Blame Robert Maxwell

Frederick Wilmot-Smith

Public inquiries are an ancient institution. Edward I’s Statute de Officio Coronatoris of 1276, which codified already longstanding law, obliged coroners to ‘go to the place where any be slain or suddenly dead’ to investigate. But coroners’ inquiries rarely deal with matters of general public concern. The idea of holding an inquiry in response to a public scandal is comparatively recent. Until well into the 20th century, such matters were left to parliamentary select committees, which were, inevitably, subject to political influence. In 1912, the Marconi Company won a government contract to build wireless telegraph stations across the British Empire. There were widespread allegations of corruption in the tendering process, and a select committee was appointed to investigate. The (Liberal) majority absolved the (Liberal) government of responsibility; a Conservative minority declared the government guilty of gross impropriety. It was clear that a more independent process was needed. When, in 1921, there were allegations that officials in the Ministry of Munitions had destroyed documents relating to procurement contracts, Parliament legislated for a system of public inquiries. There have since been inquiries into a wide range of matters of public interest, from the Aberfan disaster to the death of David Kelly, Profumo to tabloid phone hacking.

On 15 June 2009, Gordon Brown announced an inquiry into the Iraq war – to investigate, as Sir John Chilcot, the inquiry’s chairman, put it, ‘the UK’s involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned’. Although oral hearings finished in early 2011, the inquiry won’t report until the middle of this year. Part of the reason is that the scope is vast. Chilcot was asked to investigate nine years of sensitive foreign policy; he has taken nearly seven years to do it. (The Bloody Sunday inquiry took 12 years to investigate the events of one day.) More than 150 witnesses gave evidence, and more than 150,000 documents have been examined. Even Chilcot seems to have underestimated the scale of the task. In 2012, he told David Cameron that the report was ‘likely to be more than a million words’ long; according to the most recent estimate, the word count is now ‘more than two million’.

Still, Chilcot might have reported sooner had he not gone through ‘Maxwellisation’. This is the process, named after a legal battle involving the disgraced media mogul Robert Maxwell, whereby those criticised in the first draft of a report are given an opportunity to respond. Chilcot hoped to begin this process in 2013, but negotiations over the publication of minutes of cabinet meetings and the correspondence between Tony Blair and George W. Bush delayed things by a year. In 2014 it was agreed that a ‘small number of full extracts from the minutes of [Cabinet] meetings’ thought to be ‘most critical’ could be published. The sensitivity of the Blair/Bush correspondence – it was claimed that disclosure could make future leaders chary of frank discussion – means the inquiry has been limited to ‘gists’, though Chilcot says these will be ‘sufficient to explain our conclusions’. There were further delays because of the need to declassify thousands of documents; this wasn’t completed until late 2014. Chilcot is due to pass his report to officials for national security checking on 18 April 2016 and after that it will be ready for publication. It looks like Maxwellisation has delayed the report by about two years.

Chilcot made clear from the start that potential witnesses would be given the opportunity to comment on criticisms. It would be wrong to go back on that promise. The question is whether it should have been made in the first place – and whether or not it should be made in future inquiries. Chilcot has called Maxwellisation ‘normal practice’; Andrew Bailey and Brian Pomeroy, who are leading an inquiry into the near demise of HBOS, have said that it is ‘legally required’. Our law is such that custom slides silently into obligation. But in fact Maxwellisation is a recent innovation, barely customary, and almost certainly not obligatory.

In 1969, a US company, the Leasco Data Processing Equipment Corporation, made a takeover bid for Pergamon Press, Robert Maxwell’s publishing company. Leasco then learned that Pergamon’s profit figures, on which its bid was based, were dubious. Because it had committed to the takeover in principle, it was permitted to withdraw only if it had a valid reason to do so. The surrounding controversy was such that the Takeover Panel called for the Board of Trade (today’s Department for Business, Innovation and Skills) to set up an inquiry. Maxwell refused to give evidence. Instead, deploying a strategy that would serve him well in the years to come, he tied the investigation up in legal proceedings. The inspectors’ methods, he alleged, offered him insufficient protection. His principal objection was that the inquiry did not proceed like a judicial hearing: he wanted access to the evidence that might be used to criticise him, the right to cross-examine witnesses who gave evidence against him, and the right to be represented at the inquiry by a lawyer.

Maxwell took his battle to the Court of Appeal twice and lost both times. To understand the significance of these cases, it’s important to distinguish the evidence examined in the course of an inquiry from the criticism actually made in the inquiry’s report. There was some suggestion in the Maxwell cases that an inquiry should put the evidence it might use to justify criticism of an individual to that individual – when the individual gives evidence, for example. Perhaps even this is not required: the ‘standards of perfection’ might require it, Lord Justice Lawton said in the first Court of Appeal judgment, but inquiries need not be perfect. When he first considered the question, Lord Denning said that individuals should be afforded ‘a fair opportunity for correcting or contradicting what is said against’ them. But in the second case – after Maxwell had sought to restrain publication of a critical report – he modified that position. Maxwell had argued that the inspectors must give a draft of the report to the criticised party. This, Lord Denning said, would be going too far. On this model,

the inspectors have to sit down and come to tentative conclusions. If these are such as to be critical of any of the witnesses, they have to reopen the inquiry, recall those witnesses, and put to them the criticisms which they are disposed to make. What will be the response of those witnesses? They will at once want to refute the tentative conclusions by calling other witnesses, or by asking for further investigations. In short, the inquiry will develop into a series of minor trials in which a witness will be accused of misconduct and seek to answer it. That would hold up the inquiry indefinitely. I do not think it is necessary.

In Lord Denning’s words, Maxwell’s own application for what is now called Maxwellisation ‘failed utterly’. ‘I hope’, he added, that such an attack ‘will never happen again’.

Maxwellisation seems to have been carried out for the first time by the inquiry into the collapse of the private bank BCCI, which reported in 1992. The inquiry promised that ‘any individual or department which may be criticised … will be given a full opportunity to challenge the criticisms and rebut adverse findings of fact before any final conclusion is reached.’ The Matrix Churchill inquiry into arms sales to Iraq, which began later the same year, made the same promise. The process was not a success. As it went back and forth, there were two damaging leaks of the provisional Scott Report, and the potential for serious delay became clear: the last public oral evidence was given in 1994, but the report wasn’t published until February 1996. At no point did Scott indicate that he saw Maxwellisation as a legal requirement.

Where an intolerable delay is foreseeable, Maxwellisation has sometimes been avoided. Lord Justice Leveson chose not go through the process, counsel to the phone hacking inquiry said, because it ‘would have killed any prospect of doing the report in time’. David Cameron endorsed the idea of Maxwellisation in the case of the Chilcot Inquiry but has said he is ‘fast losing patience’ with the delays it is causing. Could Chilcot have completed Maxwellisation sooner? I doubt it, though it’s difficult for an outsider to be sure. At any rate, most of the criticism of Chilcot on this ground is unwarranted. It was, for example, widely alleged that he failed to set a deadline for responses. But in a letter to Crispin Blunt of 20 July 2015, Chilcot said that ‘individuals are allowed a reasonable but not indefinite amount of time to respond.’ ‘No one’, he wrote, ‘has taken an unreasonable length of time to respond given the range and complexity of the issues under consideration.’

A second possible criticism of Maxwellisation is that it threatens an inquiry’s independence. Independence from political influence was supposed to be the cardinal virtue of public inquiries; sending drafts of reports to politicians hardly looks good. Is this anything more than a problem of perception? Are valid criticisms removed or tempered thanks to political pressure? It’s hard to say. The process is confidential: although we know some of the individuals who have gone through the process, we don’t know what the provisional criticisms were, what the responses were, or what changes they prompted. For some, that alone is enough to make the whole thing indefensible. But one of the points of the process is to weed out unfair criticism: it couldn’t do this if the criticisms were aired.

Is this confidentiality a price worth paying? One reason, the ‘instrumental’ reason, to undertake any particular procedure is that it may lead to a better outcome: hearing all sides of the story helps an inquiry to get the facts right. Another reason, the ‘intrinsic’ reason, is that fair procedures are a good thing regardless of their contribution to the outcome: God gave Adam a fair hearing even though, it’s supposed, he already knew the facts. In 1679, gripped by the hysteria of the ‘Popish plot’, the republican opposition to the government alleged that the Royal Navy was riddled with popery and that the Duke of York (Lord High Admiral and the future James II) had wasted public funds. A select committee was appointed to investigate. When his enemies won the general election in March, the duke fled. In his absence, Samuel Pepys, as secretary of the navy, was left to face the music. Pepys was found guilty of ‘piracy, popery and treachery’ and locked in the Tower of London. He was eventually released without charge, the attorney general finding no credible witnesses. This shows both an instrumental reason to get procedures right – the select committee reached the wrong conclusion because of bias and inadequate procedural safeguards – and an intrinsic reason, in that Pepys was not permitted to cross-examine the witnesses who testified against him. There is an indignity in standing accused and having no right to defend yourself.

Chilcot used both kinds of reason to justify Maxwellisation. He referred to it as ‘an essential part of the inquiry’s procedures’ because it ensures that ‘any criticism included in the final report is … fair and reasonable’ – an intrinsic reason. He added that the process is ‘essential not only to the fairness but also the accuracy and completeness of our report’ – an instrumental reason. Notice that the instrumental reason doesn’t justify Maxwellisation as a general practice. If the inquiry does its job properly, it won’t need to send its draft out for comment. Also, under Maxwellisation only those who are criticised get to comment. Why just them? Criticism might focus the mind, but in principle anyone could correct a factual flaw.

It’s more difficult to say whether or not the intrinsic reason justifies the process. The public inquiry is a strange institution. In 1929, Lord Hewart complained that ministers are ‘in no way bound’ by what an inquiry finds and ‘may entirely ignore the evidence which the inquiry brings to light’. In fact, no one is bound by anything an inquiry says. Public inquiries, according to the latest act regulating them, have ‘no power to determine … any person’s civil or criminal liability’: they can neither exonerate nor convict anyone of anything. Whatever Chilcot says about the rights and wrongs of Iraq, his findings have absolutely no legal significance. Fairness is vital in criminal procedures, where basic rights are threatened, and in those areas where civil or public rights are at stake, such as where an individual’s welfare entitlements are concerned. But inquiries don’t have to justify their findings to anyone in quite the same way.

All this would suggest there is no legal or ethical case for Maxwellisation. There is, however, one further consideration. Although an inquiry can’t put anyone in prison, there are rights it can infringe. An analogy with journalism is helpful here. Journalists aim to discover the facts and to report them to a wider audience. But they can get the facts wrong, and sometimes that results in defamation. In the legal regulation of journalists, a balance must be struck between the rights of individuals in the public eye and our interest in being informed of matters of public importance. A world with no defamation is probably a world with less information. How much defamation should we tolerate as the price of having more information? (Questions like this abound in the law. Agreement on the balance is rare. William Blackstone thought it better for ten guilty men to escape criminal sanction than for one innocent man to be convicted. Matthew Hale put the ratio at five to one, Benjamin Franklin at a hundred to one. Bismarck, customarily robust, thought Blackstone had it backwards: better, he said, for ten innocents to suffer than for one guilty person to escape.) In 2001, the judiciary tried to square the defamation/information circle by creating a new defence for journalists who defame when discussing political matters. Journalists could escape liability if they acted responsibly in drafting the story. Whether a journalist acts responsibly depends in part on whether they seek comment from the person defamed.

Inquiries too can imperil an individual’s reputation. They too have to strike a balance. Maxwellisation should be understood as one part of their attempt to balance rights violations with the public interest in information. This explains why only the person criticised needs to be shown the criticism. If the purpose were only to improve the quality of the report, this procedure would make no sense; but if the point is to give someone the chance to try to defend themselves against possible defamation, it makes perfect sense.

Some recent inquiries – not Chilcot, but others, including the inquiry into the 2005 outbreak of E.coli in Wales and the 2008-11 inquiry into the death of Baha Mousa in British military custody in Iraq – have been conducted under the terms of the Inquiries Act 2005. An inquiry set up under the 2005 act can’t make ‘explicit or significant criticism’ of a person unless that person has been ‘given a reasonable opportunity to respond’. In 2014, a select committee established to monitor the progress of the act recommended a change. An inquiry should be given some discretion: it shouldn’t need to send out precise proposed wording to those it was considering criticising, and should give someone ‘reasonable opportunity to respond’ only if it believed that the person ‘should have’ that opportunity. That seems to get the balance about right. Yet in a response described in the House of Lords as ‘contemptuous and peremptory’, the government rejected the suggestion on the grounds that Maxwellisation was ‘the practice of most pre-2005 act inquiries’. That is, as I’ve shown, false. Perhaps the political animus against Chilcot will serve a purpose in reforming this rule.

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Public inquiries are ‘more catholic than litigation but less anarchic than street fighting’, the former Court of Appeal judge Stephen Sedley once said. Often they are ordered simply to manage a public outcry. They can divert an issue from the political realm and so defer calls for action. The delay can be politically expedient. The Scott Inquiry into the Matrix Churchill affair, where very serious allegations were made against members of the government, took four years to report. During that time the government found it easy to deflect questions on the topic: the inquiry must be allowed to run its course. The delay, combined with the last-minute manipulation of the report by the Major government – which took seven days to digest the report and prepare self-serving press briefings, while Robin Cook, the shadow foreign secretary, was given three hours – made it possible for the government to weather the storm. No one resigned, despite Scott’s explicit finding – explicit, but buried in four volumes and 1800 pages, with no executive summary – that ministers had misled Parliament.

Even an inquiry created for a political purpose must be justified in other ways. Richard I created the office of coroner to augment the royal coffers with coroners’ fines. But the purpose of coroners isn’t to make money. There are, in broad terms, two kinds of justification for holding an inquiry. One concerns looking back. An inquiry may ask what happened, why it happened and who is responsible for it. Criticism or blame is, in this sense, backwards looking. The other kind is about looking forward. An inquiry may try to draw a controversy to a close or suggest reforms of an institution (like the government, or the press). Inquiries often have more than one aim and rarely look in just one direction. Chilcot is supposed ‘to establish … what happened’ and ‘to identify the lessons that can be learned’. The mix can be risky. Lawyers, like rowers, look backwards to move forwards. This means that reform takes place within the narrow parameters defined by predecessors, and is connected to the resolution of past wrongs. There are good reasons for the law to work this way, but it isn’t obvious that it is the right model for the reform of public institutions.

A related but distinct problem arises when an inquiry looks back to attribute blame. The urge to blame is powerful, and for that reason the attribution of blame can distract from the systemic problems that may need to be addressed. The more, for example, the blame for Iraq is placed on Tony Blair, the easier it is to avoid more general questions about parliamentary checks on the executive, the nature of our collective foreign policy, the proper procedure for declaring war and so on. (One way to have your cake and eat it is to blame an entire group. The Macpherson Report into the death of Stephen Lawrence called the police force ‘institutionally racist’. This supplies an argument for reform of the group. But that is difficult when individual members of the group come and go in the way governments come and go.)

Any inquiry must decide what to aim for. Should it try to parcel out responsibility for a past wrong or to design procedures minimising the risk that similar mistakes will take place in the future? It can’t always do both at the same time. The extent of Maxwellisation in the Chilcot Inquiry suggests that the first route has been taken. That’s understandable. It would be wrong to forget Iraq; it would also be wrong for Iraq to forestall discussion of all foreign policy questions. Assigning responsibility may be the only way to steer between amnesia and fixation. Charged with helping the nation to come to terms with its mistakes in Iraq, Chilcot’s duty is a modern form of the medieval coroner’s. ‘Upon these things being inquired,’ Edward I’s statute commanded, ‘the bodies of such persons being dead or slain shall be buried.’