1. By a letter dated 27 October 2021, the Committee sought a memorandum on the following points:
1. Explain why section 76(8) of the Courts Act 2003 is not cited in the preamble, having regard to rule 10(d).
2. Explain the basis on which it was thought lawful and proper to dispense with the requirement to consult (having noted the explanation contained in paragraph 10 of the Explanatory Memorandum).
2. The Department is grateful for the Committee’s consideration of this instrument and responds as set out below.
3. The failure to cite section 76(8) of the Courts Act 2003 (Family Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions) is an oversight arising from the way in which the rule changes provided for by rule 10 of this instrument came about. The rule changes were piloted over an extended period before being assessed as appropriate for inclusion in the Family Procedure Rules on a permanent basis. The pilot provisions were set out in a Practice Direction made pursuant to rule 36.2 of the Family Procedure Rules 2010 (Practice Direction 36J). The rule changes as piloted were assessed as having worked well and not needing adjustment, and so the exercise of making the changes permanent was initially simply one of reproducing in this instrument the piloted changes. In the pilot Practice Direction, the meaning of a “duly authorised lawyer” was provided for by way of modifications to rules. However, in the course of preparing this instrument it was concluded that that term would be better defined in a Practice Direction (Practice Direction 27B), as this will, for example, enable amendments to be made more readily if the means of qualifying as a lawyer change in future. When this change of drafting approach was taken, unfortunately the need to cite section 76(8) was not flagged appropriately. The Department apologies for this oversight.
4. The Department would, with respect, not characterise decisions about the manner of fulfilment of the duty in section 79(1)(a) of the Courts Act 2003 as dispensing with the requirement to consult, for two reasons. The first is that the duty in section 79(1)(a) is in the Department’s view to be construed, like the duty in section 2(6)(a) of the Civil Procedure Act 1997 which it precisely mirrors, not as imposing a requirement to consult some person or persons in every case before making any rule or amendment to a rule, but (as explained in relation to section 2(6)(a) of the 1997 Act in the Department’s memorandum published as Appendix 2 to the Committee’s 18th Report of Session 2019–21) as allowing for the Family Procedure Rule Committee (FPRC) to decide that it is appropriate not to consult in an individual case, as well as to determine, where the FPRC considers that this is appropriate, who should be consulted and the manner in which consultation should be undertaken. The Explanatory Memorandum may be misleading in its description of consultation in this respect, as it deals only with formal consultation, rather than the informal consultation frequently undertaken by the FPRC, as by the Civil Procedure Rule Committee and explained in the Department’s memorandum referred to above.
5. Section 63 of the Domestic Abuse Act 2021, to which the amendments in rules 3 to 6 of this instrument give effect, requires rules to be made to specific effect and leaves little room for drafting discretion. In those circumstances, it was not considered that there was a need for any formal consultation on the rule amendments so required to be made, and the Explanatory Memorandum is correct in stating that; however, views external to the FPRC were sought in the sort of informal process described in the Department’s memorandum referred to above, and in particular the lead family judge for domestic abuse attended the meetings of the FPRC at which section 63 and the rule amendments required for its implementation were discussed, specifically to inform the FPRC’s discussion and decisions on them. Her Majesty’s Courts and Tribunals Service also contributed views, including on the minor and technical amendments made by this instrument to rule 29.6 of the Family Procedure Rules. The Department considers that the duty imposed on the FPRC by section 79(1)(a) of the Courts Act 2003 was fulfilled, but apologies for the potentially misleading nature of the Explanatory Memorandum in this regard.