HOW LAW IS MADE: a view of delegated legislation in the family court

 The judicial role and separation of powers

There is a hierarchy of delegated legislation and judicial utterances. These operate below and always subserve the twin peaks of common law and statute. Statute is always the Everest. Constitutional Reform Act 2005 further refines the system of delegated legislation and defines how it must now be made. All this – as to delegated legislation – was explained by the Court of Appeal in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171.

Of separation of powers, Montesquie’s premise was very simple. There are three powers: the legislature, the administration (or executive), and the judiciary. Each should be separate. The US system is the paradigm of this. In UK the first two are muddled (cabinet as head of the executive is part of the legislature). The legislature is always superior to the other two (subject to questions of European law which are beyond the scope of this note).

In Sir James Munby P we have a consummate judge. He seeks also to be an administrator. He seeks to administrate more, probably, than any President in living memory: Baker, Arnold, Brown (who saw in the Children Act 1989), Butler Sloss, Wall PP. As judges each of these developed the law; and at times, Wall P as Wall J, could descend, even unto to paper clips, with his Practice Notes annexed to judgements (Bovale explains why such notes are now largely outlawed).

Were I addressing the President (qua administrator), I would respectfully point out that in a modern democracy (and see Lord Sumption’s recent speech in Kuala Lumpur: there are careful rules about delegated legislation: like that an administrator must have the vires to make the rules or issue the guidance etc. S/he must consult, and act reasonably and lawfully (the three pillars of JR challenge).

Standard orders

With the ‘mandatory’ orders – and a man as subtle as Sir James knows better than most exactly what ‘mandatory’ means – there was no authority in him or Mostyn J to issue such orders. Ministry of Justice and its careful civil service have now moderated this to ‘standard’ orders to be introduced by rule or practice direction (I should prefer both: see Bovale again). And it is to be hoped that the unlawfulness of the present order under Matrimonial Causes Act 1973 s 24A(1) will be removed. It represents a particular view held by Mostyn J which both statute and Coleridge J show to be wrong: the ordinary meaning of s 24A(1) and V v V (Financial Relief) [2005] 2 FLR 697 is that any sale is contingent upon a lump sum or property adjustment order being given a short period to work. It cannot be free-standing as Mostyn J would have it.

In parliamentary drafting, there is – or used to be – a technical term: a ‘Henry VIII clause’. Hale LJ draws attention to this in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602, a case which is quoted in Bovale. It gives to the designated minister power by Order to amend specific terms of a statute. I appeared for C. I can well remember the twinkle in Hale LJ’s eyes when she reminded the court of the term (applicable in that case: see para [15]). Even with Henry VIII clauses, the arbitrary power thereby conferred derives from Parliament. No one seems to be able to say what is the source of Sir James’s powers to impose ‘draft’, ‘mandatory’ or any other forms of order upon parties to family proceedings.

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