apply for a restriction order under section 19 of the Act. At the beginning of February I was concerned that the voluntary basis upon which requests had been made was causing undue delay, and I decided to formalise matters by issuing a notice under section 21 of the Act requiring BB to deliver the reports to the Inquiry on or before 12 February 2018. Such a notice was issued on 6 February 2018. The reports were delivered to the Inquiry on 12 February 2018 in compliance with the section 21 notice. On 1 March 2018, the Inquiry advised BB that it intended to upload the reports to the Inquiry’s Haymarket database but would honour the agreement mentioned above. In accordance with that agreement an undertaking dated 6 March 2018 was given that the Inquiry would not disclose any report to any person other than members of the Inquiry team before 5.00 pm on 12 March 2018 or, if an application for a restriction order was received, before the expiry of 24 hours from the time when the Inquiry first advised BB solicitors of its determination of that application. On 12 March 2018, BB submitted an application under section 19(2)(b) of the Act. On 25 April 2018, apart from redaction of sensitive personal information specified in paragraph 3.3.9 of the application, I refused the application for redaction. BB petitioned the Court of Session seeking suspension of my decision and interdict against me, or anyone acting on my behalf, from publishing or disclosing in any way the alleged confidential information in the monthly reports. It also sought interim suspension and interim interdict. A two-day hearing ensued, resulting in an interlocutor dated 8 May 2018 refusing both interim suspension and interim interdict. BB appealed against that decision to the Inner House of the Court of Session. After a one-day hearing the Inner House, by interlocutor dated 12 July 2018, refused BB’s reclaiming motion. Following that decision, Pinsent Masons notified the Solicitor to the Inquiry that BB did not intend to seek leave to appeal to the United Kingdom Supreme Court. Accordingly, I instructed the Secretary to the Inquiry to release the monthly reports to core participants by uploading them to the Haymarket database.

2.88 During the court hearings I had been advised that senior counsel for BB had expressed concern on its behalf that the documents would be misinterpreted if they were released. Accordingly, when the documents were released to core participants they were requested to intimate to the Secretary to the Inquiry whether they wished to lead additional evidence and/or make further submissions to the Inquiry based upon the content of the reports. Three core participants responded. CEC advised that it did not wish to lead evidence or to make further submissions. SETE advised that it only wished to make further submissions, whereas BB intimated that it wished to make further submissions supported by two affidavits. On 30 August 2018, I issued a note for core participants that gave BB the opportunity of submitting such evidence about the reports as it considered appropriate, including, but not restricted to, an affidavit or affidavits. In fairness to all core participants, I afforded each of them a similar opportunity and required the production of any such written evidence no later than 1 October 2018, after which I would determine further procedure. On 9 October 2018, I issued a further note recording that Pinsent Masons had submitted a supplementary statement by Mr Gough dated 1 October 2018 and signed by him, and that Beltrami & Company Limited, solicitors, had issued a supplementary submission on behalf of SETE. I required any party wishing to make a supplementary submission arising from the monthly reports, the supplementary statement of Mr Gough and the supplementary submission on behalf of SETE to send a draft of that submission electronically to the Secretary to the Inquiry and to all other core participants no later than 22 October 2018. Thereafter, a further period was allowed until 5 November 2018 to enable core participants to finalise their submissions and to send them to the Secretary to the Inquiry and to all other core participants.

2.89 While I accept the entitlement of BB to seek a restriction order under section 19 of the Act and thereafter to seek suspension of my decision if it considered it to be adverse to its interests, a consequence of the assertion of its rights was to extend the period for closing submissions from 24 May 2018 until 5 November 2018.

2.90 Different issues arose in respect of documents submitted by DLA. In his written statement Mr Fitchie referred to a file note dated “9 April [2010]” [DLA00006319]. He stated that it “would have been prepared from my handwritten notes of the meeting” [TRI00000102_C, page 191, paragraph 7.320]. There were clearly errors in the typewritten note which appears to have been created on 23 February 2011. In an attempt to clarify matters the Solicitor to the Inquiry emailed Brodies, solicitors for DLA, on 21 December 2017, seeking the original file entry which formed the basis of the file note dated 9 April [2010] and also seeking documentary evidence to support paragraphs 7.517–7.536 of Mr Fitchie’s statement. Although draft letters of response were prepared by Brodies they were not sent to the Solicitor to the Inquiry but their contents were addressed in the written submissions on behalf of DLA [TRI00000288_C]. Brodies’ search for the material requested by the Inquiry did not disclose the handwritten file note but did disclose other file notes that Brodies believed had been disclosed to the Inquiry. Subsequent searches of the material produced by it to the Inquiry revealed that its belief was mistaken, and it tendered the additional file notes at the stage of closing submissions [DLA00006478; DLA00006479; DLA00006481].

Presentation of evidence to the Inquiry

2.91 Counsel to the Inquiry considered that approximately 213 people who had been involved in the project might be able to provide relevant evidence. Statements were taken from all these witnesses and, once signed, these were made available to the core participants. In order to speed up the process of taking written evidence, some witnesses, who were considered to have a less significant role than others, were asked to complete written questionnaires instead of providing full statements.

2.92 A decision was taken by the Inquiry that it would not be necessary to take oral evidence from all the witnesses from whom written evidence had been taken. Counsel to the Inquiry selected those witnesses whose involvement in the project was likely to provide the greatest insight into the issues covered by the Inquiry’s Terms of Reference. A total of 85 witnesses, including 2 experts, gave oral evidence over a period of 57 days, from Tuesday 5 September 2017 to Thursday 22 March 2018. Core participants were provided with a list of proposed witnesses and had access to all the witness statements in advance of the public hearings. They had the option of requesting the attendance of other witnesses but none did so, implying that they were content with the selection made by Counsel to the Inquiry.

2.93 The Inquiry’s Terms of Reference required it to examine the consequences of the failure to deliver the project on time and on budget and to the extent projected. A call for evidence was issued on 12 May 2015, inviting members of the public to make contact with the Inquiry Team to share their experience of the Tram project. In the event, evidence was taken from 12 members of the public, or representative groups, in the form of written statements, and these were presented as written evidence to the Inquiry.

2.94 While the Inquiry might have benefited from more evidence from members of the public and representatives of businesses affected by the project to gain an understanding of the impact that the Tram project had had on them, it could not compel the production of such evidence when it was unaware of the individuals affected. The Inquiry endeavoured to encourage representatives of businesses to provide evidence to the Inquiry by contacting individuals and representative organisations inviting their participation, but they either declined to do so or failed to reply. In addition, a number of members of the public and representative groups raised issues that were clearly of particular concern to them: for example, whether the actions of CEC in relation to the Tram project had resulted in a breach of the UK’s obligations to comply with the Aarhus Convention. While such matters are undoubtedly of genuine concern to those affected, I considered them to be of doubtful relevance to the Terms of Reference. I received two representations that were not within my Terms of Reference but which raised potential concerns for public safety. These related to the steps leading to and from Murrayfield tram stop and the maintenance of the tram vehicles themselves. Safety concerns about the tram vehicles are a matter for the Rail Inspectorate and the author of the letter expressing concerns about their maintenance had copied it to that body. As a core participant CEC had a copy of the representation expressing safety concerns about the steps at Murrayfield. In his evidence to the Inquiry, Mr Chandler explained that the design of the steps at the Murrayfield tram stop was the subject of numerous iterations of design and consultation with the police and fire brigade as well as a consultee group for blind and disabled people. It had also been approved by CEC [PHT00000020, pages 140–142]. Although the design and safety of these steps were not within my Terms of Reference, it was clear that as a core participant CEC was aware of the concerns and could take such action as it deemed necessary to address them.

2.95 The approach to gathering evidence recognised the inquisitorial role of the Inquiry rather than the adversarial approach in court proceedings. Core participants wishing to ask questions of a witness had to give prior notice of the points that they wished to raise and, wherever possible, Counsel to the Inquiry would deal with such issues in his examination of the witness, obviating the need for questioning by a representative of a core participant. Having said that, in certain circumstances a representative of a core participant was permitted to ask limited questions of a witness where that was considered to be the most expeditious way of obtaining evidence on the particular point. By adopting an inquisitorial approach it was possible to conclude the oral evidence sessions within a much shorter timescale than would otherwise have been possible.

2.96 At the conclusion of the evidence on 22 March 2018, I adjourned the hearing until 23 May 2018 to enable core participants to prepare, and exchange, drafts of their submissions with the other core participants before finalising the written submissions tendered to the Inquiry in advance of hearings on 23 and 24 May 2018. On these dates representatives of core participants wishing to address the Inquiry were permitted to do so within a timescale that was strictly limited. While I had hoped that the hearing on 24 May 2018 would conclude the evidential stage of the Inquiry it had to be extended to November 2018, as noted above, to enable the Inquiry to take into account the supplementary documents recovered and the additional statement and submissions tendered to the Inquiry on or before 5 November 2018.

Duration and cost of the Inquiry

2.97 I am aware that there has been media comment about the duration of the Inquiry.
Its duration was determined by the various factors mentioned above. These include:

  • the volume of material that I had to consider both in preparation for the public hearings and thereafter in light of the oral and written testimony of witnesses;
  • the need to procure the installation of a branch line on the SCOTS network and internal cabling within the Inquiry office at Waverley Gate;
  • the difficulties with IT during the first six months of the Inquiry;
  • the impact that resolving these difficulties had on the ability of the Inquiry Team to procure document management systems and make progress with its investigations;
  • difficulties in obtaining documents despite the use of statutory powers;
  • staffing issues, particularly the loss of solicitors due to promotion or to gain experience in other departments within SG, and the lead-in time required for the appointment of their successors and for the latter to familiarise themselves with the work of the Inquiry;
  • the illness of the Solicitor to the Inquiry, coupled with the inability of the Scottish Ministers to provide a replacement Solicitor to the Inquiry who had prior experience of the Inquiry, resulting in delay while the incumbent familiarised himself with the work of the Inquiry;
  • further enquiries undertaken following the conclusion of the public hearings; and
  • the need to issue warning letters to persons who might be subject to criticism, and consideration of responses to determine the need for adjustment of the terms of the Report.

2.98 The cost of the Inquiry reflected its duration and the capital costs associated with the installation of the branch line of the SCOTS network, the internal cabling within the Inquiry office and the separate systems required in the room for oral hearings, as well as the cost of the accommodation, staffing requirements and the cost of procuring a document management system. As was indicated above, all the costs were allocated as costs of the Inquiry although the additional cost of the Inquiry to the public purse would be significantly less if recognition was given to the fact that some costs would have been incurred in any event but allocated to a different budget.

Recommendations

Recommendation 1

2.99 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.

Recommendation 2

2.100 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.

Recommendation 3

2.101 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.

Recommendation 4

2.102 In reporting the cost of a public inquiry Scottish Ministers should report its net cost to the public purse, after discounting expenditure already incurred on accommodation, staff and other resources, as well as the total cost appearing in the accounts of the sponsor department.

Footnotes

8. See “Official Report: Meeting of the Parliament 12 June 2014” (under First Minister’s Question Time: Engagements, direct link: https://archive2021.parliament.scot/parliamentarybusiness/report.aspx?r=9242&mode=html#iob_85724. ↵

9. The document can be found on the UK Parliament website (www.parliament.uk), direct link: https://publications.parliament.uk/pa/ld201314/ldselect/ldinquiries/143/143.pdf. ↵

10 The report can be found on the Scottish Government website (www.gov.scot), direct link:
https://www.gov.scot/publications/investigative-review-process-establishing-managing-supportingindependent-eviews-scotland/. ↵

11. Rule (4) of Inquiries (Scotland) Rules 2007, available on www.legislation.gov.uk, direct link: https://www.legislation.gov.uk/ssi/2007/560/article/4/made. ↵

12. Throughout this Report I refer to her by her current name of “Dame Sue Bruce”, as she had become known by the time that she gave evidence to the Inquiry, although she was known as “Mrs Bruce” when she was involved in the project as Chief Executive of CEC. ↵

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