We have identified some areas of law that our experience and discussion with stakeholders suggest may require reform. They could be potential projects for the Programme. We would like to hear your views about these, and whether you think they should form part of our work over the next few years.
Is the law in this area satisfactory, or causing costly and slow public inquiries?
There is widespread concern at the duration of many public inquiries. The recent publication of the report of the Iraq Inquiry almost seven years after the committee chaired by Sir John Chilcot began its work on 30 July 2009 is one example, but by no means the only one.
One factor said to be a cause of significant delay is the practice of sending witnesses relevant sections of a draft report in which they are criticised. For example, paragraph 30 of the protocol for witnesses giving evidence to the Iraq Inquiry stated:
“If the Inquiry expects to criticise an individual in the final report, that individual will, in accordance with normal practice, be provided with relevant sections of the draft report in order to make any representations on the proposed criticism prior to publication of the final report.”
This practice is usually described as Maxwellisation, although in the case of Maxwell v Department of Trade and Industry  QB 523 Lord Justice Lawton said:
“Those who conduct inquiries… are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expecting to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more.”
The Inquiries Act 2005 was passed by Parliament with a view to ensuring the swifter conduct of public inquiries: section 17 of the Act requires those conducting inquiries to “act with fairness and with regard to the need to avoid any unnecessary cost”. Rule 13(3) of the Inquiry Rules 2006 goes further in that it prohibits an inquiry panel from including any explicit or significant criticism of a person in a report unless the person has been sent a warning letter and been given a reasonable opportunity to respond to it. In 2014 a Select Committee of the House of Lords recommended the revocation and replacement of rules 13-15 of the 2006 Rules, but the Government rejected the recommendation. More recently the Treasury Select Committee of the House of Commons has begun an examination of Maxwellisation in the context of inquiries and investigations covering financial matters, such as those conducted under Part V of the Financial Services Act 2012.
There is a range of opinions on this subject. One view is that the present practice is necessary to meet the requirements of natural justice and that the Inquiry Rules 2006 do no more than give effect to that principle. Others argue that Lord Justice Lawton was right and that Maxwellisation goes far beyond what natural justice requires.
What do you think?
Are there any areas of the law governing inquiries that we should (or should not) be considering for inclusion in our 13th Programme of law reform? Please use this form to send us your comments on this potential project, and email it to firstname.lastname@example.org.
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