Sir, Some of the discussions about the “Maxwellisation” process in the Iraq Inquiry have compared it to the procedure I followed in the Mid Staffordshire NHS Foundation Trust public inquiry.
The two inquiries are difficult to compare, not only because of the very different subject matter but because of their different legal basis. Sir John Chilcot’s inquiry is a non-statutory inquiry by a panel of privy counsellors, whereas mine was created and run under the Inquiries Act 2005. I had the advantage of statutory rules governing the obligation to give those who might be the object of express or implicit criticism a fair opportunity to offer comments on them in confidence. Sir John has doubtless had to devise a system by reference to the vague and not always consistent pronouncements of other inquiries and judges over the years as to the appropriate practice to follow.
I also had the considerable benefit of a large team of legal advisers to help me devise and operate a workable system. We decided at an early stage that we would not share draft extracts from the report with those affected. In part this was because that would lead to a protracted process in which certain parties would have preferential access to provisional conclusions when others did not have that chance. In part we thought that it would lead to a process looking unacceptably close to a negotiation of the wording of the report behind the scenes. Instead we sent letters which summarised potential criticisms by reference to the evidence which suggested them. Recipients of such letters had an opportunity to offer comments within a limited time scale. Even so the process took significantly longer than we had expected.
There is no perfect way of ensuring fairness to people who might be criticised by an inquiry, and I suggest that this is a subject which could benefit from further consideration to see if a more practical procedure could be devised.
In the meantime, it is clearly important for the report of the Iraq Inquiry to be concluded as quickly as possible. It might be helpful if those who may be criticised were reminded that they have no right to dictate the content of the report, and are not in any event bound by any adverse judgment contained in it. Reports and their conclusions only retain the persuasiveness justified by their reasoning and content. They might also want to bear in mind that drawing attention to themselves by aggressive or uncooperative tactics is likely to do little to avert well-founded criticism and may even strengthen the grounds for it.
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Sir Robert Francis, QC
London EC4