Maxwellisation Process

Phillip Lee Excerpts

Thursday 17th November 2016 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee)]

I congratulate the hon. Member for Kirkcaldy and Cowdenbeath (Roger Mullin) on securing the debate. When the Government decide that an inquiry is needed to investigate a matter of public concern, they will generally begin by asking whether it should be held under the Inquiries Act 2005 and use the Inquiry Rules 2006. Inquiries can be non-statutory, as was the case for the Iraq inquiry. Inquiries may also be established under specific legislation such as the Financial Services Act 2012. However they are constituted, inquiries perform an important role of holding public bodies to account, and providing answers to issues and events of concern. I agree with the hon. Gentleman that an inquiry and its eventual report must be, and must be seen to be, independent of the Government.

The principle of Maxwellisation allows those at risk of criticism in an official report to respond before that report is published. The process takes its name from Robert Maxwell, who was criticised in a Department of Trade and Industry report as being

“unfit to hold the stewardship of a public company”.

He took that matter to court and in fact lost his case, but the Court of Appeal reaffirmed that the principles of natural justice require prior notice to be given of actual or potential criticism so that an individual can be given a chance to respond. There are also what are known as Salmon principles, which came from Lord Justice Salmon’s 1966 royal commission on tribunals of inquiry. The second principle states:

“Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them.”

This means that when someone gives evidence, the inquiry chair should notify them in advance if they are at risk of criticism, and of the reasons for it, so that they can address those issues when they give their evidence.

We all want the warning letter process to be handled as quickly as possible, but I do not share the concern that it can affect the independence of an inquiry’s findings and report. The Government believe that the process is fair and transparent, and that it does not prevent an inquiry from producing an independent and robust report.

[Roger Mullin]

Am I correct in interpreting the Minister as saying that he does not believe there is a case for setting a time limit for this process? I am sure he is well aware that one of the criticisms of the Chilcot inquiry, and of the HBOS inquiry that I cited earlier, was that people took an interminable amount of time to respond. Surely it would be reasonable to establish a protocol to ensure that the process is not dragged out unnecessarily by those who are subject to criticism.

[Dr Lee]

The Maxwellisation process in the Chilcot inquiry did take a long time, but in response to the hon. Gentleman, I should like to quote Sir John Chilcot. He has stated:

“The Maxwell process, first, was essential, but secondly, did not hold up the rest of the work. While we had draft text out for comment from criticised witnesses, we were doing all sorts of other work to finalise the report...I think that it did, in the end, prove a constructive dimension to the Inquiry’s work.”

As I was saying, we all want the warning letter process to be handled as quickly as possible, but I do not share the concern that it can affect the independence of an inquiry’s findings and report. The Government believe that the process is fair and transparent and does not prevent the inquiry from producing an independent and robust report. Furthermore, under the 2005 Act, the chair has a duty to have regard to fairness and must be impartial. There is nothing in the Act or rules that requires a chair to change their report in the light of any representations received from an individual. The purpose of the warning is not to seek a person’s consent to what the chair is minded to say about them. I am confident that inquiry chairs take a sensible and robust approach that does not allow for abuse of the process, and I am also confident that they will continue to do so.

The Lords Select Committee on the Inquiries Act 2005 published its findings in March 2014. The report cited evidence on the warning letter process from inquiry chairs such as Sir Robert Francis, QC, the chair of the Mid Staffordshire inquiry. He said:

“Some recipients asked that they be given sight of any revision of the potential criticism before publication of the Inquiry report. I declined to do so; first because the Rules do not provide for such a facility, and second because it would have been impracticable and undesirable.”

It is therefore clear that inquiry chairs are adequately equipped to deal with inappropriate requests and that the process does not mean that there needs to be endless back and forth until the recipient is happy with what will be said.

On 2 November 2016, when giving evidence to the Liaison Committee about the Iraq inquiry, Sir John Chilcot said:

“in the pursuit of fairness, and also in the pursuit of getting the best possible quality of report, the Maxwell process, far from holding up the show, actually improved the eventual outcome. For example, our attention was brought to documents that had not been either disclosed or discovered in the course of our other evidence-taking and that were relevant. Then again, where you get two individuals’ perspectives on the same point, and they are not the same perspective, it is very helpful to know that and to be able to either come to a conclusion about it or, as we did in one case, simply point to the fact there is a clash of evidence which couldn’t be resolved.”

[Richard Arkless]

While the Minister is making points about the virtues of Maxwellisation in certain circumstances, is he able to say whether Maxwellisation in the case of the Chilcot report meant that the original findings were diluted to what we saw in the final report?

--- Later in debate ---

[Dr Lee]

The Government cannot speculate on the extent to which the report was modified as a result of Maxwellisation. It was a confidential process between the independent inquiry and those individuals subject to the process. However, as I said, Sir John Chilcot said in evidence to the Liaison Committee:

“in the pursuit of fairness, and also in the pursuit of getting the best possible quality of report, the Maxwell process…actually improved the eventual outcome.”

I firmly support the Maxwellisation principle. Those criticised in a report must be made aware of that before they read about it in the newspapers. Criticism could have an impact on their livelihood, or there may be a risk of later legal action. Of course, in many cases, individuals may already be aware of the criticism, although they might not be aware of its extent or seriousness. Equally, the criticism might never have been raised, so it is only right that individuals are given a chance to respond before publication. However, I absolutely agree that the process should be neither over-bureaucratic nor cause delay.

The Government recognise that it can be hugely difficult for families involved in inquiries to understand the various processes. They should feel confident that processes and the inquiry report are transparent and independent of the Government. The current system achieves that, but there is room for improvement. The Lords Select Committee also raised concerns about delays, requests for redrafts and an over-prescriptive process. We have been considering its recommendations about the warning letter process under the 2006 rules. We agree that chairs need more flexibility while ensuring that those who are unaware of criticism, or its extent, have prior notification and a chance to respond. I hope that my remarks provide reassurance that while we are clear that Maxwellisation is a key element in inquiries, it must be a simple process that does not adversely affect their independence or add significantly to their length.

Question put and agreed to.