Scrap the Public Inquiry system; bring in a Public Investigator system instead

The Law Society of Scotland has raised concerns over the effectiveness of public inquiries in Scotland. It is correct to do so.

The current cost of live inquiries has increased thirteen-fold over ten years and now stands at nearly £180m. As the Herald points out, that's enough to build ten schools. And yet that's not the primary concern of the Law Society. What they're raising is the fact that the inquiries themselves don't appear to be very good at getting to the truth.

The fear is that inquiries themselves are far too secretive and that a lot of what takes place is negotiated behind closed doors between government (who set up the inquiry) and the inquiry itself. They are questioning how much new information is really being brought to light.

That is clearly an issue. It is hard to feel many of these inquiries have really resulted in the powerful being held to account. In some cases (such as the Edinburgh Tram Inquiry) it is hard not to feel that rather they have successfully delayed accountability long enough that everyone could sort themselves a lucrative escape route.

In fact perhaps the most egregious live example of this isn't in Scotland but in England where the primary purpose of the Grenfell Inquiry appears to be to prevent as long as possible the moment when there are any police charges for senior figures in politics or the corporate sector.

But there is an additional factor which the Law Society itself has not been sufficiently critical of here, which is the practices of the law profession itself. Public inquiries are quasi-judicial which means they are treated vaguely as if they are court case. They are usually led by a judge or retired judge or another senior legal figure.

And everyone who is involved is immediately able to engage their own lawyers to challenge every stage of the inquiry. It becomes not an inquiry designed to reveal the truth but a negotiation between powerful people behind the scenes on what can and can't be investigated.

It is this which leads to the spiralling costs and timescales and the ineffectiveness of final outcomes. It can be difficult to know whether this is mainly the result of officials trying to cover their backs, lawyers trying to harvest fees or the whole governing system trying to protect itself from being held to account – or rather, what balance of these three factors are involved.

What is patently true is that these are not serving the public interest. It is in the public interest that when a public function fails with serious consequences that it is investigated as fully and promptly as possible and that conclusions and findings are produced within a tight timescale still capable of changing the live political or governmental situation.

To do this we should drop the public inquiry model altogether in favour of a 'Public Investigator' model. A Public Investigator process would not be a legal process of establishing legal culpability but an investigatory process of identifying and setting out the facts. If there is to be a legal or criminal process, that comes later.

A Public Investigator would have the full investigatory powers of the police. There is a model for this in Australia where the Corruption and Crime Commission has powers up to and including authorising wire taps on senior politicians when investigating fraud and corruption in government.

All witnesses are compelled to give evidence on the basis that what they say is not being prosecuted and so they have no right to silence. They are answering about undertakings relating to public interest and so are compelled to provide honest answers, not hide behind lawyers.

A Public Investigator would seek to set out the facts as quickly, accurately and clearly as possible, potentially setting out conclusions and recommendations which are supported by that evidence. It would then be for the democratic process to determine any necessary democratic response, from apology to resignation to prosecution

Scotland does have its own outline model for this. We have two role in Scotland which operate independently of the legal and governmental system which have the power to hold that system to account. It is noticeable that these two roles have probably given the Scottish Government more trouble than the media and opposition combined.

They are the Scottish Information Commission and the Auditor General and they have proved invaluable in opening up secretive Scotland. A third Office of the Public Investigator role would be powerful and could transform accountability of government in Scotland while also saving the nation a fortune.