Unlawful law-making

As FC-Day-42 becomes FC-Day-41, the silence remains eerie. One commentator, solicitor Marilyn Stowe (http://www.marilynstowe.co.uk/2014/02/20/mixed-messages-from-solicitors-journal/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+MarilynStoweFamilyLawAndDivorceBlog+%28Marilyn+Stowe+Family+Law+and+Divorce+Blog%29) has lamented:

I imagine that few of us are opposed to modernisation. We accept that within the current system, there is plenty of room for improvement. But with so many grey areas and no clear direction, the present effect is one of voices chattering away in the darkness. How long must we wait before somebody turns the light on? More worrying still: when everything is illuminated, what will we find there?

Those of us who follow Sir James Munby’s increasingly ominous pronouncements may wish to dwell in the darkness a while longer. After all, if recent developments such as the demolition of legal aid and the rise of self-representation have shown us anything, it is that family lawyers are increasingly undervalued by those with the power to bring about change. 

‘Ominous pronouncements’, indeed. Practice guidance with only the authority of his office; but no statutory clothing (see eg Constitutional Reform Act 2005 which explains how practice directions etc are made); case note guidance with no right of those it is aimed at to respond (UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam),  Mostyn J http://www.bailii.org/ew/cases/EWHC/Fam/2013/1735.html (solicitors and Imerman documents); Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) Pauffley J http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html) (magistrates’ facts and their reasons): this is an unlawful way to make law. Judges, in this context are administrators (ie they are not adjudicating on any issue) and should proceed with consultation etc accordingly. This 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. 


Elsewhere, the High Court (per Laws LJ in the Divisional Court) questions whether an aspect of the Terrorism Act 2000 infringes the rights of free expression under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 10 (Miranda v Secretary of State for the Home Department & Ors [2014] EWHC 255 (Admin)

Laws LJ reminds readers that freedom of expression (per Art 10) has two distinct aspects (in the context of press freedom):

(1)   A right of self-expression which belongs to everyone so long as we do ‘advocate no crime or nor violate the rights of others’ (para [45]); and

(2)   A sub-class of this right: ‘journalistic expression’ (para [46]).

So, he goes on, the journalists’ right depends upon and serves the right of his readers (para [46]). In the modern family court there is a rush to publish all, with minor redactions. I do not wish to appear Luddite about this. However, I do beg Sir James Munby P to bear in mind also very carefully the welfare of children involved, and of their families and others involved; and to recall always the priorities – and limitations on the press – to which Laws LJ refers. The ‘open’ court aspect is only one part of Art 6(1) (right to a fair trial); and Art 8 (right to family life), though subservient to the other two, is always there.

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