#CSAinquiry BIAS AND THE SINGLE JUDGE

A single judge and a fair #child sex abuse inquiry

In his thoughts on the subject of a chair for the child sexual abuse inquiry (at http://scepticalthoughts.blogspot.co.uk/2014/12/a-judge-led-inquiry.html) Jonathan West looked at the issue of whether the inquiry should be led by a judge. He confronted immediately the negative argument put by so many: that it cannot be an ‘establishment’ figure; and explained his conclusion that it should be a Family Division judge (or ex-Family Division judge ie now in the Court of Appeal or Supreme Court).

Jonathan’s analysis is brilliant. I add only one dimension to it: bias as an aspect of fair decision-making. And it was my concern with ‘bias’ which is the point at which I became truly aware of what was going on in the child sexual abuse inquiry world. I started, as I remain: a family lawyer (with eg no personal CSA experience, no expertise in criminal trials or journalistic investigation on this subject) with a profound concern for family law reform.

‘Bias’ and fair hearing

The concept of fair hearing is basic to our system of administrative law and of justice. A decision-maker must hear both side of an argument or case before s/he makes a decision (the same goes for an argument between two small children); and all of us must admit to your biases (‘declare an interest’, is another way of putting it). All of us are biased. For example I am sceptical of politicians (especially Tories), many journalists, anyone who accepts an ‘honour’ and people who advertise their football club allegiance (I am not interested in professional football: another bias?). I positively dislike all that USA stands for (in my eyes); but some individual Yanks I may get on with….

Bias is inevitable, whoever we are and whether or not we are ‘members of the establishment’ (an almost meaningless term – since no-one seems able to define it). Jonathan discusses the term briefly. The issue is not whether bias is there. It is what the individual biases are; and how they influences the decision-maker. That is to say: does it get in the way of making a fair decision? In my blog on ‘Reflections on Bias’ (https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ ) I refined this a little further: the law distinguishes between where a decision-maker (eg civil servant, judge or panel chair) is deemed to be always biased (eg a financial or family interest); and one where s/he are likely to be regarded as biased – ‘perceived’ bias.)

It is the circumstances of the bias which matters. I once had a case where a Mr Channon disliked Freemasons: he asked a judge, who had just decided an important preliminary point in his favour, to ban Freemasons from dealing with the case further. The judge refused – he had no power to do so; but said he was a Freemason, anyway. Channon was a brilliant physicist from a rough working-class back-ground. After a 5-day trial before a white public-school judge he successfully sued his former solicitors (I don’t like Freemasons either, by the way). Channon’s case ended up, on appeal (also successful to him), before ‘Judge Harry Potter’: the Court of Appeal judges were Lords Justice Judge, Henry and Potter (Channon v Lindley Johnstone [2002] EWCA Civ 353 – http://www.bailii.org/ew/cases/EWCA/Civ/2002/353.html ). Bob Channon hated everything about the establishment (but because of his engineering interest in flight and of her interest in land-mines, he had contacts with Princess Dianna) but a series of ‘establishment’ judges found for him whilst I dealt with him.

‘Bias’, a fair trial and child sexual abuse inquiry

So what has rights to a fair trial, bias and so on to do with an inquiry? At the end of the inquiry process a report must be made to the Home Secretary. That report is a patchwork of decisions: findings of fact; probably assumptions galore (after this passage of time); assertions of failure and wrongdoing; and recommendations for the future. Each of these decisions will require the weighing up of two or more options (often almost instinctively) by the decision-maker.

An inquiry is part of our administrative law; and like the common law, administrative law procedure (‘procedure’ is the means whereby a decision or result is achieved) is based on the idea of fairness. And fairness requires that both sides of an argument – audi alterem partem – be heard before a decision is made.

Impartiality – ie freedom from bias – is the most important component of procedural fairness; for a decision-maker who is in fact biased in some relevant way cannot by definition give a fair decision.

Bias is a relative term. As a matter of psychological fact, total freedom from all bias is never possible. The importance is that bias be recognised and, where it is relevant, that it be admitted to by the decision-maker. A judge who knows a witness in a case, must say so as soon as s/he knows of it. Fiona Woolf failed to admit her potential for bias, immediately or at all. To me she was rotten from the start. She should have said openly at the point of appointment what were her biases (and the extent to which she was not competent to do the job, a slightly different point). And she should never, ever, have allowed Home Office officials to draft her letter (the Home Secretary should know this).

A statutory inquiry

Jonathan explains why he says that there should be a statutory inquiry (Inquiries Act 2005), chaired by a single chair with assessors (which must be the right answer). He says why he thinks the chair needs to comply with the following:

(1) ‘Needs to have the respect of all but the most anti-establishment survivors.
(2) ‘Needs to know enough about how inquiries work to be able to effectively wield the powers of a statutory inquiry, and so get the evidence needed for informed recommendations.
(3) ‘Needs to have [professional] experience of abuse, its effects on victims, and on administrative arrangements designed to minimise it.
(4) ‘Needs to have sufficient stature that radical recommendations will get taken seriously by government and other bodies when the report is issued.’

He expands (3) further:

In my view, it is not enough to have prosecuted, defended or acted as a judge in criminal cases where the defendant was charged with child abuse crimes. We already know that abusers ought not to abuse, this is trivially true. The inquiry will be looking into why non-abusers didn’t take evidence of abuse seriously, and so let abusers get away with it. In doing so, these non-abusers have mostly not committed any crime.

He then goes on to make a point which seems to me to be lost by so many when they look at this inquiry:

[The inquiry is] going to have to look at institution procedures, organisational cultures, how and why people don’t feel able to come forward with concerns, and what needs to be done to change this. So we will need somebody who has been involved in this aspect of child protection….’

He concludes that a senior family judge – he suggests Court of Appeal or Supreme Court (and I agree) – is what is needed. And that judge needs the ‘the confidence of the survivors’.

The confidence of survivors is only part of the first criterion. I would say this comprises also what is asserted by the remaining three: that we all – posterity that is – seek a person who can put forward what was lacking from Lord Carlile’s inquiry into Ealing Abbey and St Benedict’s School (to which Jonathan refers); namely the ‘radical recommendations’ referred to in Jonathan’s (4).

The second phase of this inquiry must be to put forward fully respected could be to try to ensure that nothing as institutionalised – or in people’s homes domestic as this happens again. This is where a competent and experienced family judge comes in.

Radical recommendations: the pool of judges

‘Others should be in a position to know whether any particular person meets all these criteria described’ says Jonathan:

… the field is fairly narrow, there are not that many people in the entire country who have the necessary knowledge and experience. But I think that the number of possible candidates who meet all these requirements is greater than zero, and we can therefore move on and finally set this inquiry in motion.

I would say the pool is around a dozen: two in the Supreme Court, five in the Court of Appeal and five in the Family Division (ie High Court judges). All are ‘establishment’; but if anyone imagines judges to be glad-handing high-livers dining nightly with City and Government mafiosi, they really should think again. The whole point of the judiciary is that it is separate from the Government (the executive and legislature: remember separation of powers?) It is a judge’s job to know when bias is applicable to the circumstances and to any issues they must deal with.

Since it has taken six months not yet a to find a chair – and only a long retired too old judge has so far been floated for a couple of days – why do we not work on a lowest common denominator basis. We could give the job to a judge whose full-time job it will be. They are paid to recognise bias in themselves. And such a judge might yet do a job akin to that of the Cleveland Report over 25 years ago; and produce a report with ideas for child law reform fit for the twenty-first century – I can think of a number of first class candidates in the pool I mention above.

#CSAINQUIRY: RIGHTS AND THE CHILD SEX ABUSE INQUIRY

Introduction: ‘a law to stop this…’

‘There must be a law to stop this’ you said angrily.

‘Meaning?’

‘Meaning what is – or rather is not – happening with this child sex abuse inquiry. People are getting ill over the delay. Oh and – obviously – the corruption of Fiona Woolf’s appointment…’

‘We don’t know it’s corrupt; but we know we don’t know what she’s told the Home Office.’

‘Well we have human rights… Don’t we’. There was anger still in your look, but also a note of hope in your voice as you watched me.

‘Yes we have human rights’ I said slowly. ‘And there’s the common law as well…. But hey?..  where does that leave us? Where does that leave what’s happening with this inquiry?’

‘OK, yes, where? They’ve failed to appoint a chairman with the right expertise; and they’ve failed to scrutinise properly – perhaps not at all? – the panel’s partiality. They haven’t talked to any of the survivors about what they’re expecting. And can anything be done over the delay in setting up an inquiry like this.’

‘So… a law to deal with all this? Maybe there is; or at least maybe, for some of your questions. I need to set out a few basics first. I start from the fact that an inquiry like this is set up by a Government minister, in this case the Home Secretary. She makes the speech, or reads out the Home Office statement. It is her civil servants at her direction who make the underlying decisions.’

‘So it depends on what the Government decides’?

‘Yes; but that depends on what the law – administrative law in this case – says they can do…’.

The basics: administrative law and common law

The setting up of any inquiry is a matter for administrative law: that is the away the law is operated by the Government (the executive). Law is made up of the judge-made common law as explained in case, and statute law; and a large part of our common law is a judge explaining what is meant by statute law (‘statutory construction’). This is all overlaid by European Convention 1950 law; though here most European Convention 1950 law comes to the same thing as the common law.

The two fundamental principles of law, and of quasi-judicial decisions made by an administrative decision-maker – eg an inquiry or a civil servant for a Government minister – are that the decision-maker must hear both sides of an argument before making a decision; and that the decision-maker must have no personal interest in the outcome of the case or inquiry other circumstances demanding a decision (ie ‘bias’).

The main scope for challenge of administrative decisions is judicial review. This does not enable a judge to re-make the decision, but to check whether the decision-maker has done his/her job properly. For example, has the decision-maker exercised his/her powers properly in accordance with the powers given by Parliament (eg made regulations within what Parliament anticipated); has s/he followed the correct procedures in reaching the decision (eg consultation of the appropriate people: I come back to this); and in exercising discretionary powers has the decision-maker acted fairly and reasonably? If not a High Court judge can set aside a decision unlawfully wrongly or unfairly made; or order the decision-maker to do what the law says s/he should be doing.

Judicial review and the common law

And this is where the common law comes in. Judicial review is a remedy developed by judges, almost by definition. They have very wide discretion – ie power to decide which way to jump on a particular question; and sometimes we can only guess what they will do. The guess will be educated by what previous judges have done. In the area of inquiry law there does not seem to have been very much judicial action.

Judges are a cautious breed. One of the best and most liberal judges of the past thirty years is Lord Bingham (see his book Rule of Law Tom Bingham, 2008). In Rule of Law he spoke of the importance of judges moving law only slowly along a line. If the law is changed too radically by judges it may be unfair on earlier case, or on cases in the pipeline. Radical change of law is for Parliament. The field of judicial review is a classic case in point; no judge is likely to want radically to reinterpret the common law; and probably not in such a controversial area. That said, there is no reason why the law on inquiries should not be reviewed and parts of it reframed in the light of the questions you’ve asked.

Judges and quasi-judicial decision-makers

The essence of an administrative decision is that it is like a judge’s decision in court. The decision-maker must have all relevant facts; must understand the law and any discretion which a law has given to him/her and must apply the law and informed discretion to the facts. The decision-maker – like the judge in court – can then make a decision. The more the decision-maker complies with these rules the less s/he is likely to be open to challenge on judicial review.

In what follows I will treat administrative decision-making as ‘quasi-judicial’. The decisions of a decision-maker in terms of their assessment on judicial review – procedure adopted, application of relevant law etc – must be approached and judged in much the same way as those of a judge.

There is one crucial exception to the role of the decision-maker as against that of the judge. A judge can – and sometimes must – create law, because there is none there: this is the common law in action.  By definition an administrator can only operate where Parliament has said they can; and this will be by Act of Parliament, or properly made regulations, rules or guidance under that Act). S/he must make sure s/he acts within the four corners of powers granted to him/her; that any discretion exercised is permitted by law; and that decisions which are taken are in accordance with the spirit of the law in question.

Common law and human rights

One last point, which may crop up here. In many ways English common law and human rights law come to much the same thing (a law of privacy developing from European Convention 1950 law is an exception). Lady Hale explained this in a recent speech (http://www.supremecourt.uk/docs/speech-140627.pdf). But the common law may go further. It is difficult to see that a Convention right has been breached by there being no basis for challenge to the setting up of the inquiry: ‘bias’ there may be; but does this restrict any particular person’s right. An inquiry, for example, is not a ‘trial’ of anyone – ie it does not conflict with their civil rights – so European Convention 1950 Art 6(1) (right to a fair trial) is not infringed.

‘And so, my friend, can the common law be asked to put right a possible gap in fairness of the law such as over the inquiry panel make up?

You were looking at me with a slightly glazed expression. ‘OK, I’ve got all that, but where does that get us with my questions?’

‘Right. Your questions: impartiality and bias; expertise of an inquiry member; and consultation of individuals interested in the proceedings and outcome of the inquiry?’

‘And the delay’.

‘Yup, and that.’

‘Well?’ Your anger had returned, tinged with impatience.

[To be continued]

‘BIAS’ AND FREEDOM OF INFORMATION

A right to know?

This note seeks to answer the question: can a private individual request disclosure of information in relation to an inquiry set up by a Government minister. Specifically can a member of the public insist on disclosure of information as to the qualifications and impartiality of an inquiry panel member to take on the job? Can a member of the public in any way challenge the bias (‘bias’ is a technical legal term in this context already explained in https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/: specifically there in the context of Mrs Fiona Woolf’s appointment to chair a child abuse inquiry) – or possible bias – of a panel member? Can that person see relevant information as to what is known by a Government department of a panel member?

The short answer is that probably a member of the public is entitled to this information under general principles in Freedom of Information Act 2000 s 1(1):

1 General right of access to information held by public authorities.

(1)Any person making a request for information to a public authority is entitled—

(a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)if that is the case, to have that information communicated to him.

That said, the law on inquiries is not as clear as it might be. I will concentrate here on a discretionary inquiry set up by a minister; but I shall say that for disclosure purposes common law rules for a discretionary inquiry are much the same as those set out for statutory inquiries under Inquiries Act 2005 are much the same.

Freedom of Information Act 2000: Kennedy

The question of the extent to which information can be compelled to be produced by a public body was considered by the Supreme Court recently in Kennedy v The Charity Commission [2014] UKSC 20 (http://www.bailii.org/uk/cases/UKSC/2014/20.html). A journalist, Mr Kennedy, had asked under FOIA 2000 for information from the Charity Commission on George Galloway’s Miriam charity. His request had been refused. The Commission successfully argued – in that particular case – that their refusal was covered by the exemption in FOIA 2000 s 32(2).

The Supreme Court, in agreeing with the Charity Commission (on a 5-2 majority), considered fully the law on openness of public bodies; and, incidentally, the extent to which this was governed by the common law. European Convention 1950 law was only relevant where it diverges from domestic law (as eg in the case of privacy).

Judicial body: the ‘open justice principle’

There is no doubt that judicial processes must be open (subject to certain narrow exceptions: see eg https://dbfamilylaw.wordpress.com/2014/09/01/family-laws-shakey-hold-on-the-common-law/). Lord Toulson summarised his view of the law in this area at paras [110]-[140]. He and the court as a whole take their starting point from his judgement in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

Any secrecy by a court as to information held by it (the Guardian wanted to see papers read by a magistrates’ court district judge: and so they should said the Court of Appeal) must be justified either by statute, or – as in the Guardian case – by common law principles. Each case depends on its facts (Lord Toulson: para [113]); but denial of access must be justified:

[114] There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples.

If parliament is to make an exception to common law rules, especially in relation to a fundamental right, it must do so expressly and clearly (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33), as it has done in the case of children proceedings (Administration of Justice Act 1960 s 12; and see FOIA 2000 s 32, which exempts court records). If open justice is to be inhibited it must be by the common law or specific statutory exception.

But does this rule apply to inquiries? Lord Toulson considered the definition of ‘inquiry’ in FOIA 2000 s 32(4)(c) namely ‘(c) … any inquiry or hearing held under any provision contained in, or made under, an enactment’. This definition does not include a discretionary inquiry; but there is no reason why the law should treat disclosure in respect of such inquiries differently. So, said Lord Toulson, as far as inquiries are concerned:

[124] The considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi-judicial inquiries and hearings. How is an unenlightened public to have confidence that the responsibilities for conducting quasi-judicial inquiries are properly discharged?

Speaking for all his fellow Supreme Court Justice, he went on: ‘… information about statutory inquiries should be available to the public, unless there are reasons to the contrary’ (para [130]). Disclosure of information was determined entirely by the ‘public interest’:

[129] The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest. It is not therefore necessary to look for a particular statutory requirement of disclosure. Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry.

‘Process of the inquiry’: information as to expertise and impartiality

If challenged a judge must justify his/her ‘bias’, or possibility of partiality. Is anyone chairing or empanelled for an inquiry in any different position? The rule against bias is one of the cardinal rules of administrative, as it is of civil, law. A statutory panel member is required to be impartial. Inquiries Act 2005 s 9 imposes on the minister who appoints a statutory inquiry the following duty:

9 Requirement of impartiality

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a)a direct interest in the matters to which the inquiry relates, or

(b)a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.


A leading textbook in this area – Administrative Law (2009) Wade & Forsyth (10th Ed) – would say that this provision is redundant. It represents the common law. There is no reason therefore why a discretionary inquiry should not be the same as a judge, in terms of a minister being satisfied as to ‘bias’ in an inquiry panel member. It is for a minister to ‘satisfy’ him/herself on this account. There is plainly a public interest in knowing – by disclosure of information – that this has been done properly and on the basis of full information.

Much the same goes for a panel member’s ‘expertise’, and the public interest in knowledge on that score. Inquiries Act 2005 s 8(1)(a) states that, in appointment of a panel member, ‘the Minister must have regard—(a)to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry’.

Confidential information

Finally, to what extent can a minister claim ‘confidentiality’: that information about expertise and bias/impartiality is confidential? FOIA 2000 deals with the question:

41Information provided in confidence.

(1)Information is exempt information if—

(a)it was obtained by the public authority from any other person (including another public authority), and

(b)the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2)The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

It must always be recalled that confidentiality is a question for protecting the information of the confidor. By definition, in the case of panel member, the information is no longer private (ie belonging to the individual alone: here it has been passed to the minister). The information is available – or should be – to a Government department.

Open information as to bias

A judge whose bias – actual or ‘perceived’ – is challenged by a party to litigation must justify his/her lack of bias in open court, or must recuse /him/herself (ie take him/herself off the case; see eg Magill v Weeks (orse Porter v Magill) [2002] 2 AC 357, [2001] UKHL 67). Inquiries are judicial or semi-judicial in the same way as is the court process, so that information as to inquiries must be public (Kennedy at paras [124] and [130]: see above). There is no reason in principle why information as to a panel member should not be as open to the public as is a judge’s defence of any party’s challenge to his/her bias.

AN INQUIRY INQUIRES

Fairness and the inquisitorial inquiry

It seems a bit obvious to say it; but an inquiry inquires. Principles which apply to an inquiry are very similar to those which apply to a judge; but the component which is investigatory, inquisitorial, inquiring – call it what you will – goes beyond what judges do. This note looks at this inquisitorial aspect a little more.

Three fundamental components apply to any inquiry:

  • That it be fair: that is, that it hears all points of view, and that when it considers those points of view it is free from bias
  • That it investigates without favour to anyone all matters which arise during its work
  • That it commands the trust, so far as possible, of all those concerned with the inquiry

Perhaps it need hardly be added: that fairness is a cornerstone of our judicial and administrative system; and that it should be reflected in political life and appointments also.

Fairness and impartiality: freedom from bias

I’ve gone on a lot about ‘impartiality’ and, its opposite, ‘bias’ over the past few days (eg in an open letter to Fiona Woolf, its proposed chair: https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/). Fairness as a fundamental legal principle demands two things: that as a decision-maker (tribunal, judge, panel of inquiry etc) you hear both sides of the case before making up your mind (or as lawyers put it: audi alterem partem); and that in making up your mind you have no bias as between the arguments put to you, or as between the people putting forward the arguments. If you are asked to investigate, there must be no bias in favour of, or against, any person you are investigating.

The job of an inquiry panel – whether it is discretionary (as now set up by the Home Secretary for child sexual abuse issues) or statutory (under Inquiries Act 2005) – is to inquire. Its function is inquisitorial.

Investigation

It follows from this that an inquiry has a dimension which is absent in a judge or jury’s decision-making. A judge hears two (sometimes more) opposite arguments and has to decide between them. These arguments are put before a court or tribunal by opposing parties: they chose the issues and the judge acts as an arbitrator between them.

An inquiry investigates. Its job goes much further than that of a judge, which is essentially passive. Like a police investigation the inquiry – by definition – must make sure all stones are turned. A judge only hears about and deals with what is put before the court by the parties to the case. An inquiry may have to go further than investigating immediate issues; and then may need to follow up leads which those issues turn up.

The checks against bias must therefore be more rigorous than with a judge in his/her refereeing role. How difficult would it be – for example – for an inquiry member if s/he was required not only to hear from, but then also to have to demand more incriminating information from, a friend, neighbour, political or work colleague?

Trust in the inquiry

Fairness and what it demands (eg in terms of partiality) is a matter of law. The need to investigate is a matter of fact deriving from the terms of reference and subject matter of the inquiry. Does a third dimension apply? In a case where there are individuals whose mistreatment is in issue, surely the Government Minister who sets up the inquiry must be sensitive to the concerns of those individuals?

Broadly people trust judges. They accept they have a professional job to do, and have been appointed to do it. They accept their role – mostly – without undue question. If a court is called upon to decide a complaint or deal with a prosecution then – with a few notable exceptions – the fairness and impartiality of judges is accepted. But where there are serious questions raised for an inquiry by individuals closely involved in it (the clients of the inquiry, for want of another word) their trust in the inquiry panel is surely a factor the minister who sets up the inquiry should take into account in a clear and express way. The independence of a judge is a given. That of a lay chairman or other panel member is not. That affects confidence in the inquiry.

Lord Hutton’s inquiry into the death of David Kelly has been regarded as a whitewash; but that is less because of the character of the judge who conducted it than with the way it was set up, its terms of reference and the way the enquiry was used to prevent a proper inquest. And the Attorney-General – another Government minister – blocked any further progress with that inquiry: eg by reconvening the inquest.

Consequences of impartiality, illegality

If after the event it is found that a judge has not declared an interest, or is found to be biased his/her decision must be set aside. Remember Lord Hoffman, whose wife was a member of Amnesty International and who sat as a judge on the Pinochet case: the decision on Pinochet in the House of Lords was set aside because Lord Hoffman might be biased; or Lady Porter’s unsuccessful attempt to have the council auditor sacked for bias? One adjudication set aside, another upheld.

If a tribunal member is found later to be biased their report probably cannot be set aside; but what does that bias do for public perception of the extent of their investigation or the value of any investigations they put forward?

CONSULTATION: SIR JAMES IS BUT ONE VOICE…

‘Guidance’: not consultation by a public body

 

Funny thing that: there’s me sounding off last week (see eg http://wp.me/p4jaDx-62) about the general need – as opposed to a specific requirement – for the President of the Family Division to consult on new ideas, whether as administrator or as chairman of Family Procedure Rules 2010. When I raise with his office the question of dates for consultation (suggesting that not a lot of time is being left between now and early October 2014 to ‘consult’) I am told (by email dated 26 August 2014):

 

As far as the guidance … goes, I should point out that this is not a consultation by a government department, and indeed, the President is under no obligation to consult at all. However he remains anxious to hear any views on all these important topics and as stated above we are happy to receive responses at any point.

 

The ‘guidance’ relates to ‘transparency’. At short notice Sir James Munby P issued Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014. A further document entitled Consultation: Family Transparency – the next steps (19 August 2014) (consultation due by ‘end of October [2014] at the latest’) has been issued by the Judicial and Tribunals Office (http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ ). The document is unquestionably entitled ‘Consultation’.

 

I yield to none in my admiration for Sir James’s energy and determination. He is in a very powerful position, as the family court hierarchy stands, to change practice. He is no a natural democrat; and I doubt he distinguishes his judicial and his administrative roles clearly or at all. Much of what is going on in and around his office is now administrative and should not be run by just one person.

 

When the Civil Procedure Rules 1998 and the ancillary relief pilot scheme were being introduced the then Lord Chancellor, Lord McKay, took a close interest in them (as he did in the Children Act 1989 ten years earlier). But he knew his limits as an administrator and listened to people (as I know personally from when he asked me to go to see him about the then ancillary relief ‘pilot scheme’ in late 1997). The present Minister of Justice would not understand the need for consultation (unless it was explained to him); but his civil servants, including Sir James, know the difference. Indeed Sir James himself stressed the court’s public authority role as defined by Human Rights Act 1998 s 6(1) (not directly in relation to administrator consultation) in the very recent Q v Q (No 2) [2014] EWFC 31:

 

[46] … The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention….

 

Consultation and the common law

 

Strictly speaking the common law does not require Sir James to consult. As far as the point goes, his office is correct, despite the title of his paper. However the tendency of modern government and administration is to consult whenever reasonably possible. The Court of Appeal have recently considered the point. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 Longmore LJ explained the position as follows:

 

Consultation on what?

[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.

 

In putting forward ‘Guidance’ Sir James is not acting as a judge – judges judge. It is an administrative exercise which he undertakes in an office which – like that of Lord McKay LC – is that of an administrator. He is subject to the constraints of any public body or civil servant and required to act ‘fairly’ (ie not autocratically).

 

‘Fairness in consultation’

 

The role of fairness in consultation is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054. De Smith adopts the terminology of Lord Woolf in R v North & East Devon HA exp Coughlan [1999] EWCA 1871:

 

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).

 

The ‘guidance’ consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I respectfully suggest, reasonably requires that he stand back and let someone else receive the consultation on transparency and let them put forward any legitimate law changes, or guidance, arising from it. The voice of Sir James should please be but one; not the only voice from which the consultees must persuade him of another course.

CONSULTATION: FAIRNESS, LAW AND THE ADMINISTRATIVE PROCESS

Fairness and family law reform

One of the very real difficulties in writing on consultation in the context of Sir James Munby is the unprincipled and autocratic way in which he administers the family court, and seeks – in effect – to legislate where he has no real delegated power so to do. So – as it seems to me – he has real difficulty in distinguishing between his judicial and his administrative capacities. He is a brilliant lawyer, a competent judge; but a breathless administrator with little co-ordinated long-term view of where he wants family law to go. (His thirteen fenestral musings do not forma clear family law philosophy or a view beyond the horizon, which is what family law now needs.)

Consultation is a term of art in administrative law and applies to Sir James as to any other administrator. This note can only consider the subject briefly, but its importance in the context of what is happening in family law reform cannot be overlooked. Whether six weeks or so in the summer is enough to comprise a proper consultation may have to be considered again later.

So yes, Sir James is but a civil servant in what follows. As an administrator I wonder whether he would be one to embrace the need for any form of self-denying ordnance as between his administrative law reform plans (as with the consultation documents under review in http://wp.me/p4jaDx-61 ), and his interpretative role as a judge? Does he warm, I wonder, to the words of Laws LJ, explaining separation of powers in a 21st century context (Sir James here is part of the ‘executive’), in R (Cart & Ors, on the application of) v The Upper Tribunal & Ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012 (http://www.bailii.org/ew/cases/EWHC/Admin/2009/3052.html):

[37] The principle I have suggested has its genesis in the self-evident fact that legislation consists in texts. Often – and in every case of dispute or difficulty – the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter’s role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts’ application, and authoritative – accepted as the last word, subject only to any appeal. Only a court can fulfil the role.

Legitimate delegation of powers

Courts are governed by the common law and by statute; or by delegated legislation where statute permits. The main delegated legislation to which family courts are subject is Family Procedure Rules 2010 as defined by Courts Act 1973 s 75 and 76. But as a matter of common law these rules can do no more than define the way in which a court’s existing jurisdiction is operated. This was explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586:

[8] … rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628.

Consultations under way

Readers of my blog earlier today will recall that the consultation subjects are:

• Recently issued draft standard orders (mostly child abduction and other High Court orders): consultation response date is 3 October 2014.

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014): consultation by ‘end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’: response by 3 October 2014.

Of these the following points arise here: that the court has no power to issue any more than ‘draft’ orders is obvious. The Judiciary office is but another body – like any publisher – who can issue precedents for court orders. These have no magic. There is nothing in any legislation – primary or delegated – which prescribes a power to standardise orders.

Of transparency and ‘vulnerable witnesses’ (an inaccurate and partial definition: to be considered on another day): both of these are areas beset by common law and statutory principles (as explained in http://wp.me/p4jaDx-60 ). They cannot be legitimately changed by court rule, still less by practice direction or presidential ‘guidance’ save where there is specific legislation which permits such change. The President cannot legitimately alter the common law by his sole dictat. He can administer – as he did in the February ‘Guidance on Transparency’; or, as he did there also, he can persuade his judicial colleagues of his view of the common law.

What is now suggested in these two consultation areas – especially on ‘vulnerable witnesses’ – goes much further. And if the ‘vulnerable’ witnesses job is done properly primary legislation is likely to be needed (not just a rule change as seems the present plan – para 13(ii) of their present very light ‘proposals and interim report’).

Consultation in a legislative process

Recently Longmore LJ in the Court of Appeal in R (ota LH) v Shropshire Council [2014] EWCA Civ 404 has considered the meaning of consultation in the absence of any specific statutory duty:

Consultation on what?
[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.

This is an administrative exercise; and in acting as he the President is an administrator. He is part of the executive and subject to the constraints of any public body or civil servant to act ‘fairly’ (as Longmore LJ explains’).

Fairness is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054, where they adopt Lord Woolf (R v North & East Devon HA exp Coughlan [1999] EWCA 1871, [2001] QB 619):

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).

The consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I would suggest, dictates that he stand back and let someone else receive the consultation on transparency – his view is hardly objective – and let them put forward any legitimate law changes arising from it. The voice of Sir James is but one; not the only voice from which the consultees must persuade him of another course.

As to how a consultation is conducted, Sir James and his office are respectfully referred to the principles for guidance at https://www.gov.uk/government/publications/consultation-principles-guidance updated to 5 November 2013. No period of time is recommended by the Guidance but the Cabinet Office does suggest that August should be ignored in computing the consultation period. So none of the periods above (on that basis) has yet started.