John McLellan: We can avoid ashes repeat

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As the truth of the Edinburgh baby ashes scandal finally began to emerge, the pain etched on the faces of the parents was clear to see.

The stories they have told since the Angiolini report was published have been truly harrowing and I hope those responsible for this heartless denial of a very basic human right have been similarly wracked by guilt and remorse.

To systematically prevent grieving parents from carrying out the final act to mark the tragically short lives of their tiny children shows a callous disregard for the feelings of others. It beggars belief that those who ran Mortonhall put process ahead of compassion for so long. Yet in the final phase of this investigation the rights of those responsible for this outrage were placed before all else.

How else are we to interpret council leader Andrew Burns’ reason for the redaction of some details of the report from Dame Elish Angiolini which was presented to the council ahead of the parents.

Given the report was commissioned by the council perhaps it is understandable that it went to them first, but that doesn’t make it right.

What is certainly not right is that a report written by an eminent lawyer such as a former Lord Advocate should be edited before publication because of the council’s concern it might be sued by people identified in it.

Had this been a public inquiry, those likely to be criticised would have received a warning in advance, and while the responses might have been taken into account, the report would be published by the inquiry, not by one of the subjects.

Although the report is now with police, apart from allegations that signatures were forged on two occasions, it is not clear if anything systematically criminal took place. Inhumane certainly, but that’s not the same and if there is no crime that avenue will close.

So last week’s events expose the weakness in what passes for our system of public accountability.

The Angiolini report is damning and poses more questions than it could answer, yet there is no proper national inquiry into what is a national scandal involving other authorities. Worse, before being made public it has had to go through a filter by the very organisation ultimately to blame.

The parallel report by Lord Bonomy is designed only to look at changing the law to prevent a repetition and to make legislative recommendations to ministers. It is not an inquiry in which people will have to face up to the consequences of their actions.

With so many people’s lives so badly affected, the case for a public hearing is unarguable, yet as is so often the case in Scotland the parents will have a fight on their hands.

The very fact the Bonomy report is being prepared means an official inquiry set up by the government is actually less likely to happen, because under the terms of the 2005 Inquiries Act the main purpose of such a hearing is to make recommendations to ministers. Thus, although Public Health Minister Michael Mathieson says an inquiry has not been ruled out, the government will be able to claim a public inquiry is unnecessary because Lord Bonomy will have already carried out its primary function.

But proposing legislation is only part of the process and without a hearing parents and relatives will be unable to see those involved cross-examined or for their legal teams to put questions to them. Justice is not being seen to be done.

Inquiries are time-consuming, of that there is no doubt. The inquiry by Lord Peter Fraser into the Holyrood building shambles was one of the quick ones, taking around a year to deliver in 2004, but the Fingerprint Inquiry into the case of WPC Shirley McKie took more than three-and-a-half years.

The Vale of Leven Hospital inquiry into fatal infections was set up in 2009 but the report is still awaited, although there was a delay while its chairman, Lord MacLean, recovered from illness.

The weakness of the inquiry system is that only the government can call one. And if there is a chance ministers might be embarrassed by its findings then the likelihood is it will either not happen or delay will be lengthy.

Would there have been an inquiry into the Holyrood fiasco had Donald Dewar still be alive? We’ll never know but it’s a legitimate question.

And from his personal point of view, the calling of the Leveson Inquiry by David Cameron was a catastrophic misjudgment because it led directly to the spotlight being turned on his relationships. He’ll not do that again in a hurry. The calling of public inquiries is haphazard and in other areas of civic life I have long felt there is a surprising aversion to proper processes which meet legitimate public demand.

When it comes to scrutinising public spending, Audit Scotland and the Auditor General do a tremendous job and they are often a thorn in the government’s side. That is as it should be.

What we need is a similarly beefed-up Public Standards Office at arm’s length from government which has the power to instigate proper public independent investigations and to publish its findings without official approval first.

Maybe then people such as the parents in the baby ashes scandal would not have to plead for justice to be seen to be done.