Mr Boddington and an abbreviated lunch in Coventry


Administrative law and the family courts


This post started from the relatively mundane fact that courts – especially in family proceedings – have for a long time adopted the practice of directing people to turn up an hour early for their hearing. I always doubted that anyone – court service (HM Courts and Tribunal Service) or a judge – had power to do this; but I have never researched it. Now I am told that, in parallel with judges saying ‘lunch means lunch’ (ie one hour for lunch) a bench in Coventry on 14 January 2020 have insisted that they would take a case at 1.30 pm as parties and advocates were all directed to attend by 1pm for 2pm hearing, they (or their clerk) said.


Except for the individuals concerned in Coventry, this may all seem a little trivial; but it masks two more serious points:


  • Does the court, or HMCTS, have the power to do what it orders a party (B) to do; and
  • If B doubts the court or HMCTS has such powers what is to be done about it?


I fear that family lawyers, despite their training and instincts, are a submissive breed when it comes to checking law. They assume that because a case says something the judge is right (many examples could be cited for this sad assertion). But, if the research has been done and a lawyer thinks the courts are wrong, or a case has not been correctly decided or – more importantly for what follows – the lawyer thinks delegated legislation is wrong: what do you do next?


Delegated legislation


As in so many aspects of life, family law is governed by delegated legislation and, in many cases, sub-delegated legislation (practice directions, practice guidance, protocols etc: see Wyatt v Vince and other cases mentioned below). Procedure is regulated by rules (mostly Family Procedure Rules 2010 (FPR 2010)); costs by CPR 1998 rr 44, 46 and 47; and, for example, legal aid practice and child support confronts us with a variety of regulations. And the procedure rules are supplemented by practice directions (as explained by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602: my only case before Hale LJ in the Court of Appeal). But what does a party to court or tribunal proceedings do if that party thinks the rule or regulation – and even more so, any sub-delegated legislation – is outside the powers of the body which has made it?


This question is raised at a time when, in the past three years, courts at the highest level have said parts of the practice directions which accompany FPR 2010 are wrong:


  • In Sharland v Sharland [2015] UKSC 60, [2016] AC 871 [2015] 2 FLR 1367 the Supreme Court (at [41]) agreed with Sir James Munby P that PD30A para 14,1 is ultra vires (ie outside the powers of the rule-makers, a committee chaired by Sir James). That paragraph has been rewritten.
  • In Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228, [2015] 1 FLR 972 PD4A para 2.4 on striking out claims was described by Lord Wilson, as politely as he could, as an ‘unhelpful curiosity’ (at [25]) and has now been revoked.
  • In Re a Ward of Court [2017] EWHC 1022 (Fam), [2017] Fam Law 725, Sir James Munby P said, in relation to a ward being interviewed, that FPR 2010 PD12D was wrong and should be corrected.


Substantive law: statute and common law


So what is substantive law and how can it be applied to the above questions? Substantive law consists of statute law and common law. Much of court procedure is defined by the common law, codified by the rules. Two examples will illustrate this: the open court principle is common law and is explained in a variety of case law. Exceptions to it – when the court may sit in private – are defined by the common law, but are also set out as a list in Civil Procedure Rules 1998 r 39.2(3). The ‘implied undertaking’ as to confidentiality of documents disclosed by compulsion now summarised in CPR 1998 r 31.22. In general terms these common law rules apply also to family proceedings.


Common law can only be changed by statute; and, in the case of fundamental principles like the open court principle, by statute in clear terms (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328). This principle of English law was mentioned in R (on the application of Miller) v The Prime Minister [2019] UKSC 41 (24 September 2019) where – referring to the common law and to constitutional law principles – the Supreme Court said:


‘[40] … We have already given two examples of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament, and that the Government cannot search private premises without lawful authority…. Such principles … include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public (Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ([R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513] 567-568).’


Procedural rules and the law


It follows from the above that a rule – being neither statute nor common law – cannot change the law. Rule-makers make rules which regulate how the law is applied; they do not make the law itself. This was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and much the same was said by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75). In Dunhill v Burgin Lady Hale said:


[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210 [per Lord Denning MR].


To the question ‘What then are the powers of the Rule Committee?’ Lord Denning MR in the Grosvenor Hotel case (at 1243) replied ‘They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land.’ What Lady Hale, Lord Denning and Buxton LJ say applies to any procedural rules, including FPR 2010. Substantive law can only be changed by Parliament or the judges (common law). Save where they are given the power expressly by statute rule-makers cannot change the law.


So how are FPR 2010 made? FPRC are delegated by Courts Act 2003 ss 75 and 76 to prepare the rules, just as the Lord Chancellor – or the Ministry of Justice – is delegated to prepare legal aid regulations. Sections 75 and 76 define the rule-makers’ powers (their vires). It defines what Parliament says they can do. Examination of ss 75 and 76 shows there is nothing in FPRC’s powers to say the rule-makers can change the common law. The open justice principle is common law as are most of the rules about expert evidence and disclosure; the basis of costs law is statutory (ie Senior Courts Act 1981 s 51; though s 51(1) expressly states that it is subject to any rules such as FPR 2010 Pt 28); and children law procedure are a mixture of law (Children Act 1989) and rules (mostly FPR 2010 Pts 12 and 16).


Boddington and judicial review principles


Is there any way, short of formal application for judicial review, that a party to proceedings where questions about subsidiary legislation arise, can raise the issue of the powers of rule-makers or other public bodies where this crops up in their case? That is where Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 comes in. Before looking at Boddington it is necessary to look at certain very basic judicial review principles. In Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 [1985] AC 374 Lord Diplock categorised the main grounds for judicial review as ‘illegality’, ‘irrationality’ (or unreasonableness) and ‘procedural impropriety’. This article will be concerned with the first, defined by Lord Diplock as:


By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.


A question in what follows will be whether a decision-maker – mostly the rule-makers – has given effect to the law which regulates to the Committee’s rule-making or the guidance which is issued alongside it.


The rule in Boddington: a collateral challenge


Mr Boddington was a rail commuter who travelled from Brighton and a smoker. He was prosecuted for breach of a byelaw which was said to prevent him from smoking on a train. He smoked on the train after being banned from doing so. He contended that the smoking ban was ultra vires the railway company as it went beyond its statutory powers under the Transport Act 1962. How was that challenge to the legality of the bye-law to be dealt with by Brighton stipendiary magistrate?


The House of Lords held that the magistrate had been wrong to rule that Mr Boddington could not raise the underlying vires question as a defence to the criminal charge, because, on the true construction of the statutory provisions, Parliament did not intend to exclude that defence to such a criminal charge. It was emphasised that the first time Mr Boddington had a sensible opportunity to challenge the vires issue was when he was charged with breach. (He had not raised it in any judicial review proceedings.)


Mr Boddington was entitled to make a collateral challenge in the criminal proceedings. It was not necessary for him to take separate judicial review proceedings. Lord Steyn explained this (at 175):


… Allowing a collateral or defensive challenge ‘avoids a cumbrous duplicity [etc, see above] as Lord Bridge put it in [Foster (above)]. In any event, expediency is not a sufficient and proper basis for taking away by judicial decision part of the jurisdiction of magistrates’ courts to rule on issues pertinent to the guilt or innocence of defendants….


Challenge to the validity of subsidiary legislation


Lord Steyn pointed out that if courts could not deal with the validity of subsidiary legislation, they might be left in the position of having to ‘convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge. This would involve an injustice which cannot be tolerated in our criminal justice system. Not to permit a collateral challenge was a state of affairs which Lord Steyn found (at 173) to be too ‘austere and indeed too authoritarian to be compatible with the traditions of the common law’.


Mr Boddington’s appeal ultimately failed because the House of Lords held that, under the relevant statutory provisions, the rail company did have power to impose a total smoking ban. The House held, however, that the magistrate would have been entitled to hear the collateral challenge to the vires of the bye-law under which he was prosecuted.


In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ (sitting with Peter Gibson and Mance LJJ) a benefits provision was found to be invalid, and it was held the Commissioner could have made findings on Mr Howker’s appeal to the Upper Tribunal (as it would now be). She pointed out (at [51]-[52]) that there were two categories of case where the validity of delegated legislation might be challenged. First was where administrative acts are aimed at a particular person (see Stannard (below)). The second is where subordinate legislation is of general character (ie directed at the world at large) (and see Lord Irvine LC in Boddington).


The question for a court or administrative tribunal, as Hale LJ explained in Howker concerns the extent of the jurisdiction in the court to hear and decide on validity:


[52] … It has been clear since Chief Adjudication Officer v Foster [1993] AC 754 that there is jurisdiction to entertain challenges to the validity of social security regulations in the course of the social security appeal procedures. The question is not, as it was in R v Wicks [1998] AC 92 and Boddington… whether the commissioner could entertain the challenge. The question [here] is whether he was right to reject it….


Vires of subsidiary legislation: to be raised in the court where it arises?


That is to say, if a question of validity of subsidiary legislation arises, can the question be dealt with in the court where it is raised? The short answer is: yes. In Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 the Queen’s Bench Divisional Court (Hickinbottom LJ, Whipple J) held that the court which tried an offence against community protection notice (CPN), was not obliged to consider the appropriateness of the notice where a defendant had not appealled against it when the notice was first made. Boddington did not apply, said the Divisional Court, because the CPN was specific to an individual and to his behaviour (following the Divisional Court decision in Director of Public Prosecutions v T [2006] EWHC 728 (Admin); [2007] 1 WLR 209).


By contrast, in White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536, QB Div Ct (Gross LJ, Singh J) the Divisional Court applied Boddington in respect of a prosecution by a local authority which had unlawfully created a site licence and occupiers of the site had not applied in relation to it. Allowing the occupiers application for judicial review Singh J said:


‘[35] As the decision in the Boddington case itself illustrates, there will be circumstances in which the courts will allow a person to raise an ultra vires argument even in a case which is not brought by way of judicial review.’


Friends, family or supporters and attendance at court: powers of HMCTS


And what of the person who wants to go into an open court, but is excluded by court staff? What are the powers of HMCTS? And this is relevant here; since it is probably an HMCTS direction which directs one hour early attendance.


Matthew O’Connor (MO) was a leading member of Fathers4Justice. He was due to be tried by magistrates for a public order offence. Court managers heard that there might be a demonstration at the court and decided to bar anyone who might be associated with MO unless they were listed as defence witnesses. When MO and others interested in attending his trial – eight to ten people – attempted to enter the court building, only MO and his lay representative were permitted entry. MO applied to the court for those excluded to be admitted on the grounds that he was being denied the right to a public hearing. This application was refused after advice from the justice’s legal adviser, and that a properly authorised court manager had taken the view that there was a risk on grounds of safety and security.


In R (O’Connor and anor) v Aldershot Magistrates’ Court, QB Divisional Court, Fulford LJ, Leggatt J) [2016] EWHC 2792 (Admin), [2017] 1 WLR 2833 MO and two of those accompanying him applied for judicial review of the magistrates’ decision; and the magistrates agreed to adjourn his hearing before them so he could apply. The Divisional Court emphasised the open justice principle (at [25]) by reference to cases such as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531, [2011] 3 WLR 388 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618.


The issue of admission to the court must be resolved by the court on the day; not by incurring the extra time and expense of judicial review in an already busy Administrative Court list (and see Chief Adjudication Officer v Foster [1993] AC 754 especially comments on expediency of Lord Reid).


The Family Court: resolution of the issue on the day


So what is to be done? It the vires (powers of the court or delegated legislation) is to be challenged, this should be done on the day of the hearing which considers the point. And if anyone says you should turn up at 1.30 pm, do so; but challenge the powers of HMCTS ever to do this again. Give as much notice as possible to the court (if possible by FPR 2010 Pt 18 application). If there is no time for this argue your point on the day, citing some or all the above authorities.


And enjoy a proper email etc free lunch in the future…


David Burrows

15 January 2020