Consultation in a legislative process

Consultation in a legislative process

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 [2009] EWHC 3052 (Admin), [2010] 1 All ER 908 (para 37):

'The principle I have suggested has its genesis in

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