"Maxwellisation", the process by which a person (actual or legal) who is the subject of criticism in a public inquiry is given an opportunity to make representations, has become a controversial topic. The process takes its name from Robert Maxwell, who was involved in litigation in the 1970s regarding criticisms made of him in a public report. There are concerns that the process, as it is currently formulated, has resulted in undue burdens being placed on those conducting public enquiries, resulting in disproportionate delay and costs. Particular concerns emerged following the HBOS report (conducted by the FCA and PRA) and the Iraq Inquiry, which were criticised for failing to strike the correct balance between fairness and proportionality in their Maxwellisation procedures, which were perceived to have caused significant delays to both reports.
As a result of growing concerns, in March 2016, the House of Commons Treasury Committee commissioned Blackstone Chambers to conduct a review of the process. The results of the review (dated November 2016) were published on 16 December 2016 (the "Review"). The Review uses the phrase "Representations Process" instead of "Maxwellisation" as it is believed this is a more accurate description of the process.
The Review recognises that there is a need to balance fairness for those who find themselves the subject of criticism in public reports, with the need for reports to be completed in a timely and cost-proportionate manner.
A summary of the Review is set out below, but the short point is that the legal requirement is that a person should not be criticised in a public report without having been given the opportunity to challenge that criticism. The current practice has seen inquiry chairs going above and beyond this legal requirement and adopting unduly burdensome procedures as a matter of standard practice. The Review recommends that this approach be scaled back, and replaced with a more proportionate process which will give public inquiry Chairs greater flexibility. Whilst the Representations Process is considered, in the context of the Review, in relation to public reports, the process has also been very widely adopted by those conducting internal investigations resulting in a report. For that reason the Review is of interest to anyone who has a role investigating and reporting on potential wrongdoing.
What does the law actually require?
The central legal principle is described in the Review is as follows: "if a person has already been given a fair opportunity to respond to the substance of the proposed criticism contained in a draft report (such opportunity being given at the evidence-gathering stage of an inquiry) there is no need to give that person a further opportunity to make any representations prior to the publication of the report." It is noted that the Representations Process has become a standard feature of all inquiries which result in a public report, irrespective of whether the inquiry is statutory or non-statutory.
The Inquiry Rules 2006 have been a significant factor in contributing to this, as they effectively impose a mandatory requirement that all inquiries conducted under the Inquiries Act 2005 must include a specific Representations Process where there is to be an explicit or significant criticism of anyone. This has led to the use of a Representations Process becoming standard practice and has resulted in a practice which reaches far beyond the legal requirements, as every person who faces criticism in a public report is given an opportunity to respond before publication, even where they have already had the chance to respond (e.g. in the evidence gathering stage of the inquiry). The Review finds that Rules 13 to 15 of the Inquiry Rules are particularly onerous, and therefore recommends that they be revoked. This recommendation was previously made to the Government by the House of Lords Select Committee on the Inquiries Act 2005. The recommendation was rejected by the Government but the position is currently under review.
Key points to arising from the Review
The key conclusions in the Review were as follows:
- The central legal principle (outlined above) does not require that a person that has already been given a fair opportunity to respond to a criticism be given a further opportunity to make representations prior to the report's publications.
- The Representations Process is not rigid and is not always necessary: those conducting inquiries must be given sufficient flexibility to determine the procedures to ensure that fairness is balanced with time and cost proportionality.
- That flexibility should enable a decision to be made, following the production of a draft report, as to which persons (if any) should be invited to make representations and in respect of which proposed criticism.
- The Inquiry Rules 2006, Rules 13 to 15, should be revoked.
- The best use of a Representations Process is as a "sweeping-up" exercise, following the production of a draft report, to ensure that specific people, who have not been given an opportunity to respond to a specific criticism, be given the opportunity to do so.
- As such, the Representations Process can and should be used more sparingly than is currently the case, and should be compatible with both fairness and cost/time considerations.
The Way Forward
The Review establishes a set of guidelines to assist those commissioning and conducting inquiries. A summary of the key points is as follows:
- The central legal principle is that a person should not be criticised in a public report without first having a fair opportunity to respond to that criticism.
- A criticism of a person (actual or legal) is sufficiently serious to engage this legal principle if it may adversely affect their interests (including their career or reputation).
- A fair opportunity to respond to a criticism does not require that the person in question be given the exact formulation or draft wording that may appear in the report – they just need to be made aware of the substance of the criticism and any other relevant information needed for them to address it.
- Once a draft report is produced, a Representations Process should only be conducted in respect of those persons whom the Chair considers have not already had a fair opportunity to respond to a proposed criticism (or where they have not had a fair opportunity to respond to a particular criticism).
- Time limits should be given to each person for responding and the shortest possible time limits which are consistent with fairness should be adopted for each person.
- Consideration should be given to whether it is appropriate to show such a person parts of the draft report, the entire report, or simply a summary of the proposed criticism. The Review notes that there are advantages in providing representees with the actual text of the relevant passages in a report as it avoids the subsequent suggestion that a summary was incomplete or misleading.
- It may be appropriate for the Chair to impose particular requirements on the format of representations e.g. by providing a template for responses or requiring that representations be made by reference to specific paragraphs of a report and/or within a reasonable word limit.
- Where a Representations Process is conducted, the Chair should resist any attempt by the persons invited to participate in that process to seek to negotiate the conclusions of the report.
- It is recommended that the Cabinet Office should maintain an online resource containing the written protocols drafted for the purpose of a particular inquiry (the "Procedural Protocols") so that future inquiry chairs can review the processes adopted in previous inquiries. The Cabinet Office has agreed to provide this resource.
So what's next?
The Review sought the views of 12 inquiry / report authors who had direct experience of the Representations Process. Ten out of the 12 reported that the experience was generally positive and had improved the quality of their reports. The two that had negative experiences felt that the Representations Process did not have utility in every case and that the effort involved in the process was disproportionate to the benefit it obtained. However, the broad consensus was that the Representation Process was important, and when used appropriately it was perfectly possible to strike a balance between fairness and other considerations.
It therefore seems likely that a Representations Process in some form is here to stay, but it is obvious that clearer guidelines need to be provided to give inquiry Chairs sufficient comfort that they will not be criticised for taking an approach which is less onerous than the current practice. The recommendations made in the Review would, if adopted, likely go a great way in assisting inquiry Chairs with redressing the balance between the fairness to the person / persons facing criticism in a report and proportionality of time, cost and resource.
In practical terms, it will likely be difficult for inquiry Chairs, and those conducting internal investigation reports, to avoid the use of a Representations Process entirely by seeking to put forward all proposed criticisms at the evidence gathering stage of preparing a report. This is because investigations typically involve an iterative process of gathering evidence, reviewing documents and interviewing witnesses before it is possible to form a clear case with fully articulated criticisms of particular persons. Inquiry Chairs (and those preparing internal reports) should not feel pressurised to formulate any potential, proposed criticisms at the outset, because that could give rise to the risk that the criticism won't be framed in the most appropriate way. However, as the report suggests, setting clear guidelines at the start of an inquiry process, and allowing for an appropriate degree of flexibility, are likely to be the most effective way forward. Seeking comments on draft report sections will likely be, in many cases, a sensible and proportionate alternative to interviewing witnesses several times.
The Treasury Committee is now consulting on the contents of the Review and has invited interested parties to provide written comments by 29 January 2017.
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