The Treasury Committee has published a review by Andrew Green QC, with a team from Blackstone Chambers, of the use of Maxwellisation in financial inquiries.
The team of barristers from Blackstone Chambers comprised Andrew Green QC, Tony Peto QC, Pushpinder Saini QC, Fraser Campbell and Ajay Ratan.
The main conclusions from the Green Report are:
(1) The common law does not require that a Maxwellisation process should automatically be conducted as part of a public inquiry.
(2) Rather, 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.
(3) This means that if a person has (during the evidence-gathering stage of a public inquiry) already had an opportunity to respond to the substance of criticism contained in a draft report, that person has no legal entitlement to a further opportunity to respond to that criticism prior to publication of the report.
(4) Despite this, it has become ‘standard practice’ for public inquiries to adopt a Maxwellisation Process. This means that every person criticised in a report is given an opportunity to be informed of the proposed criticism made against them and is thereby provided with an opportunity to respond to those criticisms – even if some or all of those people have already had the opportunity to make representations in relation to those criticisms during the evidence-gathering stage of the inquiry.
(5) This goes beyond what the law requires, and only adds delay and cost to the process of producing a public report.
(6) By contrast with the existing ‘standard practice’, the Maxwellisation process should generally be used as a ‘sweeping-up exercise’ where it is needed in order to provide a particular witness with a fair opportunity to respond to a particular criticism contained in a draft report which that witness has not already had an opportunity to challenge (i.e. during the evidence-gathering stage of an inquiry).
(7) This way, the Maxwellisation process will ensure fairness to those criticised in public reports but will be used considerably more sparingly than is presently the case.
The Treasury Committee commissioned a review of the use of Maxwellisation in financial inquiries from Andrew Green QC in April 2016. The terms of reference, published alongside a letter to the Chancellor, were set as:
To produce a report for the Treasury Committee on the process whereby those who stand to be criticised in a public report are given an opportunity to respond to such criticisms prior to publication (sometimes known as ‘Maxwellisation’).
The report will focus particularly on the application of this process in cases of public reports covering financial matters, including for example reports of inquiries and investigations under Part 5 of the Financial Services Act 2012, and set out:
(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.