Administrative Court Buxton LJ and Penry-Davey J 19 October 2000 THE applicant sought to challenge an extensive part of the Civil Procedure Rules and the Practice Directions. The relief sought was fourfold: 1. A declaration that Rules 39.2(3)(c) and 39.2(3)(d) and 39.2(4) of the Civil Procedure Rules 1998 were ultra vires. Rule 39.2(3) read as follows: "A hearing, or any part of it, may be in private if... (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or patient." 2. A declaration that CPR 1998 Practice Direction 39PD Miscellaneous Provisions Relating to Hearings paras. 1.5, 1.6, & 1.7 were ultra vires. Those paragraphs were as follows: "1.5. The hearings set out below shall in the first instance be listed by the court as hearings in private under r. 39.2(3)(c), namely..., (2) a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non payment of rent; (3) an application to suspend a warrant of execution or a warrant of possession or to stay execution where the court is being invited to consider the ability of a party to make payments to another party." Paragraph 1.6 referred to r. 39.2(3)(d) to the effect that a hearing may be in private where it involves the interests of a child or patient. This included the approval of a compromise or settlement on behalf of a child or patient or an application for a payment of money out of court to such a person. Paragraph 1.7 drew attention to para. 5.1 of the practice direction which supplemented Part 27 (relating to the hearing of claims in the small claims track), which provided that the judge may decide to hold a small claim hearing in private if the parties agree or if a ground mentioned in r. 39.2(3) applies. A hearing of a small claim in premises other than the court will not be a hearing in public. 3. A declaration that CPR 1998 Practice Direction 27PD Small Claims Track, para. 4.1(2) was ultra vires. Having said in para. 4.1(1) that the general rule was that a small claim hearing would be in public, para. 4.1(2) continued: "The judge may decide to hold it in private if (a) the parties agree, or (b) a ground mentioned in r. 39.2(3) applies." 4. An order of Mandamus requiring Bow County Court to hold all civil trials in open court without concealment of the identities of parties/witnesses, unless authorised otherwise at common law or by enactment, and without impeding the access of the public to the hearings. The applicant was refused permission to pursue the application by the single judge, but was granted permission by the Court of Appeal on a renewed application, on a limited number of matters, which were as follows: (i) the question of whether statute gave power to the rule makers to provide that hearings may be in private in the circumstances described in Part 39.2(3)(c); (ii) the question of whether the rules, if they were ultra vires, gave power to issue the particular practice direction relating to possession proceedings commencing in private CPR 39PD 1.5(2); (iii) the question of what the practice as regards possession hearings should be, so that there was not a different practice in one court rather than another; and (iv) whether small claims being tried in the chambers of a district judge with access only through a locked door with the assistance of a member of the court staff were hearings in public. The applicant argued that it was a principle of the common law of the highest importance and standing that courts should sit in public (Scott v Scott [1913] AC 417 referred to). He further contended that the principle of legality meant that such a rule could not be abrogated or undermined by legislation, and a fortiori not by delegated legislation, except in very express terms. He submitted that the rules violated Art. 6 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention"). He also argued that to prevent members of the public from being admitted into court violated their right to receive information under Art. 10. In relation to the practice at Bow County Court, in particular he argued that requiring a member of the public to ask to be admitted to a small claims hearing, which involved an usher unlocking an outer door, did not amount to conducting hearings in public. Held, referring to R v SS for the Home Department ex parte Simms [1999] 3 WLR 341 E, that Parliamentary sovereignty meant that Parliament could, if it chose, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 would not detract from this power. The constraints upon its exercise by Parliament were ultimately political, not legal. The first ground The principle of legality meant that Parliament had to squarely confront what it was doing and accept the political cost. Fundamental rights could be overridden by general or ambiguous words. In applying that principle, it was necessary to investigate very carefully what the common law principle was that was said to benefit from the application of the principle of legality. It was quite clear from scrutiny of Scott v Scott that the principle of publicity set out in that case was not an absolute one. It was not at all like the rule of legal professional privilege, in particular as discussed in the context of the principle of legality in General Mediterranean Holdings SA v Patel [1999] 3 All ER 673. Nor was the present case subject to the objection that prevailed in Simms, that the rule in issue imposed an absolute ban, or an absolute barrier, in respect of the perceived constitutional right, in that case the right to freedom of expression. Civil Procedure Rule 39.2(3) was facultative. It permitted in certain limited circumstances the judge to sit in private, assuming this was in the interests of justice; and that was subject to the general rule set out in r. 39.2(1). The general rule was that the hearing was to be in public. It followed that this part of the Civil Procedure Rules did not in any event breach the principle of legality because it did not in itself legislate inconsistently with the content of the rule in Scott v Scott. That was sufficient to conclude the point, but the court also said that it was clear from reading the rules, and clear from any informed knowledge of their origin, that it was the intention of Parliament in the Civil Procedure Act of 1997, and the intention of those who made the Civil Procedure Rules, to make a new start in those areas of practice to which the ambit of the rule applied. It might well have been a necessary inference that the Civil Procedure Rules, were it in fact the case that they had been inconsistent with the Scott principle, had indeed properly reversed that principle or at least put another aspect on it. In considering the vires and status of the Civil Procedure Rules generally, it seemed that the potency and the novelty that Parliament clearly intended to attach to the Civil Procedure Rules could not be overlooked. The court considered next the arguments put forward under the Human Rights Act 1998 and Art. 6 of the Convention. A recent amendment to CPR PD 39 had introduced the following para. 14A: "The judge should also have regard to article 6.1 of the European Convention on Human Rights. This requires that in general court hearings are to be held in public but the press and public may be excluded in the circumstances specified in that article. Article 6.1 will usually be relevant, for example, where a party applies for a hearing which would normally be held in public to be held in private, as well as where a hearing would normally be held in private. The judge may need to consider whether the case is within any of the exceptions permitted by article 6.1." Article 6 of the Convention stated: "In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Whilst the applicant had accepted that he had not suffered any detriment by reason of the CPR, he had referred to the more extensive view of that article that had been taken by the European Court of Human Rights, and in particular a passage in the case of Axen v Germany [1984] 6 EHRR 195 where the court said: "The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention." The court doubted whether a citizen in the position of the applicant on the facts as he indicated them, could in fact institute proceedings in relation to a breach of Art. 6, because, if this had been a breach at all, it was a breach of a duty of submitting the authorities to public scrutiny, a scrutiny which was as much or as little a concern of one citizen rather than another. The court expressly reserved and did not decide the question of whether, on the facts, the applicant was in fact a victim in respect of the particular breach of Art. 6 that was asserted, within the terms set out in s. 7 of the Human Rights Act. On the substantive question of whether the rules violated Art. 6, the court was of the view that there were three difficulties facing the applicant. These were: (i) the objection under Art. 6 fell in the face of the terms and nature of the rule that was said to be in breach of that article. The rule did not bar the citizen from the courts in all circumstances. It gave weight in terms to the requirements of Art. 6 itself as indeed para. 39.4A of the practice direction emphasised; (ii) Art. 6 itself did not create absolute rights. That was demonstrated by a number of cases all of which contained the same theme. An example was the case of Hakansson and Sturesson v Sweden [1990] 13 EHHR 1. That was concerned with waiver on the part of the litigants of a right to publicity, the terms in which that was admissible, and the effect it had on the Art. 6 right. The court said: "The public character of court hearings constitutes a fundamental principle enshrined in para. 1 of article 6. Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will either expressly or tacitly an entitlement to have his case heard in public. However, a waiver must be made in an unequivocal manner and must not rub counter to any important public interest." It did not appear that the litigation involved any questions of public interest which could have made a public hearing necessary, and if the general public interest of persons not involved in the case of knowing what was happening was paramount, it was impossible to see how the court in Hakansson could have recognised the possibility of the parties waiving the right; and (iii) the Convention recognised a discretionary judgment in the way in which it applied the precepts of Art. 6 within the national legal order. That perception was sometimes confused with the doctrine of margin of appreciation, which was not available in those terms to the national authority. The fact that the doctrine of margin of appreciation existed in the jurisprudence of the Strasbourg court underlined the degree to which the rules themselves contained a latitude for judgment on the part of the national authorities. (Lord Hope of Craighead in Regina v Director of Public Prosecutions ex parte Kebilene [1999] 3 WLR 994 C, referred to.) The court could find no prospect whatsoever of the rule concerned being found to be a breach of Art. 6. On the argument that the rule violated the right to receive information under Art. 10, it was artificial to characterise attendance at court as the receiving of information. Moreover, the Strasbourg court had recognised that the right to receive information was limited. The court referred to Guerra and others v Italy [1998] 26 EHHR 357, stating that the court had there set out the limits that it recognised. There the court had stated that "that freedom to receive information, referred to in para. 2 of Article 10 of the Convention, basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him". That freedom could not be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion. Article 10 did not confer a general right to sit in court and hear judgment. The second ground The court turned to the second ground recognised by the Court of Appeal, namely whether the rules, if they were ultra vires, gave power to issue the particular practice direction relating to possession proceedings in private. On this ground there were no different issues which had not already been dealt with. The practice direction was merely administrative and did not override the general application of rule 39.2(3)(c), as para. 1.8 of the practice direction stated. A listing provision could not start to be, in itself, a breach of Art. 6 and Art. 10 in common law or anything else. The third ground This again turned on the legality of the rules and the practice directions. The whole point under those rules was that, in applying them, the courts had a discretion to rule according to cases. Relief in terms of ordering a particular practice, and certainly in terms of ordering a uniformity of practice, could not be in any way open to the court. The fourth ground The applicant had relied on the case of Storer v British Gas [2000] 1 WLR 1237, where there was not only a locked door, but a sign saying "Private. No admittance", serving as a positive deterrent to attendance at hearings. In the instant case, reasons had been given in evidence for the practice at Bow County Court, relating to security of the ground floor District Judges' rooms and a procedure whereby members of the public were admitted by means of an usher unlocking an outer door. On the facts as they now appeared, the hearings to which this ground related did not take place other than in public. This aspect of the case did not justify the issue of any relief by the court. Application dismissed with costs. Permission to appeal refused, time for renewal of the application to the Court of Appeal extended to 21 days. Application for Judicial Review of certain aspects of the Civil Procedure rules relating to the discretion of the court to hear proceedings in private and to the practice in the Bow County Court when hearing small claims. The applicant appeared in person. Philip Sales and Akhlaq Choudhury (instructed by Treasury Solicitors) appeared on behalf of the respondent. Case reported by Dr Victoria Williams, Barrister, 3 Dr Johnson's Buildings, Temple EC4Y 7BA. This law report has been produced by Westlaw UK (www.westlaw.co.uk), Sweet & Maxwell's internet service for lawyers. Reports are updated each Tuesday and are available for one week only. From "The Telegraph" an English broadsheet ---------------------------------------------------------------- FURTHER REFERENCES GO - "search perceptions" - in SEARCH-ENGINE file-ID www.perceptions.couk.com/law3.txt