President of the Family Division: what now?

20170722_161644First ‘view’ of Sir Andrew McFarlane P

 

Sir Andrew McFarlane’s first ‘view’ as President of the Family Division adopts the same title as his predecessor, Sir James Munby. This view, published on 24 January 2019, concentrates on the pressures of the present children proceedings system. It stresses the need – in straightened times – for practitioners and courts sometimes to cut corners, such as for ‘some time-limits’ to be extended. There is nothing, say Sir Andrew, that he ‘as President, can do to relieve the current pressure’.

 

That last comment must be taken first. Sir Andrew is quite correct: he has no budget and limited official administrative powers. Most would say his legislative powers were limited too; though Sir James was a highly creative – and prolific – legislator. Alongside that, it must be said that, nearly 15 years after the Lord Chancellor ceased to be judge, politician and legislator (see Constitutional Reform Act 2005), it is remarkable that the office of President of the Family Division keeps as many contradictions without any funds to support it as did that of the Victorian (and earlier) Lord Chancellor.

 

The President is pre-eminently a judge; and in that capacity Sir Andrew as a family lawyer is peerless (I declare an interest: he and I are two of only three continuing commentators of the original group – the foot-soldiers – on the Family Court Practice) The President is a legislator: he chairs Family Procedure Rules Committee and, especially in Sir James’s case, drafts numerous practice ‘guidances’ which are treated as quasi-legislative or judicial (which comes to the same thing for this purpose). These guidances etc go through no democratic process (rules changes are ‘laid’ before Parliament). And the President has an executive role with his responsibilities of running the Family Division. Finally, in the interstices of his three powers Sir James incorporated politics, as witness his numerous ‘Views’, guidances and ‘non-judicial’ (as they are called: eg speeches to bodies such as Resolution and ALC) interventions.

 

It is a role impossible for one person effectively to fill. Even Sir James, I believe, spread himself too thin. And of course it is almost entirely autocratic, save where, for example, extra money is required or when Family Procedure Rules Committee is responsible for signing off rules.

 

President’s office: a constitutional anomaly

 

The President’s office – especially as developed by Sir James – is a profound constitutional anomaly. As Montesquieu pointed out the legislative, executive and judicial tasks should be separated. The then Labour government – with mixed results in personal terms (eg Grayling MP and Legal Aid Sentencing and Punishment of Offenders Act 2012) – understood this when it came to a Lord Chancellor. They cured the constitutional impropriety by separating the inherited roles of the Lord Chancellor.

 

He no longer sat as judge in the judicial body of the House of Lords, nor as a legislator in the legislative House of Lords. A ‘Lord Chancellor’ remained in the cabinet; and she or he is now very much a relatively junior cabinet party politician. The Lord Chancellor’s department has a relatively substantial budget and is a legislator. Thus the Lord Chancellor is part of the executive and a legislator. The office’s judicial role has completely disappeared; and only rarely nowadays is the Lord Chancellor even a lawyer.

 

The three separate powers remain vested in various ways in the President of the Family Division. But he has no budget, so critical to any political role. As far as I know spending money is not part of his job description: it is not his job (save as a concerned human being). But should it be. Should he have a budget and the job of spending it? To what extent should a judge – any judge – be drawn too far in to the arcane processes of computerisation of court processes; or have control of (say) budgets for payment for expert witness (now tightly controlled by the Legal Aid Agency in publically funded cases: a special concern of Sir Andrew); or should he dictate the placement of video facilities for individual court-rooms, or the way court staff do their job, efficiently or not. So much for his executive role.

 

Rules and direction of family courts practice

 

As to legislative: Family Procedure Rules Committee is responsible for the first line of delegated legislation (ie before practice directions and guidances), namely Family Procedure Rules 2010. Practice directions are down to the President, but have to be approved and are mostly tacked on the parts of FPR 2010. Practice guidance comes below that in the quasi-legislative jungle. And then there are emissions from various judges (mostly Mostyn J); which are not judicial – ie part of the ratio decidendi – but treated as more or less binding on family lawyers. Someone needs to control and co-ordinate all this. The President’s office seems the obvious place. Again he needs a full professional staff for this (all non-judicial and civil servant members of FPRC are volunteers, which is crazy).

 

And the politician: if the new President is going to work his political skills to the bone as did Sir James, Sir Andrew must – again – have a proper secretariat. And he must have a budget. For example, on expert’s fees which are such a feature of difficulty for children or other proceedings covered by legal aid. In that instance, why not use assessors to sit with the judge; and then take the expenditure out of the Legal Aid Agency restricted regulations? Costs of assessors like judges would come direct from the Lord Chancellor’s budget. (I will write to Williams J – his Expert’s Working Group – about that: to be published separately.)

 

How to turn concern for ‘wellness’ into reality

 

If Sir Andrew is to continue the political approach to the President’s I can only urge him not to spread himself too thinly, as I believe did Sir James. With the breadth of the roles imposed upon him a limit on the tasks, alongside his pre-eminent judicial role, must surely be his aim? If I may I shall set these out one or two options in a following post.

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