In summer 2016 the UK Treasury Committee commissioned a review by Andrew Green QC of "Maxwellisation" and its use in public inquiries, focussing on those of a financial nature. The review report, including proposed guidelines, was published on 16 December 2016 (the "Report"). The Committee is seeking submissions in relation to the Report by 29 January 2017.

"Maxwellisation", called the "Representations Process" in the Report, refers to the process where someone who an inquiry is proposing to criticise in a public report is given the opportunity to respond to that criticism before the report is published.

Although the Committee's work is focussed on the financial sector and common law "Maxwellisation", the analysis in the Report is relevant generally to all inquiries including statutory public inquiries governed by the Inquiries Act 2005, where Rule 13 of the Inquiry Rules 2006 provides that an inquiry panel must not include any explicit or significant criticism of a person in a report, or in any interim report, unless the chairman has sent that person a warning letter; and the person has been given a reasonable opportunity to respond to the warning letter.

Key points

1. Support for revocation of Rules 13-15 of the Inquiry Rules 2006: the Report supports the recommendation of the House of Lords Select Committee on the Inquiries Act 2005 to this effect – the proposal was initially rejected by the Government but is currently under review. The view in the Report is that the Rule 13 process is "particularly prescriptive and potentially onerous", going beyond the common law insofar as it requires a warning letter even where a fair opportunity to meet a criticism has been given.

2. No rigid requirement for "Maxwellisation": the Report emphasises that what matters is that a person is given a fair opportunity to respond to criticism prior to publication of a report, to contradict or correct it, and that contrary to what tends to be occurring in practice, the common law has no rigid requirement that a "Maxwellisation" process must be conducted. Furthermore, it goes beyond what the common law requires to give a person an opportunity to respond to criticism prior to publication of a report, where that person has already had an opportunity to respond to the substance of the proposed criticism (eg during evidence gathering).

3. Maximum flexibility for the Chair: the Report maintains that those conducting inquiries must retain maximum flexibility to determine procedures (subject to the requirements of the Inquiries Act 2005 and Inquiry Rules 2006 where applicable) – the time for decisions on a "Maxwellisation" process is after a draft report has been produced within the particular inquiry, not before.

4. "Maxwellisation" as a "sweeping up" exercise: the Report considers that the process should be one of "sweeping up" to ensure fairness to specific people who have not already had a fair opportunity by the time of a draft report to respond to a proposed criticism. It should be used considerably more sparingly than is the case at present.

Comment

There is clearly a need in any inquiry to ensure that it is able to operate effectively and efficiently to achieve its purpose. As the Report identifies, "Maxwellisation" / Rule 13 processes are areas that present challenges in this regard. Insofar as the Committee's work may ultimately lead to a narrowing of the current application of "Maxwellisation" and / or the revocation of Rule 13, this is of particular significance to entities and individuals that may find themselves caught up in inquiries as it emphasises the vigilance needed in terms of identifying potential criticisms throughout the lifespan of an inquiry and addressing them as they present, rather than relying necessarily on a further opportunity to correct or respond to them prior to the publication of a report. It is questionable whether in practice such a narrowing would facilitate an inquiry's work, as proper analysis would still be needed on whether a person had been given a fair opportunity to respond earlier in the inquiry, where the context may well have moved on since that time. This may be more apt to give rise to challenges around what fairness requires, than the current practice.

Further information

The Committee's Terms of Reference relate to the application of the Maxwellisation process in terms of:

  1. what the law requires;
  2. the typical problems that arise during the process, including addressing the public’s concerns around the additional time and financial costs incurred; and
  3. recommendations or a set of principles to identify ways to ensure the use of this process in relation to public reports covering financial matters is fair and proportionate

Further information can be found on the Committee's internet page at link.