Consultation on Inquiries (Scotland) Rules: Scottish Inquiries Under the Inquiries Act 2005

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EXECUTIVE SUMMARY

This consultation paper sets out draft rules of procedure to be adopted at inquiries held in Scotland which are wholly or primarily concerned with a Scottish matter and which are held under the Inquiries Act 2005. The consultation is aimed at those people with an interest in, and experience of, public inquiries.

The Inquiries Act 2005

The Inquiries Act ("the Act") received Royal Assent on 7 April 2005 and the provisions were commenced from 7 June that year. The Act provides a framework for inquiries within the United Kingdom, established by Ministers, into events that have caused or are capable of causing public concern.

The Act replaces the Tribunals of Inquiry (Evidence) Act 1921 and was developed based on best practices adopted from previous inquiries, whether they were statutory or not.

The application of the procedural rules is subject to the provisions of the Act. Section 17(3) requires the chairman to act with fairness and also with regard to the need to avoid unnecessary costs. Their application will also be subject to the terms of any restriction notice or restriction order which may have been issued under section 19 of the Act.

Section 41 of the Act contains provisions for the making of rules to cover three particular areas: matters of evidence and procedure; the return or keeping of documents given to, or created by, an inquiry after the end of that inquiry; and awards to be made by the chairman to persons involved in an inquiry.

The Act was accompanied by a full regulatory impact assessment. It concluded that none of the policy options would directly impact on business, charities or the voluntary sector, although ultimately an inquiry and its recommendations could affect any business, organisation or individual. Consequently this paper does not contain a Partial Regulatory Impact Assessment for the draft Inquiries (Scotland) Rules 2007 ("the Draft Rules") which are in Annex A.

Copies of the consultation paper are being sent to individuals (including former chairmen of inquiries, solicitors, counsel and participants) involved in past inquiries held in Scotland and also to the individuals and organisations listed in Annex B.

THE SCOTTISH EXECUTIVE CONSULTATION PROCESS

Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general, Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

The Scottish Executive encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.

Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses. Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises. Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD, telephone 0131 244 4565).

All Scottish Executive consultation papers and related publications (eg, analysis of response reports) can be accessed at: Scottish Executive consultations ( http://www.scotland.gov.uk/consultations).

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:

  • indicate the need for policy development or review;
  • inform the development of a particular policy;
  • help decisions to be made between alternative policy proposals; and
  • be used to finalise legislation before it is implemented.

Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

INTRODUCTION

There is a long tradition in the United Kingdom of establishing formal, independent and open inquiries where necessary after issues or events have arisen which give rise to public concern. In the 19th and early 20th centuries, Select Parliamentary Committees considered incidents and events which we would now expect to be looked into by a public inquiry. After the First World War, it was decided that a new, independent system was needed and the Tribunals of Inquiry (Evidence) Act 1921 was passed. The 1921 Act was, however, very short and was little more than a basic framework. It did not, for example, cover representation of interested parties, funding and costs. The Act also had no ancillary support: there was no code of practice, or guidelines, let alone formal rules of procedure.

Over the years, the 1921 Act was supplemented by legislation governing the conduct of inquiries in particular subject areas, such as police, health or safety matters. Inquiries have also sometimes been set up on a non-statutory basis. The combination of these arrangements has allowed important and effective inquiries to provide timely and justifiable recommendations. Implementation of these has not only helped to prevent or deal with recurrence of the events investigated, but has also often helped to satisfy those affected by the events, and the general public, that the right lessons have been learned.

Inquiries have, however, sometimes been protracted and costly, and, prior to the passing of the Act, the legislation on inquiries did not cover all subject areas. Whilst non-statutory inquiries can be very effective, they have no formal powers and rely for their work entirely on the co-operation of those involved. The Fraser Inquiry into the construction of the Scottish Parliament building was an example of an ad hoc, non-statutory inquiry.

The Inquiries Act 2005

The Act was therefore intended to modernise the law on statutory inquiries and create a comprehensive new statutory framework for inquiries set up by Ministers to look into matters of public concern. It will help those inquiries to delivery high quality conclusions and recommendations quickly and at reasonable cost.

The Act codifies best practice from past inquiries. For the first time, all the key stages of the inquiry process are laid down in statute - from setting up the inquiry, through appointment of the panel, to publication of reports.

The Act does not, however, stipulate when an inquiry might be set up. Past experience shows that there cannot be set criteria for this - each decision will depend on the particular circumstances and on what sort of other investigation procedures are available. Rather the Act is intended to ensure that when inquiries are needed, they can be conducted effectively.

The Act can be used to set up an inquiry into a past event, or a series of events, that has caused, or is capable of causing, public concern (section 1). Such inquiries tend to focus not on the events themselves, but rather on the possible failures in systems and services that allowed them to happen. The Act is not designed for planning inquiries or any other inquiries that take place as part of an administrative, decision-making process. Nor is it designed to cover inquiries commissioned by anyone other than Ministers - for example, inquiries set up by the Health and Safety Commission. These types of inquiry are designed for a specialist purpose and have their own legislation.

The Act will only be used for inquiries that need to have statutory powers, and there will still be a place for non-statutory inquiries.

The Act's provisions:

  • ensure independence and expertise in the inquiry panel;
  • require the chairman to contain costs;
  • allow the inquiry to compel the attendance of witnesses, to examine them under oath or affirmation and to compel the production of documents;
  • require a report to be submitted to Ministers and published.

Inquiries do not determine civil or criminal liability. They are not a substitute for court proceedings, nor do they punish individuals or bodies or award compensation. They are a tool for establishing facts and preventing a problem from recurring.

Inquiries under the Act will be able to compel any information that could be compelled by a court in normal civil proceedings. Failure to co-operate will be a summary offence and inquiry chairmen in Scotland will have the option of asking the Court of Session to enforce any orders that they make (see in particular sections 21, 35 and 36 of the Act).

Section 17(3) of the Act imposes a new requirement on an inquiry chairman to have regard to the need to control costs. Sections 39 and 40, on payment of inquiry expenses and witness expenses respectively, provide the relevant Minister with a degree of budgetary control, while ensuring that the inquiry has adequate funds to do its job. The rules of procedure, both for UK and Scottish inquiries, will assist the chairman to control costs. These cover issues such as legal representation, the taking of evidence and costs assessment.

The Act does not give Ministers any power to decide what evidence an inquiry should hear. Rather it gives inquiries full powers to seek out information within their terms of reference. The terms of reference are set out by the Minister who wishes to have an inquiry, but he/she must consult the person he/she proposes to appoint, or has appointed, as chairman (section 5 of the Act).

Finally, the Act contains a presumption of public access to inquiry hearings and evidence. It allows either a Minister or an inquiry chairman to place restrictions on public access only when those restrictions are justified with a detailed framework set out in the Act. Restrictions can be imposed only when they are required by law, are in the public interest or are conducive to the inquiry fulfilling its terms of reference. Over the past 15 years, around a third of major inquiries have had some sort of restrictions on public access, though all have resulted in substantial published reports. Restriction notices or restriction orders would never, however, prevent information from being given to an inquiry panel (see sections 18 to 20 of the Act).

Devolution

Ministers in Scotland, England, Wales and Northern Ireland may set up inquiries under the Act. Broadly speaking, Ministers in the devolved administrations cannot set up inquiries where the terms of reference would require the inquiry to determine any fact or make any recommendation that is not wholly or primarily concerned with a matter which is within their competence in accordance with the devolution settlement. A UK Minister may not set up an inquiry where the terms of reference would require the inquiry to determine any fact or make any recommendation which is wholly or primarily concerned with a devolved matter without first consulting the devolved administration. It is also possible for a joint inquiry to be set up by two administrations.

The Draft Rules which are the subject of this consultation will apply to inquiries established by Scottish Ministers and which are wholly or primarily concerned with a Scottish matter (see in particular sections 27, 28 and 32 of the Act).

United Kingdom Procedure Rules

The Inquiry Procedure ( UK Inquiries) Rules 2006, which came into force on 24 July that year, may apply to an inquiry which has been set up by a UK Minister, but which is based in one of the devolved administrations. Under section 31 of the Act, the Minister responsible for the inquiry must specify the relevant part of the UK at the beginning of the inquiry (section 31 of the Act). A UK Minister may therefore specify that the relevant part of the UK was Scotland where the terms of reference require the inquiry panel to determine a matter which is territorially linked to Scotland, but which, under the devolution settlement, is reserved to the Westminster Parliament.

Where an inquiry has been set up by more than one administration, the Ministers must specify which set of rules is to be applied, or whether a combination of rules should be adopted (section 31 of the Act).

It should be noted that under the UK rules the chairman designates where the relevant part of the UK is for the purposes of costs assessment. This is entirely separate from any specification that the Minister may have made under the Act.

THE PROPOSALS

Rule 2: Interpretation

Rule 2 sets out the definitions of various terms used throughout the Draft Rules. It is envisaged that all inquiries will have a secretary and a solicitor, but it is possible that some smaller inquiries will not need counsel and members of the inquiry panel will undertake the questioning of witnesses (instead of simply asking questions which are additional to those of counsel).

Rule 3: Documents

Rule 3 makes provision for documents being given or sent either to the inquiry or to any person involved in any way with the inquiry.

Rule 4: Core participants

It has become the practice of inquiries in recent years to identify key participants who are recognised as having a central interest or involvement with the subject matter of the inquiry. These participants, sometimes known as "interested parties", have been afforded an elevated status within the inquiry that may include being afforded legal representation throughout the proceedings or having the right for their legal representatives to question witnesses.

Rule 4 outlines the criteria for the chairman to consider when awarding "core participant" status. The term "core participant" is used in the Draft Rules since it both reflects the status more accurately and ensures that any confusion with the definition of "interested party" in the Act is avoided.

Families who are bereaved in an incident which has led to an inquiry being instituted would normally be afforded core participant status.

The key difference between a core participant and an individual witness is that a witness, and the witness's legal representative (if the witness has one), will only be involved for matters relating to that witness's evidence. Core participants and their legal representatives are entitled, subject to directions by the chairman, to be involved throughout an inquiry. A core participant may be permitted to be "active" throughout all or for an extended part of the inquiry. The recognised legal representative of a core participant may apply to the chairman to put questions to witnesses (rule 9(4)) and make opening and closing statements at oral hearings (rule 10) and may see reports ahead of full publication (rule 15).

It will be possible for a core participant to lose that status on a date to be specified by the chairman in writing if, for example, it transpires that a party has less involvement or interest than originally envisaged (rule 4(3)).

Rules 5, 6 and 7: Recognised legal representative

Inquiries are not adversarial processes. Legal representation can, however, play an important part in helping the inquiry to establish the facts and to ensure that witnesses and core participants are treated fairly. Rule 5(1) therefore allows core participants and witnesses to have a recognised legal representative for the purposes of the inquiry.

Recognition of a legal representative by the inquiry does not mean that the cost of the legal representation will be paid for out of public funds. The granting of public funding for legal representation is covered in rule 17 onwards. The role which a legal representative can play will be at the discretion of the chairman and, in the case of oral hearings, will also be subject to the procedures set out in rule 9.

Recent inquiries have directed that where "core participants" with similar interests wish to be represented, representation must be shared. This has been considered appropriate, for example, for members of an action or victims' group. Joint representation enables an inquiry to proceed more swiftly, particularly in relation to oral proceedings where a single counsel can put questions on behalf of several core participants. It also reduces costs.

Rule 6 requires the chairman to direct joint representation by a single recognised legal representative where he/she considers the interests of the core participants are closely aligned and he/she may designate a qualified lawyer for that purpose. If core participants do not agree on the identity of the appointee, the chairman may designate a representative who in his/her opinion has sufficient knowledge and experience to act for the core participants in question (rule 6(4)).

Rule 7 makes it clear that a legal team may be appointed to assist the recognised legal representative in the discharge of his/her functions. Members of the legal team will be permitted to attend the inquiry hearings and will be allowed to act in place of the "principal" recognised legal representative.

Rule 8: Requests for evidence

Inquiries may have to consider large volumes of evidence. One of the first steps will be to obtain written evidence from witnesses. Rule 8 sets out the process for obtaining evidence and aims to ensure that anyone giving oral evidence at an inquiry will have already made a written statement. The process is intended to provide background information for the inquiry panel and to assist in identifying the main points of contention which the panel may wish to explore further.

Rule 8 does not prevent the inquiry from providing assistance in the making of a written statement and this might, for example, include employing teams of solicitors to take statements.

Rule 9: Oral evidence

The inquiry panel will decide, based on the written statements and other evidence it has received, who will be called to provide further evidence at an oral hearing. This rule sets out the procedure to be followed in respect of questioning and applies to all oral evidence given at an inquiry.

Usually only counsel to the inquiry and a member of the inquiry panel will examine a witness (rule 9(1)). If, however, a witness is legally represented, the chairman may direct the witness's own legal representative to examine that witness (rule 9(2)). This also applies to core participants.

There are two other situations in which further questioning may be permitted. First, if witness A's evidence directly relates to evidence being given by witness B, then the legal representative of witness B may apply to the chairman for permission to examine witness A where neither are core participants (rule 9(3)). This is intended to address the situation where the evidence of witness A may conflict with that of witness B and, as a matter of fairness, the legal representatives of both witnesses should have the opportunity to cross-examine to test the evidence.

Second, the recognised legal representative of a core participant may apply to the chairman for permission to examine a witness (rule 9(4)).

In both these cases, however, the legal representative must state the issues of fact in respect of which a witness is to be examined and whether the examination will raise new issues or, if not, why the examination should be allowed (rule 9(5)). The purpose of requiring legal representatives to outline the areas they intend to raise is to assist the chairman in managing the time spent on questioning. Cross-examination by numerous lawyers can add significantly to the length and cost of inquiries and the chairman must be able to assess to what extent questioning will assist the inquiry.

It is sound practice for inquiries to encourage core participants, witnesses and their representatives to propose lines of questioning to the inquiry counsel or panel in advance of the hearings. Chairmen may also allow written submissions to be made on those issues which are not permitted to be covered through further questioning at oral hearings.

Rule 10: Opening and closing statements

Recognised legal representatives of core participants (or the core participant themselves, where not represented, though this will probably be rare) are permitted to make opening and closing statements at the beginning and end of any oral hearings. The form or length of any statement will be at the discretion of the chairman.

Rule 11: Disclosure of potentially restricted evidence

Rule 11 sets out the procedure to be followed in the event the inquiry panel wish to consult people from outside the inquiry team in order to come to a decision about whether evidence before the inquiry should potentially be subject to restriction under section 19(2) of the Act or as a result of a public interest immunity application.

Rules 12, 13 and 14: Warning letters

One of the underlying principles of fairness of inquiries is that those who may be, or are, subject to criticism in the inquiry proceedings are notified of that criticism and given the opportunity to respond. The 1966 Royal Commission on Tribunals of Inquiry, chaired by Lord Justice Salmon, recommended that where an individual was to be criticised by an inquiry, that individual should be given notification of the allegations to be made and the evidence purportedly supporting the allegations. These warning letters became commonly known as "Salmon letters". Some chairmen have in the past provided advance warning of emerging conclusions by sending letters to individuals. Other inquiries have adopted a process (known as "Maxwellisation") which involves showing specific extracts for the final report of the inquiry to relevant witnesses.

The Salmon recommendations were designed to safeguard the interests of witnesses and parties to the inquiry. Their application has, however, been criticised for causing inquiries to become too adversarial. Some commentators have argued that too many warning letters have been sent, sometimes unnecessarily where the level of criticism was low. Rules 12 to 14 aim to preserve the underlying objective of ensuring fairness, but to avoid a costly, adversarial process.

Rule 12 aims to provide the inquiry with flexibility over when warning letters are sent. It is not the intention that anyone who is subject to minor or inconsequential criticism should receive a warning letter. It is therefore left to the judgement and discretion of the chairman as to what he/she considers constitutes criticism or merits a warning letter. Where, however, criticism of a person is significant and explicit, and will be contained in an interim or final report, the chairman must have sent a warning to that person before the report is issued and given them an opportunity to respond (rule 12(7)).

Rule 13 makes it clear that the contents of a warning letter are to be treated as subject to an obligation of confidence and provides for when that obligation ceases.

Rule 14 makes it clear that the fact that a warning letter has, or has not, been sent to any party before a determination of the weight to be accorded to any evidence is to be disregarded by the inquiry panel.

Rule 15: Reports

Rule 15(1) provides that after delivery of the report to the Scottish Ministers, but before publication, the chairman must provide copies to core participants and their legal representatives. It has become recent practice for core participants to be given advanced notice of the final report. This may be of no more than a matter of hours, but it affords those with the closest interest in the outcome of the inquiry the opportunity to prepare for any public reaction to the findings of the report. It is left to the discretion of the chairman how much advance notice is given.

Rule 15(2) and (3) contain safeguards to prevent the leaking of contents of the report and any breach of the obligation of confidence to the chairman is actionable at the instance of the chairman (rule 15(4)).

Rule 16: Records management

Rule 16 places a duty on the chairman to ensure that there is a comprehensive and well-ordered record of the inquiry. The record will consist of original documents given to the inquiry, copies of any original documents that the inquiry has returned to their owners, as well as records generated by the inquiry (such as the transcript). A comprehensive record does not mean that every document must be retained. For example, some housekeeping or administrative records would probably not be kept, since they would be of minimal use or interest. The inquiry must assess which records should be selected for permanent preservation or for review after a stated period.

At the end of the inquiry, the chairman must transfer the record of the inquiry to the Keeper of the Records of Scotland for preservation in the National Archives of Scotland (rule 16(2)).

Costs of inquiries

The remaining rules 17 to 28 relate to the assessment of costs. It should be borne in mind that, under section 17(3) of the Act, the chairman is under a duty, in making any decision as to the procedure or conduct of an inquiry, to act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).

Rule 17: Application for an award under section 40(1) of the Act

Section 40(1) of the Act enables the chairman to make awards to participants for expenses (including the cost of legal representation) or compensation for loss of time. Rule 17 provides for applications for an award to be made in writing to the chairman. There are three sorts of applications for awards:

(1) applications for expenses to be incurred (for example, a request that the costs of legal representation will be met);

(2) applications where expenses have already been incurred (for example, travel or legal expenses); and

(3) applications for compensation for loss of time (for example, where someone seeks compensation for lost wages for the time they spent attending the inquiry).

Rule 17(2) sets out the information that must be provided where an application relates to legal representation.

Rule 18: Criteria for determination of applications

All awards are considered by the chairman of the inquiry in the context of the general assessment criteria, which focus on the financial resources of the applicant and the public interest in the expenses being paid (rule 18(2)). The power to make an award is, however, subject to such conditions or qualifications as may be determined by the Minister under section 40(4) of the Act.

The general assessment criteria reflect the basis on which the UK Government currently decides whether to fund legal representation. This was originally set out in an answer to a Parliamentary Question given by the then Attorney General on 29 January 1990:

"In general, the Government accept the need to pay out of public funds the reasonable costs of any necessary party to the inquiry who would be prejudiced in seeking representation were he in any doubt about funds becoming available. The Government do not accept that the costs of substantial bodies should be met from public funds unless there are special circumstances."

So, for example, the legal costs of bereaved families whose loved ones were killed in an incident which was the cause of the inquiry are always likely to be paid from public funds, as they were in the case of the Dunblane inquiry. But it would not be in the public interest to fund an organisation such as a large commercial concern if that participant had substantial funds available to meet those costs or perhaps had its own legal advisers. Equally, it would not be in the public interest to fund legal representation for a witness who would not be criticised during an inquiry or in the final report and who was merely providing background evidence, though such a witness may be entitled to compensation for loss of time or other expenses.

Whereas the Attorney General's advice applied only in respect of awards for legal representation, the general assessment criteria must be applied when determining all awards.

Rule 19: Determination conditions for awards

The process of making awards will usually involve a number of stages. The chairman must first decide that the initial application meets the general criteria for awards. If he/she decides that an award should be made, his/her initial determination will set conditions for subsequent applications. So, for example, a person will usually make an application before incurring any costs for legal representation. They would then make a second application once the sums had been incurred. There may be a number of different applications for different types of award and rule 19 sets out conditions that the chairman must set when determining that an award should be made. These conditions help the inquiry control costs and make sure that it is clear at the outset what costs will be awarded.

Rule 20: Notification or referral following determination

Rule 20 sets out the steps to be taken after the chairman has determined that an award should be made. Where the application relates to amounts which are to be incurred, the chairman must send the determination (with the relevant conditions included as under rule 19) to the applicant and his/her legal representative, if any.

Where the application is in respect of amounts which have already been incurred, he/she must refer the application to the solicitor to the inquiry for an assessment of the amount of the award as soon as is practicable.

Rule 21: Assessment of award by the solicitor to the inquiry

It is the responsibility of the solicitor to the inquiry to make an initial assessment of an award within 21 days of the referral of the application by the chairman (rule 21(1)). Any initial or final assessment made by the solicitor to the inquiry must be in writing and must be sent to the applicant and his/her lawyer, if he/she has one (rule 21(5)). Where the solicitor to the inquiry determines that the full amount applied for by the applicant should be paid, then the initial assessment becomes the final assessment (rule 21(2)). Rule 28 sets out the arrangements for making an award.

Where the applicant disagrees with the initial assessment of the award, or any part of it, then he/she must notify the solicitor to the inquiry in writing within 21 days of the date of service of the initial assessment (rule 21(3)). If the applicant does not do so within 21 days of the date of service of the initial assessment of the award, the solicitor to the inquiry must issue the final assessment (rule 21(4)).

Rule 22: Matters to be taken into account for the initial assessment

Rule 22 sets out matters which the solicitor to the inquiry must have regard to in assessing applications for compensation for loss of time and in respect of other expenses.

Amounts claimed which do not comply with conditions notified under rule 19 will be excluded from the assessment (rule 22(3)).

Rule 23: Procedure where initial assessment is not agreed to in relation to an award other than for legal representation

Under rule 23, where the applicant is contesting the initial assessment of the amount of the award and has notified the solicitor to the inquiry under rule 21(3), but the application does not relate to legal representation, the solicitor must reconsider the initial assessment of the amount of the award and then issue his/her final assessment within a reasonable time.

Rule 24: Dispute procedure in respect of initial assessment in relation to an award for legal representation

Where the applicant is contesting the initial assessment of the amount of the award for legal representation and has notified the solicitor to the inquiry under rule 21(3), the solicitor must set out the details of the points of dispute in writing within 21 days of receipt of the notification of disagreement (rule 24(2)). These details must identify the items which the solicitor objects to, state the nature of the objection in each case, and propose an alternative amount to be allowed for each (rule 24(3)).

The applicant must then in turn provide a response to the points of dispute within 21 days of them being served on him/her (rule 24(4) and (5)). The timescales referred to in this rule may be extended by agreement between the solicitor to the inquiry and the applicant.

Rules 25 and 26: Review by the Auditor of the Court of Session of the amount of an award for legal representation

Rule 25 makes provision for review of the solicitor to the inquiry's assessment of the amount of an award in respect of legal representation. This review procedure is only available in relation to awards for legal representation. Rule 25 requires the chairman of the inquiry to either refer the assessment to the costs assessor, who is the Auditor of the Court of Session, along with all relevant evidence and documentation or, alternatively, if he/she considers that the continued objections are without foundation, to direct the solicitor to the inquiry to issue the final assessment of the award. In that latter case, a dissatisfied applicant will still have the option of judicial review.

Where the assessment of the award is referred to the Auditor, he/she must hold a review hearing within a reasonable time following referral and inform the solicitor to the inquiry and the applicant of the date and location of the hearing in writing at least 14 days before the date of the hearing (rule 25(2) and (3)). The applicant, and his/her qualified lawyer (if any), and the solicitor to the inquiry will be entitled to be heard at the review hearing - any other party may only be heard with the permission of the Auditor (rule 25(4)).

After the review hearing, the Auditor must, under rule 26, send the applicant and the chairman of the inquiry his/her assessment of the amount of the award as soon as practicable. This then becomes the final assessment of the amount of the award.

Rule 27: Agreement prior to a review hearing

Rule 27 provides for the withdrawal of a referral of an assessment to the Auditor of the Court of Session where the solicitor to the inquiry and the applicant have agreed on the amount of the assessment. This could happen at any time between the referral of the assessment by the chairman and the review hearing held by the Auditor. In a case where the referral is withdrawn, the solicitor to the inquiry must issue the final assessment as soon as practicable following the agreement with the applicant.

Rule 28: Making an award

The chairman is responsible for making the award and for arranging for payment of the final assessment. If an award is not being reviewed by the Auditor of the Court of Session, the chairman must arrange for payment of the award within 28 days of the final assessment being sent to the applicant (rule 28(2)). If the amount of the award has been reviewed, then, under rule 28(3), the chairman must arrange for payment of the amount of the Auditor's final assessment within 28 days of service of the assessment under rule 26.