If Article 50, then only with reason…

Mrs May and ‘the rule of reason’: some notes

[This is a holding note: further sections need to be added on ‘rule of reason’ and the consequences if Mrs May’s reason is not exercised, or is exercised unreasonably.]

It is too late to do much about MPs and what seems to be their minimal understanding of the meaning and consequences of a referendum; and thus to stop the passage of the Article 50 bill. This is the European Union (Notification of Withdrawal) Bill 2017 (the 2017 Bill) whose short title is: to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

 

Once the bill is law – has been given Royal Assent – then the landscape changes for political to administrative. We are back to executive or government powers; and then anyone planning to trigger Art 50 (ie the Prime Minister, Mrs May), according to the United Kingdom ‘constitutional arrangements’, is an administrator. (In what follows ‘government’ and ‘executive’ will be used more or less interchangeably; and administrative law will be taken to apply to each.)

 

It is one of the cardinal rules of administrative law that anyone responsible for exercising a power must do so with reason. Parliament is sovereign; but the government – including Mrs May – is subject to the law (and as she has found already). Triggering Art 50 is one of the more significant exercises of any executive powers since the Second World War (going into Europe was sanctioned by Parliament). She has a decision to make. It is her decision, albeit with advice from a proportion of the June 2016 electorate in a referendum. She must make that decision within the terms of the ‘rule of reason’ (see Administrative Law (2014) Wade & Forsyth (11th Ed) at p 293: a leading text-book on this subject often quoted in the Supreme Court).

 

If Mrs May triggers Art 50, is she doing so with reason? If so what are her reasons? If she is not acting with reason, she can be stopped. If she triggers Art 50, but without express reason, can the clock be put back? Can her action be stopped, if taken without reason – and if this is acceptable to the wider EU community?

 

A meaning for the referendum

 

No-one in Parliament – including Mrs May – seems to know what the outcome of the referendum actually means. To act upon it, or – as she will do – to claim you are acting upon it, without knowing what it means, by definition is to act without reason. A doctor does not plunge a knife into a patient’s breast and think it will cure his or her heart: she needs extensive training to operate on a heart. So too with signing off Art 50. A high degree of understanding of the UK constitutional arrangements is needed; and this understanding is called for in an area – the consequences of referendums – which is, as yet, untrodden.

 

This note explains this proposition further, does so in the context of administrative law, and suggests what could be done about it.

 

European Union Referendum Act 2015 s 1 provided: ‘(1) A referendum is to be held on whether the United Kingdom should remain a member of the European Union.’ The section went on to deal with dates and to set out the questions to be asked in English and in Welsh. In English this was:

 

(4)The question that is to appear on the ballot papers is—

Should the United Kingdom remain a member of the European Union or leave the European Union?

 

And that was that: nothing was said about whether this was to bind the government; what was the meaning of a referendum in UK law; how long the effect of the answers was to last (eg as the members of the electorate on the roll changed); and so on.

 

Members of Parliament voted on the bill which lead to the 2015 Act, with the following House of Commons Briefing Paper Number 07212 of 3 June 2015 in mind. (If they did not read it does that make any difference to their approach now?) The briefing paper said of European Union Referendum Bill 2015-16:

 

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.

 

That bill and the 2015 Act lead to the referendum on 23 June 2016. And in the light of this, and the 2017 Bill (if enacted) leads to the power in the Prime Minister to trigger Art 50.

 

Referendum and the courts

 

In R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (the first of the two EU withdrawal cases) the Divisional Court said this of the 2015 Act and the referendum:

 

[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.

[108] We emphasise that the Secretary’ of State’s position on this part of the argument and the observations in the preceding paragraphs relate to a pure legal point about the effect in law of the referendum. This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.

 

By ‘elsewhere’ it must be assumed they meant by Parliament or the Government (the executive). There is no evidence that the meaning of the referendum has been ‘taken into account’ in the 2016 bill. The Government have given us no indication as to what Mrs May thinks is its meaning. Plenty of MPs think they are bound in some way by the ‘will of the people’. If the people, like the briefing paper, thought they were tendering advice then this is developing well beyond a serious constitutional misunderstanding with substantial consequences.

 

Supreme Court and meaning of referendum:…

 

Administrative law and the rule of reason

 

Short essay on ‘rule of reason’:

  • Start from Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924
  • Unfettered discretion: contradiction in terms
  • Special care for ministerial decisions

 

Conclusion: reasonable to trigger Art 50?

 

‘Will of the people in referendum’

 

Burke’s theory: needs revisiting in 2017: mandate or representative

 

No white paper

 

No account taken of situation in 2017: May’s blinkered approach is the antithesis of reason

 

Is an electorate which votes in a simple binary elect capable of ‘reason’ in the administrative law sense of the term?

 

© David Burrows, Paris January 2017

DUTIES OF A CASH-STRAPPED PUBLIC AUTHORITY

Public authority in civil and family proceedings

A public authority bears responsibilities to the court in litigation because it is a public authority. This was illustrated by Midcounties Co-Operative Ltd, R (on the application of) v Forest of Dean District Council & Anor [2015] EWHC 1251 (Admin), and the comments of Singh J on the local planning authorities’ dealings with opposition to an out-of-town planning application. Could the comments of the Administrative Court ever apply to cash-strapped children departments in care proceedings, especially in relation to appeals or applications to discharge of care or placement orders?

Cinderford, in Gloucestershire, had been subject to successive planning applications for an out-of-town supermarket proposed by a development company. The application was opposed on judicial review by the Co-op. Initially the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, then twice. On a third occasion they were challenged yet again; but this time their approach was: they disagreed with the challenge, but did not appear in court to dispute it. They left it to the supermarket to whom they had given planning permission to present the case as to why it was not unlawful to grant them permission.

Grounds for non-appearance of local authority: cash constraints

The local authority pleaded cash constraints for their non-appearance at the judicial review hearing. They merely wrote to the court saying that they opposed Co-Op’s challenge, and left it to the developers to present the grounds of resistance.

‘[148] … What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the interested party [Trilogy Developments Ltd] in its resistance to the challenge.’

Their pleaded costs constraints left them taking no further part in the proceedings. However, said the judge, whilst financial pressures are one thing, ‘the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted’ (para [148]).

Singh J criticised this approach and allowed Co-op’s application for a quashing order. In doing so he made a variety of general comments. A council, or indeed any public authority, should not behave like a private litigant. It owes wider duties, because it is a public authority. Judicial review is not like ordinary private litigation in particular

‘[149] More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular… a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.’

All parties have a duty to be frank with the court; but, said the judge (para [150]) this will this will not necessarily provide all the information needed: for example, a party ‘may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge’. (Helpful guidance to public authorities is provided by the then Treasury Solicitor in December 2010 is provided by Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285368/Tsol_discharging_1_.pdf; and much of what is said here may be of guidance to local authority lawyers in children proceedings.)

Steps of a cash-strapped local authority: duty of candour

So what is a cash-strapped local authority to do? Singh J concluded his judgment with the following addressed to public authorities:

[151] It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following:

(1) whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;

(2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;

(3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;

(4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.

In summary terms – applicable, perhaps, to any public law proceedings (judicial review and children proceedings) where a local authority is a party – has a local authority done any or all of the following:

  • Has the authority made available to the court and the parties all documents relevant to the issues to be considered by the court (para (1));
  • Does the local authority need to do any more: eg to file a statement (or other court document: ie an acknowledgement of service and summary defence in judicial review proceedings) to explain its decision-making process and any other relevant issues of fact and of law (paras (2) and (3)); and
  • Should a representative of the authority (not necessarily a lawyer) be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so?

LEGAL AID APPLICANTS 4 – LORD CHANCELLOR 1

Successful challenges on legal aid legislation

On the civil litigation side of the legal aid cases, I think the current decisions score is: Legal Aid Applicants 4 – Lord Chancellor (Legal Aid Agency) 1. The single Lord Chancellor score (the Rights of Women case (see below)) is awaiting an appeal hearing in the Court of Appeal; and two of the four are successful scores are Court of Appeal appeals. And these cases do not include Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 where His Honour Judge Bellamy sitting as a Deputy High Court judge ordered the Lord Chancellor to pay for an advocate to cross-examine a child witness for the court in children proceedings (said to be on appeal to the Court of Appeal); nor does it include the miscellaneous Presidential rants including Q v Q, Re B, Re C [2014] EWFC 31 and Re D (A Child) [2014] EWFC 39, (a case preceded by A Father v SBC and ors [2014] EWFC 6 Baker J and Re D (A Child) [2014] EWFC B77 HHJ Marshall). Impressive as is their rage, neither case brings a grant of legal aid any further either for the assistance of the litigant, or for the payment of the lawyer who wants to help.

The cases are as follows, with the first four being successful. Notes on these cases is followed by a short assessment of their significance in the fields of exceptional case determination (LASPOA s 10(3)); and of the important field – within that – of Airey principles (Airey v Ireland (1979) 2 EHHR 533) and a fair trial (European Convention 1950 Art 6(1)).

JG v Lord Chancellor and ors [2014] EWCA Civ 656 (on appeal from Re JG (a child by her guardian) v LSC and ors [2013] EWHC 804 (Admin) – the Court of Appeal reversed a decision of Ryder J (ahtw) and declared as unlawful the decision of the LAA to refuse to fund an expert’s report in children proceedings where the court had directed that it should do so. The decision is narrow, and confined to its own facts; but it is likely to be important for the comments of Black LJ in the area of exceptional case determinations for legal aid under LASPOA 2012 s 10(3) (especially taken together with Gudanaviciene (below)).

R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 – the Court of Appeal held that the Lord Chancellor’s Guidance, on grant of exceptional case determination funding was unlawful in certain respects. It made the gate through which an applicant must pass too narrow. The ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para [56]). Determining factors include: procedural complexity; ‘substantive legal issues’; what is at stake (in Gudanaviciene separation of the mother from her small child was in issue, and what then was the likely ability of the applicant to deal with her case). ‘It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases’ said the court; but it is not the law that legal services are required only in extreme cases.

R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin) – the Lord Chancellor’s inquests guidance to LAA case workers was ‘materially in error’ (para [19]) in what it told them about legal aid for representation at inquests (echoes of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622: see [2015] Family Law at ).

R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), the QBD divisional court held that an amendment to remuneration regulations in relation to judicial review applications was outside the statutory aims of LASPOA 2012. In April 2014, Civil Legal Aid (Remunerations) Regulations 2013 by adding reg 5A, the effect of which was to set out that if a legally aided applicant for judicial review was not given permission to proceed then his/her solicitors would not be paid (reg 5A(1)), save in the discretion of the LAA (reg 5A(1)(b)). The divisional court (Beatson LJ and Ousely J) held that the amendment went beyond the stated purpose of the statutory scheme (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Regulation 5A was not connected with the aim of LASPOA 2012 and was inconsistent with what Parliament intended. The new scheme put too much risk on lawyers; and there were too many variables from what the court described as the ‘standard [judicial review permission stage] scenario’ (as explained in [41]-[61]) to make reg 5A(1) fair to the lawyers for legally aided parties.

R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin) (the case so far which has gone against applicants) – the QBD Divisional Court (Lord Justice Fulford and Mrs Justice Lang DBE; 22 January 2015) refused an application to quash delegated legal aid legislation. Had the Lord Chancellor exceeded his statutory regulation-making powers under LASPO 2012 s 12 in relation to court applications arising from domestic violence? The court said not: the Lord Chancellor was entitled to limit in time prior to the application the period over which domestic violence was said to have occurred.

Exceptional case determination

ECDs under LASPOA s 10(3) are an important safety net for applicants for legal aid. In Gudanaviciene the Court of Appeal analysed and defined the s 10(3) jurisdiction; and when an ECD should be made. Section 10(3) makes a LAA grant ‘exceptional’, not because of some rarity of grant, but because of the factors which give rise to it. ‘Exceptionality is not a test’ (para [29]), it is merely a term of description. Under the decision in Gudanaviciene ([32]) if a LAA decision-maker ‘concludes that a denial of ECD funding would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination’. This, in turn, his requires ‘an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it’. By definition each case will depend on its facts, and how the individual litigation may be expected to proceed.

If the decision-maker cannot decide if there would be a breach of Convention or EU rights, s/he next goes on to consider the funding application under s 10(3)(b), namely the ‘risk’ of a breach: ‘The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach…’. A ECD grant should be made.

Right to a fair trial: not just a theoretical right

All ECD determinations depend on human rights issues; but in practice the most common will be those which determine whether or not a fair trial is likely. In JG (above) Black LJ commented (six months before Gudanaviciene) on how she would regard the state’s obligation to provide s 10(3) legal aid to protect Art 6(1) rights. She referred to Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601 as modern authority for the proposition that there may be no obligation under European Convention 1950 to make legal aid available for all civil disputes.

However Muscat also asserts that the Convention:

[45] … is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.

Access to the court must include the ability to see the case through to a ‘determination’. Muscat (at para 46) breaks down the applicant’s entitlement to legal aid as follows:

(1) That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case;
(2) Legal aid should be available guaranteed – part of a State’s ‘obligation’ – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1); and
(3) There should be active intervention by a State to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’.

Child’s welfare central to any determination

The welfare of any child concerned must be the starting point for any LAA decision-making and in the context of the child’s Art 6(1) rights. It is the basis for a challenge to any wrong LAA decision. And as Collins J reminded the LAA decision-makers in R (ota T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) (decided 3 weeks after JG at first instance, but not cited in the Court of Appeal judgement): any decision by the LAA must be backed by reasons (at para [14]).

Both Gudanaviciene and JG both give valuable guidance on what may be regarded as a fair trial and how this may be impeded for the individual applicant in the particular case.

JUDICIAL REVIEW AND HOW IT WORKS

Review of a public body decision

Judicial review requires High Court judge to reconsider a decision (or failure to make a decision) of a public body (eg government departments, local authorities etc). The court considers whether the body made the decision correctly: that is, did it have power to decide the way it did (‘unlawfulness’), did it act rationally in making its decision (‘reasonableness’), and were correct procedures followed (‘procedural’): explained further below?

The court does not re-make the decision. It has the power to quash it (‘quashing order’: ie set aside what the decision-maker has decided), to order the body to do something specific (‘mandatory order’: eg carry out a consultation of individuals affected by a decision) or to tell it not to proceed as it proposes (‘prohibitory order’). The public body decision-maker must then deal with the case within the terms of what the judge has told it to do; or remake the decision with the judge’s decision in mind.

Grounds for judicial review in child sexual abuse inquiry

In the case of the child sex abuse inquiry it is said the Home Office did not act lawfully, and that it failed to follow correct procedures (eg in relation to consultation). In outline this is because of the following:

Lawfulness

The judicial review application asserts that the Home Office did not consider the appropriateness of Mrs Woolf, and the early panel members, till after their appointment (this is clear from the documents finally released by the Home Secretary on 21 October 2014). Mrs May did not properly consider the experience of the panel members.

When their experience and partiality was considered it was on the basis of documents drafted by Home Office officials and the QC taken on for the inquiry (certainly in the case of Mrs Woolf’s letters). The technical legal term for lack of partiality is ‘bias’ as it is called formally in law (I explained this fully in my ‘Open letter to Mrs Woolf’ at https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/ published on 9 September 2014).

The making of the appointment before consideration of expertise and bias is, it will be said, unlawful.

Procedurally wrong

There are two main areas of procedural wrongness in the case of the child sex abuse inquiry. First, consultation was promised Mrs Villiers in the House of Commons in later September 2014. This unquestionably created a ‘legitimate expectation’ – that people could reasonably expect to be consulted about the terms of reference, at least. There would be consultation with people affected by the inquiry – such as survivors – at least as to the terms of reference of the inquiry of this. The law says that, in this context, consultation would have been ‘fair’ in law. (As I write this the BBC news says ‘survivors’ groups’ are to be consulted on a new chair; but there is no mention of the terms of reference.)

Secondly, reference is made by the panel members’ letters (published on 21 October) to Inquiries Act 2005; yet the inquiry remains non-statutory. A judge on judicial review can be asked to find that this is not rational; and to quash the present decision to set up the panel (with its existing secretariat).

Most survivors say the inquiry should be set up under a single High Court (or higher) judge, who has experience of family law.  (It might also be said that the facts which support this ground is ‘irrational’: in context the rational approach of a decision-maker would be to appoint a single chair who can, for example, take evidence and call upon expert assistance.)

Judicial review procedure

The court procedure for judicial review is intended to be relatively quick and simple; and it is only very rarely dealt with in open court, with live evidence being heard. A judge deals with the case on papers put before the court, and on hearing the parties’ advocates.

Judicial review creates a two-stage process (defined by Civil Procedure Rules 1998 Part 54). First an applicant has to get the court’s permission to proceed. Only a minority of applicant’s get past that stage.

The second, and substantive stage, is that applicant’s claims before the court are heard by a High Court judge who must decide whether grounds exist in fact and in law. If the judge says grounds apply, then s/he decides whether or not to make an order. That is to say, the applicant might prove his/her case, but still not get the order he or she seeks (as happened to Ms Mosley in the recent ota Mosley case below: and see https://dbfamilylaw.wordpress.com/2014/10/29/consultation-and-fairness-after-mosely/: she won overwhelmingly on points, but lost in the result).

Grounds for judicial review

More information on how the main judicial review grounds are characterised (based on Lord Diplock’s characterisation in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) follows:

(1)        Illegality or unlawfulness

By definition a public body can only proceed in a way which is sanctioned by law (by an Act of Parliament, or delegated legislation under an Act). ‘Illegality’ means a failure to act within the law. For example, when the decision-maker contemplates a decision s/he must understand the law on which it is based and must apply the law correctly; and s/he must proceed upon a correct assessment of the underlying facts. If the decision-maker is found not to have proceeded according to his/her statutory powers his/her decision is ultra vires (ie outside powers provided by the law).

It is illegality if a decision-maker fails to take into account a relevant issue or takes into account an issue which is excluded by statute from consideration. For example, local authorities are required to take account of the views of certain prescribed persons when deciding whether to accommodate a child (Children Act 1989, ss 20(6) and 22(4)). In R (ota Mosley) v London Borough of Haringey [2014] UKSC 56 Housing Acts required consultation to be undertaken by those likely to be affected by a decision. To fail to take account of all relevant views, leaves open the risk that the decision may be quashed, because it has not been made fairly.

(2)        Irrationality

The classic formulation of ‘irrationality’ is set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA: did the decision maker or public body – in that particular case it was a local authority – take into account matters which they should not have done; or did they fail to take into account matters which they should have considered. Even if they did not act in this way, did they nevertheless come to a conclusion ‘so unreasonable that no reasonable authority could have come to it’? A wider definition of ‘irrationality’ is more likely to be adopted by the courts nowadays; but for many judges the Wednesbury formulation remains the starting point.

The operation of the power is one thing. Its rational use within its legal context is quite another; and the question of whether its operation has been correctly reasoned is what is under consideration. The scope for interference by the courts is narrow. Unless the decision-maker exercises his discretion in a way which is so unreasonable that no reasonable decision-maker could have so operated, and he has taken into account the correct questions, then his decision will not generally be said to have been irrational.

(3)        Procedural impropriety

A decision-maker must act fairly, that is to say in accordance with the principles of natural justice. Common law concepts of natural justice have been extended by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6(1) (right to a fair trial). A right to a fair trial does not affect the actual rights which the courts are required to protect; but the Article protects or guarantees the procedures (including, for example, evidential rules) by which those rights are protected. Thus the decision-maker must have regard to the two fundamental bases of judicial, or quasi-judicial (as with an inquiry chair) decision-making: namely that the decision-maker must be free from ‘bias’ and that both sides of an argument must be considered by a decision-maker (audi alterem partem).

#CSAINQUIRY JUDICIAL REVIEW APPLICATION – GROUNDS

This is the document which has been sent to the judicial review court (High Court, Administrative Court). It is released on instructions from the applicant, a client of The Family Law Co, solicitors and David Burrows.

The grounds were drafted at a time when the Home Office solicitor had not replied to the judicial review pre-action protocol letter; so that eg at that point on three panel members had been appointed.

 

The main bases of the application can be summarised as follows:

  • That survivors of child sexual abuse and their representative bodies were not consulted about the terms of reference of the inquiry, though the Government promised this in the House of Commons in early September 2014;
  • That the panel members (especially Mrs Fiona Woolf) have not fully declared their partiality (‘bias’ in the legal sense) in dealing with the inquiry (or if they have it was after their appointment which is not what the law requires);
  • That Mrs Woolf especially does not have the expertise to chair a panel of this sort; and perhaps not the time to devote to a heavy-weight inquisitorial task such as the inquiry represents; and
  • That the inquiry should be statutory (ie under Inquiries Act 2005) and chaired by a judge of at least High Court level.

The only means of challenging these concerns is by judicial review. Survivors should be consulted about the terms of reference, which should be much wider than now.

Note

In a recent Court of Appeal case (14 October 2014) Otkritie International Investment Management & Ors v Urumov [2014] EWCA as follows:

[1] It is a basic principle of English law that a judge should not sit to hear a case in which “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [he] was biased”, see Porter v Magill…. The concept of bias includes any personal interest in the case or friendship with the participants, but extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view;…(italics added).

Grounds for judicial review

REGINA (on the application of JOANNE MICHELLE HEATH) v SECRETARY OF STATE FOR HOME OFFICE

GROUNDS AND REASONS

INTRODUCTORY

The application

  • This application relates to a decision of the Secretary of State for the Home Office (the ‘Home Secretary’) to set up a non-statutory inquiry (the ‘inquiry’) into historic instances of child sexual abuse; and to appoint to its panel three members, including Mrs Fiona Woolf.
  • The applicant is one of a number of people who were sexually abused as children and who considers that Mrs Woolf may not be impartial in the discharge of her role. She appears to have personal relations with politicians whose actions are implicated in the inquiry; she does not have the obvious expertise in the fields of inquiry concerned; and she may not have time to discharge her duties as chair of the inquiry.
  • Information on these points has been requested of the Home Office since 12 September 2014 (date of pre-action protocol letter). Information and documents and any other disclosure by the Home Secretary are yet to be provided.
  • Terms of reference of the inquiry have not been drawn up, so far as the applicant is aware and at the time of preparation of this document.
  • No consultation as to those terms of reference has taken place with the applicant, nor with any other of the survivors with whom she is in contact. Their evidence, it is submitted, will be crucial to the inquiry and assistance from them as to its terms of reference are essential.

Disclosure of information from Mrs Woolf and other panel members

  • The applicant will seek as part of this application full disclosure of information (as summarised in the judicial review pre-action protocol letter (at Appendix 2) now adopted by the applicant).
  • Subject to disclosure by the Home Office, the applicant seeks a declaration that due to her inexperience, the time available to her and her perceived lack of impartiality, Mrs Fiona Woolf is not a person who is appropriate to chair or otherwise to be involved with this inquiry. She therefore seeks a mandatory order that her appointment be revoked.
  • Regardless of disclosure, the applicant seeks orders that
  • That representatives of survivors and survivors themselves should be consulted as to the terms of reference of the inquiry.
  • That the Home Secretary review her decision to make this a non-statutory inquiry and that she set it up as a statutory inquiry chaired by a judge of High Court or higher seniority.

The applicant: ‘sufficient interest’

  • JH is a survivor (otherwise ‘victim’) of sexual abuse as a child. Her abuser was committed to prison on at least five life sentences for rape, including rapes on her.
  • There are a number of survivors like her; and a number of groups of formerly abused individuals from a variety of backgrounds, different situations and different forms of abuse. What each have in common is that they were abused as children.
  • As a survivor JH is a person with sufficient interest in the outcome of this application to justify her making this application (Senior Courts Act 1981 s 31(3)). (For further detail JH’s statement explaining the background to her own case is herewith.)
  • It is possible that JH may be treated as a core participant in connection with the inquiry, whether under Inquiry Rules 2006 r 5(2) or otherwise if the inquiry remains non-statutory.

Background facts

  • On 7 July 2014 the Home Secretary set up an inquiry into child sex abuse (see Appendix 1). When it was set up the inquiry was discretionary (ie not appointed under Inquiries Act 2005); and that remains the position at the time of preparation of this pleading. As mentioned terms of reference for the inquiry remain to be fixed.
  • Initially its chair was to be Dame Elizabeth Butler-Sloss, with two other panel members. It later became necessary for Dame Elizabeth to resign.
  • On 5 September 2014 the Home Secretary announced Fiona Woolf as a replacement for Dame Elizabeth in the following terms:

Further to my statement to the House on 7 July and my WMS of 9 July, I am pleased to announce that I have appointed Fiona Woolf CBE, JP to be the chairman of the independent inquiry panel of experts in the law and child protection, to consider whether public bodies – and other, non-state, institutions – have taken seriously their duty of care to protect children from sexual abuse.

Fiona Woolf has had a long and distinguished career holding high-profile and challenging positions, including President of the Law Society and Chairman of the Association of Women Solicitors (AWS), and is only the second woman since 1189 to hold the position of Lord Mayor of London. As a lawyer, and latterly partner, at CMS Cameron McKenna for over 20 years, Fiona Woolf has worked in over 40 jurisdictions. She has advised over 25 governments and multi-lateral agencies such as the World Bank. She has also served as a member of the Competition Commission for 8 years. I am confident that Fiona Woolf has the skills and experience needed to set the strategic direction of the Inquiry, to lead the work of the Panel, and to challenge individuals and institutions without fear or favour to get to the bottom of this issue, and stop it happening again.

  • Suggestions have been made by the applicant and other survivors that Mrs Woolf is not unbiased; that she may not have the necessary, relevant experience for the job of this type of inquiry; and that she may not have the time necessary to devote to it. Fears on this account have been raised with the Home Office (see pre-action protocol letter (‘PAP letter’): Appendix 2). The original PAP letter was addressed to the Treasury Solicitor (for the Home Office) by a survivor to maintain momentum in the process. The change to Joanne Heath as applicant has been indicated to the respondent through her solicitor without any apparent objection being taken.

Pre-action protocol

  • To date there has not been any response or explanation; nor any disclosure by the Home Office as to what information they have on these questions from any panel member and, in particular, from Mrs Woolf (and see references to Inquiries Act 2005 ss 8 and 9 below).
  • The PAP letter has been acknowledged on behalf of the respondent (Appendix 3); but even their extended dead-line (by comparison with the normal protocol time-limits) of 17 October 2014 has passed. At the time of preparation of this document no response has been received.
  • The only way in which a survivor can challenge the impartiality and other attributes of a chair to conduct an inquiry such as this is by judicial review (as distinct from the right of a litigant in court proceedings to apply direct to a judge to seek his/her recusal from a case).
  • Although the inquiry was announced on 7 July 2014 it is understood that the panel has only met once and that in the absence of Mrs Woolf.

Consultation

  • There has been no consultation as to the terms of reference with survivors; or with groups of survivors or their representatives, so far as is known by JH. They are the individuals who may be directly affected by important aspects of the inquiry and their experiences could help to inform the work of those entrusted with the drafting of the terms of reference.
  • It is known by the respondent that survivors are preparing draft terms of reference. The current draft is at Appendix 4, and has been received by the respondent through her solicitors.

THE LAW

(1)        INQUIRY PANEL

Statutory provision and common law

  • Inquiries Act 2005 (‘IA 2005’) was passed to clarify the law on the appointment of inquiries; though it did not make it obligatory for a minister so to do. Where an inquiry is set up under the 2005 Act it is governed by Inquiry Rules 2006 (‘IR 2006’). So far as it is necessary so to infer, it will be said that the Act and the 2006 Rules codify many common law principles applicable to this application.
  • For the present these grounds and reasons will proceed as if IA 2005 and IR 2006 represent the common law (and thus non statutory inquiries), save where it is obvious that the common law and statute are inconsistent.
  • Administrative Law (2009) Wade & Forsyth (10th Ed) at page 828 comments that though IA 2005 does not expressly prevent ministers from setting up ‘ad hoc non statutory inquiries… the 2005 Act procedure will doubtless emerge as the standard with its tight control over the direction and costs of the discretionary inquiry.’
  • IA 2005 s 4 deals with the setting up of a statutory inquiry panel in the following way:

4 Appointment of inquiry panel

(1) Each member of an inquiry panel is to be appointed by the Minister by an instrument in writing.

(2) The instrument appointing the chairman must state that the inquiry is to be held under this Act.

(3) Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman.

  • What follows is subject to any appropriate and full disclosure being provided as to the matters below by the Home Secretary.

Impartiality and ‘bias’

  • It is a principle of English administrative law that any decision-maker must be free from bias; and principles akin to the bias test in judicial standing and recusal are imported accordingly (de Smith’s Judicial Review (2013) ed Woolfe et al at ; Administrative Law (2009) Wade & Forsyth (10th Ed) at ).
  • Inquiries Act 2005 s 9 provides as follows:
  1. 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.

  • The applicant does not know what disclosure has been made by any inquiry member as to any association which he or she may have which comes within the compass of

s 9(1).

  • Whereas a party to court proceedings knows that s/he can apply to a judge to recuse him/herself, there is no obvious procedure provided for in IR 2006 or otherwise as to how a person interested in the outcome of an inquiry, can validly object to a panel appointment save by judicial review. This application is pursued in this way accordingly.

Experience

  • IA 2005 s 8(1) provides as follows:
  1. Suitability of inquiry panel

(1) In appointing a member of the inquiry panel, 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;…

  • The office website of C/M/S, Law Tax, solicitors describes Mrs Woolfe thus:

Fiona Woolf has been at the cutting edge of all the major reforms in the electricity sector for over 20 years. She has worked on over 40 jurisdictions on electricity market implementation, regulation and power and transmission projects. She is now focusing on large regional infrastructure projects and trading arrangements and regulatory regimes to attract investment. Fiona is a non-executive director of a water company and was a former member of the Competition Commission. Fiona is currently serving as the Lord Mayor of the City of London for 2013/14.

  • Taken ‘as a whole’ the panel has no judicial member (as was Lady Butler Sloss[1]); though Mrs Woolfe is a solicitor and she is understood have sat as a magistrate (with a legal adviser) she has no experience of criminal or family law; nor of cross-examination of witnesses or of detailed inquiry. She has no experience to draw upon if (as it must be) part of the inquiry’s terms of reference (when finally settled) is to make recommendations.
  • There are a variety of other parallel and similar enquiries (Jersey; reconsidering Waterhouse: Macur LJ; Rotherham; etc …). It is not obvious that Mrs Woolfe would have the experience (by comparison with (say) Macur LJ to co-ordinate and draw together all the recommendations of these various inquiries.

Time available for the job

  • Though she was appointed at the beginning of September there is no evidence that Mrs Woolfe has yet started work on the inquiry remit. Lord Leveson sat more or less continuously for a year. Can Mrs Woolfe assure the home Secretary of the same time commitment?

(2)        CONSULTATION

Terms of reference

  • IA 2005 s 5 provides as follows:
  1. Setting-up date and terms of reference

(1) In the instrument under section 4 [set out in full above] appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must—

(a) specify the date that is to be the setting-up date for the purposes of this Act; and

(b) before that date—

(i) set out the terms of reference of the inquiry;

(ii) state whether or not the Minister proposes to appoint other members to the inquiry panel, and if so how many.

(2) An inquiry must not begin considering evidence before the setting-up date.

(3) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires.

(4) Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman.

(5) Functions conferred by this Act on an inquiry panel, or a member of an inquiry panel, are exercisable only within the inquiry’s terms of reference.

(6) In this Act “terms of reference”, in relation to an inquiry under this Act, means—

(a) the matters to which the inquiry relates;

(b) any particular matters as to which the inquiry panel is to determine the facts;

(c) whether the inquiry panel is to make recommendations;

(d) any other matters relating to the scope of the inquiry that the Minister may specify.

  • There is no statutory duty upon the Home Secretary to consult on the subject of the inquiry’s terms of reference. It might be thought that the survivors’ experiences would inform the drafting of terms of reference. Their involvement in drafting might also assist in securing as much public support as possible for the work of the inquiry.
  • Consultation could take place with some of the leading spokespeople for the survivors and others who represent the survivors. Ultimate responsibility for the terms of reference, it is accepted, rests with the Home Secretary and chair of the inquiry.
  • It will be noted that s 5(3) speaks of ‘public interest’ which implies some dialogue with a ‘public’; and in the light of the direction in which administrative law is going (see eg R v North & East Devon HA exp Coughlan [1999] EWCA 1871, [2001] QB 619) it might be thought that some public consultation is legitimately to be expected by those directly concerned as subjects of the inquiry.

RIGHTS OF THE APPLICANT ENGAGED BY THIS APPLICATION

Common law and European Convention 1950 rights

  • The applicant challenges the decision of the Secretary of State to appoint the panel, and on the basis of her present knowledge she does so by asserting that it engages her civil right to a fair trial of the issues into which the tribunal must inquire. A judge must be entirely free from bias; and this can only be challenged within the course of separate judicial review or other court proceedings.
  • There is no clear basis under present inquiry procedures on which an interested party in respect of an inquiry can challenge a panel members’ bias or other perceived shortcomings in the make-up or terms of reference of the inquiry.
  • It will be submitted that the applicant has a ‘civil right’ within the terms of Art 6(1); and that this is engaged by the right of a person with a sufficient interest in the outcome of the inquiry to challenge its format and, in particular, the appropriateness and partiality of any of its members.
  • Provided that that person (A) can show ‘sufficient interest’ (Senior Courts Act 1981 s 31(3); or that she is a ‘victim of an unlawful act’: Human Rights Act 1998 s 7(1)) in its proceedings and if a right is in issue, it is submitted that A can apply for judicial review of decisions in relation to the setting up of the inquiry.
  • De Smith’s Judicial Review ed Woolf et al, 7th Edition (2013) deals with the question of judicial review and inquiries at paras 1-102 to 1-106.
  • In R (ota Howard and anor) v Secretary of State for Health [2002] EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) (judgment was given on the same day, 15 February 2002), applicant sought review of decisions to hold a private, not public, inquiry in each case (Howard: widespread abuse of patients by two doctors; Persey: inquiry following the foot and mouth epidemic). The challenge was based on the rights to freedom of expression under Art 10 (not as here under Art 6(1)). Both applications were refused.
  • In neither case was there any suggestion that the challenge to the setting up of the inquiry was impermissible.
  • If there is an assertion that the decision-making qualities of the inquiry chairman may be unlawful because (say) of a perceived bias, that should – in logic – be capable of challenge. In the analogous case of a judge in court proceedings, the party who wishes to assert the judge’s bias can apply in the existing court proceedings to the judge, and ask him/her to recuse him/herself (come off the case).
  • IR 2005 provides no mechanism for any challenge, akin to (say) an application to a judge to recuse in ordinary civil proceedings.
  • If bias can be challenged in a judge as a matter of guarantee to a fair trial and as a matter of case management or other court direction, it is submitted that it must be that a panel member’s bias can be challenged by judicial review.
  • The court will be asked in judicial review to consider whether – in terms of bias, or lack of impartiality or any other impediment – the decision of the Secretary of State to appoint was lawful. Thus, for example, in the two cases cited above the court had sympathy with the applicants who wished to have the enquiry made open to the public; but there was no basis on which they could fault the legitimate exercise of the discretion of the Secretary of State in each case.
  • ‘Bias’ goes to the root of a fair trial; and to the root of a fair disposal of an inquiry’s work (and see Inquiries Act 2005 s 9 above). If as a matter of law, bias is found to exist (actual or perceived), it is submitted that the only basis on which the applicant can challenge the panel appointment is by judicial review.

PROTECTIVE COSTS ORDER

  • The applicant applies in her own right; but also as a representative of a number of individual survivors and with the support of a representative body, MAMAA UK. She seeks costs protection. She plans to apply for legal aid. She is advised that financially she is eligible for legal aid.
  • In R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192 the Court of Appeal considered the making of protective costs orders and approved such orders in the following terms:

[74] We would therefore restate the governing principles in these terms:

(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

(i) the issues raised are of general public importance;

(ii) the public interest requires that those issues should be resolved;

(iii) the applicant has no private interest in the outcome of the case;

(iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; and

(v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.

  • This approach was approved by the Court of Appeal in R (ota Buglife – The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corp [2008] EWCA Civ 1209; and reviewed recently in eg R (The Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin), Haddon-Cave J.
  • It is hoped that these grounds and reasons explain the public interest in this case (especially where it is argued that a prominent tribunal member may not be free from bias); and that that public interest demand that the issue be resolved by this court. The applicant’s private interest in the matter is limited to the fact that she is one of many who are closely concerned at the outcome of this inquiry. Her financial resources would prevent her entirely from bringing this claim, whilst those of the respondent are substantial. If an order is not made it would be impossible for the applicant to pursue her applicant (especially without alternative – ie legal aid – government funding).
  • The applicant cannot afford to pay lawyers to assist with this claim. They have acted pro bono to date; though they cannot guarantee to continue to pursue it for no fee beyond a limited stage.
  • The applicant seeks a protective costs order accordingly; and will inform the court and the respondent immediately when the outcome of her application for legal aid is known.

SECTION 7

AND THE APPLICANT CLAIMS:

  • Disclosure of all information which the Home Secretary has concerning all panel members:
  • as to the impartiality and possible bias of all members (in particular of Mrs Fiona Woolfe
  • as to the relevant experience to chair the inquiry of Mrs Woolfe
  • as to the extent of time which Mrs Woolfe can devote to the job
  • Permission to proceed with an application for judicial review and order thereupon as follows.
  • A declaration that due to her inexperience, the time available to her and her perceived lack of impartiality, Mrs Fiona Woolf is not a person who is appropriate to chair or otherwise to be involved with this inquiry.
  • A consequent quashing order as to the appointment of Mrs Woolfe to the inquiry panel.
  • A mandatory order that the Home Secretary should consult with representative bodies for the survivors and with survivors themselves as to the terms of reference of the inquiry.
  • A protected costs order (as applicable and dependant on the outcome of the applicant’s application for legal aid).

David Burrows

SECTION 9

(1)        Disclosure

The applicant presumes that the respondent will be entirely frank in reply to this application and will give full disclosure in the usual way.

In particular the applicant seeks, as the Home Office knows, full information and appropriate disclosure as to what the Home Secretary knows as to the bias, expertise and time commitment of the panel members, especially of the proposed chairman.

Further the applicant seeks all information and documentation as to the steps taken by the Home Secretary to consult over the terms of reference of the inquiry.

(2)        Applicant’s address

The applicant’s assailant has recently been released on parole, and she fears that if her address is made public in any way he may attempt to contact her.

(3)        Protective costs order

Please see the section of the grounds above which deals with a protective costs order.

Appendix 1

 

HOME SECRETARY’S STATEMENT SETTING UP A CHILD SEXUAL ABUSE INQUIRY

Home Secretary’s statement of 7 July 2014 setting up a child sex abuse inquiry

With permission, Mr Speaker, I would like to make a statement about the sexual abuse of children, allegations that evidence of the sexual abuse of children was suppressed by people in positions of power, and the government’s intended response.

Mr Speaker, in my statement today I want to address two important public concerns. First, that in the 1980s the Home Office failed to act on allegations of child sex abuse. And second, that public bodies and other important institutions have failed to take seriously their duty of care towards children.

As I do so, I want to set three important principles. First, we will do everything we can to allow the full investigation of child abuse and the prosecution of its perpetrators, and we will do nothing to jeopardise those aims. Second, where possible the government will adopt a presumption of maximum transparency. And third, we will make sure that wherever individuals and institutions have failed to protect children from harm, we will expose these failures and learn the lessons.

Concern that the Home Office failed to act on allegations of child abuse in the 1980s relates mainly to information provided to the department by the late Geoffrey Dickens, a member of this House between 1979 and 1995.

As the House will be aware, in February 2013, in response to a Parliamentary question from the Hon Member for West Bromwich East, the Permanent Secretary of the Home Office, Mark Sedwill, commissioned an investigation by an independent expert into information the Home Office received in relation to child abuse allegations, including information provided by Mr Dickens. In order to be confident that the investigation would review all relevant information, the investigation reviewed all relevant papers available relating to child abuse between 1979 and 1999.

The investigation reported last year and its executive summary was published on 1 August 2013. It concluded there was no single “Dickens Dossier”, but there had been letters from Mr Dickens to several home secretaries over several years that contained allegations of sexual offences against children. Copies of the letters had not been kept, but the investigator found evidence that the information Mr Dickens had provided had been considered and matters requiring investigation had been referred to the police.

In total, the investigator found thirteen items of information about alleged child abuse. The police already knew about nine of those items, and the remaining four were passed by the Home Office to the police immediately.

The investigation found that 114 potentially relevant files were not available. These are presumed – by the Home Office and the investigator – destroyed, missing or not found, although the investigator made clear that he found no evidence to suggest that the files had been removed or destroyed inappropriately.

The investigation found no record of specific allegations by Mr Dickens of child sex abuse by prominent public figures.

Upon completion of the investigation, the Home Office passed the full text of its interim report and final report, along with accompanying information and material, to the police for them to consider as part of their ongoing criminal investigations.

As Mark Sedwill has said, the investigator recorded that he had unrestricted access to Home Office records and he received full cooperation from Home Office officials. The investigator was satisfied that the Home Office passed all credible information about child abuse in the time period – from Mr Dickens and elsewhere – to the police so they could be investigated properly.

Mr Speaker, I believe that the Permanent Secretary did all the right things in listening to the allegations made by the Hon Member for West Bromwich East and ordering an independent investigation. I am confident that the work he commissioned was carried out in good faith. But I know that with allegations as serious as these, the public needs to have complete confidence in the integrity of the investigation’s findings.

So I can tell the House that I have today appointed Peter Wanless – the chief executive of the National Society for the Prevention of Cruelty to Children – to lead a review not just of the investigation commissioned by Mark Sedwill but also how the police and prosecutors handled any related information that was handed to them. Peter Wanless will be supported in his work by an appropriate senior legal figure, who will be appointed by the Permanent Secretary. Where the findings of the review relate to the Director of Public Prosecutions, it will report to the Attorney General as well as to me.

I will ask the review team to advise my officials on what redactions to the full investigation report might be needed in order that, in the interests of transparency, it can be published without jeopardising any future criminal investigations or trials. I expect the review to conclude within eight to ten weeks, and I will place a copy of its terms of reference in the House Library today.

In addition to the allegations made by Geoffrey Dickens, there have also been allegations relating to an organisation called the Paedophile Information Exchange, a paedophile campaign group that was disbanded in 1984. In response to another query from the Hon Member for West Bromwich East, the Permanent Secretary commissioned another independent investigation in January this year into whether the Home Office had ever directly or indirectly funded PIE. That investigation concluded that the Home Office had not done so, and I will place a copy of the investigation’s findings in the House Library today. But, again, in order to ensure complete public confidence in this work, I have also asked Peter Wanless to look at this investigation as part of his review.

Mr Speaker, I now want to turn to public concern that a variety of public bodies and other important institutions have failed to take seriously their duty of care towards children. In recent years, we have seen appalling cases of organised and persistent child sex abuse. This includes abuse by celebrities like Jimmy Savile and Rolf Harris, as well as the systematic abuse of vulnerable girls in Derby, Rochdale, Oxford and other towns and cities. Some of these cases have exposed a failure by public bodies to take their duty of care seriously and some have shown that the organisations responsible for protecting children from abuse – including the police, social services and schools – have failed to work together properly.

That is why, in April 2013, the government established the National Group to tackle Sexual Violence Against Children and Vulnerable People, which is led by my Hon Friend the Minister for Crime Prevention. This cross-government group was established to learn the lessons from some of the cases I have mentioned and the resulting reviews and inquiries. As a result of its work, we now have better guidance for the police and prosecutors, new powers for the police to get information from hotels that are used for child sexual exploitation, and better identification of children at risk of exploitation through the use of local multi-agency safeguarding hubs. In the normal course of its work the Group will publish further proposals to protect children from abuse.

I know that in recent months many Members of the House, from all parties, have campaigned for an independent, overarching inquiry into historical allegations of child abuse. In my correspondence with the seven Members of Parliament who wrote to me about the campaign – the Hon Members for Birmingham Yardley, Brighton Pavilion, East Worthing and Shoreham, Richmond Park, Rochdale, Wells, and West Bromwich East – I made clear that the government did not rule out such an inquiry.

I can now tell the House that the government will establish an independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by an appropriately senior and experienced figure. It will begin its work as soon as possible after the appointment of the chairman and other members of the panel. Given the scope of its work, it is not likely to report before the general election – but I will make sure that it provides an update on its progress to Parliament before May next year. I will report back to the House when the inquiry panel chairman has been appointed and the full terms of reference have been agreed.

It will, like the inquiries into Hillsborough and the murder of Daniel Morgan, be a non-statutory panel inquiry. This means that it can begin its work sooner, and because the basis of its early work will be a review of documentary evidence rather than interviews with witnesses who might themselves still be subject to criminal investigations, it will be less likely to prejudice those investigations. But I want to be clear that the inquiry panel will have access to all the government papers, reviews and reports it needs. Subject to the constraints imposed by any criminal investigations, it will be free to call witnesses from organisations in the public sector, private sector and wider civil society. And I want to make clear that – if the inquiry panel chairman deems it necessary – the government is prepared to convert it into a full public inquiry in line with the Inquiries Act.

Mr Speaker, I began my statement by saying that I wanted to address the dual concern that in the past the Home Office failed to act on information it received, and, more broadly, that public bodies and other institutions have failed to protect children from sexual abuse. I believe that the measures I have announced today do address those concerns.

I also said I wanted the work we are doing to reflect three principles. That our priority must be the prosecution of the people behind these disgusting crimes. That wherever possible – and consistent with the need to prosecute – we will adopt a presumption of maximum transparency. And that where there has been a failure to protect children from abuse, we will expose it and we will learn from it. I believe that the measures announced today do reflect those important principles. And so I commend this statement to the House.

Appendix 2

12 September 2014

Treasury Solicitor

One Kemble Street

London

WC2B 4TS

thetreasurysolicitor@tsol.gsi.gov.uk

Dear Sir

Child Sex Abuse Inquiry: appointment of chair to the inquiry panel

Proposed claim for judicial review

Proposed defendant

This letter is written in the terms of the judicial review pre-action protocol. It concerns the Home Secretary’s appointment of Fiona Woolf to an inquiry (with terms of reference as yet undisclosed). I believe the Home Secretary has used discretionary powers (ie the inquiry is not set up under Inquiries Act 2005 s 5). She is the proposed defendant.

Applicant

I am Ian McFadyen, and my interest in the subject matter of this letter and any subsequent application for judicial review is as a survivor of child abuse when I was at school between ## and ##.

Law

As I say, I am assuming the inquiry is set up under your discretionary powers (not under Inquiries Act 2005). I shall assume, however, that in many respects the 2005 Act merely codifies the common law. It is your powers at common law, for the present with which we are concerned.

In particular, at common law, you have a duty to act fairly; and you and any member of the panel must be – and be seen to be – impartial: that is free from any possible or perceived bias.

 

Details of the matter being challenged

(a)        Suitability

It is not clear to me that the qualifications of Lady Woolf bring her within the terms of suitability, certainly as would be the position under Inquiries Act 2005 s 8(1)(a).

(b)        Partiality

Of more concern to me is whether you have considered her impartiality (at common law and in terms of Inquiries Act 2005 s 9); and whether you have received from her full information as to her acquaintance with individuals whom she may have to cause to be interviewed by the panel, and on whom she may have to prepare a damaging report. Her role will be that of an inquisitor, not unlike the police perhaps: can she perform in this way if her neighbour, for example, is someone whose role she has to investigate in her inquiry?

(c)        Consultation

I have been told you said in the latter part of July that you would ‘consult’ concerning the setting up of the inquiry. I am not clear what you meant by this, and with whom you intend to consult. If it was only with the seven MPs who were concerned over all this, even they were not consulted.

Certainly survivors such as myself were not approached for any thoughts we might have.

The issue – bias: impartiality

The main issue and basis for any possible challenge to your setting up of the inquiry is the importance of openness in relation to personal, business or other relations of panel members with those who may be – or should be – criticised by the inquiry. This applies to all to members, and especially perhaps the chair of the inquiry.

Have all members been fully frank with you as to their impartiality? If so, please would you publish what has been said? (This could perhaps be dealt with on a freedom of information basis?)

The details of the action that the defendant is expected to take

The actions I ask you to take are to forward to me:

  • Immediate publication of what you have been told by Lady Woolf and other panel members as to any matters which might go to their partiality in this inquiry
  • A statement of your reasons for appointing Lady Woolf instead of, for example, a Court of Appeal or Supreme Court judge (whether practising or recently retired)
  • Information as to what you may have intended by ‘consultation’ when you set up the inquiry; and of what consultation you actually carried out

The details of any information sought

As above

Proposed reply date

 

The setting up of this inquiry has already been long delayed. I would not want appointment of any panel member to delay it still further. If I am judicially to review your decision time limits in this area are very short (see eg Inquiries Act 2005 s ).

I hope, therefore, you can reply to this letter (since all information should already be available to you) by or before 4 pm on 15 September 2014.

Yours sincerely

Appendix 3

DX 123242 Kingsway 6

Switchboard: 0207 210 3000

Direct Line: 0207 210 2967

Direct Fax:  0207 210 3410

melanie.farr@tsol.gsi.gov.uk

Please Quote: Z1423842/MPT/B4

Your Reference: –

David Burrows
Solicitor advocate

Kemp House,

152 City Road,

LONDON

BY EMAIL

8 October 2014

Dear Mr Burrows

Child Sex Abuse Inquiry: appointment of the inquiry panel and Mrs Woolf: Proposed claim for Judicial Review

We write further to our letter dated 30 September 2014 and our telephone conversation with you on 6th October 2014.

We understand that you act for Mr MacFayden in this matter.

As discussed, we would be grateful if you could provide clarification in respect of certain matters referred to in your client’s pre action letter dated 12th September 2014.

Firstly, in the second part of the paragraph entitled: The Issue – Bias: Impartiality; your client asks whether all members of the panel have been fully frank as regards their impartiality and if so whether the Home Secretary will publish what has been said. Your client’s letter states in brackets that this could perhaps be dealt with on a freedom of information basis.

Please confirm whether your client does in fact wish to make a request for information under the Freedom of Information Act. Any request under the Freedom of Information Act should be directed to the relevant authority, in this case the Home Office. The Treasury solicitors do not hold the information referred to in your letter.

We would suggest that you direct any request to The Home Office, 2 Marsham Street, London, SW1P 4DF.

We would be grateful if you could also provide further detail as to the information your client is seeking. This will assist our client in identifying the information as quickly as possible.

In your client’s letter, he refers to the action that the defendant is expected to take. There is no reference to the remedies sought however and we would be grateful if you could provide such details in your response to this letter.

In the course of our telephone conversation on 6th October, we discussed our request for an extension of time to respond to the pre action letter. You have asked that we try to provide a response by Monday 13th October. While we will endeavour to provide a response as soon as possible, we requested further time to enable us to provide a fully comprehensive reply to your letter. We would be grateful to have until 20th October 2014 to provide a response.

We look forward to hearing from you.

Yours sincerely

Melanie Farr

For the Treasury Solicitor

 

Appendix 4

DRAFT – TERMS OF REFERENCE OF CHILD SEX ABUSE INQUIRY

See – https://dbfamilylaw.wordpress.com/2014/10/16/csainquiry-draft-terms-of-reference-iii/

[1] Not sure what her title now is

LAW, PRACTICE DIRECTIONS AND GUIDANCE

Practice Directions and the President of the Family Division

In her http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/ @familoo reflects on precedent law: ‘Who to follow: the precedent or the President?’. In it she asserts:

Whilst the President has the power to issue Guidance or Practice Directions, what status do his Views hold, styled in title if not in form as the idle musings of a be-windowed leader? The answer is of course they warn us what the Court of Appeal might say in the event we fail to take heed and find our foolish disobedience immortalised in a new actual (and excruciatingly embarrassing) binding precedent.

This breaks down into three areas of ‘law-making’ (the inverted commas will be explained): Practice Directions, Practice Guidance and the habit of Sir James Munby P of musing at his chambers window (which are indeed but his thoughts: no more, though from a voice significant in the family law system; and that is the last to be said on fenestral musings here).

Sir James, the current President of the Family Division, is a dogmatic figure; and sometimes fails to distinguish between his position as a judge, and as an administrator. In the latter role he must be amenable to judicial review. Rightly, he stresses that family law is part of the civil law system. It is not some segregated lawless Alsatia (see eg Richardson v Richardson [2011] EWCA Civ 79). At the same time he does much precisely to drive family proceedings into their own ghetto, Alsatia even. For example the new rules and statute law on expert evidence is technically the creation of statutory bodies; but bears his firm imprint. It creates three regimes for expert evidence: children proceedings (mostly in Children and Families Act 2014 s 13); all other family proceedings (FPR 2010 Part 25); and other civil proceedings (CPR 1998 Part 35). Over all of these arches Civil Evidence Act 1972 s 3.

Practice Direction, Practice Guidance and ‘gap’ rules

The question of practice guidance divides this area of delegated legislation into Practice Directions, Practice Guidance and ‘gap’ rules (together here called ‘practice rules’). The topic is considered fully in my Practice of Family Law: evidence and procedure (Jordans, 2012) at Chapter 2 (paras 2.12-2.36). Rules are made by Family Procedure Rules Committee under powers in Courts Act 2003 ss 75-76 (outside the scope of this note). Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice (family proceedings Practice Directions are endorsed as being approved by the LCJ).

Limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.

Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors v The Society of Lloyds [2007] EWCA Civ 586 at para [7]-[9]) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC [2005] EWCA Civ 475 at para [48] for practice directions:

It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

‘Gap’ rules

If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras [37]-[39]). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be. One of the more remarkable recent breaches of this principle – though largely unremarked at the time, and since – was that of Mostyn J in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In that case the judge gratuitously issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors [2010] EWCA Civ 908: private documents taken by one spouse unknown to the other).

The ‘guidance’ was no part of the ratio of Mostyn J’s decision. (It is generally known that Sir James approves this ‘guidance’.) It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the law Society or the Bar Council). The ‘guidance’ fills no Bovale gap necessary to enable the court to resolve a disputed issue. Short of judicial review – Mostyn J was not acting as a judge, in the sense that a judge adjudicates between opposing points of view, so must have been amenable to review – there is no way the decision can be challenged. The ‘guidance’ is foreign to all democratic principles on which the rule of law is based. Plainly Mostyn J’s ‘guidance’ is a charter for cheats (as explained in https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ); but until the professional negligence claims start coming in from spouses who were advised to part with crucial evidence of material non-disclosure, the Mostyn J ‘guidance’ on the subject will be followed by impressionable family lawyers.

Status of practice directions and guidance

As can be seen: practice directions and guidance are not law. They guide practice. They cannot – or should not – be given by judges on the hoof; and if, as ‘gap’ rules, they are to be made, courtesy (ignored by Mostyn J) suggests that the judge enables practitioners in a case to comment on the proposed ‘gap’ filling guidance. An excellent example of this practice by a judge can be seen operated by Keehan J in A Local Authority v DG & Ors [2014] EWHC 63 (Fam).

#CSAINQUIRY RIGHTS AND CHILD SEX ABUSE: PART 2

Questions, 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 in setting up the inquiry,’ you reminded me.

‘Yup, and that.’

‘Well?’ Your anger had returned, tinged with impatience. ‘Any thoughts, or – better still – any answers on all this?’

‘I’ve got some thoughts. I can tell you a bit of law about it all. But we may be in legal uncharted waters with some of it. The common law cannot always give clear answers. Like life, the future cannot always be comfortably and clearly predicted – any more than a medic can always tell you the outcome of an operation.’

Impartiality and bias

I have already gone on a lot about ‘bias’ (https://dbfamilylaw.wordpress.com/2014/09/14/csainquiry-panel-expertise-and-bias/); and you’ll remember it’s one of the two fundamental aspects of a fair trial (the other is to hear both sides). At this point it is worth stressing the exact terms of European Convention 1950 Art 6(1):

In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

That the tribunal (ie the judge or the court) must be ‘impartial’ is there in clear words. ‘Bias’ means that you are not impartial. I am saying that an inquiry member is in no way different from a judge: the panel member must be entirely impartial (and this is stressed also by Inquiries Act 2005 s 9: quoted in blog 2014/09/11 below). A fair trial – and so too a fair inquiry – demands freedom from bias: ie complete impartiality.

And the need for an inquiry panel member to be impartial may go further: a judge works on the basis of the arguments put to the court. Normally, in English law, the judge does not go outside that. An inquiry must go further. It has an inquisitorial role. Literally, an inquiry inquires (https://dbfamilylaw.wordpress.com/2014/09/11/an-inquiry-inquires/). It must dig and look outside the evidence presented to it. Look at how Lord Justice Leveson (see below) dug around in the press inquiry.

If, for example, a panel member knows a person who should be inquired into it is always going to be much harder to press inquiries against them. A judge would automatically regard themselves as barred from a case if a colleague or friend or other associate were involved in a case (###). And for an inquiry panel member, I believe, the need for impartiality is greater even than for a judge.

A judge’s partiality in a case can be challenged in the course of the case or at a hearing. If an inquiry member is not frank about his/her suspected bias and the government ministry will not produce information, the only way for challenge to the panel member is by judicial review.

Expertise

Inquiries Act 2005 s 8(1)(a) requires that when a panel member is appointed, a minister ‘must have regard to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry’. I accept that, for the present this is a discretionary inquiry; but I believe say that much the same rules on expertise apply to a discretionary as to a statutory inquiry.

I don’t believe that Mrs Woolf has any expertise in the area of child sex abuse (and see https://dbfamilylaw.wordpress.com/2014/09/14/csainquiry-panel-expertise-and-bias/). As a lawyer her experience is separate from the field of children law and crime. Her forensic skills are not mentioned. We do not know what ‘expertise’ the Home Secretary perceives in her for the job. ‘Considered as a whole’, I would say the panel lacks forensic expertise to do the job.

Whether Mrs Woolf can realistically take it on with all her other duties: well that is another point which she must surely consider? She is a woman who accumulates honours: that is not what this job needs: it is an acute and inquiring mind. I have no reason to believe she has either.

Consultation of individuals concerned

Strictly speaking the law does not require Mrs May, the Home Secretary, to consult on her appointment of the inquiry panel. However the tendency of modern government and administration is to consult whenever reasonably possible. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 in the Court of Appeal 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.

The point was discussed in last Friday’s legal aid case (19 September 2014: R (ota London Criminal Courts Solicitors Association and Criminal Law Solicitors Association) v The Lord Chancellor [2014] EWHC 3020 (Admin), Burnett J http://www.judiciary.gov.uk/wp-content/uploads/2014/09/the-queen-on-the-application-of-lccsa-clsa-v-the-lord-chancellor.pdf) where the judge set aside – ‘quashed’ – a decision by the Lord Chancellor on legal aid because the Lord Chancellor (ie the Ministry of Justice) had not consulted properly.

Mr Justice Burnett explained the ‘applicable legal principles’:

[34] There is no statutory duty to consult in connection with legal aid changes but a long-standing practice of doing so…. The Courts have considered procedural fairness in the context of the adequacy of a consultation process on countless occasions. The decision in each of those cases is highly fact and context sensitive: see R (Easyjet Airline Co Ltd) v Civil Aviation Authority [2009] EWCA Civ 1361 per Dyson LJ at [51]. In R v Secretary of State for Education ex p M [1996] ELR 162 at 206 – 207, Simon Brown LJ cautioned against applying a mechanistic approach to what was required in a consultation exercise. The essential features of an adequate consultation exercise were summarised by Lord Woolf MR [108] and [112] of the judgment of the Court of Appeal in: R v North and East Devon Health Authority exp Coughlan [2001] QB 213, [1999] EWCA 1871.

The judge then quoted these passages, in particular the following:

[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).

How does this apply to inquiries? The position is much less clear. There is a survivor’s group and some highly articulate members. I can see that they could be consulted on terms of reference for the inquiry; and there are plenty of reasons why they should be.

Whether, though interested parties, survivors can expect to be consulted on membership of a panel seems to me more doubtful. It is one thing to challenge the judge in a case because of bias. To assert positively who should be the judge – ie choose your judge – is quite another matter. An inquiry panel is not the same as a judge; but I can that this question presents problems.

‘Within a reasonable time’

One of the most difficult things in answering questions about inquires is that I have to keep reminding myself that we are not talking about court proceedings, but about a different form of hearing. There are similarities; but there are important differences. So it is with delay. European Convention 1950 Art 6(1) is the starting point for a fair trial (as mentioned above); and that requires trial ‘within a reasonable time’. Children Act 1989 s 1(3) assumes that delay will be prejudicial to a child’s welfare.

Given the urgency of the issues and that they must be the subject of inquiry and recommendation as soon as possible, it is reprehensible that it has taken over two months for the Home Secretary to have appointed two chairs to the inquiry – one of whom has resigned, and the other of whom is subject to serious allegations of bias (and has taken over two weeks to date for her to write a letter explaining these allegations).

If prejudice to those who are the subject of the inquiry – the survivors and children still affected – can be shown to be suffering, this would seem to be a reason to press the Home Secretary for answers urgently and for promptness in progress with the inquiry. It is worth noting that the events which lead to the Leveson inquiry on the press (http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/) occurred in July 2011. Lord Justice Leveson opened inquiry hearings on 14 November 2011. He was concerned to establish ‘who guards the guardians?’ (ie the press). We are the guardians of our children: similar urgency may reasonably be expected of a child sex abuse inquiry. Lord Justice Leveson published his Report on Part 1 of the Inquiry on 29 November 2012 (a year after starting work) after he had heard evidence from a wide range of witnesses, including newspaper reporters, management, proprietors, police officers and politicians of all parties, all of whom gave evidence to the inquiry under oath and in public. This timing and format could be said to provide a precedent.

‘So there are no clear answers to a lot of this I’m afraid; though I am clear that the Home Secretary must say what she knows of Mrs Woolf’s bias. And I doubt that Mrs Woolf has anything like the expertise or experience to do the job she has agreed to take on.’

You were frowning. I sensed you were unimpressed by my answers. ‘But, what if…’

#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]

FAMILY COURT CONSULTATION: FIG-LEAVES AND FREUDIAN SLIPS

Consultation: the deluge and some dates

A few days ago I mentioned that there may be as many as five concurrent consultation exercises being undertaken in respect of the family courts (http://wp.me/p4jaDx-5Y ) , each – to a greater or lesser extent – at the behest of Sir James Munby President of the Family Division. It is not clear how he intends that any individual who is interested in the family courts should respond in time, especially if s/he would like to respond to the three awaiting responses.

Can such a hectic, and therefore superficial, consultation be in all reality a consultation; or is the consultation just a fig-leaf for what is, in reality, an administrative fait accompli? Anyone who is seriously concerned with family law reform is entitled to ask: is this consultation real, is it fair, and is it designed to achieve a democratic result?

Support for the fig-leaf theory includes:

• Response time is very short (mostly over August, when High Court judges and much of the bar who practice there are away). Two consultations end at the beginning of October, the other at the end of October.

• That when the Courts and Tribunals Judiciary office issued what Sir James – an autocratic law reformer, above all else – issued his ‘consultation’ entitled Consultation: Family Transparency – the next steps (19 August 2014) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ they (the judiciary office) described the paper as ‘proposals’. Proposals from a decision-maker are the antithesis of consultation. Is it a Freudian slip by the Judiciary office; or perhaps it hides the fact that Sir James’s ‘consultation’ is but a fig-leaf. It is not an auspicious start for a ‘consultation’.

Given the size of the Family Division and family court relative to other courts it does seem remarkable that there is so much – and such seemingly urgent – activity. Of the five outstanding consultation exercises in the Judiciary office, two relate to legal aid and the remainder to family courts. Why the rush, Sir James?

Of the five ‘consultations’ I referred to in http://wp.me/p4jaDx-5Y three must be completed in October 2014. The President – perhaps another Freudian slip – does not thinks to tell consultees by when his consultation ends (normally almost a sine qua non for a consultation):

• For such draft standard orders as have been recently issued (mostly child abduction and other High Court orders) – http://www.judiciary.gov.uk/publications/high-court-family-orders/ the consultation response date is 3 October 2014 (a Friday, so no last minute work on answers over the week-end).

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ if you ask Sir James’s office you may be told that there is no formal closing date on but that replies are requested ‘ideally by the end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ response is requested, again by 3 October 2014

Of the remaining areas of consultation: no dates seem to be fixed for further consultation or reply:

• Report of the Financial Remedies Working Group – 31 July 2014 http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF

• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

Consultation is part of the administrative law concept of fairness, and is something which all administrators must follow. And in all this, it is important to recall that Sir James is not acting as a judge, but as a civil servant, a state apparatchik (and a powerful one). It is part of the democratisation of modern government and attracts special Cabinet Office guidance (see eg https://www.gov.uk/government/publications/consultation-principles-guidance). There follows, in a separate blog, a very short note on the law on consultation, administrative law and the need for fairness – and perhaps Presidential aloofness – in the consultative process.

POSSIBILITIES FOR STATE FUNDING FAMILY CASES AFTER Q v Q (No 2)

Funding family proceedings

In Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P considered, amongst other things, the extent to which certain family litigation seemed to him to demand that particular litigation expenses be paid for by state funding (and see http://wp.me/4jaDx ). An earlier hearing in Q is reported as Q v Q [2014] EWFC 7 (and see http://wp.me/p4jaDx-5J for comment on complexity of family proceedings, legal aid and the earlier Q v Q). This raises questions as to whether the court has power to order funding from another public body (eg Ministry of Justice which is responsible for HM Courts and Tribunal Service (HMCTS) and Legal Aid Agency (‘LAA’)): and if so how individuals might be entitled to such funding apply for it.

If the court or any other agency has no power to arrange funding, are any indirect powers available to the court to enable a case to be funded? For example, in a case considered by Sir James (H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162) the judge, Roderic Wood J, was able to ask the Attorney-General to instruct an advocate to cross-examine (in place of an alleged sex offender) the young woman witness who accused him of abuse.

Funding or costs; and of what

In any consideration of legal aid and costs the following need to be distinguished:

(1) Funding and costs (and see http://wp.me/4jaDx ) – Funding is what must be found to pay for a case (often in advance). Costs is what a party may be ordered to pay to another party at the end of the case (governed by Senior Courts Act 1981 s 51).

(2) Expenses and lawyers remuneration – The funding aspects of the cost of a case contains two components: (a) payment for legal representation (income for lawyers, also called ‘remuneration’: eg Civil Legal Aid (Remunerations) Regulations 2013) and (b) payment of the expenses in the case (eg court fees, witness expenses, expert’s fees, assessment of parents etc).

Legal aid concerns the funding of proceedings; and mostly (when granted) covers both expenses and remuneration for lawyers.

Recent case law

Recent Court of Appeal and High Court judge judgements resolve themselves into two main categories:

(1) Those where the issue before the court on judicial review was the lawfulness of a LAA decision, or failure to decide:
• R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin), Collins J (26 April 2013) – LAA decision to limit expenditure on assessment quashed
• M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin), Coulson J (2 May 2014) – LAA decision on merits criteria unlawfully applied (case of information disclosure to CPS) remitted for reconsideration
• JG v Lord Chancellor and ors [2014] EWCA Civ 656 (21 May 2014) – LAA decision not to fund expert’s fee declared unlawful
• Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin) (13 June 2014), Collins J (decisions to refuse (in immigration cases) quashed
• R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (15 July 2014), Divisional Court consisting of Moses LJ, Collins, Jay JJ) – residence test in 2014 amendment Order illegal

(2) Those where judges have made comment on the non-availability of legal aid funding, but where their comments are obiter and not decisive of any issue before the court:

• Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P
• Kinderis v Kineriene [2013] EWHC 4139 (Fam), Holman J
• Q v Q [2014] EWFC 7, Sir James Munby P
• Re AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWHC 2758 (Fam), HHJ Bellamy sitting as a High Court Judge
• Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P

If the above are representative of the present position of the case law in relation to legal aid then the decisions made by the courts relate only (and this is probably all that they can do) to reversing LAA decisions, or otherwise sending back LAA decision-maker’s decisions to them for reconsideration. The exception to this is ota PLP, which is known to be under appeal.

By contrast the decisions under (2) above (and a lot of the comment in the cases in (1)) represent the views of judges (mostly supportive of a legal aid scheme); but it does not change the underlying statute law.

Funding of the cases in Q v Q (No 2)

Q v Q (No 2) is in the second group of cases. The matter which was of concern to the President was whether justice could be done in any of three cases if certain legal expenses and remuneration for one or more of three fathers (‘F’) was not covered by legal aid. In Q v Q the father is a convicted rapist and speaks no English; F in Re B is alleged by the mother to have been raped by him, which he denies; and F in Re C awaits trial (as at 6 August 2014) on charges – denied by him – of rape of the mother. Sir James was asked to make case management decisions on the case (the issue before the court); and in the course of so doing, he made a variety of comments on funding positions of the respective fathers. These included that the state should (could?) be required to fund aspects of the case. The purpose of this article is to seek to identify to what extent and how this can be done. In various ways legal aid had been limited or denied; but the issue of any LAA decisions was not before Sir James on the day of the case management hearing.

Public funding outside the legal aid scheme

The grant of funding by the tax-payer, in general terms and subject to points considered below, is a matter for statute law alone, starting from Legal Aid Act 1949. It is not open to the common law to make provision in advance for funding of litigation (save in the case of costs allowances in certain family proceedings). There is very little scope, in any event, for funding of private cases by another party to proceedings. Indeed one of the few statutory provisions for other party funding is provided for in LASPOA 2012 ss 49-51 (by amendment to Matrimonial Causes Act 1973). These provisions are part of LASPOA 2012 Part 2, which do make certain provision for private funding of cases (eg success fees and damages based agreements for costs); but there is no statutory provision for private or public funding by courts (beyond Matrimonial Causes Act 1973 s 22ZA (legal services orders)) in Part 2.

Sir James’s discussion (starting at para 46 in Q v Q (No 2)) for court awarded public funding from HMCTS starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court; and in the case of a litigants in person whether this is achievable without legal assistance (Airey v Ireland (1979) 2 EHHR 533) (para 48). It is the court which decides whether appointment of an expert is necessary (CFA 2014 s 13(6)); and if their attendance at court is required then it may be for the court to bear the cost (paras 56 and 57). Similarly, if legal representation is needed for the court to discharge its duty under MFPA s 31G(6), then appropriate representation must be provided at the expense of HMCTS (paras 69, 79).

If this is to done then tax-payer’s money must be found. Judges have no budget of their own. And there is a mass of statutory material (LASPOA 2012, delegated legislation and ministerial guidance) providing for such public funding as the present Government are prepared to allow. (Such legal aid as there is and the extent to which LASPOA 2012 s 10 (exceptional case determinations) applies is for separate consideration.) Against this back-ground it is not obvious how, in the absence of enforceable common law provision, funding by HMCTS is to be achieved.

Three indirect possibilities suggest themselves and, subject to the need for much more research, are put forward here:

(1) Application direct to HMCTs for funding

The logic of Sir James’s judgement is that if certain conditions as to means, merit and lack of alternative funding (private or legal aid) are met, then application can be made direct to HMCTS, perhaps by reference to the family court office in which the case is proceeding.

On Sir James’s suggested approach, merit would probably be dictated by the terms of case management directions. With those directions the applicant would then have to show (a) that s/he had no source of private funding; (b) that legal aid was not available; (c) that the judge had directed assistance and (d) that his/her means – perhaps by reference to a legal aid means determination (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused judicial review of their decision would lie (as against LAA but with no statutory back-bone for the applicant) to the Administrative Court.

An inevitable question which then arises is: does Q v Q (No 2) and Sir James’s obiter comments, alongside the existing scheme – however that scheme may be perceived by judges – create any form of legitimate expectation that funding will be provided by HMCTS? This area requires much further research. The President of the Family Division has an administrative function; but in that function does not lie the spending of taxpayer’s money. It is unlikely that, constitutionally, he can be said to be in a position legitimately to raise an actionable expectation. In general (see eg de Smith’s Judicial Review (7th Ed) Woolf et al Chapter 12) a legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision. A hope is not enough. This seems unlikely to be a fertile area for consideration, but it must be born in mind.

Assessors

SCA 1981 s 70 (and an equivalent provision for county courts in in County Courts Act 1984 s 63) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 (tacked on at the end of the rules on expert evidence) explains how this is done; though application of ss 70 or 63 in the family court is not as clear as it might be. The assessor could be a person whose opinion – including decision-making – might assist the court. Their role in many ways would not be dissimilar to that of a jointly funded expert. The issue of costs remains (s 70(2)) above; but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds.

So far as I know this has not been done in family proceedings. If a way of funding the assessor direct from HMCTS can be found there is no reason why it should not be attempted.

Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J and the Attorney General arranged for an advocate to the court to be appointed for the father limited to cross-examine a vulnerable witness for the mother. That was dealt with under the Attorney General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869). This remains basis on which the Attorney General becomes involved in appointment of an advocate to the court.

The memo deals with appointment at paras 3-8, and in particular it stresses that and advocate to the court ‘represents no one’ (para 4); so that his/her role is limited to that professionally adopt by him/her not on instructions from any party. Request is made by the court to the Attorney General (para 9) or to the Official Solicitor to appoint an advocate (para 11-12). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).