Maxwellisation Process

Richard Arkless Excerpts

Thursday 17th November 2016 Commons Chamber

[Roger Mullin (Kirkcaldy and Cowdenbeath) (SNP)]

It is indeed an honour to serve under your chairmanship, Madam Deputy Speaker. One thing I know about your good self is that any interventions or judgments that you make in the course of the debate will be both independent and timeous—matters not unconnected to this debate. I say from the outset that my intention is to raise an important matter for discussion. I do so with humility. I do not pretend that I have all the answers, which may come as a major shock to many of my hon. Friends.

On a number of occasions here, I called for the early publication of the Chilcot report. I was met with sympathy from the Government, but it was clear that one reason for such a long delay in the publication was the Maxwellisation process that Sir John Chilcot chose to follow, when there was no statutory requirement at all for him to do so. It is also very clear that there has been a gradual adoption of the Maxwellisation process in areas of investigation and reporting which fundamentally calls into question whether reports are, in fact, truly independent.

In response to a query from my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) a short time ago, and to put it in layman’s terms, I should say that Maxwellisation is the process of sending extracts of reports to individuals who are criticised in some way, allowing them in many cases an extraordinary length of time to respond. We then are blind as to how far their responses lead report authors to change their judgments. This is not just a process of checking the facts, as competent inquiries will check the facts as they go along. This process allows individuals facing criticism to challenge the interpretation and judgment of report authors. That is a fundamental undermining of the independence of those report authors and it does a disservice to the House.

My own background makes me rather sceptical of, and concerned about, the approach. For well over 30 years, I ran a series of small research companies, and we were often commissioned to undertake investigations into organisations of many sorts, often involving the behaviour of groups that were undertaking activities that were disadvantageous to the organisation or the wider society. It would not be unreasonable to say that all my past clients valued the fact that at the end the day they knew they would be getting my conclusions and my recommendations alone. They might have gone on to criticise and debate those recommendations or amend them, but what they valued most was that somebody was investigating a situation and was willing to draw conclusions independently that could then set an agenda for others to pursue.

In another part of my life, I was sometimes involved in academic research. Much of the greatest academic research that is undertaken in, for example, the social sciences explores the role of human behaviour, often citing individual instances, but there is no requirement for academic authors to return to the individuals dealt with in their studies and ask them to comment on their interpretations. Indeed, that would be considered bad practice, as it would undermine their academic freedom. When it comes to politics, however, over the years we have developed for the House of Commons a process that allows people who are subject to criticism to be the only ones who are given sight of what is going to be said, and the only ones who are allowed to respond to authors.

Why has this issue arisen? Originally, the so-called Salmon letters emerged from an inquiry undertaken by the Royal Commission on Tribunals of Inquiry, which reported in 1966. The letters were intended to warn individuals of criticisms and give them an opportunity to respond, but the procedures set out by Lord Justice Salmon were heavily criticised for being more suited to an adversarial trial than to an inquisitorial process.

Then, some years later, along came that corporate crook Robert Maxwell. Maxwellisation developed from a judgment in a private action brought by him against the Department of Trade and Industry. Maxwell applied for an interim injunction to restrain inspectors from proceeding with their investigation. Mr Justice Forbes declined to grant the injunction, but said that natural justice demanded that draft conclusions that were critical of a person should be submitted to that person to give them an opportunity to respond. Maxwell then took legal action directly against the DTI. Mr Justice Wien found against him, and an appeal ensued.

Lord Denning, Master of the Rolls at the time, was one of the judges who heard the appeal against the second judgment, and he upheld Mr Justice Wien’s conclusions. Despite that, the myth has arisen that Maxwellisation developed as a result of a victory in court by Maxwell, although in fact he continually lost, and that Maxwellisation is a legal requirement, which it is not, although many people think it is. It is simply a kind of convention that has been adopted but has no legal force.

Creeping Maxwellisation has been leading to concerns in different areas. I have cited Chilcot, which was not a statutory inquiry but a Privy Counsellor inquiry established by my predecessor as Member of Parliament for Kirkcaldy and Cowdenbeath, but, more recently, the Treasury Committee has shown considerable interest in the subject. In April this year, it announced an inquiry into Maxwellisation. Its Chair, the right hon. Member for Chichester (Mr Tyrie), has been quoted as saying:

“It took seven years for taxpayers—who had to foot the £20.5 billion bail-out of HBOS—to obtain a full explanation of HBOS’s failure. Serious management, governance and regulatory oversight failures all contributed to the bank’s collapse. The seven year wait was prolonged”—

seriously prolonged—

“by Maxwellisation. The public will want reassurance that Maxwellisation is fair and proportionate, and does not lead to unacceptable delays…Maxwellisation was never intended to be a means by which interminable argument would develop about every last detail of a regulator’s report. To permit that would undermine confidence in the public review process.”

Indeed, it is perhaps not unreasonable of me to speculate that the lack of action against some rogue bankers was made easier by the absence of robust, independent reports.

One concern for those in favour of the process of Maxwellisation is that without it some individuals might be exposed to defamation action. I am guessing this might be a concern both for some individuals who are cited in reports in a critical way and for the report authors. However, I believe there is a means to bring Maxwellisation to an end without opening the prospect of defamation proceedings, thereby assisting both in having reports published more quickly and having greater confidence in their independence.

My understanding is that the best way to evade the legal difficulties raised by making criticisms of individuals without giving them the right to the process of Maxwellisation is to make the report of any inquiry a so-called return to Parliament. This was the case for the Scott and Hutton inquiries for instance. This ensures that the report enjoys the protection of the Parliamentary Papers Act 1840 and is subject to privilege. It is quite clear to me that there has been utterly inadequate scrutiny of the Maxwellisation process.

It is with great regret that I have to say that over many months I kept asking, very often at Business questions, “Where is the Chilcot report?” Many other Members were asking the same question. I am very sad now that I was unaware that there were ways in which we could have avoided this. I was unaware that Chilcot did not need to invoke a Maxwellisation process; it was simply his personal choice as chair of that inquiry. I think the time is coming when the Government need to think very seriously about whether this House is well served by a process that undermines the independence of reports brought it.

As I move towards a conclusion—I want to allow the Minister sufficient time to respond—I shall quote the journalist Chris Ames, who followed the Chilcot inquiry and wrote extensively on Maxwellisation. He feared that independence was being subverted in another way:

“Although the inquiry began in 2009, and all witnesses have had years to bring evidence to its attention, it appears that Maxwellees have been allowed to read and cite other confidential documents, besides those cited by the inquiry. Have any conditions or limitations been imposed on this exercise?”

We do not know. He continues:

“Without them, there is a clear risk that it could turn into an unlimited fishing expedition by Maxwellees in pursuit of material which would help their defence.”

How much new material they introduced into the process we still do not know.

In a former life—I have had many—I taught in the area of judgment theory. Those who have researched judgments know only too well that if we allow simply a one-sided process for people only to search out the evidence that suits them, we cannot have a balanced view. We cannot have confidence that we have a balanced view if the only people who were asked to submit to the report’s authors were those few who were criticised, but those who would make criticisms did not have the same rights of review, let alone, in the instance of Chilcot, the families who suffered the grievous burden of Iraq having the same rights as those criticised.

[Richard Arkless (Dumfries and Galloway) (SNP)]

Does my hon. Friend agree that if the primary concern about Maxwellisation is the prospect of defamation, and defamation cannot happen unless the statement is false, would not one solution be that public inquiries get protection from defamation? Under Maxwellisation, the offended party could simply say, “It wasn’t me, guv” and persuade that there is an action for defamation, and then all those allegations fall. There is a simple solution, is there not?

[Roger Mullin]

I defer to my hon. Friend, who is a distinguished lawyer trained in both the Scottish and English jurisdictions. I would hesitate to criticise him at all. It strikes me that he is making another intervention on a reasonable point that the Government should consider. I hope that the Minister will respond in the same spirit and let us seek solutions that will allow us to preserve the independence of reporting to this House.

--- Later in debate ---

[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?