Common law and the ‘open justice principle’
 The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.
So said Toulson LJ (now Lord Toulson) in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618. Meanwhile FPR 2010 r 27.10(1) says that all family proceedings must be held in ‘private’; and in Bristol City Council v C & Ors  EWHC 3748 (Fam), Baker J – an experienced Family Division judge and children lawyer – cites this rule as authority for the proposition as to the privacy of private proceedings:
(1) Save where the court directs otherwise, care proceedings under Part IV of the Children Act 1989 are held in private: Family Procedure Rules (“FPR”) 2010 rule 27.10(1). (2) FPR Rule 27.11, and Practice Directions 27B and 27C, give duly accredited representatives of newsgathering and broadcasting organisations the right to be present in private care proceedings unless excluded by the court on certain limited grounds set out in the rule.
So the common law says ‘open justice’ is the starting point (explained by such House of Lords authority as Scott, Attorney General v Leveller etc); whereas a family proceedings rule says the opposite. Which is right?
The starting point is the common law; and that the common law can only be overridden by express statutory authority. However, a problem with the common law, and with the fundamental rights defined by it, is that a straightforward definition of what it says is not always easy to find. Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law, as summarised by Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(1), confirms this Convention assertion: ‘The general rule is that a hearing is to be in public’. Neither of these create the law. They merely provide a summary of what the law already says (as Toulson LJ above confirms).
The common law is not likely to give an answer very different to that which the family courts have adopted thus far. It is merely that it will do so in a clearer and more principled way than does the present jungle of rules and practice directions which family judges seek to uphold at present.
Lady Hale and the common law
In UK Constitutionalism on the March? (12 July 2014 address to Constitutional and Administrative Law Bar Association Conference 2014) Lady Hale spoke of a recent emergence amongst judges of an ‘emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration’. The ‘continued and developing protection offered’ by the common law must not be overlooked, she said. It may not:
…offer a prescriptive list of rights but this does not mean that it is not a rich source of fundamental rights and values, nor that its development has been somehow arrested once the Convention was incorporated into domestic law.
She pointed out the success of rights challenges based on common law principles in recent years; and stressed in particular the Guardian News and Media case (above). She drew attention to three cases dealt with in the Supreme Court in 2014, cases which involved rights to a fair trial and open justice, and to freedom of speech. In these cases the court has taken the opportunity, she said:
… to underline the view that the natural starting point in any dispute should be domestic law – albeit not always unanimously. The Convention may then be used as a check to see if any further development of the common law may be required.
It is the rights referred to above, linked with the right to respect for family life, with which the family law debate on privacy and publicity starts.
The rights concerned in publicity and privacy of family proceedings – the ‘transparency’ debate are wholly imbued by fundamental common law principles: of open justice, press freedom and an emerging principle, that of privacy and a right to respect for family life (largely drawn, it must be said, from European Convention jurisprudence). So what is the law on altering a fundamental principle; and what is the effect of the effect of FPR 2010 r 27.10(1) (eg as referred to by Baker J (above)).
Fundamental rights: common law ‘the starting point’
Parliament can legislate in a way which is contrary to common law rights; but if it does so – and Lady Hale touches on this point in her speech – 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  UKHL 33;  2 AC 115 (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  UKHL 21,  1 AC 563 (a case concerning fundamental rights and legal professional privilege)
 … 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.
As Toulson LJ said in Guardian Newspapers v West London Magistrates: this area of open and private justice is governed by common law. It concerns fundamental rights: open justice and publicity, as against such rights of privacy as the common law may permit. Legislation on this area of family law is very limited. The most obvious statutory provision is Administration of Justice Act 1960 s 12 (though there are others of limited effect in eg Children Act 1989).
The fundamental position protected by the law is that all court hearings – civil (which includes family) as well as criminal – should heard in public. Any derogation from this must be justified. Family lawyers have tended to think that hearings should be in private with open justice being the exception. Thus has arisen their adoption of the term ‘transparency’. This is wrong. A fundamental right, protected by the common law, can only be derogated from – changed – by express primary legislation (R v Secretary of State for the Home Department, exp Simms per Lord Hoffman (above)).
Looking at it from the opposite direction – the ability of court rules (a form of delegated legislation) to alter substantive law – Buxton LJ explained the limitations of court rules (speaking of CPR 1998, but the same applies of any court rule) in Jaffray v The Society of Lloyds  EWCA Civ 586:
 … The CPR 1998 [he was], being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique  AC 602 at p 628.
Common law open justice
So what is the position on open justice with civil proceedings? The common law rule is that all proceedings should be in public (Scott & Anor v Scott  UKHL 2,  AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished, said Lord Scarman in Attorney General v Leveller Magazine Ltd  AC 440 at 469:
… unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally.
As Toulson LJ mentioned at para , another aspect of the open justice principle was picked up by Lord Scarman – ‘a thinker ahead of his time’, and in a minority in Harman (on a point which has now been altered to the position advocated by Lord Scarman: see CPR 1998 r 31.22) at that stage – in Harman v Home Office  1 AC 280, 316. Of open justice he said (at 316):
… [The judge] is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott  AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.
…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.
The open justice principle is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’; and in CPR 1998 r 39.2(1) asserts that: ‘The general rule is that a hearing is to be in public’. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies.
Common law and Civil Procedure Rules 1998
Probably the easiest version of the common law to follow is as summarised in CPR 1998. Rules 31.22 and 39.2 set out the principles relevant to what is under discussion here. Rule 39.2 (it makes more sense to consider r 31.22 later) provides as follows:
General rule – hearing to be in public
(1) The general rule is that a hearing is to be in public.
(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.
(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;*
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;*
(d) a private hearing is necessary to protect the interests of any child or protected party;*
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court considers this to be necessary, in the interests of justice….*
Each of the sub-paras marked * would be relevant to family proceedings; and with these and any other accretions to the common law specific to family proceedings this rule would seem to be sufficient – as it is in all other civil proceedings – to dictate when a court should sit partly or entirely in chambers. That is to say, all hearings must be in open court, and any hearing in private must be justified one or more of the grounds set out in r 39.2(3) or in any other statutory provision (eg Administration of Justice Act 1960 s 12).
So what is the law today? There is no doubt. The common law rules. It dictates what the law is and what the family courts should follow. It can only be altered by express primary statutory provision. FPR 2010 r 27.10 is not such a provision; and there is nothing in any statute – eg Courts Act 2003 ss 75 and 76 (which gives Family Procedure Rules Committee its rule-making powers) – which enables the FPR 2010 rule-makers to take course which seeks to require most family proceedings to be heard in private. Rules 27.10 and 27.11 are ultra vires the rule-makers and should not be followed by the courts. The common law – as expressed by CPR 1998 r 39.2 above – serves perfectly well; and it is the common law which family court judges should follow.