If I were a President of the Family Division I would say that a lot of work needs to be done by those advising and assisting me before the proposed pilot scheme is ready and – more to the point – that the scheme is legal. The scheme is set up by a ‘guidance’: The Transparency Reporting Pilot for Financial Remedy Proceedings Guidance From the President of the Family Division (11 December 2023) https://www.judiciary.uk/wp-content/uploads/2023/12/Reporting.PilotScheme.Final_.President.pdf (‘the guidance’).
It is by no means obvious to me on what lawful basis the President says he can do this.
(1) Power to set up a pilot scheme – Courts Act 2003 s 75(4) follows the Civil Procedure Act 1997 (set up by the then Lord Chancellor, Lord MacKay). It says that it is for family proceedings rule makers to set up pilot schemes. I cannot see that Parliament says a President of the Family Division has power to do this.
(2) Rights of children of a family – The guidance and accompanying documents do not attempt to consider the rights of children as Baroness Hale did famously in the ‘three way sex’ case (PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251 (19 May 2016). The point has been affirmed since by the Court of Appeal. Do principles in relation to children’s rights apply in financial remedy proceedings?
(3) The guidance overlooks what is meant in statutes by ‘private’ and ‘confidentiality’ in AJA 1960 s 12(1) and CPR 1998 r 39.2(3)(c). The guidance seems to assume that only children proceedings can be ‘private’ (AJA 1960 s 12(1)(a)). There is no discussion of when eg private documents might make it necessary for proceedings to be kept private or confidential.
(4) For many years the court has recognised that individuals who are compelled to disclose private documents are entitled to an undertaking from other parties that those documents are disclosed no further. The subject cropped up when the Home Office sued Harriet Harman (now MP, then a solicitor for NCCL (now Liberty)). Harman passed documents to the Guardian: Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338. Her appeal to European Court of Human Rights was settled when English and Welsh court rules redefined the law as to what could be passed on (eg to journalists) from court documents. The President’s guidance gives almost no thought to this subject so central to parties’ private finances.
(5) If I were a journalist I would be troubled most by AJA 1960 s 12(4). To many journalists AJA 1960 s 12(1) is the feared provision which can see them on the wrong end of a contempt of court application (ie being sent to prison for ‘publication’ of something (as Harriet Harman found out)) which should not be published, in the court’s view. A 2004 amendment to s 12(4) has stated that any release of punishment by contempt committal can only be allowed where court rules say so. No mention is made of s 12(4) in the guidance, still less is there any amendment to rules.
To make the scheme lawful it should be provided for by court rules (AJA 1960 s 12(4) and CA 2003 s 75(4)). Without this were I a journalist (‘media representative’) I would tread very warily.
I have written tis up at greater length for possible publication in ICLR blogs. I expect New Law Journal to publish something on this shortly.
If I were a President of the Family Division I would say that a lot of work needs to be done by those advising and assisting me before the proposed pilot scheme is ready and – more to the point – that the scheme is legal. The scheme is set up by a ‘guidance’: The Transparency Reporting Pilot for Financial Remedy Proceedings Guidance From the President of the Family Division (11 December 2023) https://www.judiciary.uk/wp-content/uploads/2023/12/Reporting.PilotScheme.Final_.President.pdf (‘the guidance’).
It is by no means obvious to me on what lawful basis the President says he can do this.
(1) Power to set up a pilot scheme – Courts Act 2003 s 75(4) follows the Civil Procedure Act 1997 (set up by the then Lord Chancellor, Lord MacKay). It says that it is for family proceedings rule makers to set up pilot schemes. I cannot see that Parliament says a President of the Family Division has power to do this.
(2) Rights of children of a family – The guidance and accompanying documents do not attempt to consider the rights of children as Baroness Hale did famously in the ‘three way sex’ case (PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251 (19 May 2016). The point has been affirmed since by the Court of Appeal. Do principles in relation to children’s rights apply in financial remedy proceedings?
(3) The guidance overlooks what is meant in statutes by ‘private’ and ‘confidentiality’ in AJA 1960 s 12(1) and CPR 1998 r 39.2(3)(c). The guidance seems to assume that only children proceedings can be ‘private’ (AJA 1960 s 12(1)(a)). There is no discussion of when eg private documents might make it necessary for proceedings to be kept private or confidential.
(4) For many years the court has recognised that individuals who are compelled to disclose private documents are entitled to an undertaking from other parties that those documents are disclosed no further. The subject cropped up when the Home Office sued Harriet Harman (now MP, then a solicitor for NCCL (now Liberty)). Harman passed documents to the Guardian: Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338. Her appeal to European Court of Human Rights was settled when English and Welsh court rules redefined the law as to what could be passed on (eg to journalists) from court documents. The President’s guidance gives almost no thought to this subject so central to parties’ private finances.
(5) If I were a journalist I would be troubled most by AJA 1960 s 12(4). To many journalists AJA 1960 s 12(1) is the feared provision which can see them on the wrong end of a contempt of court application (ie being sent to prison for ‘publication’ of something (as Harriet Harman found out)) which should not be published, in the court’s view. A 2004 amendment to s 12(4) has stated that any release of punishment by contempt committal can only be allowed where court rules say so. No mention is made of s 12(4) in the guidance, still less is there any amendment to rules.
To make the scheme lawful it should be provided for by court rules (AJA 1960 s 12(4) and CA 2003 s 75(4)). Without this were I a journalist (‘media representative’) I would tread very warily.
I have written tis up at greater length for possible publication in ICLR blogs. I expect New Law Journal to publish something on this shortly.