Ministerial consultation


It had been niggling away at me over the week-end and as the writhing form of the intended #CSA Inquiry has unfolded over the past three or four days: does the Home Secretary have any duty to consult with survivors when she sets up her inquiry (in whatever legal format that may ultimately be). Any wind in my sails may have been taken away a little, by the fact that it was reported on 21 July 2014 – how reliably, I do not know – that she had already promised to ‘consult’. I doubt she has, in fact done so, so far as appointment of Lady Woolf as chair is concerned; and if she has done so, probably not in any realistic way.


So is there any duty upon her to consult? On a brief reading (so far) I have found no decision on the point in relation to a discretionary inquiry (ie as distinct from a statutory inquiry under Inquiries Act 2005). By definition this is an area very much within ministerial control. However courtesy and the feelings of a number of those involved – the survivors – might have dictated some form of consultation. And, it seems, she promised she would consult. Hers is an administrative decision. It is therefore susceptible to ordinary administrative law: judicial review and so on.


Duty to consult and the common law


Strictly speaking the common law does not require her to consult. However, the tendency of modern government and administration is to do so whenever reasonably possible. The Court of Appeal has considered the point in the last few months. (This was in relation to the closing of a local authority run home; but the principles are broadly the same.) In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 (http://www.bailii.org/ew/cases/EWCA/Civ/2014/404.html) Lord Justice Longmore 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.


‘Fairness in consultation’


The role of fairness in consultation is stressed by the leading judicial review text-book by reference to another case, R v North & East Devon HA exp Coughlan [1999] EWCA 1871: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html ) where the Master of the Rolls Lord Woolf said:


[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.


It would always have been courteous of Mrs May to consult, I should have thought. If nothing else it is a modern approach to administrative decisions. If she does not do so on that ground alone there is probably little that those affected can do to challenge her failure.


Was consultation promised?


If she has indeed promised consultation, that may raise different issues about her decision-making and whether Home Office procedures can be reviewed. Lord Woolf said (as quoted above) that if consultation ‘is embarked upon it must be carried out properly’. Was consultation promised? Might it reasonably be expected? What form should consultation on the panel and its terms of reference take then?


Alongside questions about the ‘impartiality’ of her chair, Mrs May might reasonably be expected, please, to answer those three questions.


What counts is the judgement

Re A (A Child) [2014] EWCA Civ 871 concerned long fought proceedings between parents where, at an interim stage in proceedings, the father had asked HHJ Horowitz to alter what he had said in a 2011 judgement which he had not appealled against, and where his request for an alteration under the ‘slip rule’ had been made over two years after the judgement. The judge refused to alter his judgement; and Patten LJ (with whom Black and Underhill LJJ agreed) gave F permission to appeal but refused to allow F’s appeal.

He analysed the question as akin to the rule in Lake v Lake [1955] P 366 (considered recently in the Court of Appeal in Re M (Children) [2013] EWCA Civ 1170), namely that where a judge’s findings are not part of his reasons for his/her decision and would not therefore form a basis for appeal against a decision, then they would not be part of an formal application to amend under the slip-rule (as more fully explained in Cie Noga D’Importation Et D’Exportation SA v Australia & New Zealand Banking Group Ltd (No 3) [2002] EWCA Civ 1142 per Waller LJ [27] and [28]). Of the slip-rule application Patten LJ said:

[23] It seems to me that if a judge’s findings of fact are of the kind which are not to be regarded as forming part of his judgment so as to be amenable to appeal in themselves then this Court has no jurisdiction to entertain an appeal from a judge’s refusal to amend such findings in accordance with the criticisms of the affected party. Findings of that kind which cannot be said to form part of the judgment within the meaning of CPR 40.12 cannot be amended at any time under the slip rule and a judge’s refusal to accede to an application under CPR 40.12 is not in such circumstances open to challenge.

Black LJ then went on to explain further the meaning of ‘judgement’ and ‘order’ in the context of the rules as follows:

[38] … I add these few words only because the argument as originally presented to us proceeded, I think, upon the basis of what is perhaps an understandable confusion between two uses of the word “judgment” in an area of law and procedure which it is not easy for non-lawyers to understand. I offer the following very short explanation in what I hope will be found to be non-technical language but I stress that it is not intended to alter established legal principles.
[39] To many people, the word “judgment” signifies the oral or written judgment given at the end of proceedings in which the judge explains in a narrative form what he has decided and why. What I am now saying is a judgment in this sense. In contrast, the word is used in a different sense in, for example, CPR 40.12 and CPR 52.10(2)(a) which refer to “a judgment or order” meaning, to use lay language, the end product of the proceedings. The end product of this appeal is that the appeal is dismissed and that is what will be encapsulated in a formal order in due course. The end product of Judge Horowitz’s 2011 hearing was the financial orders that he then made.
[40] The correction that the father wished Judge Horowitz to make to his judgment was not “an accidental slip or omission in a judgment or order” within the slip rule contained in CPR 40.12. It was not a correction of the judge’s order or of the “judgment” in the sense in which that word is used in CPR 40.12. The father was seeking a correction (in his eyes) of the contents of Judge Horowitz’s judgment in the other sense.
[41] The slip rule not being available, and the judge having concluded his function in relation to the February 2011 decision, as Patten LJ says in §22 of his judgment, the only possible route of challenge to what the judge said was by way of an appeal against the “order or judgment made or given” by him (CPR 52.10(a)). Here again “judgment” has a restricted meaning as Patten LJ has explained and I am doubtful that it includes the aspects of Judge Horowitz’s judgment that the father sought to challenge….

In fact the references to which Black LJ refers are as follows:

Civil Procedure Rules 1998 r 40.12(1) (FPR 2010 r 29.16(1), to which reference should also have been made (since below these were family proceedings), is exactly the same) reads as follows:

Correction of errors in judgments and orders
(1) The court may at any time correct an accidental slip or omission in a judgment or order.

CPR 1998 r 52.10(2)(a) (as does FPR 2010 r 30.11(2)(a)) enables the appellate court to ‘affirm, set aside or vary any order or judgement made’ by a lower court.

This assessment unfortunately overlooks three further aspects of the question:

(1) An appeal is against a ‘decision’ of the lower court (see CPR 1998 r 52.2(1) and 52.4(2); FPR 2010 rr 30.2(1) and 30.4(2));
(2) A judge can change his/her mind up till such time as an order is actually sealed (Re L and B (Children) [2013] UKSC 8: it was all right for a judge to change her mind where an order had not been sealed); and
(3) What is the meaning of MFPA 1984 s 31F(6) in the family court:

(6)The family court has power to vary, suspend, rescind or revive any order made by it, including—
(a)power to rescind an order and re-list the application on which it was made,
(b)power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c)power to vary an order with effect from when it was originally made.

It is beyond the scope of this note to try to answer (3).

If (2) happens it plainly creates its own special difficulties especially with the time for appeal, if from the court’s decision, has expired. What it suggests is that the judgement and the order for most practical purposes are two separate things.

By contrast, the decision, for most purposes – save where an order is not sealed – must surely be the date on which judgement is given? From this date time to appeal runs. It is against the judgement which a party appeals (the Lake v Lake point is that there is no point in appealing against an aspect of the judgement where the overall outcome of the case was success).

It is therefore the judgement that counts. This is the decision which gives rise to an appeal, and on which the appeal notice will be based. The order is the product of this. And if a judge changes his/her mind before the order is drawn, you would expect time to start to run again.

David Burrows
10 July 2014