A response to the Report of the Financial Remedies Sub-Group of The Transparency Implementation Group

This is a guest post by Sir James Munby in response to the report of the Financial Remedies Sub-Group of the Transparency Implementation Group, which can be read here*.

The Financial Remedies Sub-Group of The Transparency Implementation Group, chaired by HHJ Farquhar, has produced its long-awaited Final Report, dated April 2023 but published in May 2023, Transparency in the Financial Remedies Court. It is a long, detailed and in many ways impressive report though unhappily, as we shall see, it demands critical analysis (in both senses). Though there is much to support, there is, I regret to have to say, much to criticise.

A cynic might describe the passages in the Report on the key question of anonymity as no more than another manifestation of family law’s unbreakable time-loop encapsulated in the irresistible and immutable principle: “we have always done it this way”. Hence my title, taken from the 1993 movie.

Perhaps wisely the Report avoids pronouncing on what for convenience may be called the Mostyn thesis in relation to transparency and in particular anonymity in the FRC. Its labours were not assisted by the remarkable fact that no-one, so far as I am aware, has yet risen to the challenge of demonstrating where and how Mostyn J is wrong, nor by the even more astonishing fact that, as set out in para 2.13 of the Report:

“Most other High Court Judges that regularly deal with FRC work appear to us to remain of the view that parties should retain their anonymity, although they do not set out the legal basis for so doing (emphasis added).”

By way of digression, it is interesting, if hardly surprising, to note how the consultation reveals widespread ignorance about transparency. Thus the Report records (para 9.7) that whereas 503 responses were to the effect that only the parties and their representatives should be able to attend a hearing, only 275 thought that the media should be to attend and only 19 legal bloggers. It continues (para 9.8.1) to note the “stand out feature” that:

“… only 275 responders consider that the accredited press should be able to attend hearings, when this has been permitted for many years now. This is indicative that press attendance is rare and that perhaps the legal community is still wary of the press and unaware of the fact that the press is already permitted to be present at such hearings. The numbers supporting legal bloggers attendance (which is also permitted) are even lower, but that may be down to ignorance of the position as that is a more recent change. The lack of knowledge of the position is highlighted by the following quote from one responder, which was not an isolated view: “members of the press should have to meet the judge first and be approved, avoid twitter chancers and fake news bloggers”. This highlights the need for education.”

The Report concludes on this point (para 9.16):

“There is a significant lack of knowledge amongst the professionals / judges as to the ability of reporters to attend hearings. This is indicative of how infrequently the press ever attend FRC cases, causing practitioners and most judges to be unaware of the relevant rules. This should be addressed by training and awareness.”

It is a depressing commentary on the inveterate failure of those professionally involved in the family justice system to concern themselves either with fundamental principles or with proper practice that this astonishing ignorance should still be so widespread more than fourteen years after the law was changed in April 2009 to entitle representatives of the media to attend almost all hearings in family cases, including those in what is now the FRC.

Under the heading Implementation the Report makes this important point (para 2.20):

“It is not the task of this group to decide which of our recommendations should be implemented but it is appropriate to consider how it could be implemented. The vast majority of the recommendations would be capable of implementation without any need for a change of the rules or of the substantive law. The issue on which we are not able to state the relevant method of implementation is that of anonymity. If the law is as set out by Mostyn J then a change in statute law would appear to be required to permit FRC judgments to be anonymised. If the approach of many other High Court Judges is correct, then no change in law would be required.

Despite this caveat, the Report then seemingly proceeds to set out just how it proposes to implement its core proposals (paras 2.14, 11.53) that “the default position should be one of anonymity at first instance” and that the existing practice of anonymising judgments should continue, namely by means of a proposed Draft Standard Reporting Order. The reader is left puzzled.

For here is what seems to be the fundamental internal contradiction within the Report. The Report proposes that the default position for financial remedy cases, both as to their hearings and their judgments, should be anonymity. That is of course a legitimate course to recommend, even if I strongly disagree with it. I would have expected to be given an explanation of how such a course avoids the harm to the social order identified in Scott v Scott [1913] AC 417. I would also have expected something rather more profound than “its all terribly personal” as a reason for casting aside the principle, articulated by Baroness Hale in (R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444, para 36, that “the public has a right to know, not only what is going on in our courts, but also who the principal actors are.”   But these gripes are not the focus of this piece.

The Report is careful (at first) to say that it is not making any proposal as to how that recommendation should be implemented, observing that if the (unchallenged) Mostyn thesis is correct then this would require primary legislation. Yet, scarcely drawing breath, the Report then goes on to set out an elaborate process for implementation of this course (namely the routine making of a reporting order providing for anonymity at the earliest opportunity) which seemingly would not even require a change to the Rules, let alone primary legislation. The implicit message is that it might be lawful for this process to be introduced by Guidance, and so the President might as well do so. Thus the true colours of the Report are to be seen.

What I wish to focus on here are three inter-related issues:

  • The detail of the Report’s thinking in relation to anonymisation.
  • The precise method by which it is proposed to give effect to anonymisation, specifically by the proposed Draft Standard Reporting Order.
  • The proposed form of Rubric

(1)        Anonymisation

The Report begins (para 2.14):

“… it is not for this group to adjudicate upon the law; that is the remit of the Court of Appeal. We have to consider which approach we consider to be appropriate going forward bearing in mind all the issues … on balance we considered that the default position should be one of anonymity at first instance.”

By the time we reach para 2.15 the “default position” has become a “presumption”:

“There will be cases in which the presumption of anonymity will not be upheld. This would occur in situations of poor behaviour, either within the proceedings by way of litigation conduct or outwith the proceedings in appropriate cases or in other cases where the public interest in permitting identification for some reason outweighs the privacy justifications. That must be a matter for the judge to decide on a case by case basis.”

I do not propose to deal here with the policy, as distinct from the legal, arguments in favour of that conclusion, except to note that it reflects the preponderant view of those who responded to the consultation and that, for what is worth, I do not agree with it. The Report records (page 70, question 22, “Do you consider the default position should be that judgments are anonymised?”) the answers as being Yes 451, No 98, Maybe 37.

The Report sets out its fundamental approach (para 11.4):

“… the focus is on a party’s right to privacy versus the general right of freedom of expression and to receive information without the interference of public authorities. A shorthand way of putting it is ‘privacy v. transparency’. Decisions involving the exercise of those rights will invariably require a judge to balance competing Convention rights, particularly those set out in Articles 8 and 10. This process is referred to within this Chapter as the ‘Re S balancing exercise’, with reference to Lord Steyn’s speech at [17] of Re S (A child) (Identification: Restrictions on Publication) [2004] UKHL 47.”

This is clear, unequivocal and much to be welcomed, as in particular is the use of the word “invariably”. It is an accurate statement of the law and recognises, even if it does not acknowledge, the central plank in the Mostyn thesis.

Although the Report continues to emphasise the need to undertake the Re S balancing exercise in every case (paras 11.20, 11.54, 11.59, 11.60, 11.61), its analysis and recommendations do not, I have to suggest, in fact give proper effect to that fundamental principle.

The key recommendation is that the existing practice of anonymising judgments should continue (para 11.53):

“However, the Group has taken account of the strong support for the existing practice of anonymising judgments and recommends a continuation of that practice.”

How, I ask, is that compatible with the law? If the Mostyn thesis is correct – and the Group does not say that it is not – then the short answer is that it is not. The Report continues (para 11.54):

“The Group acknowledges that this will require the Court to conduct the Re S balancing exercise in every case where a judgment is to be published, including those cases where a reporter requests an official transcript of an extempore judgment following their attendance at a final hearing.”

The simple fact, I have to suggest, is that the recommendation (para 11.53) is not compatible with a proper application of the Re S principle as (correctly) enunciated (paras 11.4, 11.54) and as correctly understood.

The same error recurs (para 11.59):

“The Group’s recommendation as to anonymity does not mean that the Court should pay only lip service to the Re S balancing exercise. The Court must undertake this case specific exercise in every case when the competing issues of privacy and transparency must be balanced. However, the conclusion of the Group was that publication of an anonymised judgment would likely represent a fair and appropriate balance of the competing rights in most cases (emphasis added).”

It is if anything aggravated by what follows (para 11.60):

“… the Group acknowledge[es] that there may be some cases in which the Court determines, following that balancing exercise, that parties should be named (emphasis added).”

The explanation for that rather grudging acknowledgement is apparent from what follows (para 11.61):   

“It is not for this Group to set out a list of categories of case in which the balance may be tipped in favour of naming the parties – this is the role of the Court – but examples from decided cases and the survey responses suggested that factors such as egregious litigation conduct, criminal conduct, a party who courts the media and/or lived in the public eye will be relevant to the Re S balancing exercise. If the parties have been identified in a judgment published at an earlier stage in the case, this may also be a relevant factor to take into account – see the recently delivered judgment following the final hearing in Xanthopoulos v Rakshina [2023] EWFC 50 at [176] (emphasis added).”

Two things are striking about this, and they go to the heart of the Group’s problematic approach:

First, it puts the key question the wrong way round. As Mostyn J explained (correctly) in Xanthopoulos v Rakshina [2022] EWFC 30, [2023] 1 FLR 388, para 128:

“The fallacy lying at the heart of current practice, which seems to be ingrained, is that the wrong question is invariably asked when it comes to anonymising a judgment … The correct question is not:

“Why is it in the public interest that the parties should be named?”

but rather:

“Why is it in the public interest that the parties should be anonymous?””

The Group, so far as I can see, simply does not engage with this. Implicitly they seem to be proceeding on the footing that Mostyn J is wrong, but, if so, they neither say so nor explain why.

Second, the suggested exceptions are presented in such a way as to make the reader think that only rarely will the presumption or starting point (call it what you will) in favour of anonymity be displaced.

There is a long discussion of anonymity in Chapter 12 of the Report which concludes (paras 12.120-12.121):

“The group has concluded that a starting point of general anonymisation of reporting, be it by the media or in the form of final judgments, on publicly and freely accessible websites (e.g. Bailii etc) is the correct place to strike the balance between the need for:

The public interest being promoted by more judgments and reports with greater information being published. In turn this provides greater transparency and permits a better understanding and policing of the court’s functions to be available to the public; whilst;

Suitably protecting the rights and welfare of the litigants, in particular their children; and

Guarding the integrity of the system and the necessary provision and use of information on which it relies, and FR proceedings’ ability to function fairly for all who have need of it.

This does not, in our opinion place a veil of secrecy over any such case. The entire salient details of it: the arguments employed, law applied, facts disputed and found, and figures relied upon, could be, in effect, seen by all who read the report. The only secrecy would be in respect of the actual name of the particular litigants (and similarly identifying information), which are details which lend little or nothing to the greater understanding of the case, or the public interest in scrutiny of the system from which it emanates.”

What this means in practical terms is then spelt out (paras 14.26-14.27):

“Although each case will be considered individually, we suggest that the following should be anonymised unless otherwise ordered:

The names and addresses of the parties (including any intervenors) and their children and any photographs of them;

The identity of any school attended by a child of the family;

The identity of the employers, the name of the business or place of work of any of the parties;

The address of any real property owned by the parties;

The identity of any account or investment held by the parties;

The identity of any private company or partnership in which any party has an interest;

The name and address of any witness or of any other person referred to in the hearing except for an expert witness.

We concluded that this would provide an appropriate balance between the freedom of expression and the infringement of the private life of the parties. It would permit publication of the finances of the parties in broad detail so as to make any report informed and of interest, without permitting the intimate details of who the parties are, where they live and/or work and, for example, their bank account details, or partnership share being disclosed.”

That is clear enough as a statement of policy, but again it does not really engage with the legal issues. As a statement of policy one can, with one significant exception, understand the Group’s thinking, though I do have to question the proposed prohibition on naming “any … person referred to in the hearing except for an expert witness.” Is it seriously being suggested, for example (and one can think of many others), that one should not be able to identify a judge previously involved in the proceedings or in other, related, proceedings? I would hope that this is merely the consequence of poor drafting following insufficient thought.

The fundamental problem is that, for all its repeated references to Re S, the Group has in effect proposed adoption of a policy which (a) takes the wrong starting point and (b) is not compatible with Re S. Moreover, it seeks to rely, as we shall see, upon opaque and inadequately explained proposals for the use of a Draft Standard Reporting Order, seemingly as a means of escaping from the problem, which it does not really grapple with, that the implementation of such a policy, unless it is implemented by Re S compliant orders, will require primary legislation.

Given the overriding caveat (para 2.20) with which the Report is qualified, it remains at the end of the day, I fear, unclear whether the proposals in relation to the Draft Standard Reporting Order are intended to be implemented in any event or only once the question of whether, as the Mostyn thesis would have, that a change in statute law would appear to be required to permit FRC judgments to be anonymised, has been resolved. This lack of clarity is disappointing.  

Fundamentally, while the Report purports to pay loyal tribute to the Re S jurisprudence it is in truth mere lip service. There is no mention of the exceptionality of an anonymity order under that jurisprudence, which is the key principle lying at its heart. That principle is pithily summarised by Lord Neuberger MR in the Practice Guidance on Interim Non-Disclosure Orders [2012] 1 WLR 1003:

“[9]      Open justice is a fundamental principle …

[10]      Derogations from the general principle can only be justified in exceptional circumstances when they are strictly necessary … They are wholly exceptional …

[12]     … Anonymity will only be granted where it is strictly necessary, and then only to that extent.

[13]      The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence …

[14]      When considering the imposition of any derogation from open justice the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.”

Far from the reflecting this principle of exceptionality the Report in effect rejects it by proposing routine standardised derogation from the open justice principle in every case. This may be seen as yet another example of family law exceptionalism, or desert island syndrome, though that is not the focus of this piece either.

 The Draft Standard Reporting Order

In relation to this, the Report explains (paras 2.16-2.17):

“We consider that there should be a standard form of Reporting Order (RO) setting out what can and cannot be made public by reporters … This order would be commonly made at the First Appointment in cases proceeding in the High Court, where the presence of reporters is common, or in the Family Court at the first hearing at which reporters attend.

The Reporting Order is intended to provide the parties with protection from intrusive and personal identification whilst allowing reporters access to the information which will permit them to understand the nature of the case and enable them to report the salient information.”

That had previously been spelt out (paras 2.11-2.12):

“… We consider that the default position should be that reporters are entitled to see the position statements of the parties (assuming such documents exist) together with the ES1 form which sets out the basic chronology and facts. It is considered that this would be sufficient information in the majority of cases.

This information would be ordered to be provided by way of a Reporting Order which would set out precisely what documents are to be provided. If there is an objection to the standard order by any party or a reporter, then there should be an application to the judge and the standard order can be amended. No information could be published which breaches a Reporting Order notwithstanding its appearance in a provided document.”

I am not concerned here with the proposals as to precisely which documents should be disclosed, nor with the long discussion of that issue in Chapter 13 of the Report, though I would be interested to discover the reactions of journalists and bloggers. My concern relates to the process.

First, however, I must draw attention to this revealing observation on nomenclature (para 14.23):

“For the purposes of this paper, we intend to call the order made a Reporting Order (RO). The use of the terms Transparency Order and Reporting Restrictions Order seems to us to give the wrong message, the former suggesting that it gives more openness than in fact it offers and the latter sounding unduly restrictive.”

This at least has the merit of frankness and candour, but it is disappointing, to use no stronger expression, to note that what is being recommended is avowedly not transparency.

The Report continues (para 11.19):

“When a reporter attends a final hearing, the current legal position is not clear but may be that, absent an anonymity order/RRO, financial remedy proceedings are not secret and what happens at a final hearing could be reported in the media by any reporter in attendance, save where to do so would identify a child involved in the proceedings. That said, most practitioners – including full time judges – work from the opposite position i.e. that a reporter must seek permission of the court before reporting any aspect of the case.”

Why the qualifying words “any reporter in attendance” and “save where to do so would identify a child” are included is not explained; indeed, it might be thought that the lack of clarity is suggestive of assumption rather than careful analysis. Be that as it may, this is on any basis a very important concession (see below): the Group is not saying that the Mostyn thesis is right, but it is not saying it is wrong. For present purposes the really significant point is that the Report simply fails to pick up on and engage with the implications of this if, as it concedes the law “may be”, the true position is that, absent some suitable order, a reporter (or, indeed, anyone else) can report on what has happened.

The Report goes on (para 11.20):

“Whether the onus is on a reporter to seek permission to report or whether the onus is on a party opposing such reporting for an order to prevent it, the Court is required to carry out the case-specific Re S balancing exercise in each case.”

It continues (paras 11.50-11.51):

“This Group recommends that any decisions as to what can be reported at a final hearing should be made at the conclusion of the final hearing. Not only will this promote balanced reporting, but it will also allow any reporter present an opportunity to consider what details, if any, he or she wishes to report and will allow the parties an opportunity to consider what details, if any, they would object to ending up in the public domain.

To give effect to this, the Group recommends that in every case where a reporter attends any hearing, the Court should consider imposing an interim anonymity order until delivery of the judgment. The Group considers an interim anonymity order is a proportionate measure to hold the ring pending a Re S balancing exercise conducted at the conclusion of the case.”

Subject to one important point to which I return below, this is an entirely appropriate approach. It reflects what Mostyn J did in XZ v YZ [2022] EWFC 49 and, as he pointed out in R (Marandi) v Westminster Magistrates’ Court [2023] EWHC 587 (Admin), para 82, accords with established practice in the civil jurisdiction. But, as the Group recognises, this is a strictly interim order, designed to ‘hold the ring’ until such time – typically at the conclusion of the case – when it is possible to conduct a proper Re S balancing exercise: see Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370, [2023] 1 FLR 120, the further judgment in XZ v YZ, where Mostyn J explained (paras 58-63) why he had made the previous interim order and then proceeded (paras 64-79) to conduct the full Re S balancing exercise.

There are, however, and this regrettably is not addressed, let alone spelt out, by the Group, nor, as we shall see, given effect to in its specific proposals, two inescapable corollaries:

First, the initial interim order must be explicitly time-limited to last no longer than until the end of the case.

Secondly, at the point when the interim order would otherwise expire the judge must undertake a full Re S balancing exercise, whether or not anyone has asked for it. The interim order cannot simply be ‘rolled over’ without further consideration. Put another way, before any final RO is made there must in every case, and whether or not anyone has asked for it, be a proper Re S analysis.

In relation to this, the Group’s further recommendations are regrettably opaque, indeed, to put the point plainly, confused and confusing (paras 14.33-14.34):

“We envisage that the RO will in most cases, whether adjusted or otherwise, endure until further order without limit of time. This will include both before and after the delivery of judgment. This is an issue that would require separate consideration in each case to consider whether there is good reason for the RO to be limited in time … 

None of the forgoing inhibits the identification of parties by order of the judge, where their conduct, the fact that the details of their dispute are already in the public arena, or other matters, make it appropriate.”

The Report continues (para 14.40)

“The reporting would be permitted on a day-by-day basis …”

What does all this mean, and how, in particular, does it begin to address the fundamental distinction between the initial interim order, which as already explained will not require a full Re S analysis, and the final, perhaps indefinite, order which, as the Group has recognised, does require a proper Re S analysis? And what are we to understand as being the proposed practice and procedure? It is all regrettably very unclear.

I note the further recommendation (para 14.40) that:

“no live reporting/tweeting from the Court should usually be permitted …”

This, as we have already seen, is surely to put the point the wrong way round; the question is not so much what should be permitted but rather what should be prohibited. Be that as it may, it is surprising that the draft RO is silent on the point.

There is a further important point. It will be noticed that the recommendation (para 11.51) is that an interim order should be made in cases where a reporter attends the hearing. This approach is further elaborated (paras 14.22, 14.24):

“As reporters are entitled to attend all FRC proceedings unless excluded, the issue of reporting may arise at any stage of proceedings, and the court should be alert to this. This may be at the First Appointment or at any time thereafter. We propose that in cases in which the press have shown an interest that an order should be made to consider what can and cannot be reported.

We discussed whether a RO should routinely be made in all cases, regardless of whether there is an application for a RO. We concluded that the burden that this would place on the administration which is already struggling to keep up with orders might be overwhelming. There is next to no attendance by reporters or bloggers in FRC cases outside the High Court, and thus no need for a RO in most cases.”

Whilst one can appreciate the pragmatic argument for such an approach, the Report simply fails to pick up on and engage with the implications of what had earlier been said in para 11.19, namely that “the current legal position is not clear but may be that, absent an anonymity order/RRO, financial remedy proceedings are not secret and what happens at a final hearing could be reported in the media by any reporter in attendance” – or, indeed, by any journalist interested in the story who, having alternative sources of information, has not attended the hearing.  

The Report raises the question “Must a journalist/legal blogger be physically present to be able to report a hearing?” The answer (para 14.42) is that “There can be no distinction between a reporter attending in person or remotely provided that they are in the jurisdiction and susceptible to the reach of the court in the event of any need to enforce restrictions.” That is plainly correct. But the Report does not adequately engage with the position where a reporter entitled to attend does not in fact do so. Why should such a reporter not be entitled to the benefit of the RO, and, if not, why not? Again, I fear we see the basic (and in my opinion erroneous) assumption in play, that the fundamental underlying question is what should the reporter be permitted to report? and not, as the Mostyn thesis correctly has it, what should the reporter be prohibited from publishing?

The central provisions of the proposed Reporting Order, so far as material for present purposes, are to be found in the following paragraphs:

“3.       In this order, “reporters” means duly accredited representatives of news gathering and reporting organisations and duly authorised lawyers attending for journalistic, research or public legal educational purposes (legal bloggers) (together referred to in this order as ‘a reporter’) who are entitled to attend a hearing under r.27.11 of the Family Procedure Rules 2010 (‘FPR’)

6.         This Order will remain in force until further order [but the duration must be considered by the judge in each case].

7.         A reporter may publish any information relating to the proceedings save to the degree restricted below.

8.         No person may publish any information relating to the proceedings to the public or a section of it, which includes: [this being the list as set out in the Report (para 14.26) which I have quoted above].”

The fundamental objection to the RO, as indeed to much of the Report’s analysis, is exemplified by paragraph 6. Where in the RO does one find any recognition of the difference between an interim order of the kind explicitly contemplated by the Group and, in a case where there has been an interim order, the final order. Paragraph 6 as drafted is simply not apt in the case of an interim order. It is a great pity that the Group has not provided two forms of proposed RO: one for an interim order and the other for a final order.

Two other aspects of the proposed RO also require comment:

  • The definition in paragraph 3 of a reporter extends not merely to those who actually attend but also to those “entitled to attend.” Is this intended, and, if so, how does it fit with the Group’s general approach that the RO will apply only to those who have attended?
  • As already noted, sub-paragraph (g) of paragraph 8 as drafted is problematic.

I am sorry to have to put the point so bluntly, but the draft proposed RO will require much more work before it is truly ‘fit for purpose.’

The Rubric

The Report is clear (para 11.63):

“The Group acknowledges Mostyn J’s criticisms of the standard rubric in the decisions referred to in this Chapter and accepts that this should be changed to reflect whatever decisions have been made by the Court as set out above in terms of anonymity and/or reporting orders. The rubric should also refer to the Reporting Order, as is set out in Chapter 14 below.”

That said, the analysis of the issue in the Report (paras 11.22-11.24, 14.19-14.20) is rather ‘thin’.

The Report recommends (para 14.39) that:

“If a judgment is to be reported, the rubric used by most judges should be adapted to bring in the RO along the following lines:

This matter was heard in private. The judge gives permission for this version of the judgment to be published. In no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified. In this case a Reporting Order has been made on — — which continues in effect.

All persons, including representatives of the media and legal bloggers must ensure that the terms of the reporting order are strictly observed. Failure to do so will be a contempt of court.”

Two observations:

  • Why does the proposed rubric recite that the judge has given permission for the judgment to be published? As Mostyn J has laboriously explained, this is needed in the case of a judgment in proceedings to which section 12 of the Administration of Justice Act 1960 applies but otherwise is not needed. The wording is otiose and misleading; its inclusion simply serves to perpetuate misunderstanding and subtly to reinforce the dangerous fallacy that financial remedy cases are so different to all other financial disputes that they should normally be shrouded with a mantle of secrecy.
  • Why are the words “In no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified” included before and therefore seemingly independent of the following reference to a Reporting Order. And, if intended to operate independent of the RO, what is the legal basis for such a prohibition? In the light of my own judgments, to which Mostyn J has referred, I have to suggest that the only answer to my question is: none at all. Would it not conduce to clarity (and, indeed, a better understanding of how the rubric operates) if the wording was transposed so as to read:

In this case a Reporting Order has been made on — — which continues in effect. In particular the Reporting Order provides that in no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified.

I make no apologies for writing in terms that to some may seem churlish, pedantic and even nit-picking. I recognise the considerable endeavours that have gone into the Report and would very much have preferred to be able to commend it without reservation. But the subject-matter is too important, and the need for clarity and adherence to principle too pressing, to allow it to pass by in silence. If the President’s laudable transparency agenda is to succeed, as it must, we have to get the necessary changes right. For my own part I shall be very happy to be told that I have misunderstood the Report, if indeed I have. What we need is vigorous debate. As Hankford J said all those years ago in 1409 (YB 11 Hen 4, Mich fo 37), “le ley per bon disputacion serra bien conus [by good disputation will the law be well known].”

*disclosure, our chair Lucy Reed KC is a member of this sub-group.

Feature pic Groundhog by Pontia on Flickr – thanks