‘Guidance’: not consultation by a public body


Funny thing that: there’s me sounding off last week (see eg about the general need – as opposed to a specific requirement – for the President of the Family Division to consult on new ideas, whether as administrator or as chairman of Family Procedure Rules 2010. When I raise with his office the question of dates for consultation (suggesting that not a lot of time is being left between now and early October 2014 to ‘consult’) I am told (by email dated 26 August 2014):


As far as the guidance … goes, I should point out that this is not a consultation by a government department, and indeed, the President is under no obligation to consult at all. However he remains anxious to hear any views on all these important topics and as stated above we are happy to receive responses at any point.


The ‘guidance’ relates to ‘transparency’. At short notice Sir James Munby P issued Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014. A further document entitled Consultation: Family Transparency – the next steps (19 August 2014) (consultation due by ‘end of October [2014] at the latest’) has been issued by the Judicial and Tribunals Office ( ). The document is unquestionably entitled ‘Consultation’.


I yield to none in my admiration for Sir James’s energy and determination. He is in a very powerful position, as the family court hierarchy stands, to change practice. He is no a natural democrat; and I doubt he distinguishes his judicial and his administrative roles clearly or at all. Much of what is going on in and around his office is now administrative and should not be run by just one person.


When the Civil Procedure Rules 1998 and the ancillary relief pilot scheme were being introduced the then Lord Chancellor, Lord McKay, took a close interest in them (as he did in the Children Act 1989 ten years earlier). But he knew his limits as an administrator and listened to people (as I know personally from when he asked me to go to see him about the then ancillary relief ‘pilot scheme’ in late 1997). The present Minister of Justice would not understand the need for consultation (unless it was explained to him); but his civil servants, including Sir James, know the difference. Indeed Sir James himself stressed the court’s public authority role as defined by Human Rights Act 1998 s 6(1) (not directly in relation to administrator consultation) in the very recent Q v Q (No 2) [2014] EWFC 31:


[46] … The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention….


Consultation and the common law


Strictly speaking the common law does not require Sir James to consult. As far as the point goes, his office is correct, despite the title of his paper. However the tendency of modern government and administration is to consult whenever reasonably possible. The Court of Appeal have recently considered the point. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 Longmore LJ explained the position as follows:


Consultation on what?

[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.


In putting forward ‘Guidance’ Sir James is not acting as a judge – judges judge. It is an administrative exercise which he undertakes in an office which – like that of Lord McKay LC – is that of an administrator. He is subject to the constraints of any public body or civil servant and required to act ‘fairly’ (ie not autocratically).


‘Fairness in consultation’


The role of fairness in consultation is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054. De Smith adopts the terminology of Lord Woolf in R v North & East Devon HA exp Coughlan [1999] EWCA 1871:


[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).


The ‘guidance’ consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I respectfully suggest, reasonably requires that he stand back and let someone else receive the consultation on transparency and let them put forward any legitimate law changes, or guidance, arising from it. The voice of Sir James should please be but one; not the only voice from which the consultees must persuade him of another course.


  1. Pingback: CONSULTATION AND FAIRNESS after Mosely | dbfamilylaw

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