Is it rational to trigger Article 50?

EU WITHDRAWAL AND PRIME MINISTER’S REASONS

 

The present Government proposes that the United Kingdom withdraw from the European Union following a referendum on the issue in June 2016. A Bill giving the decision on triggering the process to withdraw to the Prime Minister is going swiftly through Parliament. This article considers how a Prime Minister must exercise her judgment in taking that decision, by considering the following questions:

 

  • Discretion and reason – What is discretion and exercise of judgement; and how is it affected by operation of the rationality of the decision-maker (ie the Prime Minister in this case)?
  • Referendum result – How does reason apply to the referendum result; and how far was the result ‘advisory’?
  • Rights and EU withdrawal – How does the treatment of rights in EU withdrawal apply to an exercise of reason?

 

The EU withdrawal issue has been twice before the courts in recent months: before the Divisional Court in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html) and the Supreme Court as R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 (http://www.bailii.org/uk/cases/UKSC/2017/5.html). They will be referred to as Miller 1 and Miller 2 respectively.

 

These cases resolved only whether the Government must have Parliament’s permission – that is, an Act of Parliament – for the Prime Minister to trigger the process for UK’s coming out of the EU and by activating Treaty of European Union 1992 Article 50. At the time of writing there is a Bill before Parliament (set out below) which will do what the two courts said the Government must do.

 

This article concerns only the narrow point of what should operate on the mind of the Prime Minister when she considers the rationality of whether or not to trigger Art 50. In particular it will look at this in the light of two points: (1) the advisory nature of the referendum and (2) the rights of UK nationals and EU members engaged.

 

 

DISCRETION, JUDGEMENT AND REASON

 

Exercise of discretion

 

Any Minister to whose job is to exercise a discretion, or judgment in the making of a decision, must exercise it rationally. If judgment is exercised by a Government minister it must be exercised wisely and according to the law. It must be exercised according to reason, and not in an arbitrary way. Administrative Law (2014) Wade & Forsyth (11th Ed), often quoted by

 

A minister’s reasoning depends on appropriate information being provided to him/her. If appropriate information is provided and understood the minister has a firm foundation for making a decision. If there is a choice of courses, the minister decides by exercise of discretion. That exercise of discretion is governed by the same legal principles in 2017 as over 400 years ago in Rookes Case. In that case in 1598 the report, by Edward Coke, later Sir Edward Coke, said of the exercise of discretion of commissioners of sewers:

 

That they should do according to their discretions, yet their proceedings ought to be limited and bounded within the Rules of Law and Reason; for that discretion is a Science to discern betwixt falsity and truth, between right and wrong, between shadows and substance, betwixt equity and colourable glosses, and the Commissioners ought not to follow their wills and private affections;

 

The rationality of any exercise of discretion can always be brought into question. Statutory power is, in a sense, vested in a minister on trust for the governed as a whole. Therefore ‘unfettered governmental discretion is a contradiction in terms’ (Administrative Law (above) at p 295). The modern statement of the law on this is Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924 where a majority (four to one) in the House of Lords refused to permit a government minister to act in a way which, they said, was no in accordance with the Act of Parliament under which he proceeded (in that case with complaints from farmers about a Milk Marketing Board pricing scheme).

 

Lord Reid explained his view of the law after first saying that, it seemed to him, that the minister was trying to argue that there could only be ‘two possible interpretations of this provision either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.’ Lord Reid refused to accept this argument by the Minister:

 

I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

 

Prime Minister’s discretion

 

That is, according to Padfield, it is necessary to find out first what a relevant Act intends. The problem with the European Union (Notification of Withdrawal) Bill – and it is still a Bill – is that it does not say what it intends beyond giving authority ‘to notify’ the UK’s intention to leave the EU. Clause 1(1) says, under the heading ‘1 Power to notify withdrawal from the EU’:

 

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

 

And therein lies the discretion: the Prime Minister ‘may notify’. She has to decide. In so doing she must act rationally. Underlying that rationality question it is critical for her to be clear – and preferably to say that she is clear – what is meant by the 2016 referendum. Secondly, she needs to understand as fully as possible what will be changed adversely to those she represents – the UK nationals affected in the variety of ways involved – as a result of triggering Article.

 

The first of these points – the advisory nature of the referendum – has been explained to her, or for her, by the High Court and Supreme Court. The second could not have informed the electorate’s mind when they voted in the referendum – as she well knows. She knows this because neither she nor the army of civil servants working on the question have begun to give her an informed view of it all – eg by presenting or publishing a draft ‘Great Reform Bill’.

 

So that takes us back to Coke and what is meant by the discretion she has been given by s 1(1) and how she exercises it.

 

 

THE REFERENDUM

 

Meaning of the 2016 referendum

 

The referendum issue can be approached in this way. In December 2015, the UK Parliament passed the European Union Referendum Act 2015. The ensuing referendum on 23 June 2016 produced a majority of those who voted, favour of leaving the European Union. UK government ministers then announced that they would bring UK membership of the European Union to an end.

 

The effect of any referendum said the Supreme Court in Miller 2 depends on the following:

 

[118] … the terms of the statute which authorises it. Further, legislation authorising a referendum more often than not has provided for the consequences on the result. Thus, the authorising statute may enact a change in the law subject to the proviso that it is not to come into effect unless approved by a majority in the referendum

 

The 2015 Act did not state what the outcome of the referendum was to mean. It left what was to happen next open. No provision was made in the Act for the consequences of the referendum. The earlier 1975 referendum was described by ministers as advisory, whereas the 2016 referendum was described as advisory by some ministers and as decisive by others. So how had ministers seen the question of outcome of the referendum, asked the Supreme Court:

 

[125] It is instructive to see how the issue was addressed in ministers’ response to the 12th Report of Session 2009-10 of the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom). The Committee included the following recommendation in para 197:

“[B]ecause of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”

The UK government’s response as recorded in the Committee’s Fourth Report of Session 2010-11 was

“The Government agrees with this recommendation. Under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

 

The courts and the referendum: ‘advisory’ said the High Court

 

So in 2010 ministers were told the referendum ‘cannot be legally binding’, and are therefore ‘advisory’; and in 2011 ‘Parliament must be responsible’ for any decision. In the Divisional Court in Miller 1 the judges drew attention to the parliamentary briefing paper No 7212 Pt 5.

 

[107] Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.

 

The ‘briefing paper’ referred to in §107 is set out in Annex 1 to this article. The passage which is likely to have been in members’ minds when they voted for the 2015 Act, and should be in Mrs May’s mind now, is in Pt 5 as follows:

 

[The Referendum Bill (as it was then)] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

 

The Supreme Court decision in Miller 2 was, in the end, expressed by the majority as simply as:

 

[124] Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.

 

 

RIGHTS AND EU WITHDRAWAL

 

EU rights lost by withdrawal: the judge’s view

 

If new legislation is planned the Government department publishes a green paper for discussion of a subject and for it to receive views. A white paper can then follow to set out Government policy and is likely to be followed by a bill setting out proposed new law. Here there has been a four line bill (awaiting its third reading as I write). There has been no green paper; and a white paper emerged from the Government whilst the bill was going through Parliament.

 

So what is the Government’s understanding of rights which may be lost – to EU nationals in the UK, and to UK nationals in the EU – by EU withdrawal? This should perhaps be uppermost in a reasonable Prime Minister’s mind if she considers the triggering of Art 50?

 

In Miller 1 the Divisional Court explained that under European Communities Act 1972 s 2(1) rights had been incorporated into – ‘given legal effect’ under – UK law (§§[57]-[66]). The court identified three categories of rights under ECA 1972 and EU law (a categorisation accepted by the Supreme Court: see Miller 2 at §69) which would be affected or lost as a result of EU withdrawal:

 

  • Rights capable of being reproduced in UK law;
  • Rights derived by UK citizens from EU law in other member states;
  • Rights of participation in EU institutions that could not be replicated in UK law.

 

The Supreme Court explained that, in general terms (at §69) ‘our domestic law will change as a result of the United Kingdom ceasing to be party to [the EU treaties], and rights enjoyed by UK residents granted through EU law will be affected’. The Supreme Court went on, at §§70-72 to give examples of these rights. For example in category (1), a lengthy paragraph included:

 

[70] … They include, for instance, the rights of UK citizens to the benefit of employment protection such as the Working Time Directive, to equal treatment and to the protection of EU competition law, and the right of non-residents to the benefit of the “four freedoms” (free movement of people, goods and capital, and freedom to provide services)….

 

The Divisional Court explained the consequences for these rights as follows:

 

[64] As to category (1) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer [by the Government] to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect….

 

What the Divisional Court said of category (2) rights included the following (italics added):

 

[65] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (2) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament.

 

The Prime Minister on rights

 

So what does the Prime Minister, who is to sign off Art 50(2), think of all this? We have her 17 January 2017 speech and the White Paper to test this. What do these say on the subjects? This and the white paper is the only real test, so far, of her reasoning on the subject. Her speech of 17 January said that

 

… we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

 

So what laws did she have in mind, bearing in mind what the judges had said on the subject:

 

We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can. I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now.

 

Mrs May suggests surprise in her speech that not all EU members will agree; and if they will not where does that leave category (2) rights? Is that of concern to her? She does not say. It is a matter which, it could be argued, should act on her mind before she triggers Art 50.

 

She then dealt with protection of ‘workers’ rights’. ‘A fairer Britain’ is a country ‘that protects and enhances the rights people have at work…. we will ensure that workers’ rights are fully protected and maintained.’ She did not distinguish between rights of workers in the UK, and of UK nationals in EU countries.

 

EU withdrawal White Paper: treatment of rights

 

The Government’s White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’, February 2017 (Cm 9417) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf) put a little flesh on the bones of Mrs May’s 17 January speech. (It is that White paper which included – with only one verb, ‘’s’, in the quoted paragraph (on page 3) – the remarkable: ‘And another thing that’s important. The essential ingredient of our success. The strength and support of 65 million people willing us to make it happen.)

 

The contents page of the White Paper is set out at the end of this article (Annex 2). It says the White paper deals with rights in two contexts only:

 

  • Securing rights for EU nationals in the UK, and UK nationals in the EU
  • Protecting workers’ rights

 

The White Paper does not attempt to list these rights nor to deal with them in the way that the two judgments do. Still less does the White Paper produce the Government’s promised – or is it? – Great Repeal Bill. Securing rights for EU nationals, and for UK nationals in the EU is dealt with in two page; and one of those pages is mostly graphs. The second page includes:

 

6.3 Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations…

6.4 The Government would have liked to resolve this issue ahead of the formal negotiations. And although many EU Member States favour such an agreement, this has not proven possible. The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.

 

These two paragraphs – on which the rights for the future a number of people depend – represents no substance: not what rights are engaged and how they will be dealt with, for example. As far as it goes – and that is not very far – it is little more than hope and a little recrimination. There is not reflection that if things like this had been considered with EU partners (as they still are) before a decision to leave, they might have been a little keener to help. Mrs May seems a remarkably naive negotiator, but perhaps that goes with bossiness.

 

‘Workers’ rights’ get even less: one page, two paragraphs and no graphs. And that is it on the rights sections. Compare the White Paper with the efforts to provide information in the two court judgements and that put into production of a White Paper which should have been in gestation since June last year, and you realise how this country is served by its judges as against by its government.

 

 

CONCLUSION: REASON IN EXERCISE OF DISCRETION

 

How to define the nut; defining the rights lost

 

In the case of R (Quila & anor) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, [2012] 1 FLR 788 (http://www.bailii.org/uk/cases/UKSC/2011/45.html) the Supreme Court were concerned with a Home Office regulation which – to help to combat forced marriages, it was said – raised the age for immigration to the UK for marriage to 21. Such evidence as there was suggested that many more unforced marriages would be impeded than forced marriages prevented. Had the Secretary of State (Mrs May, as it happens) acted rationally in deciding to agree to the regulation?

 

No said Lord Wilson (with whom three of the other four Supreme Court Justices agreed). She had identified a nut, but failed to identify the size of the nut to which she was taking a sledge-hammer:

 

[58] … The number of forced marriages which [the regulation] deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made…. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut.

 

Leaving the EU is the sledge-hammer which the referendum has advised Mrs May – no more than advised – to wield. One aspect of the nut – the problems which, it is thought, EU withdrawal would solve and the advantages it create – can no doubt be guessed at by any number of Brexit enthusiasts. But – the other aspect of the nut – a reasonable person must weigh all matters in the balance.

 

Rights of UK nationals and EU members to be lost

 

The factors the Prime Minister must put in the balance – and which she might have to explain to a High Court judge (the equivalent of the number of unforced marriages in the Quila case) – have not been explained by her to us. The White Paper does not do it. Amongst these factors, it might be thought by her, are the loss or disruption of many rights which go for EU members in the UK and UK nationals in the EU; workers’ rights; rights on family breakdown and for children if parties live in UK and EU respectively. Many more such rights have yet to be clarified and their future enacted into draft legislation. (Had they been defined by a Government department it is most likely we would have a draft ‘Great Reform Bill’ by now.)

 

It is the Prime Minister’s decision if the Bill is passed. She does not have to say how she reaches her decision, but the less she says the more she may have to explain later. Within the range of the two areas covered in this article – the size of the rights ‘nut’ and an understanding that the referendum was ‘advisory’ of MPs only – it can be said of the Prime Minister’s decision that two conclusions follow.

 

First, for the Prime Minister to proceed on the basis that she must withdraw UK from the EU because it is the ‘will of the people’ is wrong. Constitutional principle (supported by the 7212 briefing paper (Annex 1 below) and the Divisional Court and Supreme Court) is that it is a decision for her and MPs. This decision of MPs takes into account, only, the referendum outcome. Secondly, without setting out fully and clearly what rights will be lost and with what consequences she expects for those affected the Prime Minister cannot rationally exercise her discretion to trigger Art 50.

 

The combination of both grounds makes any decision at this stage open to a challenge that it has been arrived at irrationally; and if challenged successfully, that it could be declared void by the High Court.

 

David Burrows

8 February 2017

© David Burrows, Paris 2017

 

 

ANNEX 1

 

Extract from Briefing Paper

 

  1. Types of referendum This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented. In the event, there was a substantial majority against any change. The 1975 referendum was held after the re-negotiated terms of the UK’s EC membership had been agreed by all EC Member States and the terms set out in a command paper and agreed by both Houses.64

 

 

ANNEX 2

 

Contents page of White Paper

 

  1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.
  2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.
  3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.
  4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.
  5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.
  6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.
  7. Protecting workers’ rights – We will protect and enhance existing workers’ rights. 8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.
  8. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world. 10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.
  9. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.
  10. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

 

On-line divorce scheme: an update…

Users to be recruited for on-line divorce system

 

At the end of January a practice direction was added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title; but it was not clear how to gain access to the new scheme. This has been explained by HMCTS.

 

After publication of PD36D inquiries were made of Ministry of Justice and of Family Procedure Rules Committee. These inquiries elicited the response that HMCTS are in the first phase of the pilot. Potential users of the new scheme will be personally invited to use the system and given access following a screening process at the pilot site. Therefore, at this stage in the pilot, access to the pilot is controlled whilst HMCTS build confidence in the system for any wider use. The pilot is being run at the East Midlands Divorce Unit in Nottingham and HMCTS are currently recruiting users in the local area to participate in the pilot. How these ‘users’ are chosen, is not stated.

 

With this in mind, I have updated my note of 31 January 2017 (https://dbfamilylaw.wordpress.com/2017/01/31/on-line-divorce-scheme/). Subject to that I have retained most of the original text. The ‘system’ represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

Lawfulness of rule changes

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). That said, I am concerned that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4) (CA 2013)) which enables the rule-makers to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (CA 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274). However, there is nothing to say a practice direction (which is a lesser statutory species) can alter a rule.

 

PD36D says that where it ‘applies’ an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ (CA 2003 s 75(5)(b)). When it comes to amendment of rules I am anxious as to whether this PD is lawful (as explained above: the President using a practice direction to alter a rule, which originally is made by a statutory body). And is it ‘simple’ or ‘simply expressed’? This is a field where the scheme must be designed for use by private individuals who are proceeding without a lawyer (litigants in person). This one of a number of questions HMCTS will, no doubt, want to answer.

 

Further thoughts on the clarity of the scheme include:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the PD speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority). Let us hope HMCTS can be clear on terminology, and that – in the usual way – a statute takes priority over a rule.
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce: same points as above apply.

 

The new PD has had some publicity amongst family lawyers. It would have been helpful for the plans for it to have been made more public, and for PD36D to have had an explanatory note – something which goes out with all statutory instruments – so all of us knew what was intended by it. It would have been of value if that note had included:

 

  • That the new pilot system applies to all divorces from [a date] for [the individuals who are to be targeted by the scheme]
  • Whether or not it is compulsory for those chosen
  • Where information about the scheme can be found at [link to site]
  • Any information about the data collected, confidentiality etc.

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should please have been amended by another rule. It is sobering to think that someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, and the petitioner has remarried, that could be bigamy, and another petition – nullity this time – may be involved.

 

This, perhaps, puts a duty on the respondent’s adviser who is troubled by the legality of these rules. I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).

Reasons for judgment

Common law duty to provide reasons

 

In a passage which applies to any common law judgment, and certainly to any in civil or family proceedings Lord Phillips MP (in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at §[118]): ‘while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the Judge to produce a judgment that gives a clear explanation for his or her order’.

 

This case and the principles encapsulated in it were recently referred to in Iqbal v Iqbal [2016] EWCA Civ 19 (judgment: 25 January 2017). In that case, the Court of Appeal was confronted by an appeal by a husband who had been committed to prison on evidence which they felt was inadequate. Basic procedural rules were not followed. The husband had not been present when an ancillary relief order was made and on the wife applicant’s evidence only. A committal order was made on a judgment summons application involving just under £4M, as was explained by the Sir Ernest Ryder, Senior President of Tribunals in the Court of Appeal.

 

Inadequate evidence on judgment summons application

 

In his judgement Sir Ernest dealt with the evidence and judgment in the proceedings which lead to the order and which Mrs Iqbal wanted to enforce. Despite its inquisitorial functions, the court failed to make further inquiries as to the husband’s means; but proceeded on assumptions:

 

[20] Financial remedy proceedings in the Family Court are in part inquisitorial, however hotly contested the issues may be between the parties. The court has an obligation to satisfy itself about the statutory factors that are relevant to the decision it makes or the settlement it approves given that the parties have an obligation of full and frank disclosure. At any stage during the final hearing the judge could have asked about the existence and content of the basic evidential materials, for example the husband’s Form E. He did not. The manner in which assumptions were made by the judge can be ascertained from this exchange on the transcript between the judge and the wife:

 

Judge Brasse: He has not provided any information in this case at all.

Ms Iqbal: Yes

 

No attempt was made by the judge to test the wife’s evidence:

 

[21] … The wife was not sworn and relied upon her submissions and signed documents which contained no truth recital. There was no real attempt by the court to test anything that the wife said. The process of determining that the husband had assets of £6,440,000 was little more than an inadequate (and it appears incorrect) computational exercise based upon what the wife said to the judge in court. In one exchange the judge says “What is the evidence? (And) you have not got it” and in another he comments: “I appreciate that you do not have any actual original documents to support these, but you assert that…”. The judge was on notice of the evidential failings inherent in the process that was being conducted and yet he failed to act upon his own warnings.

 

Requirement to give reasons

 

The judge provided no judgment, nor any reasons, for what he had decided:

 

[22] The judge failed to give a formal judgment with the consequence that this court has had to analyse the transcript to ascertain whether there is a clear thread within the discussion which identifies the conclusions to which the judge came and sufficient reasoning for the same….  It should not be taken as read that this court will undertake that process lightly given the clear strictures of this court which apply as much to family proceedings as any other civil process: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Parties are entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts.

 

It is this passage and the references to reasons for a judgment which leads to this note. In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 the Court of Appeal, in a judgment of the court (Lord Philips MR, Latham and Arden LJJ) and under a heading ‘The requirement to give reasons under common law’, said that ‘[15] There is a general recognition in the common law jurisdictions that it is desirable for Judges to give reasons for their decisions’. This is not only so that parties may be clear as to whether they have grounds of appeal, and that an appellate court knows how a judge has reached his/her decision, but also:

 

  • That justice may ‘be seen to be done;
  • If decisions are to be acceptable to the parties and to members of the public;
  • A requirement to give reasons may help to concentrate a judges mind; and
  • Reasons may also provide an important means under the common law for setting precedents for the future

 

So, said the court, to put it at its simplest (§[16]): ‘justice will not be done if it is not apparent to the parties why one has won and the other has lost’; and the ‘why’ requires reasons, not just a statement of what the judge has decided and a bald order of the court.

 

Sufficient to comply with requirement

 

So what is sufficient to comply with the requirement for reasons? There is no need for a judge to deal with every argument put forward by a party; but – in a passage the court held, should apply to all judgments (§[18]) – Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 at 122 said:

 

When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted… (see Sachs LJ in Knight v Clifton [1971] 2 AER 378 at 392–393, [1971] Ch. 700 at 721).

 

Thus if appeals are to work properly the judge must enable the appellate court to understand why a decision was reached:

 

[19] It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process….

 

The court concluded this passage by referring to a judge’s approach to expert evidence and reasons why one expert may have been referred to another:

 

[20] The first two appeals with which we are concerned involved conflicts of expert evidence. In Flannery Henry LJ quoted from the judgment of Bingham LJ in Eckersley v Binnie (1988) 18 Con L.R. 1 at 77-8 in which he said that ‘a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal’. This does not mean that the judgment should contain a passage which suggests that the Judge has applied the same, or even a superior, degree of expertise to that displayed by the witness. He should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another…. Whatever the explanation may be, it should be apparent from the judgment.

 

Lack of reasons will not necessarily justify an appeal; but if an order is made which does not make immediate sense justification for an appeal may more readily be found.

Abuse by cross-examination in family courts

 

Law reform, Women’s Aid and a Parliamentary domestic violence group

 

The All-Party Parliamentary Group report on domestic violence, Domestic Abuse, Child Contact and the Family Courts All-Party Parliamentary Group on Domestic Violence (APPG report) of October 2016  (https://www.naccc.org.uk/downloads/NewsItems/APPG_Inquiry_report_Domestic_Abuse_Child_Contact_and_the_Family_Court.pdf) deals with domestic abuse and with contact in the context of family cases where contact is ordered. This article deals only with domestic abuse in the context of family court proceedings, and in particular the further abuse which may be inflicted by cross-examination of the complainant (A) by the alleged abuser (B); and, perhaps to a lesser extent, where A – as a party – may wish to cross-examine B. This is a subject covered extensively on this site already (and parts of previous detail are repeated here). This takes the subject further by reference to the APPG report and concludes with specific suggestions for law reform, which teh Justice Secretary might like to consider.

 

The issue is described by the APPG report (page 4):

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

The report recommends ‘special measures’ which in family courts terms are proposed to include ‘dedicated safe waiting rooms for vulnerable witnesses and separate entrance and exit times [for them in all] family courts’. These measures could go much wider, especially – as discussed here – in relation to Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) and as highlighted by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at §28 (and see https://dbfamilylaw.wordpress.com/2017/01/09/vulnerable-witnesses-and-children-human-rights-and-legal-aid/).

 

Where domestic violence and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for A to be submitted to cross-examination by B; and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article therefore proposes:

 

  • Ways in which some funded help for A (under (1) and (2) above) can be provided as the law now stands; and
  • Specifically to draft a suggested law reform which can be set out as a Schedule to an existing Bill and added as an amendment to Family Law Act 1996 Part 4 (which deals with the present statute law on domestic violence).

 

Family proceedings: lagging behind criminal proceedings

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James Munby, President of the Family Division which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. The need of the abused party (A) was highlighted in H v L and R [2006] EWHC 3099 (Fam) where a father (ie B) wanted to cross-examine his child’s abused mother. The judge, Roderic Wood J, ‘invited urgent attention’ (§[25]) to judges being given power to appoint a publicly funded advocate in criminal proceedings as under YJCEA 1999 s 38(4). 10 years later, beyond a review urged by the Guardian and Women’s Aid and ordered by the Justice Secretary, Lynn Truss, nothing has happened.

 

In criminal proceedings, a witness in A’s position is protected (YJCEA 1999 Part 2 Ch II). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Complainant: a party to proceedings

 

Criminal proceedings in this area are procedurally different from civil proceedings, and especially family proceedings; though both are capable of dealing with the same set of facts, though with different results. In criminal proceedings Crown Prosecution Service takes proceedings. Though A is the complainant, she is a witness so there will always be a CPS advocate to deal with her evidence in court and to cross-examine B. In family proceedings she is, by definition, a party. She still gives evidence and may be cross-examined (as in (1) above, considered more below); but, if unrepresented, she is responsible for running the case and for cross-examining B (ie (2) above).

 

So if she may not best be able to deal with cross-examination of B, because intimidated or for all the reasons she may want an advocate appointed, then already – that is, as the law now stands – Matrimonial and Family Proceedings Act 1984 s 31G(6) says:

 

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

 

So long as a judge accepts that A is ‘unable to… cross-examine’ B – and in the context a judge should need little persuasion of that – then s 31G(6) applies and the judge will ‘ascertain’ from A matters which need to be put to B and will question him him/herself in terms which are in A’s ‘interests’.

 

Section 31G(6) has been the subject of a small amount of case law; but, for the avoidance of doubt in the area defined by (2), a clear steer (ie a finding) by the common law (ie by a High Court judge in a decided case) on the subject as soon as possible would be helpful.

 

Cross-examination of the complainant

 

It is the situation at (1) above which calls for extra care, and for public funding. Formal parliamentary law reform would be infinitely preferable, to put the issue beyond doubt. However, if A is legally aided then it is suggested here that help along the lines of YJCEA 1999 Ch 2, and especially ss 38(4) and 40, could be available and be treated analogically in family proceedings.

 

Chapter 2 starts the way it means to go on. It leads with s 34 which reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

Chapter 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a victim, where the various forms of abusive situation in ss 34-36 apply:

 

(4) If the court decides that it is necessary in the interests of justice for the witness to be [cross-examined other than by accused in person], the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Funding of help for the complainant: legal aid and Human Rights Act 1998 factors

 

Sir James’s 30 December 2016 statement continues: judges cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority doubts this. Much can be done by judges under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) (above) (a case involving evidence from a child witness) the family courts can act (italics added):

 

[28] There are things that the [family] court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

If B’s cross-examination genuinely ‘diminishes’ (see YJCEA 1999 s 16) A’s evidence and denies her a fair trial, her European Convention 1950 Art 6(1) rights are engaged. If legal aid is not available (ie the case is outside LASPOA 2012 Sch 1 paras 11-13 (domestic violence etc)), A should apply for exceptional case funding (LASPOA 2012 s10(3); R (Gudanaviciene) v [LAA] [2014] EWCA Civ 1622). Resources questions can be addressed under the present law, whatever Sir James and Truss’s review say.

 

Common law and a fair trial

 

Witness/party protection and fair trial rights depend on:

 

  • Special measures (equivalent to YJCEA 1999 ss23-28 and per Re W [28] (above)) applicable in family proceedings; and
  • A has a right to a fair trial; and to give evidence of a quality which is not ‘diminished’ (akin to YJCEA 1999 s16).

 

If the above is right A must be protected by special measures such as a ‘s 38(4)’ equivalent advocate: is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged, and LASPOA 2012 s 10(3) may apply. This article argues that protection for A can be funded – now – from an existing legal aid certificate (Sch 1 paras 11-13) and pro-active common law case management. And, it must be stressed: this is not a plea for Presidential ‘practice guidance’ or a ‘tool-kit’. It is a straight-forward urging – with Lady Hale’s Re W words in mind – to a High Court judge to order appointment to be funded from a civil legal services certificate (the that judge is willing to find it within his/her inherent jurisdiction). It is a straight question of whether the common law is willing to move in that direction.

 

If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ (within the terms of YJCEA 1999 s 16), and if a fair trial is thereby threatened, European Convention 1950 Art 6(1) is engaged. LASPOA 2012 s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s 38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

 

Law reform and public funding: the court appointed advocate

 

Finally, what about statute law reform? It will be assumed, first, that s 31G(6) does what it is said to do above, but common law clarity would be helpful.

 

This leaves the court-appointed advocate, the funding of that advocate and amendments to the rules to cover that. For example, drawing directly on YJCEA 1999 ss 34, 38(4) and 40 amendments to Family Law Act 1996 along the lines of the following could be passed in Parliament:

 

  • In the circumstances set out in paragraph (2) no person (B) who is the subject of an application under this Act may in any family proceedings cross-examine in person a party (A) to those proceedings who is the complainant in connection
  1. with that application; or
  2. in any other proceedings in which the allegations the subject of the application arise [ie to cover issues also in eg contact proceedings].

 

  • The circumstances referred to in paragraph (1) are that A has made an application under this Act and has requested the judge that an appointment be made as at paragraph (3) below.

 

  • If application is made under paragraph (2) for A to be cross-examined other than by B the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

  • The person appointed at paragraph (3) is not responsible to B

 

  • To cover the proper fee or costs of a legal representative appointed under Family Law Act 1996 s ## [ie (3) above] (respondent’s representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his or her appointment [shall be met from public funds].

 

This will need tightening up a lot; but it represents a start….

Reply to Roger Scruton’s conservative view on rights

Freedoms and claim-rights

 

Sir Roger Scruton’s essay on How do we decide which human rights should be protected in law is published as a blog at http://barristerblogger.com/2017/01/08/exclusive-guest-post-sir-roger-scruton-decide-human-rights-protected-law/ . I plan a longer reply in relation to human rights and family law generally. In the meantime the following is developed slightly from my comment on the host blog site.

 

Scruton is introduced as ‘the country’s leading conservative philosopher and thinker’. This may be an ambitious claim; but it is not the purpose of this note to deny it. It is fair to ask: why do we have to ‘decide rights to be protected’; but space prevents an answer to that, perhaps the real question. And, in any event, Scruton does not answer it. He merely tells us what he considers to be rights and – though these are part of the thinking behind European Convention 1950 – what are not, in his view, rights. He concludes that certain rights which protect individual ‘sovereignty’ should be retained and claim-rights be ‘adopted, if at all, with caution’.

 

His paper divides rights into freedom and claim-rights (or benefit rights). The former are the classic rights to which an individual may be said to be entitled: a right to life, to a fair trial, to compensation in tort for injury; and certain rights to protect the individual from government oppression (torture, privacy etc). These rights create in the rest of us matching duties not to encroach on them. They are the rights of the individual and, by definition, entirely selfish (and no criticism is thereby intended by use of ‘selfish’).

 

Claim rights are the main thrust of Scruton’s argument and opprobrium. He appears to date them largely to a post-Second World War period (on the evidence of this paper Scruton’s grasp of history is not strong). He categorises these rights as: ‘claims for benefits, and rights to “non-discrimination” accorded to privileged (sic) groups’.

 

Discrimination and benefits rights

 

Let us dispose immediately of ‘privileged’. A knowledge of discrimination laws surely indicates that its whole purpose is not to provide privileges but to increase to a general level for the less privileged, rights which others already have? Thus in 1928 all women over 21 got more or less the same rights as men to vote – was that a privilege? Since then they have become entitled to equal status (but perhaps not yet equal access) as students, judges and company directors. It took a civil war in the States to erode slavery; and discrimination was still (still is, perhaps?) strong. It is cheap, I am afraid, to take – as Scruton does – Travellers and gay’s wedding cakes as the hall mark of your anti-discrimination argument. There are much more significant and larger groups whom discrimination protects.

 

My favourite discrimination is that which the zebra-crossing creates for the pedestrian over the otherwise all-powerful (subject to regulation by speed limits, taxation etc etc: yes I know…). For me the car is the supreme exemplar of Toryism and selfishness; and for any pedestrian, moving along at 3/4 mph, to be able to step out in front of and momentarily control the car driver is a true freedom. In Scruton’s terms, I think, it would be an example of outrageous, and unjustifiable, discrimination.

 

Rights to ‘Christian’ community responsibilities (or ‘socialist direction’)

 

And of benefits rights: you don’t have to be a Christian – a reading of the Bible, as a valuable historical and political text, might help – to know the parable of the ‘Good Samaritan’. This parable may be said to teach a modern liberal approach to responsibilities. It is an approach which is well over two thousand years’ old. It was this approach which informed medieval ideas of community (one of the oldest administrative law cases – Rooke’s Case (1598) 5 Co Rep 99b – establishes the modern duty of the community as a whole to provide flood defences), the Tudor poor laws (Wolsey is credited by some with initiating the first legal aid scheme); and, yes, of the shift in the 19th century from charity provided by individuals to individual rights, mostly provided by the community or state.

 

I give this last point to Scruton; but I base it (as a non-Christian) on ordinary West European impulses which I regard as wholly ‘Christian’. He might see them as ‘a socialist direction’ (see p 7 in my copy of his essay). Perhaps as a modern liberal (to be distinguished from Scruton’s ‘classical liberal’ (ie ultra conservative, as I read him)) I believe that the state should tax the rich and others with income (or, perhaps, assets as well). It should give to those (per Keynes, Beveridge): who need – the sick, children’s education; police; amenities (drainage, roads etc); those who need help with protection of rights (eg lawyers); where the environment needs protection; for defence (perhaps); and so on. In other words: in ‘Christian’ or human – civilised, may I say? – terms, all this is for the good of the community or ‘common wealth’.

 

In the two millennia since Christ (at least) rights have developed to create not only individual rights, but also community responsibilities. Scruton would see these responsibilities pared to a minimum. A modern society, I believe, should retain the claim of benefits rights so far achieved; and should continue to review them and – as need be – edge them forwards.

Vulnerable witnesses and children: human rights and legal aid

Cross-examination of victims of domestic violence

 

Women’s Aid and the Guardian are concerned about the lack of protection for victims of domestic violence in family courts where their alleged abuser is permitted to cross-examine them. This article develops some of the ideas touched on in my earlier Vulnerable witnesses, parties and children in family proceedings at https://dbfamilylaw.wordpress.com/2017/01/05/vulnerable-witnesses-parties-and-children-in-family-proceedings/. The wider problems of vulnerable witnesses and of children in family cases go much deeper than this, as will be explained. The question to be addressed here is: can these problems be helped by legal aid under the existing statute and common law? Sir James Munby P (or his Ministry of Justice draftsperson) thinks not. I think he – or the Ministry – may be wrong.

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. Family justice ‘lags woefully behind the criminal justice system’, he said. The problem identified by Women’s Aid arises where an alleged abuser (‘B’: generally male, though not invariably) personally cross-examines the victim (‘A’) in (say) domestic violence proceedings; including, as the Guardian says, by ‘tormenting’ her in court.

 

Under press pressure the Justice Secretary, Lynn Truss, has ordered a review. In reality the problems, partly those of the women in A’s position, go much deeper than Truss’s review. In truth they are a feature of the unmet legal need faced by the real shortcomings in our family just system when it comes to protection of child witnesses and other vulnerable witnesses (as identified eg by Amnesty International: see eg Cuts that hurt (2016) Amnesty International (https://www.amnesty.org/en/documents/eur45/4936/2016/en/)).

 

‘Urgent attention’ judicially requested 10 years ago

 

The problem identified above is precisely illustrated by the facts in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 where an alleged abuser (ie B) wanted to cross-examine the abused mother (A) of his child. Roderic Wood J said, in a judgment given over 10 years ago (7 December 2007):


[25]   I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process.

 

The same can apply, in exactly the same way, to child or young adult victims of alleged abuse (see eg Re A (Sexual Abuse: Disclosure) [2012] UKSC 60). H v L and Re A are 10 and five years old respectively; yet the problem subsists. Judges think they are powerless to help, lawyers – it seems – can see no way through and the Ministry of Justice is impervious to the problems. This article question whether, in law, the judges are as powerless as they and the President seems to think.

 

Child and vulnerable witness protection in criminal proceedings

 

In criminal proceedings in the parallel situation, the child or other vulnerable witness (eg a party to alleged domestic abuse) cannot be put in this ‘tormented’ position. In relation to a child, s/he has automatic protection by the court having power to impose and order payment from public funds of an advocate to cross-examine a victim. YJCEA 1999 Part 2 Ch II (ss 34-40) is entitled ‘Protection of witnesses from cross-examination by accused in person’. By analogy in family proceedings this can be taken to include one allegedly abusive party of another, of a witness (as in Re A (above) or of a child. The tone is set by s 34 (a subject more widely explained by Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393; and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Chs 8 and 19):

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

YJCEA 1999 Part 1 Ch II widens the spectrum of offences to deal with other forms of abusive allegations. Section 38(4) provides that and advocate ‘must’ be appointed to cross examine (as mentioned in the otherwise unhelpful Re K & H (Children) [2015] EWCA Civ 543)) to protect a victim, where ss 34-36 apply:

 

(4) If the court decides that it is necessary in the interests of justice for the witness to be [cross-examined other than by accused in person], the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

The advocate has no ‘responsibility’ to the accused (s 38(5)). Procedure for appointment, which could be adapted for use in family courts is fully set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Resources implications; legal aid

 

Sir James’s statement (or the MoJ draftsperson) continues: the family courts judiciary cannot act because ‘it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers’. This is unlikely to be the law. Yes, public expenditure is involved; but much of this can be provided under judges existing common law and statutory powers (including use of YJCEA 1999 ‘special measures’ by analogy) and with full use being made of exceptional case funding (LASPOA 2012 s 10(3))).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 (a case involving evidence from a child witness) Lady Hale spoke of existing measures and of family court judges’ reticence to use them (emphasis added):

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Scale of the problem in family courts

 

The problem is much wider than the Justice Secretary seems to understand. In 2014 a working group was set up by Sir James to consider the evidence of vulnerable witnesses where this might be ‘diminished’ by their attendance in court as witnesses, parties or other participants in family proceedings (considered further in http://www.familylaw.co.uk/news_and_comment/family-proceedings-common-law-and-vulnerable-witnesses).

 

The group produced draft rules in mid-2015. The draft took many leads from criminal proceedings under Youth Justice and Criminal Evidence Act 1999 (special measures to help children and vulnerable witnesses). Still no new rules have been formalised. The draft covers children and vulnerable individuals. It includes – but this is only one element – provision for those who are subjected to further abuse by being cross-examined in person by their alleged abuser. Victims include one of a former couple; a child who gives evidence proceedings; or any other witness in family proceedings.

 

The Ministry is aware that the rules amendments have resources implications; but so too have the 1999 adjustments in criminal proceedings. In family proceedings legal aid could be used in European Convention 1950 exceptional case funding for vulnerable parties and children; and many of the criminal proceedings measures are already available but not used, in family proceedings as Lady Hale has pointed out in Supreme Court (Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 at §[28]).

 

Exceptional case funding

 

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). Section 10(2) then goes on to provide that is the LAA considers the case appropriate for an exceptional case determination and an applicant is available on means, civil legal services can be provided. Section 10(3) defines an ‘exceptional case’:

 

(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.

 

In R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the Court of Appeal made clear that ‘Exceptionality [under s 10(3)] is not a test’ (§[29]), it is a descriptor of the legal aid to be granted. The court (at §§[31]-34]) explained how the Legal Aid Agency should treat and assess an application for exceptional case funding.

 

Resolution of resources questions

 

YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction. A witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)); and  thirdly, s 17(1) with witnesses effected by “fear or distress”. In the last two cases the court must be satisfied that any evidence “is likely to be diminished” by the circumstances of evidence being given. In what follows “witness” by analogy will include a party in family proceedings.

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30). In family proceedings, the measures available for a witness would be the same as for a party.

 

If the tormenting or other in-court abuse of the witness/party denies her a fair trial, including because the value of her evidence is ‘diminished, it is not a fair trial fair for her or for the party for whom she is giving evidence. European Convention 1950 Art 6(1) rights are engaged. Means assessment permitting, and if legal aid is not already available, she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, resources questions can be addressed now, without changes to primary legislation. The law in this area – which Lady Hale’s comment in Re A [2012] above clarifies – could be represented by:

 

  • The list of special measures in YJCEA 1999 ss 23-28 as developed and explained by Lady Hale in Re W can be applied, by analogy or where otherwise already available, in family proceedings;
  • Regard being paid to the victim – ie A’s – right to a fair trial; and as to what is required to ensure she can give evidence of a quality which is not diminished (YJCEA 1999 ss 16 and 17); and
  • If rights are required to be protected by special measures and an intermediary (or cross-examination by an advocate in the same way as in YJCEA 1999 s 38(4)), then is her trial fair without this (if resources must be spent)?

 

If the answer to the final question above is ‘no’, then her fair trial rights, are engaged. If she has legal aid under a certificate within the terms of LASPOA 2012 Sch 1 paras 11-13 (domestic violence, children etc), then this needs amendment to secure intermediary or advocacy help (on analogy with YJCEA 1999 s 38(4)). If not, and fair trial rights are in issue, then s 10(3) exceptional case determination may be engaged.

 

Effective, imaginative and pro-active case management

 

The practical and resources issues which children and vulnerable witnesses raise fall into two main categories:

 

  • A as a victim or alleged abuse: that is, in the situation identified by the Guardian and Sir James Munby P (and dealt with in H v L and R (above) and (less satisfactorily) in Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding)[2016] 1 FLR 754
  • The child or other vulnerable individual (as eg defined by YJCEA 1999 s 16 and 17) – or a party, under the same pressures in family proceedings – who gives evidence, which may be diminished by the circumstances of the case, and where special measures are called for (see Lady Hale in Re W [2010] (above) and Re A (above)).

 

Given what was said by Lady Hale in Re W the second category of cases resolves itself by effective, imaginative and pro-active case management which, as Lady Hale asserts, judges can do, but fail to take on (things ‘the court can do but … that it is [not] used to doing at present’: Re W per citation of §[28] above). If a party has legal aid – and practitioners should be wary of any statutory charge issues if the certificate applies to other proceedings – then proactive case management and full use of court resources (eg video-link; live-link and screens) can deal most special measures. If particular intermediary support is needed and this has resources issues amendment of legal aid will be needed.

 

YJCEA 1999 s 38(4) (quoted above) – if this is taken as a model for now for what follows – deals with potentially abusive cross-examination, where B is unrepresented, by imposing on B an advocate (who is not ‘responsible’ to B). It requires him/her to assist the court and to ensure, in the circumstances, that B has a fair trial; and to do so by cross-examining A. This is funded by B cannot in law do so. How would that work in family proceedings? Under YJCEA 1999 s 40 payment from public funds is provided for (and the working of these payments is touched on by Justice denied? The experience of unrepresented defendants in the criminal courts April 2016, by Transform Justice at p 15 (http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf). If the Ministry of Justice can do this for victims in criminal proceedings, why not the same for those in a similar position – perhaps being cross-examined on the same facts as those in criminal proceedings – in family proceedings?

 

‘Special measures’ and legal aid

 

Category (1) (above) represents the Truss review problem. This can be funded – now – from an existing certificate (Sch 1 paras 11-13). If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ and a fair trial threatened, Art 6(1) is engaged; and s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

Vulnerable witnesses, parties and children in family proceedings

Cross-examination of victim by an alleged abuser

 

The Justice Secretary, Liz Truss, and her Ministry of Justice have woken up – at last – to the real dangers and hardship created by the present framework of certain family proceedings. The hardship has been aggravated by the cut-backs in legal aid since April 2013.

 

On 30 December 2016 a statement by Sir James Munby, President of the Family Division (https://www.judiciary.gov.uk/announcements/president-of-the-family-division-sir-james-munby-cross-examination-of-vulnerable-witnesses-in-the-family-court/) was issued by the Ministry. It followed a Guardian report before Christmas which dealt with, as it was said, the further abuse of domestic abuse victims permitted by family courts (https://www.theguardian.com/society/2016/dec/22/revealed-how-family-courts-allow-abusers-to-torment-their-victims ). The concerns raised by the Guardian and the President have lead to a report that the Justice Secretary, Lyn Truss, is looking into the problems raised (https://www.theguardian.com/society/2017/jan/04/truss-orders-review-to-ban-abusers-tormenting-victims-in-family-courts); and the Guardian has followed all this with a strong leader voicing concerns at the delay in protection for unrepresented victims of alleged abuse (https://www.theguardian.com/commentisfree/2017/jan/05/the-guardian-view-on-family-courts-cuts-hurt?utm_source=dlvr.it&utm).

 

This note concentrates – as do the Guardian articles – on the victims of alleged abuse; but the subject and the reforms needed in the family justice system go much wider; though these reforms altogether, alongside those referred to by Sir James, are together stalled by the delays insisted upon by Ministry of Justice. Reforms are urgently needed in three separate (if sometimes overlapping) areas of the work of the family courts:

 

  • the evidence of children (as distinct from their views) in their own proceedings (as in Re W [2010] (below));
  • cases where the judge may be asked to hear the views of a child; and
  • the evidence of vulnerable adult witnesses (as in eg Re A [2012] (below)).

 

Evidence of ‘vulnerable people’ in family proceedings

 

In his statement Sir James emphasised ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. He pointed out that ‘the family justice system lags woefully behind the criminal justice system’ (eg under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2, as discussed below). He said that the courts cannot act, since ‘it requires primary legislation’; and any action ‘would involve public expenditure. It is therefore a matter for ministers’.

 

The criminal justice ground work – to which the President refers – is in place under YJCEA 1999. A background to this legislation is provided, for example, by Lady Hale in House of Lords in R ((D) (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 at para [19] (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064 and Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19).

 

Lady Hale considered the specific subject of vulnerable witnesses, their evidence and cross-examination by their alleged abuser, in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948. She stressed the ‘flexible’ bases on which family courts can deal with evidence from witnesses – and by extension, children – who, it is said, had been abused by a party (eg by the father of A in Re A):

 

[36] It does not follow, however, that X [a vulnerable young adult] will have to give evidence in person…. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face….

 

In the Camberwell Green Youth Court case (above) Lady Hale explained the background to YJCEA 1999 which aims to deal with the ‘quality of a witness’s evidence’ (s 16(5)). Sections 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction: first, a witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)) and  thirdly, s 17(1) with witnesses effected by ‘fear or distress’. In the last two cases the court must be satisfied that any evidence ‘is likely to be diminished’ by the circumstances of evidence being given. In what follows ‘witness’, by analogy, will include a party (eg child, alleged abuse victim etc) in family proceedings.

 

Family proceedings and the VWCWG

 

Sir James Munby set up the Vulnerable Witnesses and Children Working Group (‘VWCWG’) in mid-June 2014. Six weeks later the Group produced an interim report which recommended a single ‘new mandatory rule [yes, a single rule] … supplemented by practice directions (PD) and guidance…’. The group did not deal with the three aspects of the issues, mentioned at the start of this article, which their brief demanded.

 

By Spring 2015 a further draft report was produced, followed six months later by draft rules (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) which were put out for consultation. And that is as far as this has been taken by Ministry of Justice. The draft rules have yet to be formalised, and a practice direction issued to support them. From Sir James’s statement it seems likely that the Ministry of Justice has now realised that resources issues arise, which were not considered in the VWCWG reports. The Justice Secretary who, we are told, has taken this on must now be aware – as her office should have been, at least two years ago – that state expense will be involved to protect victims (as is the case for those needing protection under YJCEA 1999, Part 2).

 

Youth Justice and Criminal Evidence Act 1999, Part 2

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 Lady Hale spoke of the YJCEA 1999 measures and to the way family courts might use them (emphasis added):

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Sir James Munby P says he would ‘welcome a bar’ to the ability of ‘alleged perpetrators being able to cross-examine their alleged victims’; but, a lack of ‘primary legislation’ to incur ‘public expenditure’ – ‘a matter for ministers’ – makes law reform impossible. If Lady Hale in the Supreme Court (Re W [2010] (above) and the human rights implications of legal aid legislation (per Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)) are followed, it is questionable whether this is necessarily the case.

 

Lady Hale’s statement in Re W [2010] is authoritative guidance on the current state of the law and the ‘things the court can do’. Measures in YJCEA 1999 ss 23-28 are already largely available for family proceedings. The ‘intermediary’ point creates resources implications which can depend on case management; and case management depends on whether the intermediary or other legal assistance (per YJCEA 1999 s 38(4)) can be provided on legal aid.

 

Legal aid, ‘resources’ questions and a fair trial

 

‘The questions which challenge the child’s account’ must be fairly put to the child, says Lady Hale. This is essential; ‘not that counsel should be able to question her directly’ (Re W [26]). If this is so for a child, does not the same apply for any other vulnerable witness or party?

 

If ‘fair’ questioning is the criterion, then if this cannot be done because of the effects on a witness’s evidence then can it be a fair trial if that evidence is not given through an intermediary, or if an advocate is not instructed per YJCEA 1999 s 36(4) to cross-examine the victim for an alleged abuser acting in person? ‘The court’s only concern in family proceedings’, says Lady Hale in Re A (above) at [36] ‘is to get at the truth.’ The witness – or party in many family proceedings – must be able ‘to give their evidence in the way which best enables the court to assess its reliability’; and, says Lady Hale, ‘it is certainly not to compound any abuse which may have been suffered…’

 

If obtaining the truth does not represent a trial which is fair for the victim, then her (or the child’s) European Convention 1950 Art 6(1) rights are in issue and – means assessment permitting – she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, many resources questions can be addressed under the present legal aid scheme. No immediate changes to primary legislation would be needed to take protection for victims a long way towards the added protection they need.

 

David Burrows

5 January 2017