A jungle of quasi-legislation

In Administrative Law (2014) Wade & Forsyth (11th Ed) at p 732, in a chapter on administrative legislation, the authors characterise the subject matter of this post as “a jungle of quasi-legislation”: practice directions, guidances, protocols and so forth. This post concentrates on the miscellany of guidances which thread the English legal system.

Auld LJ said of costs in judicial review proceedings in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; later reported at [2017] PTSR 1166 (and touched on recently in R (Wilson) v Prime Minister [2019] EWCA Civ 304; [2019] WLR(D) 125 (4 March 2019) at [69]-[73]) and of the statutory, delegated legislation and quasi-legislation which may be said to impact on such costs orders:

“[67] The starting point, it seems to me, is the general provision in Senior Courts Act 1981 s 51 that, subject to any contrary statutory enactment or rules of court, costs are in the discretion of the court… The nearest to intrusions on it are the general rule in CPR 44.3(2) that costs, where awarded, should generally follow the event…. The CPR are made by the Civil Procedure Rule Committee and are made by statutory instrument pursuant to sections 1 and 2 of the Civil Procedure Act 1997. Practice Directions in general supplement the CPR and are made by the Head of the appropriate Division of the High Court under his or her inherent jurisdiction. They are recognised by the 1997 Act… Practice Directions are made “pursuant” to statute so that they have the same authority as the CPR [; though], in the case of any conflict between the two, the CPR prevails. To that already somewhat cumbrous and confusing three tier hierarchy of rules and guidance for civil litigants – statutory, CPR and Practice Directions – there has now, as I have indicated, been added a fourth in the case of judicial review in the form of the Pre-Action Protocol.”

Thus Auld LJ summarises the four-tier legislative and quasi-legislative hierarchy under which courts operate in Wade & Forsyth’s “jungle”. This post considers the instruments at the bottom of the hierarchy. They are increasingly the most numerous. In family proceedings, under Sir James Munby P, this has become especially so.

Practice directions in family proceedings

In recent years, practice directions as part of Family Procedure Rules 2010 (FPR 2010) have been amended mostly only to comply with an ultra vires direction from the Supreme Court (see eg Sharland v Sharland [2015] UKSC 60; [2016] AC 871; [2015] 2 FLR 1367) or to update an existing practice direction (Review of Practice Direction 12J FPR 2010, Child Arrangement and Contact Orders: Domestic Violence and Harm). Developments in practice have been concentrated in practice guidance issued by Family Division presidents; though without any clear constitutional authority for such guidances.

The subject has been given special impetus here by the development also of the separate concept: statutory guidance. This is issued under statutory direction. Such guidance came under challenge in recent cases such as: (1) guidance issued by the Legal Aid Agency in R (Gudanaviciene) v  Director of Legal Aid Casework  [2014] EWCA Civ 1622; [2015] 1 WLR 2247); and (2) by the Home Department (R (Butt) v The Secretary of State for the Home Department [2019] EWCA Civ 256; [2019] WLR(D) 148 (8 March 2019)).

The reverse can apply. In R (K) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin); [2018] WLR(D) 692 the court was dealing with ‘subsistence’ for victims of modern slavery. Modern Slavery Act 2015 calls for guidance on this to be issued by the Home Department. Mostyn J (sitting in the Administrative Court) drew attention to the fact that such guidance had still not been issued.

Before this post leaves statutory guidance, an example of cross-check with the common law must be mentioned in relation to a subject close to the practice of many family lawyers. Working Together to Safeguard Children (July 2018) in its original edition was issued just after the Cleveland Report on child abuse (HMSO, Cm 412) in 1987. Working Together is now issued as guidance under Children Act 2004 s 11. Laudably it aims to encourage those concerned with children (social workers, teachers, police, medical staff) to work together. It is all about “sharing” of information between professionals.

The words “confidentiality” and “Gillick” (after Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] 1 AC 112; [1986] 1 FLR 224) do not appear in this guidance; though the whole point of Gillick is that it defines the common law on confidentiality – ie not “sharing” – for children who are of “sufficient understanding” (and as discussed in Children’s views and evidence by David Burrows, Bloomsbury Professional, 2017, Chapter 8 ).

Practice directions, practice guidance and law

First the practice direction: Brooke LJ said (in KU (A Child) v Liverpool City Council [2005] EWCA Civ 475; [2005] 1 WLR 2657):

“[48] The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 at para 21, May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478[2002] 1 WLR 997 at [11], and Dyson LJ in Leigh v Michelin Tyre plc [2003] EWCA Civ 1766; [2004] 1 WLR 846 at [19]-[21]. 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.”

A practice direction cannot create new law. It is procedural. It can only regulate the way the law proceeds. As Auld LJ notes of rules and practice directions, if there is a conflict the former overrides the later; and so too of the quasi-legislation undergrowth of practice guidance. This assertion as to the force of a practice direction must apply even more so to practice guidance.

“Practice guidance” – the procedural form of guidance so beloved of Sir James Munby P – is the main subject of this post. As with practice directions, even more so with guidance, protocols etc: none of these instruments can create law. Take Sir James Munby P’s Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam); [2014] 1 WLR 230; [2014] 1 FLR 733. That says it is intended to alter practice – so why did not Sir James issue it as a formal practice direction? In fact it goes much further, It creates categories of judgment (1) which are to be published and (2) which “may be published” (Sir James’s italics) (para 15). It is said to impose on judges a duty to consider whether “publication would be in the public interest” whether or not permission to publish has been asked for.

Given that only a handful of judges have their judgments published, I suspect that the purported duty is not being complied with. Creation of a “duty” is a matter of law. In truth – or in law – has a duty been created at all? Can a “duty” be created in this way? I doubt it. Practice guidance cannot create a duty where none exists already.

Rule-making powers

Rules of court are made under authority delegated by Courts Act 2003 ss 75 and 76 and “by a committee known as the Family Procedure Rule Committee” (s 75(2)). They are to be made “with a view to securing that— (a) the family justice system is accessible, fair and efficient, and (b) the rules are both simple and simply expressed” (s 75(5)): yes, really. They only way they can alter the law is to “modify the rules of evidence as they apply to family proceedings in any court within” the family courts (s 76(3)) the scope of the rules.

FPR 2010 practice directions are part of the rules, as they are with the Civil Procedure Rules (CPR 1998) (and as explained by Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 and Bovale Ltd v Secretary of State for Communities and Local Government [2009] EWCA Civ 171; [2009] 1 WLR 2274). They are made by authority under the 2003 Act and Constitutional Reform Act 2005: by the President of the Family Division with concurrence of the Lord Chief Justice.

In issuing practice guidance, Sir James Munby P short-circuited the statutory process. That reduces the precedent value and force of what he put out. It is noteworthy that in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1 WLR 1003 Lord Neuberger MR, over whose name the practice guidance went out, emphasised – in terms – that what he was signing off was guidance, not a practice direction. Lord Neuberger accepted that the force of the guidance was reduced accordingly. I wonder to what extent Sir James Munby, as President of the Family Division, troubled with the distinction?

Family courts administration: a single judge affair

More seriously, it meant that under Sir James the operation of the family courts became a single judge affair. That works when you have judges of the calibre of recent appointments including, unquestionably, the present incumbent, Sir Andrew McFarlane P; and with judges of the calibre of those picked to do the President’s bidding. Would it work, however, if an MP or other placeman politician lawyer were appointed to the family law bench, and then put in – say – to digitise all child care proceedings? Once in place, this fictional President would sign off a series of “practice guidances” and care proceedings would be back to two months; and at most a day in virtual courts. The legal aid budget would be saved immeasurable sums of money; and local authority’s children budgets would be revived within the year.

Less seriously; but who during the period in office of Lord MacKay LC would have dreamed that his party would have appointed a clown like Grayling, or a non-entity like Truss, to the Lord Chancellor’s ancient office? If politicians can do that, why not amend the law to replace the Lord Chief Justice with a compliant civil servant or appoint to the office President of the Family Division an empty-headed junior politician? And then allow either of them to continue the tradition of quasi-legislation by practice guidance.

An example of how guidance might be used – wrongly, in my view – arises in relation to McKenzie friends. The Lord Chief Justice, he has been criticised for not taking the McKenzie friend bull by its tortuous horns after Reforming the courts’ approach to McKenzie Friends , Consultation response of February 2019  from the Judicial Executive Board was given to him. This paper concludes (as I believe correctly):

“The role of the judiciary is to apply the law concerning the provision of legal assistance, the right to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.”

In the field of legal and lay representation, clarity is fundamental. Otherwise some of the more vulnerable litigants may suffer. Clarity means: (1) proper training and qualification (which need be nowhere near that of qualified lawyers); (2) regulation; and (3) insurance and proper client accounts for any cash received.

The Board has attracted criticism for its analysis in the response. Under the headline “Judges duck sweeping McKenzie reforms” the Law Society Gazette said that the judges had avoided “the issue of banning fee recovery by paid McKenzie friends saying that is a matter for the government”. This is a reference to suggestions of a ban on remuneration of lay representatives; though were such ban to be introduced it is hard to see by whom and how it could be enforced. (See also, via the Transparency Project, Paul M: NOT reforming the courts’ approach to McKenzie Friends: a judicial abdication of responsibility )

How can the judiciary alter the law on McKenzie friends beyond the very narrow ambit of the existing practice guidance? (Practice guidance: McKenzie friends (civil and family courts) [2010] 1 WLR 1881; [2010] 2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P).) The question of representation in court; or remuneration and training; and the possibility of costs is quintessentially a matter for statute (and, some might say, for the Lord Chancellor whose office by cutting legal aid has largely created the problem, especially in family proceedings). This cannot be a matter for the solitary Lord Chief Justice. It is a matter for democratic primary legislation. Costs, remuneration, ethics and training: these cannot be dealt with by a coterie of civil servants drafting practice guidance for the Lord Chief Justice or Master of the Rolls.

And that last comment is at the root of this post: any drafting and issue of practice guidance must please respect the boundaries between law, procedure by statutory instrument and procedure by judicial ‘whim’ (as Sir Thomas More LC would have called it). Like any government by one person it is fine when you agree with the solitary law reformer. On the other hand, reform may be misjudged if many of those involved – the stakeholders – do not agree (which is one argument for some form of democracy).

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