CIVIL LEGAL AID: EXCEPTIONAL CASE DETERMINATION

Exceptional case determination

Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 represents the only way that a person can obtain legal aid for civil legal services (civil legal aid), outside the narrow spectrum of cases – domestic ‘violence’, forced marriage etc – covered by Part 1 Sch 1 of the Act.

Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services).

LASPOA 2012 s 10(2) provides:

(2) This subsection is satisfied where the Director—
(a)has made an exceptional case determination in relation to the individual and the services, and
(b)has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).

LASPOA 2012 s 10(3) defines what is an ‘exceptional case’ (as further explained by Black LJ in JG (below)):

(3)For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

It is important to stress here that ‘exceptional’ is not a general term – as eg rare, highly unusual etc – but refers solely to the fact that grant is required to comply with UK responsibilities under Human Rights Act 1998. If legal aid is required for that purpose it is, by definition, ‘exceptional’ and s 10 is satisfied.

European Convention

The main rights under the Convention in play in most cases will be Art 6(1) and 8:

Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Freedom from discrimination (Art 14) and freedom of expressions (Art 10) will also be significant, in appropriate contexts.

Children and Convention rights

The significance of children in any Convention assessment must be recalled always: nothing may be given ‘greater weight’ than their interests says the Supreme Court (see Lord Kerr below). If a balance is required to be struck between their, and other, Convention rights (Convention ‘proportionality’), this must be conducted by measuring ‘the nature of any impact on the child’ (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 (at para [17]).

The interests of the child are as much a primary consideration for the LAA decision-maker as for any other agency (eg local authority of government department) (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and (say) the right of the parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 Lord Kerr explained the primacy of a child’s interest:

[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….
[145] ….no factor must be given greater weight than the interests of the child.

Convention rights: exceptional cases

In JG v Lord Chancellor and ors [2014] EWCA Civ 656 Black LJ and the Court of Appeal considered s 10 in the context of legal aid and payment for an expert’s fees in civil proceedings. The meaning of ‘exceptional’ in s 10(3) was explained by Black LJ at para [110]. She stressed that, as a matter of ordinary statutory construction, all that s 10(3) does is to produce a ‘description … not a test or additional hurdle’ for the applicant (and see Coulson J in M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin) at para [58]).

Both judges stress the ordinary meaning of the words in s 10: that ‘exceptional’ there means only that the application is outside Part 1 of Sch 1, not the facts of the application are in some way ‘highly unusual’ or out of the ordinary.

The QB Divisional Court (Moses LJ, Collins and Jay JJ) has gone further. In R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (at para [13]) Moses LJ defined s 10 as catering for applications for funding as two-fold: mandatory (where a ‘substantial interference’ with an Art 6 right might occur) and discretionary (where there is ‘a risk of such breach’).

I understand that the PLP case and Gudaviciene below may be under appeal to the Court of Appeal; but for the present they represent the law.

Guidance

LASPOA 2012 s 4(3) includes amongst the duties of LAA decision-makers, that they must ‘(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions’. Guidance must be in accordance with the law. In particular, it is a basic principle of administrative law that a public body may not ‘fetter’ a discretion entrusted to it by statute, since Parliament confers discretion to ‘promote the policies and object of [an] Act’ (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).

Guidance may not impose inflexibility where its empowering statutory provision does not provide for it, nor limit the scope of a decision-maker’s discretion beyond that which is anticipated by the statute (R v Secretary of State for Department for the Home Dept exp Venables [1998] AC 407, [1997] UKHL 25 at 496-7).

Lord Chancellor’s exceptional funding guidance (non-inquests) (undated) (‘the Guidance’) represents guidance under s 4(3). Its legality was considered by Collins J in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin). This was a series of immigration cases; but the principles applicable to guidance to decision-makers apply in all grants of civil legal aid.

Collins J describes the Guidance thus:

[9] … [It] lays down some principles which the Director is to apply and some of those are said by the claimants to be unlawful. Paragraph 6 notes that s10(3)(b) does not provide a general power to fund cases which fall outside the scope of legal aid. It is, it is said, ‘to be used for rare cases’ where the risk of the breach of material rights ‘is such that it is appropriate to fund [para 7 which is cited in full including]:
(7) … Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).

He points out that the Guidance bases its approach to grant of legal aid by reference to Airey v Ireland (1979) 2 EHHR 533 and X v UK (1984) 6 EHRR 136. From the latter case the Guidance derives its ‘practical impossibility or obvious unfairness’ test (para [15]). But is this the correct test? Collins J says it is not:

[19] The ‘overarching question’ posed in the Guidance is ‘whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.’ This is said to be a very high threshold. As I have said, it is based on X v UK. In setting out this test, the Commission referred to Airey v Ireland.

After full consideration of relevant case law Collins J deals with the ‘threshold’ question at para [28].

• There must be ‘effective access to a court’: for example a litigant must be able to present all relevant evidence and ‘engage with the process’ (AK & L v Croatia (Application No 37965/11: final on 8 April 2013));
• There must be ‘overall fairness’; and
• That where appropriate a decision-maker must have in mind Art 8 (respect for family life) to which the Guidance, he says, does not refer adequately (para [51]; and see H(H) and comments of Lord Kerr above).

He held that the X v UK ‘practically impossible’ test (used by LAA decision-makers) sets the bar ‘too high’ (para [28]) for s 10; and that to this extent the Guidance is unlawful (para [128]).

Overriding of fundamental rights

Further it is necessary here to bear in mind two further basic principles of administrative law: first, the ‘fetter on discretion’ point made in Gudaviciene (above); and, secondly, that fundamental rights of an applicant for legal aid can only be overridden by specific statutory provision. This point was made by Moses LJ in R (ota PLP) (above). The case concerned delegated legislation proposed by the Lord Chancellor to limit legal aid to those with a close connection to the United Kingdom (what he terms ‘our people’). PLP said the Lord Chancellor had no power to do this.

The minister accepted his statutory instrument as discriminatory, but was such discrimination lawful? Reading Art 14 (discrimination) with Art 6(1) the Court of Appeal said the delegated legislation was unlawful. Thus of the right to legal aid for representation in court proceedings Moses LJ said:

[53] The obligation of a state to provide legal assistance in some circumstances was not in dispute. The principle is now well established both in domestic and Strasbourg jurisprudence. The right to legal aid can be invoked by virtue of Art 6(1) of the Convention (Pine v Law Society (No 1) [2001] EWCA Civ 1574). The duty to provide legal aid in some cases is no more than an aspect of the principle that the state is under an obligation not to impede access to court. Section 10 of LASPO is the provision adopted to meet the United Kingdom’s obligation to provide legal assistance in those cases where a failure to do so would risk a breach of Convention or EU rights.

A person speaking only a foreign language in English courts, might be in more need of representation that someone who can at least read the language (a point which recurs in Q v Q [2014] EWFC 7 and recurs in the later version of that case). The same would apply to a person confronted with difficult legal principles or of procedure.

Grant of legal aid: ‘rights that are practical and effective’

In JG black LJ cites Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601. This she says is the modern authority for the proposition that there is no absolute obligation under European Convention 1950 to make legal aid available for all civil disputes. That is not the only criterion (as Collins J also demonstrates). Thus Muscat says that the Convention is concerned that mere lip-service to rights is not paid by legislators; but the Convention:

[45] … is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.

Access to the court must include the ability to see the case through to a ‘determination’; and Muscat (para [46]) breaks down entitlement to legal aid as follows:

(1) That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case;
(2) Legal aid should be available guaranteed – part of a State’s ‘obligation’ – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1); and
(3) There should be active intervention by a State to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’.

Exceptional case determination: application

If the language of s 10 is construed within the terms of the policy behind the section – to ensure United Kingdom complies with its convention obligations under Art 6 – then it can be seen that ‘exceptional’, as Black LJ explains in JG (at [110]) describes only a category of grant.

As the law stands the Lord Chancellor’s Guidance is unlawful to the extent that it seeks to fetter a decision-maker’s discretion in grant of legal aid. Any applicant for family proceedings legal aid where, for example, his/her access to the courts is for practical purposes impeded and the fairness of a trial made impossible, can – subject to financial eligibility – rely on s 10(3) to seek a grant of legal aid. The threshold for determination of coming within s 10(3) is, as Collins J explains in Gudaviciene, that a litigant can properly and fairly engage with the court process (paras [28] and [51]).

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A SUMMER SPELL

I

You were a dream

of something I’d never dreamed –

a summer in warm countryside

nights slept in your attic room

spontaneity

and vehemence in your feelings.

Together we wove a spell through that summer:

of walking by streams and the canal

of drinking and eating together

of green and heather covered Yorkshire hillsides;

and of Burgundy, with hot fine buildings and medieval streets,

of that cool dark crypt

and honey and chalk coloured churches,

of wine

and of that evening valley

with rolling hills

and dusty village

and soft voices

and gentle evening light

surrounding us.

And the spell we wove

stays on in the mind –

and will always stay –

long after the feelings woven through it

have passed;

for whatever may happen

the spell is there –

a memory, a truth,

a dream which was reality,

no fiction to unravel –

Yes, it was truth,

truth of that Burgundian evening valley

and the attic room

and you.

II

And I remember a cold glad evening

when we stood by the swirling water

the river’s grey water churning in spate over the weir;

The black bare branches of wintered beech overhung the water,

their supplicant twigs holding out to another summer.

But in the cold, we held to one another

and in another way the spell ran on.

#CSAINQUIRY: COMPLAINT ON Mrs WOOLF TO SOLICITORS’ REGULATION AUTHORITY

Email to Solicitors Regulation Authority: Mrs Fiona Woolf

[This blog should be read with
(1) https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias
(2) https://dbfamilylaw.wordpress.com/2014/09/22/csainquiry-professional-standing-of-fiona-woolf

Dear Sir

Fiona Woolf, solicitor, CMS solicitors: Home Office child sex abuse inquiry

I am a practising solicitor advocate. I am a specialist family lawyer, law writer and trainer and a one-time member of the Law Society’s children panel. I anticipate that I may be instructed by one or more of those involved as survivors in the above Home Office child sex abuse inquiry.

I attach a letter which I sent to the above Mrs Woolf of CMS solicitors and at present also Lord Mayor of London. I am told that she has accepted the role of chair of an inquiry into child sex abuse set up by the Home Secretary; though I understand that over three weeks later she has not started work on the project. An earlier ‘open letter’ on the subject of ‘bias’ is also attached,

I am told the Bishop of Durham independently shares some of my concerns, especially as to Mrs Woolf’s availability for this job.

The letter was sent to Mrs Woolf’s Lord Mayor’s office on 22 September 2014 and acknowledged under enquiry reference no GE44360. At the same time it was sent to Mrs Woolf and to her secretary at CMS solicitors. The version to Mrs Woolf was acknowledged by her office.

I have had no substantive response from Mrs Woolf, still less have I had the information I requested. I therefore write to Solicitors Regulation Authority. I have sent a copy of this letter to Mrs Woolf both at CMS and at the Lord Mayor’s office.

As you can see I reminded Mrs Woolf of her and my duties as solicitors under the Solicitors Regulation Authority Code of Practice. As practising lawyers she and I are both bound by the Code.

Professional standing as a solicitor

My letter addressed Mrs Woolf’s professional standing as a solicitor. As I understand it is as a lawyer that she has been given the job by the Home Secretary. The Home Secretary’s statement of 5 September 2015 described Mrs Woolf as follows:

… As a lawyer, and latterly partner, at CMS Cameron McKenna for over 20 years, Fiona Woolf has worked in over 40 jurisdictions. She has advised over 25 governments and multi-lateral agencies such as the World Bank….

If she or I act as a solicitor in any capacity we are, as you know, bound by the SRA Code. Mrs May plainly represented that Mrs Woolf is a lawyer; and reference to the Law Society means she is held out to the public as a solicitor.

Solicitors: professional duties

As a solicitor I assume Mrs Woolf is aware of her and my professional duties which include:

  • We cannot take on work which is not within our expertise;
  • We cannot accept instructions where we may not undertake the work efficiently in the time available to us (ie we must not overstretch ourselves); and
  • We may not act where there is any question of conflict.

I have dealt already with conflict in my separate letter concerning Mrs Woolf ((3) above). The information as to her potential for bias is still awaited from her or from the Home Office. I hope you will consider critically whether her silence on the issue of conflict – so critical to practice – is acceptable (and especially where it impacts on her quasi-judicial role within the inquiry).

Of (1): I hope you would agree that those affected by her work are entitled to know what is Mrs Woolf’s ‘expertise’ and relevant experience to deal with this inquiry, please (and see Inquiries Act 2005 s 8(1)). I know this is not a statutory inquiry; but on the point I am sure the common law would say much the same as s 8(1). For example what is her experience of children law and relevant criminal law? As a person who is to deal with people who have had some particularly damaging experiences Mrs Woolf seems remarkably insensitive on this point: she has said nothing to anybody, still less anything to reinsure the constituency with whom she is set up to deal.

Taking on new work

Of Mrs Woolf’s available time ((2) above) for the job: Leveson LJ, as far as I know, sat or otherwise worked more or less continuously on his press inquiry over most of a year. He delivered a full report after cross-examination of a variety of witnesses. Waterhouse J in respect of the 2000 North Wales inquiry read 3,500 statements and 9,000 files. No doubt many more statement and files will be involved in this inquiry. Can Mrs Woolf be confident that she give enough time to the work within the context of her professional duties as a solicitor; and of your other professional and ceremonial duties? As far as anybody knows she has not started work yet though she was appointed well over three weeks ago.

Mrs Woolf’s response

Mrs Woolf has not responded to my letter. I know it has been received by both her offices.

Within the terms of Chapters 1 and 3 the SRA Code I ask Solicitors Regulation Authority to investigate the ability, and potential for conflict of Mrs Woolf in this inquiry.

Yours faithfully

David Burrows

RIGHTS, FREEDOMS AND THE COMMON LAW

Rights and freedoms guaranteed by common law

In her address to the Constitutional and Administrative Law Bar Association on 12 July 2014 (http://www.supremecourt.uk/docs/speech-140627.pdf ) Lady Hale (Supreme Court justice) balanced the rights bases of human rights jurisprudence with those of the English common law. On a more modest canvas (see https://dbfamilylaw.wordpress.com/2014/09/01/family-laws-shakey-hold-on-the-common-law/ ) I considered the extent to which family lawyers have failed to understand the common law (there in its simplification of the problems they think they are grappling with when it comes to open court trials of family cases).

This article and its successor will seek to draw out the following:

  • That the vast majority of the most fundamental rights – which by definition are ‘human’ – and freedoms protected by English law are derived from the common law;
  • That much statutory provision which deals with rights is merely a codification of long existing rights: as Lord Cooke puts it in Daly below: ‘Conventions, constitutions, bills of rights and the like respond by recognising rather than creating [rights]’; and
  • Certain Convention rights (though not all: it is arguable that Convention jurisprudence has given the common law a new approach to privacy) can only be explained, in English law, by reference to the common law

It is therefore crucial that any judge who is considering a statute appreciates that it may be only a step on a common law line which the statute ‘recognises’. It by no means creates the law. For example a deep rooted common law principle is legal professional privilege (the right to discuss matters in inviolable privacy with a lawyer). This concept has been defined in a number of statutes. Those definitions do not define the subtleties on which privilege is based, and never can do. It is the common law which defines privilege, and it is the judges which refine and re-define it (or not: see R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1).

Common law and the European Convention 1950

Lady Hale’s starting point is to demonstrate the tendency of lawyers to regard Human Rights Act 1998 and articles under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as being the starting point for a consideration of rights issues:

…this [she said at page 4] is to misunderstand the relationship between the Convention and the common law in our domestic law, and to overlook the continued and developing protection offered by the latter.

Critical to this relationship is the passage of Lord Cooke in R v Secretary of State for the Home Department exp Daly [2001] UKHL 26 (http://www.bailii.org/uk/cases/UKHL/2001/26.html)

[30] First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. [The passage quoted by Lady Hale is italicised.]

In Daly the House of Lords was concerned with the narrow issue of whether a prisoner, whose cell was being examined by prison staff in his absence, was entitled to be present when correspondence covered by legal professional privilege (this term is explained below) was being looked at. His appeal was allowed. Lord Bingham’s short speech was the main basis for the decision:

[23] I have reached the conclusions [that the appeal should be allowed] on an orthodox application of common law principles…. But the same result is achieved by reliance on the European Convention. Article 8(1) [right to respect for private and family life] gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly’s exercise of his right under article 8(1) to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result….

Common law: not an ‘ossuary’

The question of the relationship of common law to the European Convention 1950 arose in Kennedy v The Charity Commission [2014] UKSC 20 (http://www.bailii.org/uk/cases/UKSC/2014/20.html). In Kennedy the Supreme Court was considering a claim by a journalist to see confidential papers under Freedom of Information Act 2000. The appeal was dismissed (the journalist was not allowed to see the papers); but the court considered very fully the rights in play. Anyone reading the judgements will find that of Lord Toulson the most easily assimilable (an ‘ossuary’ is somewhere to keep bones), in which he says:

[133] [My analysis] is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary. [The passage quoted by Lady Hale is italicised.]

This article (next instalment) will test the three points which set out at the beginning by reference to common law and European Convention 1950 principles and specifically in relation to Art 6.1 (right to a fair trial). Fundamental rights and freedoms – ‘human’ rights, I say, is a tautology; and the common law and European Convention 1950 are also designed to protect freedoms – of legal professional privilege, the rule against bias, audi alterem partem (hear the other side) and ‘equality of arms’ will be touched upon.

Fundamental rights: dismantling rights and freedoms

Before looking at rights and the common law it is necessary to recall – for any politician who wishes to dismantle the Human Rights Act 1998 – that the rights and freedoms which the European Convention 1950 protects, are mostly those protected by the common law. Repeal of the Human Rights Act 1998 therefore will do very little. To get rid of most of what the Human Rights Act 1998 stands for to a Daily Mail reader a politician must legislate to undermine fundamental common law rights. And that must be done by express statutory provision, line by bitter line.

Thus, Parliament can legislate in a way which is contrary to common law rights; but if it does so (Lady Hale touches on this point in her speech at page 3) it must do so clearly and in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien [1999] UKHL 33 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners)

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

Lord Hoffman returned to this point in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 (a case concerning fundamental rights and legal professional privilege)

[8] … the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication … [ex p Simms (above)] contains some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) 1 Pl 199.

The European Convention 1950 was mostly drafted by English common lawyers, from their own common law experience. Get rid of the Human Rights Act 1998 and you find – hardly the next skin on the onion, but the image will do – the common law. It is a carapace which protects all the rights which in its different way also does the Convention; and life in relation to rights and freedoms will go on much as before subject to any assault upon them which any Government seeks to inflict.

LAW, PRACTICE DIRECTIONS AND GUIDANCE

Practice Directions and the President of the Family Division

In her http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/ @familoo reflects on precedent law: ‘Who to follow: the precedent or the President?’. In it she asserts:

Whilst the President has the power to issue Guidance or Practice Directions, what status do his Views hold, styled in title if not in form as the idle musings of a be-windowed leader? The answer is of course they warn us what the Court of Appeal might say in the event we fail to take heed and find our foolish disobedience immortalised in a new actual (and excruciatingly embarrassing) binding precedent.

This breaks down into three areas of ‘law-making’ (the inverted commas will be explained): Practice Directions, Practice Guidance and the habit of Sir James Munby P of musing at his chambers window (which are indeed but his thoughts: no more, though from a voice significant in the family law system; and that is the last to be said on fenestral musings here).

Sir James, the current President of the Family Division, is a dogmatic figure; and sometimes fails to distinguish between his position as a judge, and as an administrator. In the latter role he must be amenable to judicial review. Rightly, he stresses that family law is part of the civil law system. It is not some segregated lawless Alsatia (see eg Richardson v Richardson [2011] EWCA Civ 79). At the same time he does much precisely to drive family proceedings into their own ghetto, Alsatia even. For example the new rules and statute law on expert evidence is technically the creation of statutory bodies; but bears his firm imprint. It creates three regimes for expert evidence: children proceedings (mostly in Children and Families Act 2014 s 13); all other family proceedings (FPR 2010 Part 25); and other civil proceedings (CPR 1998 Part 35). Over all of these arches Civil Evidence Act 1972 s 3.

Practice Direction, Practice Guidance and ‘gap’ rules

The question of practice guidance divides this area of delegated legislation into Practice Directions, Practice Guidance and ‘gap’ rules (together here called ‘practice rules’). The topic is considered fully in my Practice of Family Law: evidence and procedure (Jordans, 2012) at Chapter 2 (paras 2.12-2.36). Rules are made by Family Procedure Rules Committee under powers in Courts Act 2003 ss 75-76 (outside the scope of this note). Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice (family proceedings Practice Directions are endorsed as being approved by the LCJ).

Limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.

Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors v The Society of Lloyds [2007] EWCA Civ 586 at para [7]-[9]) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC [2005] EWCA Civ 475 at para [48] for practice directions:

It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

‘Gap’ rules

If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras [37]-[39]). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be. One of the more remarkable recent breaches of this principle – though largely unremarked at the time, and since – was that of Mostyn J in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In that case the judge gratuitously issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors [2010] EWCA Civ 908: private documents taken by one spouse unknown to the other).

The ‘guidance’ was no part of the ratio of Mostyn J’s decision. (It is generally known that Sir James approves this ‘guidance’.) It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the law Society or the Bar Council). The ‘guidance’ fills no Bovale gap necessary to enable the court to resolve a disputed issue. Short of judicial review – Mostyn J was not acting as a judge, in the sense that a judge adjudicates between opposing points of view, so must have been amenable to review – there is no way the decision can be challenged. The ‘guidance’ is foreign to all democratic principles on which the rule of law is based. Plainly Mostyn J’s ‘guidance’ is a charter for cheats (as explained in https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ); but until the professional negligence claims start coming in from spouses who were advised to part with crucial evidence of material non-disclosure, the Mostyn J ‘guidance’ on the subject will be followed by impressionable family lawyers.

Status of practice directions and guidance

As can be seen: practice directions and guidance are not law. They guide practice. They cannot – or should not – be given by judges on the hoof; and if, as ‘gap’ rules, they are to be made, courtesy (ignored by Mostyn J) suggests that the judge enables practitioners in a case to comment on the proposed ‘gap’ filling guidance. An excellent example of this practice by a judge can be seen operated by Keehan J in A Local Authority v DG & Ors [2014] EWHC 63 (Fam).

CLARITY IN LAW: PRECEDENT LAW

Citation in family cases

In my ‘A Luther for family law’ (https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ ) I wrote of the need for clarity and demystification in law. This remains a priority. (A similar point in relation to judgements is made by http://transparencyproject.org.uk/accessible-judgments/ and ‘Transparency’.) The law should not be made more complex than it need be. The increasing number of unrepresented parties, and family lawyers, believe they must read the burgeoning variety of family court judgements. Buy why?

There are two neutral citation sources below the Supreme Court and Court of Appeal (which each have their own variety of family cases); and BAILII have further subdivided the second into two:

  • Family Division cases: EWHC (Fam)
  • Family court cases (High Court judge): EWFC
  • Family court cases (other judges) also EWFC

There are three sets of reports at first instance (or on appeal from district judges) where we now have to look for that Re B case – always assuming it was definitely not dealt with in the Court of Appeal or Supreme Court after all….

The question which any reader, adviser and, preferably, any publisher of law reports must answer is: does the particular case create any sort of precedent? If not it should not be cited and – though there is no control of this – it would be preferable if it were not published. (In 1990 Booth J, in the Family Division, could be heard complaining of over-reporting of cases then: what would she think of the state of affairs today?)

Precedent law

A summary of what courts treat as precedent can be found in Practice Direction of 9 April 2001: Citation of Authorities [2001] 1 WLR 1001 where it is directed – and this remains formal good practice in all courts – that save where a judgement clearly indicates that ‘it purports to establish a new principle or to extend the present law’ (para 6.1) certain categories of case may not be cited at all in court (para 6.2) (ie according to the Practice Direction it is unlawful so to do):

  • Applications attended by one party only
  • Applications for permission to appeal
  • Decisions which establish only that a case is arguable
  • All county court cases (there was no family court then) save to deal with an issue not decided at higher level which affects decisions at county court level

The recently reported Family Division case of AB v CB [2014] EWHC 2998 (Fam), Mostyn J is a case in point. In 94 paragraphs the judge refused permission to appeal. He made further comments which found their way into the press (there can be no objection to that; though a press report does not confer precedent status). As a precedent the case is of no value: the judge refused permission to appeal. The case represents no more than the musings of one High Court judge in the course of his refusal. Had Mostyn J given permission to appeal and then refused to allow the appeal that would represent a quite different state of affairs.

According to the Practice Direction – signed off by Lord Woolf LCJ not only is the case of no precedent value; but it is positively contrary to court practice to cite it (para 6.2).

Real law

So what is precedent? In his book Rule of Law Tom Bingham (Lord Bingham of Cornhill to you and me) wrote of the role of High Court judges moving the law ‘along a line’; and that most judges are reticent about doing this other than incrementally. A new point comes up and a judge must decide it. That I would suggest is the main criterion for precedent: do cases ‘move the law along’? Do they establish a new principle by which others may be bound?

Many family cases depend entirely on their facts: for example, did a particular set of facts amount to significant harm? Or they are decided as a matter of judicial discretion according to how a judge considers particular assets and income should be distributed. Fact- or discretion-based decisions, if that is the extent of what they decide, by definition are not precedent; and there is limited value in citing such cases, however high the level of judge.

A good judgement will set out early on what the issues are for trial. The reader can see if these involve fact, discretion or law; and only if it is the last should consideration be given to citing the case. It would be wonderful if law reporters would exercise their own discretion by not reporting cases which establish no precedent; but when the President of the Family Division is so keen to see so many cases reported there is probably little the law reporter can do. Another publisher might yet come forward to publish only real law.

#CSAINQUIRY: PROFESSIONAL STANDING OF FIONA WOOLF

Solicitors Regulation Authority Code of Practice

I write to you now to ask about your professional standing on your appointment as chair of a child sex abuse inquiry by the Home Secretary. I ask you only for information at this stage.

You will be well aware of our duties – yours and mine – as solicitors under the Solicitors Regulation Authority Code of Practice (http://www.sra.org.uk/solicitors/handbook/code/content.page ). As practising lawyers both of us are bound by the Code.

I wrote to you two weeks ago (https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/) about bias (in the technical sense of the word). You may not have seen the letter personally; though I am sure someone in the Home Office will be aware of it. I have not had a response. Indeed, a statement promised by the Home Office on your appointment is yet to emerge.

Professional standing as a solicitor

This letter addresses specifically your professional standing as a solicitor; since as I understand it is as a lawyer that, in part, you have been given the job by the Home Secretary. Her statement of 5 September 2015 described you as follows:

Fiona Woolf has had a long and distinguished career holding high-profile and challenging positions, including President of the Law Society and Chairman of the Association of Women Solicitors (AWS), and is only the second woman since 1189 to hold the position of Lord Mayor of London. As a lawyer, and latterly partner, at CMS Cameron McKenna for over 20 years, Fiona Woolf has worked in over 40 jurisdictions. She has advised over 25 governments and multi-lateral agencies such as the World Bank. She has also served as a member of the Competition Commission for 8 years. I am confident that Fiona Woolf has the skills and experience needed to set the strategic direction of the Inquiry, to lead the work of the Panel, and to challenge individuals and institutions without fear or favour to get to the bottom of this issue, and stop it happening again.

If you or I act as a solicitor in any capacity we are, as you know, bound by the SRA Code. Mrs May plainly represented that you are a lawyer; and reference to the Law Society means you are held out to the public as a solicitor.

Solicitors: professional duties

As a solicitor you will know of our duties which include: (1) we cannot take on work which is not within our expertise; (2) we cannot accept instructions where we may not undertake the work efficiently in the time available to us (ie we must not overstretch ourselves); and (3) we may not act where there is any question of conflict.

I have dealt already with conflict (3). Of (1) I do think those affected by your work are entitled to know what is your ‘expertise’ and relevant experience to deal with this inquiry, please (and see Inquiries Act 2005 s 8(1)). I know this is not a statutory inquiry; but on the point I am sure the common law would say much the same as s 8(1) (do you agree?). For example what is your experience of children law and relevant criminal law?

Taking on new work

And of your available time ((2) above) for the job? Leveson LJ, as far as I know, sat or otherwise worked more or less continuously on his press inquiry over most of a year. He delivered a full report after cross-examination of a variety of witnesses. Waterhouse J in respect of the 2000 North Wales inquiry read 3,500 statements and 9,000 files. No doubt many more statement and files will be involved in this inquiry. Are you confident you can give enough time to the work within the context of your professional duties as a solicitor; and of your other professional and ceremonial duties?

Please respond within the terms of Chapters 1 and 3 the SRA Code. I invite you please to reply to me, a fellow practising solicitor, before the point can be raised formally with Solicitors Regulation Authority.

Yours sincerely

David Burrows

Solicitor advocate

Sent to Lord Mayor’s 22 September 2014: enquiry reference no GE44360.