Page 91 - When Things Go Wrong

regarding the regime under the Inquiry Rules 2006, which they felt to be
onerous and inflexible.

5.26 Rule 13(3) provides that “the inquiry panel must not include any explicit or
significant criticism of a person in the report, or in any interim report, unless
(a) the chairman has sent that person a warning letter; and (b) the person has
been given a reasonable opportunity to respond to the warning letter”. This
stipulation can lead to considerable delays and cost; in evidence to the Lords
Select Committee Sir Robert Francis QC observed, “in practice I think my
inquiry was extended by at least six months by having to undertake a rule 13
process.” 254 Sir Brian Leveson asserted that “if I had obeyed [Rule 13] to the
letter, [it] would have killed any prospect of doing the [Leveson Inquiry] report
in time”. 255

5.27 In a thorough review commissioned by the Treasury Committee, a team led by
Andrew Green QC concluded:

a. The common law imposes no rigid requirement that a Representations
Process must always be conducted. What is required is that a person be
given a fair opportunity to respond to criticism prior to its publication in
a report.
b. It follows that, if a person has already been given a fair opportunity to
respond to the substance of a proposed criticism contained in a draft
report (such opportunity being given at the evidence-gathering stage of
an inquiry), there is no need to give that person a further opportunity to
make any representations prior to publication of the report.
c. It is important that those conducting inquiries have flexibility to determine
the procedures (including any procedures relating to the Representations
Process) to be adopted for the purpose of fulfilling the terms of reference
of the particular inquiry in a way that is fair, while recognising the
importance of expedition and cost efficiency. 256

254 Select Committee on the Inquiries Act 2005, supra note 30, para 246.
255 Ibid, para 247.
256 Green QC et al, supra note 252, para 13.
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