Edinburgh Council's attitude to Tram Inquiry shows why independent probe into whistleblowing allegations is vital – John McLellan

It’s been a long time coming, but it will be squeaky bum time at the City Chambers as letters start arriving from Lord Hardie’s Tram Inquiry if they tell council officers, to paraphrase Shania Twain, that their evidence hasn’t impressed him much.
Edinburgh Council's response to Lord Hardie's Tram Inquiry speaks volumes about its attitude to external scrutiny (Picture: Neil Hanna)Edinburgh Council's response to Lord Hardie's Tram Inquiry speaks volumes about its attitude to external scrutiny (Picture: Neil Hanna)
Edinburgh Council's response to Lord Hardie's Tram Inquiry speaks volumes about its attitude to external scrutiny (Picture: Neil Hanna)

Until the final report is published next year, it would be unwise to speculate about the findings, but some correspondence between Lord Hardie and the council recently posted on the inquiry website reveals much about the authority’s culture which is still relevant today.

In August 2017, the council was asked to provide documents and statements to explain how prices of £362.5m and £39m for street works were reached, but its law officers refused because the individuals involved had all left the authority.

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“It is not reasonable in all the circumstances to require it to comply… because the council is unable to speak for the individuals concerned,” said the reply to Lord Hardie. “None of the relevant individuals are still employed by the council. However, we note that a number of witnesses have addressed these matters in their statements and appear on the list of witnesses who will give evidence at the oral hearings.”

However, the letter added that some documents were handed over by the council and its legal advisers Pinsent Masons, the firm which three years later was commissioned by the council to run its inquiries into the Sean Bell affair and the wider management culture.

Lord Hardie’s response to the claim it was not possible to comply because the individuals had left was terse. “This seems to me to fail to recognise that CEC is a local authority accountable to the public for its actions,” he wrote.

“It cannot be the case that individuals, as opposed to the council, can spend in excess of £400m of public funds without the approval of the council. That is a decision of CEC,” he said. “CEC cannot evade its obligations in this regard by seeking to pass them on to former employees.”

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Lord Hardie was able to get his hands on what he needed because he’s a judge with statutory powers presiding over an independent inquiry, not an internal process in which the council has complete control over all the information.

The reverse was the case in the recent inquiry into the council’s management culture, where the inquiry team, from Pinsent Masons, rejected offers of documents from witnesses because they said they had all the information they needed. From the council.

The outcome of that inquiry, and those into Sean Bell’s behaviour and the abuses in the council’s secure units, was that malpractice was uncovered and admitted in the hope that mea culpas would make it all go away.

But they all concluded the problems no longer existed principally because those accused of malpractice had moved on or, in the case of Sean Bell, killed themselves. He is not the only one. Further questions could not be answered because those responsible were no longer available and, without the power of a judge or the Almighty, that was true.

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The Hardie documents illustrate why an independent inquiry into the handling of whistleblowing allegations at Edinburgh Council and elsewhere is necessary. If the council tried to withhold information from a judge, it’s hardly going to be open with anyone else.

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