'McFarlane certainly sent the Ministry of Justice an advance copy of his proposals. And a minister will need to sign off the necessary rule changes. But the Family Division president made it clear last week that he did not seek government approval for what he was about to announce. And that is how it should be; he is a serving judge, and independent of the government.'
... you get everyone's law-making roles a little muddled up.
McFarlane can announce what he likes. If law or rules are to be changed only parliament or rule-makers can lawfully deal with changes. Only the Family Proceedings Rules Committee can change rules where it comes within there relatively narrow powers (Courts Act 2003 ss 75 and 76). It has nothing to do with a 'minister': the powers are vested in the FPRC whose changes are subject to the negative resolution procedure: CA 2003 s 79: ie the rules go through on the nod unless any MP wants them debated first.
If primary law (statute or common law) is to be changed this is a matter for parliament, as McFarlane recognises.
Leading from the front
In your assertion:
'McFarlane certainly sent the Ministry of Justice an advance copy of his proposals. And a minister will need to sign off the necessary rule changes. But the Family Division president made it clear last week that he did not seek government approval for what he was about to announce. And that is how it should be; he is a serving judge, and independent of the government.'
... you get everyone's law-making roles a little muddled up.
McFarlane can announce what he likes. If law or rules are to be changed only parliament or rule-makers can lawfully deal with changes. Only the Family Proceedings Rules Committee can change rules where it comes within there relatively narrow powers (Courts Act 2003 ss 75 and 76). It has nothing to do with a 'minister': the powers are vested in the FPRC whose changes are subject to the negative resolution procedure: CA 2003 s 79: ie the rules go through on the nod unless any MP wants them debated first.
If primary law (statute or common law) is to be changed this is a matter for parliament, as McFarlane recognises.
CAFCASS has its own interests to protect so their representations must be seen against that backdrop.