Joint Committee on Statutory Instruments Memoranda

Memorandum from the Department for Constitutional Affairs to

the Joint Committee on Statutory Instruments


The Committee has requested a memorandum in relation to the above Order on two points. The first is -

(1) Given that section 128(3) of the Land Registration Act 2002 requires a statutory instrument containing an order under section 102 to be laid before Parliament after being made, explain:

(a) whether this instrument has been laid and, if so, on what date it was laid;

(b) why it does not bear on its face the date of laying, as required by section 4(2) of the Statutory Instruments Act 1946;

(c) if it has not been laid, why that has not been done and whether notification has been given to the Lord Chancellor and the Speaker explaining why it was not laid before it came into force, as required by the proviso to section 4(1) of that Act.

The instrument has now been laid. It was laid on 30 October 2003. It is acknowledged that section 128(3) of the Land Registration Act 2002 ("the 2002 Act") contains a requirement for Fee Orders to be laid. The fact that it had not been laid earlier was due to an administrative oversight. Under the previous legislation, land registry fee orders did not have to be laid after making. The change in legislative procedure made by the 2002 Act was overlooked. This is deeply regretted, and HM Land Registry unreservedly apologises for the earlier omission. Notification was given to the Lord Chancellor and the Speaker before laying, on 30 October 2003, explaining why the Order was not laid before it came into force.

The instrument will be reprinted displaying the laying date on the first page. Copies will be available free of charge to those who have already purchased the instrument.

The second point is -

(2)   Given that section 102 of the 2002 Act empowers the Lord Chancellor to prescribe the fees to be paid, identify the powers under which articles 4(3), 6(3), 9(3) and (4), 11 and 13 are made.

It submitted that the powers conferred by section 102 of the 2002 Act enabled the Lord Chancellor to make the articles referred to, except articles 11(1) and (2).

Section 102 of the 2002 Act empowers the Lord Chancellor not only to prescribe the fees to be paid but also to make provision about the payment of prescribed fees. The powers under this section include the power to make different provision for different cases (section 128(1)).

As regards articles 11(1) and (2), it is now considered that the power to make these provisions must be very doubtful and HM Land Registry apologises for their inclusion in the Fee Order. It is accepted that it is very doubtful whether a power to make provisions about the payment of fees can include a power to make provision about the repayment of fees and the retention of all or part of certain overpayments.

Fees Orders made under section 145 of the Land Registration Act 1925 since 1990 contained the same provision but reliance could be placed on section 128 of the Finance Act 1990. However, the 1990 Act does not apply to enactments passed after its coming into force.

Immediate steps are being taken to ensure that no further deductions in respect of overpayments are made and to set up a procedure to provide for repayment of deductions made since the Order came into force.

As regards the other articles, it is considered that it must have been Parliament's intention that there be flexibility so that in prescribed circumstances an applicant may be relieved of paying a fee which would in the particular circumstances exceed significantly the cost of the work involved, or otherwise inappropriate, and for an additional fee to be payable under the terms of the Order where the cost of the work exceeds substantially the normal fee.

The same provisions as are contained in these articles are also contained in the Land Registration Fees Order 2003 (S.I. 2003/165) and earlier Orders. While these Orders were made under the Land Registration Act 1925 (repealed by the Land Registration Act 2002) we cannot see that the powers in the 1925 and 2002 Acts are in this respect different.

Article 4(3) permits the registrar to reduce or waive a fee in the specified circumstances and article 9(3) gives the registrar a discretion to waive all or part of fixed fees. The effect of these paragraphs is that where they are applied there is either no prescribed fee or a reduced prescribed fee. This provision is considered to come within the power to prescribe fees for different cases. It was also considered that it was within the power to make provision about the payment of prescribed fees, because "about" is wide enough to encompass the circumstances when a fee or full fee is not to be paid.

If the exception at (a) to article 11(3) applies then the fee is being waived in whole or in part and the same considerations as in the previous paragraph apply. If the exception at (b) applies then, as article 9(5) makes explicit, no fee is payable.

Articles 6(3) and 9(4) provide for an additional fee to be paid if the registrar directs in the prescribed circumstances. Article 13 provides a method for calculating a fee for an application where no other is prescribed, no exemption applies and the registrar (in effect) does not waive it.

None of the articles referred to in the previous paragraph prescribe a specific amount but each prescribes a maximum ascertainable amount in the case of -

article 6(3), that amount is a figure not exceeding the cost of the work involved,

article 9(4), it is the excess cost of the work, and

article 13, it is not to exceed the relevant Scale 1 fee.

In the case of article 9(4), once the registrar considers that the cost of the work involved in dealing with the application would substantially exceed any fee otherwise payable under the Order there is no discretion (subject to article 9(3)) as to the amount of the additional fee.

As regards articles 6(3) and 13, the registrar has discretion not to charge the maximum amount.

From this analysis the registrar is not given an unfettered power to fix a fee but rather a maximum fee is set and the registrar may reduce that fee. That being so, similar considerations apply to the question of waiver or reduction of fees under articles 4(3), 9(3) and 11(3) to those discussed at paragraphs 12 and 13 above.

3 November 2003

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