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At a time when at least three areas of family law are subject to consultation by the Judiciary and Tribunals Office, it is perhaps worth reflecting on what the law is in relation to consultations by a public body; for that is what these consultations are in law, albeit promoted by, the President of the Family Division, Sir James Munby, or the judiciary office. As will be seen two of the consultations must be responded to by the beginning of October 2014 and the third by the end of October; yet the cabinet office recommends that August should not count.
Consultation is part of the administrative law concept of fairness, a concept that all administrators must follow. And in all this, it is important to recall that the President is not acting as a judge, but – in constitutional law terms – as an administrator. Consultation is part of the democratisation of modern government and attracts special Cabinet Office guidance: Consultation principles: Guidance (Cabinet Office, 5 November 2013)
Fairness, consultation and family law reform
Consultation is a term of art in administrative law and applies to the President as to any other administrator. Whether six weeks or so (much less if August is left out of account) in the summer is enough to comprise a proper consultation is for another day. As an administrator I wonder whether the President would be one to embrace the need for any form of self-denying ordnance as between his administrative law reform plans (as with the consultation documents under review), and his interpretative role as a judge? Does he warm, I wonder, to the words of Laws LJ, explaining separation of powers in a 21st century context (the President here is part of the ‘executive’), in R (Cart & Ors, on the application of) v The Upper Tribunal & Ors  EWHC 3052 (Admin),  1 All ER 908 (para 37):
'The principle I have suggested has its genesis in the self-evident fact that legislation consists in texts. Often – and in every case of dispute or difficulty – the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter's role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts' application, and authoritative – accepted as the last word, subject only to any appeal. Only a court can fulfil the role.'
Legitimate delegation of powers
Courts are governed by the common law and by statute; or by delegated legislation where statute permits. The main delegated legislation to which family courts are subject is Family Procedure Rules 2010 as defined by Courts Act 1973, s 75 and 76. As a matter of common law these rules can do no more than define the way in which a court’s existing jurisdiction is operated. This was explained by Buxton LJ in Jaffray v The Society of Lloyds  EWCA Civ 586 (at para 8):
'… rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique  AC 602 at p 628.'
Consultations under way
The consultations at present under way are:
Of ‘draft standard orders’: that the court has no power to issue any more than ‘draft’ orders is surely obvious? The Judiciary office is but another body – like any publisher – who can issue precedents for court orders. These have no magic. There is nothing in any legislation – primary or delegated – which prescribes a power to the President of the Family Division to standardise orders. Quite the reverse.
Of transparency and ‘vulnerable witnesses’: both of these are areas beset by common law and statutory principles (as explained on @dbfamilylaw here). They cannot be legitimately changed by court rule, still less by practice direction or presidential ‘guidance’, save where there is specific legislation which permits such change. The President cannot legitimately alter the common law by his sole dictat. He can administer – as he did in the February ‘Guidance on Transparency’; or, as he did there also, he can persuade his judicial colleagues of his view of the common law.
What is now suggested in these two consultation areas – especially on ‘vulnerable witnesses’ – proposes to go much further than ‘guidance’. And if the ‘vulnerable’ witnesses job is done properly primary legislation is likely to be needed (not just a rule change as seems the present plan – see para 13(ii) of their present ‘proposals and interim report’).
Recently Longmore LJ in the Court of Appeal in R (on the application of LH) v Shropshire Council  EWCA Civ 404,  All ER (D) 06 (May) has considered the meaning of consultation in the absence of any specific statutory duty:
'Consultation on what?
 In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.'
This is an administrative exercise; and so acting the President is an administrator. He is part of the executive and subject to the constraints of any public body or civil servant to act ‘fairly’ (as Longmore LJ explains’).
Fairness is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054, where they adopt Lord Woolf (R v North & East Devon HA ex parte Coughlan  QB 213,  3 All ER 850) (at para 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  84 LGR 168).'
The consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – the President – who is the proponent of the consultation. Fairness, I would suggest, dictates that he stand back and lets someone else receive the consultation on transparency – his view is hardly objective – and let them put forward any legitimate law changes arising from it. The voice of the President is but one; not the only voice from which the consultees must persuade him of another course.
David Burrows is a lawyer, writer, advocate, and trainer on family law
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