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Kezia Dugdale MSP – Making the Case for an Inquiry

CONSULTATION

Making the Case for a Public Inquiry into

the Edinburgh Trams.




Introduction

It is now 100 days since I received the First Minister’s assurance that there would be a

Public Inquiry into the trams project in Edinburgh.

In that time I have asked the First Minister, the Cabinet Secretary for Finance and the

Cabinet Secretary for Infrastructure to name a starting date and we’re still waiting.

I called for a Public Inquiry because I firmly believe that party politics and petty point

scoring has only enhanced the Tram projects woes. Politics and politicians have to be

taken out of the equation and a neutral party installed to lead an inquiry which will give the

people of Edinburgh and Scotland the answers they deserve to some very serious

questions.

This paper outlines some of the key issues that a trams inquiry could look at – but those

decisions will ultimately be made by Government Ministers and the appointed Inquiry

Chair.

I would like to hear your views so that together we can make the case for a deep and

thorough inquiry.

The responses to this document will be used to try and influence the terms of reference of

the forthcoming inquiry; an inquiry which must get to the heart of what is now a national

scandal, and ensures that public money can never be so poorly spent again.

Yours sincerely,

Kezia Dugdale MSPLothians Region (Labour)

Please send in your views on this document by the 29th of October:

Email: [email protected]

Write to: Kezia Dugdale MSP, Scottish Parliament, EH99 1SP

Go to: www.keziadugdale.com

Twitter: www.twitter.com/kdugdalemsp

mailto:[email protected]



http://www.keziadugdale.com/



http://www.twitter.com/kdugdalemsp






http://www.keziadugdale.com/wp-content/uploads/2011/09/Kezia-signature-zoomed-jpeg.jpeg




Contents

p.4 Key Questions an inquiry could answer

p.8 Tram Time Line from Audit Scotland Report

p.11 The Powers of the Inquiries 2005 Act

p.12 Previous Terms of Reference from other Public Inquiries

p.15 Parliamentary Questions & Correspondence




Key Questions an Inquiry could seek to Answer

2004 Lord Fraser’s Holyrood Inquiry

Lord Fraser led a Public Inquiry in the building of the Scottish Parliament another Scottishconstruction project which ran over time and over budget which included lessons for future

capital projects in Scotland.

Were these lessons taken on board in the planning stages of the trams project?

Is there any evidence Lord Fraser’s final report was ever referred to?

Lord Fraser’s terms of reference included building on an earlier report by Audit Scotland

into the Holyrood project and the Public Inquiry into the trams could similarly be asked to

build on the June 2007 and February 2011 reports by Audit Scotland.

The Role of TIE

Transport Initiative Edinburgh was created in 2002 as an arm’s length company to deliver

transport projects in the city. This year (2011) TIE was replaced by a new board charged

with taking control of the trams project. TIE’s role in the fiasco demands scrutiny

particularly because of the extensive governance and leadership problems that have

plagued the trams.

A Public Inquiry could identify what TIE’s failings were and the causes of theseshortcomings.

In particular were its recruitment and appointment processes appropriate for an

organisation charged with the delivery of such a major public work?

Was TIE inappropriately constituted to allow for (i) effective contract management and (ii)

oversight of a project on this scale?

What contract disputes can be directly attributed to poor contract management on the part of TIE?

http://www.holyroodinquiry.org/FINAL_report/conclusions.pdf


http://www.audit-scotland.gov.uk/docs/central/2007/nr_070620_edin_transport_project.pdf



http://www.audit-scotland.gov.uk/docs/central/2010/nr_110202_trams.pdf









Role of the council

Audit Scotland reported in February 2011 that ―elected members of the current

administration at CEC hold differing views of the Edinburgh trams project, and

considerable debate is generated at council meetings when the subject is discussed. This

has made it more difficult for CEC as a whole to present a unified commitment to the

project.‖

What progress over the life time of the trams project was materially harmed by the failure

of CEC to ‘present a unified commitment to the project” ?

Was the absence of ‘a unified commitment’ a contributing factor to the delays and lack of

oversight?

The first Audit Scotland Tram Report stated in June 2007 that the project had spent £31m

between 2003-2007: so how was over £400m subsequently spent between 2007-2011

with no oversight?

Transport Scotland

In June 2007 Transport Scotland was removed from the management of the trams project

even though £500m of Scottish Government money pledged to the project.

Why was Transport Scotland’s expertise removed from the management of the trams

project?

What impact did this distancing of the Scottish Government from the project have on effective oversight of this significant public expenditure?

Did Transport Scotland’s removal contribute to a skill s gap which left the management of

the trams project without vital expertise?

Contracts and disputes

The biggest delays have been caused by legal disputes between the contracting partners.

People should know what the substance of these disputes were and the causes.

In October 2007 TIE announced that the consortium of Bilfinger Berger/Siemens was the

preferred bidder for construction of the tram infrastructure.

Was the procurement process open and transparent?

In May 2008 Bilfinger Berger/Siemens were appointed as contractor for the construction of

the tram infrastructure.

Were other bids fairly evaluated and against what criteria was the contract awarded?

http://www.audit-scotland.gov.uk/media/article.php?id=162






The contract between City of Edinburgh Council and Bilfinger Berger/Siemens was

interpreted markedly differently by the two parties.

How did the two contracting parties arrive at such different interpretations of their

obligations under the agreement?

In particular, when in February 2009 BBS sought an additional £50-80m in funding, why

did the consortium believe they were entitled to this additional funding and why did TIE

believe they were not?

BBS has appointed numerous sub-contractors (25 in total). Has this practice (i)

contributed to the contract disputes (ii) made conflict resolution harder to reach?

The Business Case

The rationale for the trams project relied largely on the business case. However the final

business case was not adopted by City of Edinburgh Council until December 2007 when a

series of key decisions had already been made including the completion of bidding

process.

Why was the final business case not published far earlier to allow informed decision

making?

Is it standard practice in capital works projects for the business case not to be published

until this late stage? If not why did it happen in the case of the tram project?

There are questions to be asked of the final business case itself particularly against the

earlier drafts which were taken into account in the decision making and planning process.

Was the business case sound and composed on the basis of robust evidence?

Costs

The final cost of the trams project is now estimated at nearly £1bn whereas the original

estimation was £375m and then increased to £545m.

When did these increases in cost become apparent?

To whom did these increases become apparent?

What was the length of time between these increases becoming apparent and when they

were (i) reported to elected members (ii) made publicly available?

http://www.edinburghtrams.com/include/uploads/story_so_far/Final_Business_Case_Edinburgh_Tram.pdf







What was the forecast cost to businesses against the original planned completion date

and then against the current completion date?

What is the actual cost to businesses to date and how does this compare to forecast?

DelaysThe delays have imposed huge costs and inconvenience on the people and business of

Edinburgh.

What was the projected cost to business against the original planned completion date?

How was this projected cost calculated and why was it so inaccurate?

What is the actual cost to business at present and what is the projected final cost to

business against the revised completion timetable?

Why was it so inaccurate?

Just as with the Holyrood Inquiry the public inquiry into the trams could also be asked to

highlight future good practice for further capital infrastructure projects in Scotland.

What else could a Public Inquiry examine?

Please send in your views on this document by the 29 of October:

Email: [email protected]

Write to: Kezia Dugdale MSP, Scottish Parliament, EH99 1SP.

Go to: www.keziadugdale.com












Time Line from Audit Scotland Report of February 2011

―Edinburgh Trams interim report‖, p.39

June 2000 CEC publishes its Local Transport Strategy which sets out that the

development of a tram network is central to its transport policy.

April 2001 CEC commission feasibility studies into Edinburgh tram systemMay 2002 CEC establishes tie as an arms-length company to investigate how best

to deliver its local transport strategy.

September

2002

tie submits its proposals to CEC, identifying three trams lines as the

most promising in terms of economic viability and benefits to the city.

March

2003

Scottish Ministers announce £375 million available in principle for tram

system.

January

2004

Two Bills submitted to the Scottish Parliament intended to enable the

construction of the tram system.

September

2005

tie appoints Parsons Brinkerhoff to facilitate the early identification of

utility diversion works and completion of design drawings.

March

2006

Bills receive Royal Assent.

October

2006

tie appoints Alfred McAlpine Infrastructure Services to be responsible

for the diversion and protection of utilities along the tram route.

June 2007 Auditor General publishes his report ‘Edinburgh transport projects

review’ which includes the trams project. The report concluded that the

arrangements in place to manage the trams project appeared sound

although the final business case had yet to be approved. It said that a

range of key tasks, such as the commencement of utilities diversion

works and negotiations with bidders over the infrastructure construction

contract, needed to be completed before the business case could be

signed off. Unless work progressed to plan, cost and time targets may

not be met.

June 2007 Following a debate and vote, the Scottish Parliament calls on the SNP

administration to proceed with the Edinburgh trams project within the

budget limit set by the previous administration. The Scottish Parliament

notes that it is the responsibility of tie and CEC to meet the balance of

the funding costs.October

2007

tie signs pre-contract agreements for the supply and maintenance of 27

tram vehicles with Construcciones y Auxiliar de Ferrocarriles SA.

October

2007

tie announces the consortium Bilfinger Berger Siemens (BBS) as the

preferred bidder for construction of the tram infrastructure, including

rails, overhead power cables and a tram depot.

December

2007

tie signs a mobilisation and advance work agreement for infrastructure

construction with BBS.

December

2007

tie publishes its final business case for the tram network. Phase 1a

(Edinburgh airport to Newhaven) is expected to cost £498 million.







Phase 1b (Roseburn to Leith) is expected to cost £87 million. Trams are

expected to be open for revenue service by spring 2011.

December

2007

CEC approves the final business case.

January

2008

Scottish Ministers offer grant support for Phase 1a of 91.7 per cent of

eligible capital costs subject to a maximum grant of £500 million. TheScottish Government’s grant offer is conditional on project costs not

exceeding £545 million, a positive benefit cost ratio and no requirement

for an ongoing subsidy once trams are operational.

May 2008 BBS appointed as contractor for the construction of the tram

infrastructure. On execution of this contract, the contracts for systems

design and tram vehicle construction and maintenance are transferred

to it.

February

2009

Major dispute arises between BBS and tie, one week before track-

laying work was due to start in Princes Street, amid claims that BBS is

seeking an additional £50-80 million funding.

April 2009 CEC announces that, in view of the economic downturn, Phase 1b of

the project is not proceeding in the foreseeable future.

June 2009 A week of informal mediation is held between tie and BBS which

examines, among other things, the interpretation of key clauses in the

pricing schedule, risk allocation and the substantiation of changes and

value engineering issues

July 2009 tie reports to the Tram Project Board that the mediation had not been

successful. Tram project Board endorses tie’s strategy of adopting a

more formal approach to managing the contract.November

2009

Carillion (who bought over Alfred McAlpine in December 2007)

completes its works package of diverting 40,000 metres of utility pipes

and cables. tie appoints Clancy Docwra and Farrans to divert the

remaining 10,000 metres

December

2009

Following further disputes with BBS, the Tram Project Board concurs

with tie’s proposal that, in view of lack of progress, a fundamental

review of the contractual position with BBS should be conducted. If

required, formal legal processes should be started to bring the major

issues to a head to allow the project to progress.March

2010

tie informs CEC who tells Transport Scotland that it is unlikely that all of

Phase 1a of the project can be delivered for £545 million. £348 million

has been spent on the project up to that point.

March

2010

The Tram Project Board approves tie’s strategy for the future direction

of the project including management of the infrastructure construction

contract with BBS.

June 2010 CEC reports to full council meeting on progress of the project. Council

requests a refreshed business case detailing the capital and revenue

implications of all options being investigated by tie.




October

2010

CEC reports to full council meeting in response to its June 2010

request. The report provides an update on progress and outlines an

incremental approach to the project which would see the opening of a

line from Edinburgh Airport to St Andrew Square as the first phase. No

cost or benefit figures are provided and the council requests a further

report to be prepared for its December 2010 meeting.October

2010

The Accounts Commission and the Auditor General for Scotland

announce their intention to carry out a further review which will provide

an independent commentary on the Edinburgh trams project’s progress

and costs to date and its governance arrangements.

December

2010

Refreshed trams business case is presented to full CEC council

meeting. Report includes the consideration of the incremental delivery

of Phase 1a, an update on the economic case for Phase 1a,

expenditure to date and an assessment of funding and affordability. The

council also notes that a report would be submitted within one year on

the operational and governance arrangements necessary to secure the

integration of bus and tram services.




Guide to the Process for setting up an Inquiry

(information provided by SPICe – The Scottish Parliament Information Centre)

Detail of 2005 Inquiries Act

Scottish Ministers have the power to establish a public enquiry under the Inquiries Act

2005.1 In particular, the Inquiries Act:

makes provision for Ministers to:

o set up formal, independent inquiries relating to particular events which have

caused public concern, or where there is public concern that particular

events may have occurred;

o to set the terms of reference;

o appoint a chairman to conduct the inquiry;

o appoint additional panel members and assessors where appropriate;

o inform the relevant parliament or assembly of the above by oral or written

statement.

provides for an inquiry chairman to determine the procedures to be adopted, and to

have powers to require the production of evidence, the attendance of witnesses and

the taking of evidence on oath.

enables the establishing minister or the chairman, or both, to be able to place

restrictions on public access to the inquiry where appropriate;

places a duty on the chairman to deliver a report to the commissioning minister, and

on the minister to arrange for publication and the laying of the report before the

relevant parliament or assembly;

gives powers to the ministers of the devolved legislatures as well as UK ministers

the power to set up inquiries under the Act;

contains provisions on inquiries established jointly by two or more ministers,

including cross-border inquiries within the UK;

gives members of an inquiry immunity from civil proceedings;

makes arrangements for payments of expenses of witnesses including legal

representation where appropriate.

1See also: The Inquiries (Scotland) Rules 2007.

http://www.legislation.gov.uk/ssi/2007/560/contents/made







Previous relevant terms of reference to demonstrate different scopes.

Vale of Leven Public Inquiry Terms of Reference (2009)

The Terms of Reference are:

a. To investigate the circumstances contributing to the occurrence and rates of C.

difficile infection at the Vale of Leven Hospital from 1 January 2007 onwards, and

any increases in such rates during that period and in particular between 1

December 2007 and 1 June 2008, with particular reference to the circumstances

which gave rise to deaths associated with that infection.

b. To investigate the management and clinical response at the Vale of Leven Hospital

to the C. difficile rates during that period and to any such increases, and the steps

taken to prevent or reduce the risk of spread or recurrence of the infection.

c. To investigate the systems in place at the Vale of Leven Hospital to identify and

notify cases, increased rates of infection outbreaks and deaths associated with C.

difficile infection, including the action taken to inform patients, their relatives and

the public and the steps taken at the Vale of Leven and in NHS Scotland generally

for recording such incidents including for the purposes of death certification.

d. To investigate the actions of NHS Greater Glasgow and Clyde in response to the

occurrence of C. difficile at the Vale of Leven Hospital, including informing patients

and their relatives of the risks of such infection and the measures that should be

taken to assist prevention and control.

e. To investigate the governance arrangements of NHS Greater Glasgow and Clyde in

relation to, and the priority given to, the prevention and control of the infection.f. With reference to experience within and beyond Scotland of C. difficile infection, to

establish what lessons should be learnt and to make recommendations.

g. To report by September 2012 unless otherwise provided by the Cabinet Secretary

for Health and Wellbeing

The Fingerprint Inquiry Scotland Terms of Reference (2008)

The Inquiry has the following terms of reference:

To inquire into the steps that were taken to identify and verify the fingerprints

associated with, and leading up to, the case of HM Advocate v. McKie in 1999, and

To determine, in relation to the fingerprint designated Y7, the consequences of the

steps taken, or not taken, and

To report findings of fact and make recommendations as to what measures might

now be introduced, beyond those that have already been introduced since 1999, to

ensure that any shortcomings are avoided in the future.




The Penrose Inquiry Terms of Reference (2011 – ongoing)

Term of Reference 1:

To investigate the systems in place in Scotland for the collection, treatment, licensing,

testing, preparation for supply and supply for use by the NHS of blood and blood products

with particular reference to the risks of transmission of the hepatitis C virus and HIV to

patients treated by the NHS in Scotland, including the role of government in regulation andsetting guidelines and standards.


To investigate the systems in place for informing patients treated by the NHS in Scotland

of the risks associated with the use in their treatment of blood or blood products, with

particular reference to the risks of infection with the hepatitis C virus and HIV.


To investigate the systems in place in Scotland for obtaining consent from, and testing for

infection with hepatitis C and HIV, patients treated with blood or blood products, and

informing any patients found to be so infected.


To investigate the systems for recording and monitoring the numbers of NHS patients in

Scotland treated with blood and blood products, with particular reference to the numbers

exposed to risk of infection with the hepatitis C virus and HIV and the numbers contractingeither or both such infections as a consequence of such treatment.


To examine the circumstances generally in which patients treated by the NHS in Scotland

became infected with hepatitis C, HIV, or both through the use of blood or blood products

in the course of their treatment, taking account of the development of scientific and clinical

understanding and evidence internationally.


To investigate the deaths of Reverend David Black, Mrs Eileen O’Hara, Alexander Black

Laing and Victor Tamburrini, with particular reference to the circumstances in which they

became infected with the Hepatitis C virus, HIV or both.





To investigate the steps taken by those involved in, and those responsible for, the NHS in

Scotland, including NHS Boards and the Scottish National Blood Transfusion Service

("SNBTS"), their officers and employees and associated agencies, once hepatitis C and

HIV were identified, to trace individuals who might have become infected with oneor both of them as a result of receiving blood or blood products; and to identify any other or

further steps that might reasonably have been taken to trace such individuals.



Scotland including NHS Boards and SNBTS, their officers and employees and associated

agencies, to prevent the provision of infected blood and blood products.



Scotland including NHS Boards and the SNBTS, their officers, employees and associated

agencies to inform individuals who might have received infected blood or blood products of

the risks associated with their treatment for themselves and their families; and to offer

treatment to any individual at risk, and to identify any other or further steps that might

reasonably have been taken to inform and to treat such individuals.


To examine any particular adverse consequences for patients treated by the NHS in

Scotland and their families of infection through blood and blood products with hepatitis C

and HIV, including the treatment offered.


To identify any lessons and implications for the future, and make recommendations.


To report as soon as practicable.




History of Parliamentary Business

First Minister’s Questions

23 June 2011

Kezia Dugdale (Lothian) (Lab): In the light of new information regarding the cost of theEdinburgh trams project, does the First Minister agree that the time has come to instigate

a full public inquiry?

The First Minister: I am supportive of a public inquiry into the trams project. We should let

the City of Edinburgh Council continue its deliberations, but a public inquiry would be an

excellent thing to do. I say as gently as possible to the member that, if it comes to a public

inquiry, some people and some political parties will have more to worry about than others.

Scottish Executive Question Time

Transport Scotland (Capital Infrastructure Projects)

8 September 2011

Kezia Dugdale (Lothian) (Lab): The minister will remember that, before the recess, I

called for a public inquiry into the trams project and the First Minister agreed to that. When

will the inquiry be established and who will lead it?

Alex Neil: We have already said that there will be a public inquiry into the trams project—

the First Minister has confirmed that—but we will decide the remit and timetable for and

the composition of that inquiry at a later date. The important priority is to try to get the

project back on track—if members will pardon the pun—to ensure that it is delivered and

finalised in the best way possible.




Correspondence with John Swinney MSP

Written 14 September 2011

Awaiting response

John Swinney MSP

Cabinet Secretary for Finance and Sustainable DevelopmentThe Scottish Government

St Andrews House

Regent Road

Edinburgh

EH1 3DG

GC-14/09/11

14 September 2011

Dear

I write in relation to the Edinburgh trams project and the public inquiry that the First

Minister has given a commitment to.

We are all agreed this is a matter of significant public concern. Whilst I agree with the

Cabinet Secretary for Infrastructure and Capital investment that the first priority must of

course be to ensure that the project is ―delivered and finalised in the best way possible‖,there is no reason why the project cannot be progressed concurrently with a public inquiry.

Indeed the Holyrood Inquiry was underway whilst the parliament was still under

construction, a point reinforced by my recent correspondence with Lord Fraser.

Can I therefore ask, when will the inquiry be set up, who will lead it and who would in this

instance be the commissioning minister?

I am further interested in the process associated with setting the inquiry’s remit. I

understand that the Inquiries Act grants the commissioning minister power over the

inquiries terms of reference. Can you comment further on how ministers make this

determination? Naturally I, and many other colleague and stakeholders, would welcome

an input into this process. Will there be an opportunity to do so?

I look forward to your response.

Yours sincerely,

Kezia Dugdale MSP




Letter from the First Minister

18 July 2011

Dear Kezia

Thank you for your letter of 23 June regarding the ill-conceived Edinburgh trams project.

Clearly the current situation with this project is a matter of great public concern, for the

people in Edinburgh and across Scotland. As you know, the Scottish Government has had

grave concerns about the project since 2007. We are supportive of an open inquiry into

how the project went ahead in the face of so much opposition, and ended up being such

an embarrassment to those behind it, and indeed to the whole country.

The right time for such an inquiry will come, however it should not be viewed as a means

for identifying a solution which will deliver a trams service. Delivering a solution remains a

matter for the Council, and I will continue to urge it to work towards this end. This should

be the focus until such time as the situation is resolved. I therefore believe that a meeting

as you propose would be premature at this stage.

I hope you will now agree that Labour's unquestioning support for this project was a

significant mistake.

ALEX SALMOND




Letter from Lord Fraser of Carmyllie QC appointed to chair the Holyrood Inquiry

Received 7 August 2011

Dear Kezia

Thank you for your kind letter and I hope the observations I offer may be of someassistance to you.

Your timings of my Inquiry are broadly correct except that perhaps unusually I had

accepted the remit before its precise terms were set. As you may be aware, the Bar in

Scotland takes a very firm view: if the democratically elected leader asks you to undertake

a task, you do it and there is little argument beyond that on time, cost or involvement.

As I am sure you will recall there was at the time a media frenzy about the Scottish

Parliament and, if anything, I thought there was some validity in the criticism that I did not

get going soon enough. There were, however, such mundane household matters as a

location, transcribers and TV terms to be settled before a single question could be asked.

I think you need to ask yourself some searching questions. Was there at the outset no

serious cost/benefit analysis? Was the cost in economic terms to Edinburgh and the

international reputation of Scotland if it failed, taken into account?

If those questions (and others) are answered in the affirmative, it would seem to me that

there is no reason not to have an Inquiry in parallel. If, on the other hand, the Inquiry is

only in to the engineering competence or otherwise of the contractors, I can see theargument for a delay until completion.

If I felt constrained in any respect, it was that arbitration might follow and I should be

careful not to affect the outcome of detailed factual questions.

Lord Fraser of Carmyllie QC

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