Examination of Witnesses (Questions 1-19)
18 NOVEMBER 2003
MR JOE
TIMOTHY, MR
MIKE WESTCOTT
RUDD AND
MR FRANCIS
TWAMBLEY
Q1 Chairman: Good afternoon and welcome.
I am David Tredinnick. I am chairman of this Joint Committee on
Statutory Instruments. We are very pleased to see you here this
afternoon to clear up one or two matters that are troubling us.
The procedure is that I will ask one or two questions and then
my colleagues will also ask various questions covering procedure,
vires and sub-delegation and Parliament's intentions in
passing the 2002 Act. The Department of Constitutional Affairs'
memorandum[1]acknowledges
that the change in legislative procedure under the 2002 Act from
that under the Land Registration Act 1925 was overlooked. Why
were those involved in the preparation of this Order not aware
of the change?
Mr Timothy: It was a complete
oversight. Why they were not aware was because they did not read
the relevant section of the 2002 Act. It is inexcusable and we
apologise for failing to lay the Order.
Q2 Chairman: Can you tell the Committee
what action has been taken to ensure that errors like this will
not be repeated? Have you a procedure in place? How could this
have happened and how are you going to make sure that it does
not happen again?
Mr Timothy: I think it is safe
to say that for the next 40 or 50 years, however long lawyers
in the Land Registry are producing this legislation, it will not
happen again.
Q3 Chairman: I am in error myself.
I should have asked you formally to introduce yourselves.
Mr Timothy: Joe Timothy, director
of legal services at the Land Registry.
Mr Twambley: Francis Twambley.
I am a land registrar at the Land Registry and a lawyer.
Mr Westcott Rudd: Mike Westcott
Rudd. I am also a lawyer at the Land Registry in corporate services.
Q4 Lord Lea of Crondall: I am turning
to a question on vires and it is in three parts. In the
memorandum, the Department concedes that articles 11(1) and (2)
providing for refunds are of doubtful vires because section
128 of the Finance Act 1990 does not apply to orders under the
2002 Act. Three questions arise from that. One, why was it not
realised that the authority for making refunds provided for in
section 128 of the Finance Act 1990 could not apply to orders
made under the 2002 Act? Secondly, is it not the case that this
difference in vires was overlooked and that the Department
prepared this Order on the assumption that the powers for it had
not changed? Thirdly, how otherwise do you explain the inclusion
in the Order of articles 11(1) and (2) which the Department's
memorandum concedes is of doubtful vires?
Mr Twambley: The starting point
is that originally it was thought from the Law Commission report
and also from the explanatory note on the Act that the powers
under the Land Registration Act 2002 were at least as wide as
those under the 1925 Act. Sufficient account was not taken of
the Finance Act 1990 and we proceeded on the basis that there
was sufficient power. It was when reflecting on the Committee's
memorandum that we realised the gravity of our mistake, for which
of course we sincerely apologise. Initially, we thought we had
power because we thought section 102 was sufficient. Then we realised
that section 145 of the Land Registration Act 1925 relies upon
the Finance Act 1990 which of course does not apply to an Act
which is passed after it.
Q5 Brian White: If we move on to
section 102, I am curious as to why you changed the 1925 wording
to the 2002 wording. Do you accept that the power with respect
to the amount of fees payable as in the 1925 Act is materially
broader than the 2002 Act which says you have a power to prescribe
fees?
Mr Twambley: We accept that, in
so far as we cannot rely upon the Finance Act 1990, but our general
view is that, subject to that point, the powers under section
102 are at least as great as the powers under section 145 of the
Land Registration Act 1925.
Q6 Brian White: Is not a power to
prescribe fees only a power to specify the amount and not necessarily
the means by which it is determined?
Mr Twambley: I do not think so.
I think it is sufficiently wide. The Law Commission commented
specifically that it simplifies the equivalent provisions and
the explanatory note to the Act says "replicates the existing
system".
Q7 Brian White: You do not agree
that the powers you now have do not go as far as granting a discretion
to determine a fee?
Mr Twambley: No, I do not.
Q8 Andrew Bennett: Were any of you
responsible for any of the drafting of the 2002 Act or for giving
instructions for its drafting?
Mr Twambley: I was a member of
the Bill team but my function there was to advise as to Land Registry
practice.
Q9 Andrew Bennett: Why was the 2002
Act framed in a different way to the 1925 Act?
Mr Twambley: The Bill team, unlike
many Bill teams, did not instruct counsel, other than in respect
of those amendments which arose during the Bill's passage through
Parliament. The Law Commission produced a draft Bill which is
annexed to its Report, Law Com 271. The Bill team had an up and
running Bill. I believe the approach of the draftsman throughout
was to simplify the matter as much as possible. He was very firmly
of the view that general words would be sufficient and there was
no need, for example, to have a list of things which one could
do.
Q10 Andrew Bennett: It was an attempt
to simplify the 1925 Act?
Mr Twambley: Indeed, yes. I think
it is quite clear that the intention was to replicate the system.
It was not to reduce the fee making power, subject to the point
about the Finance Act.
Q11 Andrew Bennett: You accept basically
he got it wrong?
Mr Twambley: I do not accept he
got it wrong as regards section 145.
Q12 Andrew Bennett: You think he
got it right. You accept all the blame as far as drafting the
Order is concerned?
Mr Twambley: We take the blame
as regards articles 11(1) and (2), yes.
Q13 Huw Irranca-Davies: Can I turn
to sub-delegation and whether or not the 2002 Act gives clarity
in the powers of sub-delegation, because these powers to make
fee orders conferred by the 1925 Act and the 2002 Act at least
appear to be substantively different. How can you argue that in
this case Parliament must have intended their effect to be the
same?
Mr Twambley: Parliament has had
the advantage of the Law Commission's report to which the Bill
was annexed. That Bill in particular had notes to it and one of
the explanatory notes read: "Clause 101 makes provision for
the power to charge fees. It simplifies the equivalent provisions
found in section 145 of the Land Registration Act 1925 and section
7 of the Land Registration Act 1936. Under the general provision
of the Bill the power to make a fee order under clause 101 includes
the power to make different provisions for different cases. The
Bill does not prescribe the method of assessing fees as section
145 of the Land Registration Act 1925 presently does. It is in
fact likely that the method of assessment will change from the
present ad valorem basis to one based on the work involved
in the particular transaction." The explanatory note to the
2002 Act says, "Section 102. Fee Orders. Replicating the
existing system, section 102 provides that the Lord Chancellor
may prescribe fees for dealing with the Land Registry but that
the order must be made with the advice and assistance of the Rule
Committee and with the consent of the Treasury." Then it
deals with the exceptions which are referred to in the section.
Q14 Chris Mole: Do you recognise
that the power which is being exercised here is a form of sub-delegation?
Mr Twambley: Could you be a little
more precise as to which particular power you have in mind?
Q15 Chris Mole: In the context of
the powers to make fee orders.
Mr Twambley: The fee order provides
certain discretions for the registrar. That is a common feature
of fee orders generally, made under Acts which have general words.
Clearly, in any piece of subordinate legislation the danger is
that there will be unlawful sub-delegation but in so far as there
may be elements of sub-delegation I do not think it necessarily
follows they are unlawful. Also, when you are dealing with discretions,
one is trying to produce sufficient flexibility to make a fee
system practical.
Q16 Chris Mole: In principle, does
not the power to sub-delegate require clear authority in the enabling
Act in the first place?
Mr Twambley: Or necessary implication,
yes.
Q17 Chris Mole: You argue in your
memorandum that section 128 of the 2002 Act allows the Lord Chancellor
the power by order to make different provisions for different
cases. Is this not simply a power to prescribe in the Order itself
different fees for different circumstances and not a power to
sub-delegate or confer discretions on the registrar?
Mr Twambley: I think it is a matter
of extent. Within boundaries—and there are boundaries here
which are lawful—a registrar can have that discretion. While
hardly conclusive, it is noted that for many years there have
been similar discretions and there has been other legislation
based on powers which seem to be very similar to this.
Q18 Chris Mole: You argue in your
memorandum that section 102 of the 2002 Act allows the Lord Chancellor
the power by order to make provision about the payment of prescribed
fees. Is this not a power to deal with matters such as the time
and manner of payment of fees which the Order prescribes, rather
than the amount which may actually be prescribed as a fee?
Mr Twambley: I would concede that
the arguments concerning the significance of the word "about"
are weak.
Q19 Chairman: I would like to ask
a question relating to whether or not the discretion allowed to
the registrar in varying fees is fettered. If the Act does not
authorise the conferring of any power on the registrar to determine
some fees, does it not follow that the argument in the Department's
memorandum that the discretions are fettered by the maximum amounts
which can be set is immaterial, as there can be no discretion?
Mr Twambley: Your argument is
based on a premise which we do not agree with, which is that there
is not any power to have a discretion. Clearly, if there is no
power to have a discretion, one cannot speak about fettering the
discretion. I accept that.
1 Printed in Appendix 1 to the Report. Back
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