Clarke & Ors, R (On the Application Of) v Holliday

A non-statutory inquiry may be amenable to judicial review where its chairman is exercising a public function, but amenability is fact-specific. An inquiry chairman may obtain assistance from staff in gathering evidence, preparing interviews and formulating potential criticisms, provided that final findings and recommendations remain the chairman’s own decisions. A potential criticism stage is not necessarily part of Maxwellisation; Maxwellisation ordinarily concerns giving a person an opportunity to respond to provisional findings. Disclosure challenges may be premature where the relevant representations process has not yet occurred. Confidentiality requirements governing draft findings and supporting evidence are lawful where justified by the need to prevent premature disclosure, particularly if reasoned requests for information-sharing may be considered.

The claimants, former senior members of the Nuclear Decommissioning Authority, sought judicial review of the conduct of the chairman of the Magnox Public Inquiry. The Inquiry was a privately conducted, non-statutory inquiry established to investigate the procurement and termination of a major nuclear decommissioning contract and related litigation.

The claimants challenged alleged unlawful delegation, inadequate disclosure, restrictions on information-sharing with their common lawyers, and breach of Article 8 of the European Convention on Human Rights. The claim was heard at a rolled-up hearing addressing permission and, if granted, the merits.

1. Ground 1: Permission was granted because the delegation challenge was arguable, but the claim was dismissed on the merits. The chairman was entitled to delegate evidential and preparatory work, including helping to compile potential criticisms for interviews. The critical question was whether he retained sole responsibility for final findings and recommendations. The court accepted his evidence that the draft findings were his own conclusions, reached after further consideration of the evidence. The potential criticisms were investigative tools, not provisional findings.
2. The potential criticism stage was distinct from Maxwellisation. Maxwellisation occurred at the representations stage, when provisional findings capable of adversely affecting a person were disclosed and representations invited. The Inquiry’s drafting could have been clearer and had caused unnecessary anxiety, but that did not make the process unlawful.
3. Ground 2: Permission was refused. The disclosure challenge was premature. The claimants would receive relevant draft-report extracts and supporting evidence through the representations process, after which any further disclosure issues could be addressed.
4. Ground 3: Permission was refused. Requiring confidentiality during the representations process was neither unfair nor a public law error. The process involved disclosure of draft report extracts and confidential or privileged material, and the chairman’s willingness to consider reasoned requests for information-sharing addressed any possible unfairness.
5. Ground 4: Permission was refused. The Article 8 claim fell away because Ground 1 failed on the merits and Grounds 2 and 3 were not arguable.
6. The court proceeded on the assumption that the Inquiry was amenable to judicial review, while leaving that issue undecided. Amenability of a non-statutory inquiry is fact-specific. The court exercised its discretion in the claimants’ favour on delay.

The claim was therefore dismissed on Ground 1, and permission was refused on Grounds 2 to 4.

The judgment records that Lang J adjourned the permission application to a rolled-up hearing on 15 February 2019. The present court granted permission on Ground 1, dismissed that ground on the merits, and refused permission on Grounds 2 to 4.