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Holyrood Inquiry
OPENING STATEMENT
By John D Campbell QC, Counsel for the Inquiry.

28 October 2003

My Lord

This is a non statutory inquiry convened by instruction of the First Minister, the Rt Hon Jack McConnell MSP, and the Presiding Officer of the Scottish Parliament, Mr George Reid MSP.

You have been appointed on the following remit, to be fulfilled along with an investigation is to be carried on in parallel to an audit examination being conducted by the Auditor General for Scotland, Mr Robert Black

“To review the policy decisions in relation to the Holyrood Project taken prior to its transfer to the Scottish Parliamentary Corporate Body on 1st June 1999 and subsequently.

To build on the Auditor General’s existing findings in respect of procurement strategy and cost control, contractual and project management arrangements and to extend the consideration of these issues to cover the subsequent stages of the project.

All with a view to producing a full account of the key decisions and factors which have determined the costs and value of the Parliament throughout the life of the project and the processes involved in reaching those decisions and to identifying the lessons to be learned for the procurement or construction of major public buildings in the future; and to report to the Parliament and the Scottish Executive as soon as reasonably practicable, taking account of the Auditor General’s intention to examine the economy, efficiency and effectiveness with which resources have been used at all stages of the Scottish Parliament building project.”

The Holyrood Project has involved issues of immense complexity, both in the formulation of policy, in decision making, and in the methods chosen for and the manner of construction. Since it is not possible to expose matters of great complexity other than in a methodical and painstaking fashion, I have determined to approach the whole matter chronologically. In order to explain to members of the public how this complicated investigation may best be approached, it may be helpful to set out the plan for the inquiry.

So far as possible, the Inquiry will adopt a timetable which allows examination of the Holyrood Project by stages. Contrary to much speculation and expectation, the process which has so far been adopted has required the systematic production and ordering by the Inquiry team and myself of very large quantities of relevant documentary evidence provided by those involved with the Project, both directly and indirectly.

As the general election of May 1997 was a considerable time ago, we have been careful to identify with precision just who was actually involved. The recovery of evidence, which has been achieved with excellent cooperation (with one notable exception, to which I will return) so far, has been followed by the taking of statements from those judged to have significant involvement with the Project, and finally the making of arrangements for the taking of their oral evidence before you.

Logically, a proper and measured consideration of the Project falls into the following key stages

1996-1 May 1997:

Pre-election discussions, advice and assessments

May 1997 – July 1997:

Initial review and advice to Ministers to the publication of the White Paper on devolution

July 1997 – September 1997:

The implementation of the White Paper, the referendum, the formation of the Scottish Executive, Cabinet, and Parliament, and the allocation of individual and corporate responsibilities.

September 1997 – January 1998:

The site selection process, consideration of candidate sites, professional advice, the selection of Holyrood, site acquisition and the consideration of possible procurement routes, and project management arrangements.

January 1998 – June 1998:

The Design, or Designer competition; the formation of the design selection panel, to the selection of Enric Miralles y Moya; the process of selection of the Construction Manager and members of the Design Team.

The management controls devised, instituted and maintained by the Scottish Office, and the individual responsibilities.

The work of the Consultative Steering Group.

July 1998:

The award of contracts to Bovis Lend Lease, RMJM(S) Ltd, EMBT/RMJM, DL&E and Ove Arup, to transfer to SPCB. The nature of those contracts, the assumption of risk and the burden of responsibility.

September 1998:

Presentation of outline design proposals; measures for cost control and management; issue of initial, and later amended Building User’s Brief. Public exhibitions.

September 1998 to April 1999:

The development of design and the presentation of designs to the Secretary of State; the confirmation of the brief and specifications, to the first planning application.

June 1999:

Transfer of responsibility for the Project by the former Scottish Office to SPCB; condition of the Project at that time; constitution of the Holyrood Project Team; control of Design Team and Construction Manager; responsibility for cost management, and ability/competence issues; what was transferred; SPCB reports to MSPs; 1st Debate in Scottish Parliament about the Project.

July 1999 to February 2000:

Opening Ceremony at The Mound to appointment of John Spencely by the SPCB to assist with its review; construction work commences;

March 2000 to July 2000:

Spencely Report to second debate in Scottish Parliament. 4th report by SPCB to MSP’s; Progress Group’s 1st newsletter to MSP’s; second amended User Brief compiled.

June 2000:

Submission of Stage D proposals by EMBT/RMJM and SPCB approval of Stage D; SPCB 5th report to MSP’s;

June 2000:

Holyrood Progress Group established; composition, purposes, competence; lines of reporting; means of control.

3 July 2000:

Death of Enric Miralles; response of SPCB; HPG; Scottish Ministers/Executive

September 2000 – December 2000:

AGS 1st report to Audit Committee

January 2001 – June 2001:

Topping out and completion of MSP block to resignation of Alan Ezzi and appointment of Sarah Davidson, Project Managers.

June 2001 to December 2002:

Project under construction; details of management reporting and cost controls

January 2003 to date:

Project under construction; details of management reporting, Parliamentary involvement; the management controls instituted by the new Presiding Officer.

I make no apology for this rather tedious recital. It underlines the comprehensive nature of this exercise. It is of course possible to criticise this division of the key events by reference to matters included or excluded. My private chronology of events, helpfully compiled by the Inquiry Solicitor, now runs to nearly 70 pages, and so it must be realised that this are just milestones in the chain of events with which we have to be concerned. My point, in short, is that this is a complex matter, spread over some six years, and that it will take some time and a good deal of discipline to understand it properly. But understand it we will.

Many people both inside and outside this room have a view about how the Inquiry should be conducted, and have not been shy to express themselves over the years, and more particularly in recent days. That is understandable in a circumstance where a large scale public project, financed by taxpayers’ money, has been the subject of comment, criticism, gossip and speculation.

Some of that comment may have been well-founded; unquestionably some of it has been ill-informed. It is not the job of this inquiry to look at what has been said so far, since you cannot know whether earlier comment has been soundly based or not.

However, it is immensely surprising to me that some responsible and senior commentators have evidently failed not only to understand that this Inquiry is NOT an instant cure for six years of concern, but will be a detailed and painstaking undertaking and cannot be one which is capable of providing an answer in a couple of weeks. We cannot know the final answer before we start.

The First Minister and Presiding Officer’s commission to you has been carefully drafted to be as inclusive and wide ranging as possible, and therefore premature observations criticising its ability to uncover significant material or secrets are as irritating to those taking part in the process as they are plain wrong. I emphasise that there has been cooperation so far with the production of material, both by civil servants and by the private sector, even where it appears potentially embarrassing, and I expect that to continue.

I wish to counsel those who legitimately hold strong views to be patient in waiting for the inquiry’s findings, to avoid unnecessary speculation as to what this type of inquiry process can, or cannot achieve, and to consider the whole picture rather than just a detached part of the jigsaw. There can be no benefit other than point scoring in commenting upon pieces of the evidence as they come forward, but any such commentary runs the danger of creating an incorrect impression in the minds of the public.

It is necessary to think of this process like the compilation of a mosaic, and to await the placing of the last piece before the entire picture can be properly understood and appreciated.

In UK political and constitutional history, the process of a non-statutory Inquiry has by now become well understood. From the Denning Inquiry into the Profumo affair to Lord Hutton’s current inquiry into the circumstances of the tragic death of Dr David Kelly, to the Paddington rail crash inquiry chaired by Rt Hon Lord Cullen, now the Lord President of the Court of Session, this type of process has involved impartial investigation into circumstances of public concern. I wish to emphasise that this is a fact finding exercise, designed to help you draw conclusions in order to assist in satisfying the Inquiry’s remit.

To that end, may I stress that the evidence to be produced to and given orally by witnesses to this Inquiry is being given voluntarily. This form of investigation means that the witnesses are not placed on oath, and the Inquiry itself has no power to compel either the production of documents or the attendance of witnesses before it. Thus far, and in the short time so far taken up, the level of cooperation has been impressively high.

I should at this point say a word about the recent well-publicised refusal by BBC Scotland, to hand over to the Inquiry the unbroadcast material which the corporation has commissioned from Wark Clements, independent television producers. This has given rise to many column inches about the allegedly toothless nature of a non-statutory inquiry. That is a point of view, certainly, but not one which is shared by me. The Controller of BBC Scotland has publicly given his reasons for acting as he has done. The Inquiry team is at present making its own investigation into the existence of any contractual restraints upon the BBC, Wark Clements, or the public bodies, before responding in detail.

This primary evidence that may be available on tape may be important. The Inquiry appreciates that is not at present in the public domain, and that its content is uncertain. It is not vital that it be produced on the first day, but I believe that it is important that the Inquiry has access to the material so that further decisions about its relevance can be made.

I believe there is still room for a compromise solution which allows any relevant unbroadcast primary material relating to the twin architects of the project to be inspected by the Inquiry team, and perhaps subsequently by the Inquiry itself.

I am not inclined to conduct this dispute in public, and I will advise the Inquiry further when progress, if any, is made.

Witnesses

I turn then to the position of individual witnesses. As the preliminary inspection of all available evidence has demonstrated, potential witnesses fall into different categories.

The only sensible way to manage the huge body of evidence is to proceed chronologically from the lead up to the May 1997 general election. Accordingly, it seems logical to start, as I plan to this afternoon, with the examination of Ministers of the day, followed by their political advisers, and the civil servants who provided advice to Ministers in the decision making period when policy towards the provision of a Parliament was being formed. The Inquiry’s weekly timetable has been published on its website, and that exercise will be repeated in successive weeks, as we are able to confirm the agreement of witnesses to attend on a given day.

There are two important criteria governing such attendance; the first is that attendance should not, so far as it can be avoided, imperil in any way the final delivery of the Project. This is a matter to which I shall return.

The second is that so far as possible, the length of time required for a particular witness will be forecast as accurately as possible, so that the time of busy professional people, senior civil servants, and others is not wasted. It is an aim of the Inquiry team to conduct its proceedings with diligence, efficiency and due regard to economy, but that is a two way street, and an aim which can only be fulfilled if those whose cooperation is sought go the extra mile to provide it.

I have said that it is not part of the purpose of the Inquiry to interfere with progress in the completion of the Project. It has been suggested by some that cooperation with the request for evidence for this Inquiry may act as a justification for further delay in delivery. So far, there has been no clear evidence of lack of cooperation, although it is fair to say that the Inquiry’s request may impose a heavier burden on some than on others. You have emphasised your intention to be flexible, and I reiterate for my part that any reasonable and properly justified request to hold back any portions of evidence until later on account of pressing on-site commitments will be carefully considered. It is not beyond the capacity of the Inquiry team to take evidence out of a logical order, if there are pressing reasons for that to happen.

Accordingly, I suggest that the public should be aware of this flexibility, and should treat with a certain scepticism any suggestion that because of the Inquiry’s demands, the delivery of the Project is being materially held back. That is not to say that it is not recognised that there are serious time and manpower commitments in responding to the request for evidence, and I understand those, but in the main and with considerable effort from all parties, our requests have been or are being met.

To further facilitate progress, it is necessary to say a word about the taking of evidence. In a traditional adversarial process, whether in a Court room, public inquiry or tribunal, evidence is taken from witnesses and is subject to cross-examination by parties with an opposing interest. Other than for purposes of clarification, it is not proposed that cross-examination of witnesses be allowed, except on prior notice of a request, and with your leave, or for purposes of immediate clarification. You have made your stance on this question very clear in the Preliminary Remarks made on 12th September.

Since the text of oral evidence will be available on the website within about 48 hours of its being delivered, it should be a simple matter for any affected party to make application to recall a particular witness for a designated time period, to discuss a particular issue, if that should be considered necessary. In that way it should be possible to make a substantial saving of time.

Much newspaper space has been given over to the recent inquiry by Lord Hutton in the death of Dr David Kelly. Comparisons have been both ill-informed, some from those who did not attend, and generally unfavourably making comparisons with the speed, in particular of these proceedings. I say only this; Lord Hutton was able, with a generous budget, the cooperation of the Court service, and a large staff to look very speedily at the tragic events of some three weeks of time earlier this year. He made spectacular progress. You have to work with a (quite properly) restricted budget and a small staff, looking at a Project whose overall cost is predicted to be in the neighbourhood of £400m and which has taken six years. It has involved variously, many politicians, hundreds of civil servants, dozens of professional firms and contracting businesses, and nearly 100 specialist trade packages. Add to that the premature death of the two principals, and you begin to understand the complexity of the issues. It is not given to anyone to be able to become au fait with all of that complexity within a few weeks.

In the course of the Project’s life, there have been a number of investigations. At the behest of the Corporate Body, Mr John D Spencely, Architect, reported to them in March 2000 on terms of reference which were, in essence reviews of the then current estimates of cost and time to delivery, value for money, the choice of contractual method, possible economy which might be achieved by a reduced specification, the effectiveness of communications, the market value of the site and with recommendations for future options. His remarkably concise report was compiled in a month. It made recommendations for the conduct of the remainder of the contract. We shall have to inquire into whether they were followed, and if so, to what effect, if any.

The Auditor General for Scotland reported at the behest of the Convenor of the Audit Committee of the Parliament in September 2001. That process took longer than Mr Spencely’s and was an Audit Examination under the Public Finance and Accountability (Scotland) Act 2000. The AGS, Mr Robert Black will build on that work in the second report which has been commissioned alongside this Inquiry.

Both of these reports raise a number of questions, which will be explored further in the course of this Inquiry. There can be little purpose in going over the same fact finding ground again, except in so far as it is relevant to see whether the findings of Mr Spencely and the AGS are borne out, whether their findings are seen, with the benefit of hindsight, to have been correct, and whether any lessons were learned and acted upon following each of the reports. So these reports, which are or will be placed on or linked to the Inquiry website, are of value in helping to channel ideas as to the nature of any mistakes found earlier, and of ways thought to be of help in rectifying them.

There have been two debates before the Scottish Parliament on the Parliament Building itself, in June 1999 and one after Spencely’s report in April 2000. On 17 June 1999 the Parliament endorsed the decision to provide its home at Holyrood and authorised the SPCB to take the project forward in accordance with the EMBT/RMJM plans and within the timescale and costs estimates described in the PO’s note to members of 9 June 1999. In April 2000 the Parliament held a second debate on the Project, which resulted in a vote to continue. The Audit Committee of the Parliament has looked at the Project from time to time, most notably in September 2000. On each of these occasions, assurances have been given about the spiralling costs of the Project. None of those assurances seem to have stood the test of time. The Inquiry will wish to find out why.

I should conclude these opening remarks by asking the questions to which in my opinion, the public and you may wish to find answers. I suggest that these questions may be stepping stones to the truth, but there will be others which we shall discover as we go.

1: Whether it was ever realistic to assess the prospective cost of a new Parliament Building for Scotland in the range of between £10m and £40m, and if so on what basis those figures were advised to Ministers?

2: Whether the selection of Holyrood as the chosen site for the Parliament was taken on the basis of sound and properly informed advice?

3: Whether the selection of a designer, and the process for selection of members of the design team were properly conducted processes, soundly based on appropriate professional advice?

4: Whether the form of construction contract and procurement process which was chosen was in all the circumstances appropriate for a major public building, and whether the risk of such a contract was appropriately allocated as between taxpayer and those responsible for bringing the Project to completion?

5: Whether the Project was handed over by the former Scottish Office to the Scottish Parliament Corporate Body (SPCB) in June 1999, in sound health and good condition, within a firm financial structure?

6: Whether the former Scottish Office and subsequently the SPCB, devised, instituted and maintained a sound system of project management and supervision capable of meeting the challenges of this Project?

7: Whether the Parliament has been effective in responding to the widely reported escalating costs and the various reports carried out during the life of the Project?

These are the questions to which, in my submission, you should turn your attention.

It remains for me to inform the Inquiry that the first witness for this afternoon will be Mr Sam Galbraith, to be followed by Mr Brian Wilson, MP. Tomorrow, I intend to take evidence from Rt Hon Henry McLeish, the former Minister of State, and former First Minister, and Ms Wendy Alexander, MSP, and Lord Elder, both former political advisers to the late Secretary of State and former First Minister, Rt Hon Donald Dewar. The names and dates of appearance of further witnesses will be posted on the Inquiry website as the dates for their appearance are finalised.

In launching this Inquiry, you made the powerful point that the Scottish public expected and deserved the truth. Today we start on that journey.

With your permission, I shall now pass to my first witness.

28 October 2003.

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