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Explanatory Note

(This note is not part of the Rules)

These Rules, made under section 41 of the Inquiries Act 2005 (“the Act”), deal with matters of evidence and procedure in relation to inquiries, the return or keeping, after the end of the inquiry, of documents given to or created by the inquiry and awards made by the chairman to the inquiry under section 40 of the Act (expenses of witnesses).

Rule 3 sets out the rules for giving and sending documents.

Rule 4 provides for the designation of core participants to the inquiry by the chairman.

Rules 5 and 6 deal with the designation of a lawyer appointed by a core participant or witness as a recognised legal representative. Rule 6 sets out the circumstances in which one recognised legal representative should be appointed to represent two or more core participants. Rule 7 provides for a core participant or other witness to appoint a legal team to assist that person’s legal representative.

Rules 8 and 9 are concerned with the collection of evidence by the inquiry panel and the conduct of oral hearings which are held.

Rule 10 permits the recognised legal representative of a core participant, or, where there is no recognised legal representative, the core participant himself or herself, to make opening and closing statements.

Rule 11 provides that where there is an application that evidence should be withheld from the public domain (by virtue of a restriction order, restriction notice or on grounds of public interest immunity), that evidence must be subject to the same restrictions as it would be subject to if the order sought had been granted. The chairman may, however, show the evidence to another individual where the chairman considers that disclosure is necessary for the determination of the application.

Rules 12 and 13 deal with the sending of warning letters to those who may be, or have been, criticised during the inquiry proceedings or in the inquiry report, or any interim report and rule 14 makes it clear that the inquiry panel must take no account of whether or not a warning letter was (or was not) sent to a person when determining the weight to be given to particular evidence.

Rule 15 provides for the delivery of copies of the inquiry report or interim inquiry report which is to be published to core participants after the report or interim report has been delivered to the Scottish Ministers.

Rule 16 sets out the chairman’s records management obligations during the inquiry and provides for the transfer of custody of the inquiry record at the end of the inquiry to the Keeper of the Records of Scotland.

Rules 17 to 28 set out the rules regarding the making and assessment of awards to be made under section 40(1) of the Act.

Rule 17 provides for an application to be in writing and sets out the matters which the application must include where it relates to amounts to be incurred in respect of legal representation. Rule 18 requires the chairman to take into account the financial resources of the applicant and the public interest relating to the making of an award when determining whether an award should be made.

Rule 19 sets out the determination conditions for awards for amounts to be incurred in respect of legal representation, for compensation for loss of time and for other expenses not falling into either of those categories.

Rule 20 provides for notification after the chairman has determined that an award should be made where the application relates to amounts which are to be incurred. Where the application relates to amounts which have been incurred the chairman is required to refer the application to the solicitor to the inquiry for an assessment.

Rule 21 makes provision for the solicitor to the inquiry to make an initial assessment of the amount of the award. It also sets out a notification procedure for the applicant to notify the solicitor to the inquiry where the applicant disagrees with the initial assessment of the amount of the award.

Rule 22 contains the matters which the solicitor to the inquiry must take into account when making an initial assessment.

Rule 23 requires the solicitor to the inquiry to reconsider the initial assessment of the amount of the award where the applicant has notified disagreement with the initial assessment and the application does not relate to amounts to be awarded in relation to legal representation.

Rule 24 sets out the details of the dispute procedure to be followed by the applicant and the solicitor to the inquiry where the applicant has notified the solicitor to the inquiry that the applicant disagrees with the initial assessment of the amount of the award relating to legal representation.

Rule 25 makes provision for the chairman to either make a reference to the Auditor of the Court of Session or to require the solicitor to the inquiry to issue a final assessment of the amount of the award where there remains a dispute about the amount of an award for legal representation. Where a referral is made a review hearing must be set at which relevant persons will be heard.

Rule 26 provides for the Auditor of the Court of Session to intimate his or her assessment of the amount of the award to the applicant and the chairman.

Rule 27 sets out that where a referral has been made to the Auditor of the Court of Session but before the review hearing the solicitor to the inquiry and the applicant for the award agree on the amount of the initial assessment then the solicitor to the inquiry is to issue the final assessment.

Rule 28 makes provision for the chairman to make an award and arrange for payment of the final assessment within particular timescales.