Instruments reported
The Committee has considered the following instruments,
and has determined that the special attention of both Houses should
be drawn to them on the grounds specified.
1 S.I.
2003/2092: procedural defaults; failure to comply with Statutory
Instruments Act 1946; doubtful vires
Land Registration Fee Order 2003 (S.I. 2003/2092)
1.1 The Committee draws the special attention
of both Houses to this Order on the grounds that :
- there have been unjustifiable delays in laying
it before Parliament and in notifying the Lord Chancellor and
the Speaker of the House of Commons that it came into force before
it was laid;
- it does not comply with section 4(2)(b) of
the Statutory Instruments Act 1946;
- there is doubt as to whether certain provisions
are intra vires.
1.2 This Order was made under section 102 of the
Land Registration Act 2002 and came into force on 13 October 2003.
Section 128(3) of the Act provides that the Order is to be laid
before Parliament after being made. The Order is not, however,
subject to any Parliamentary procedure. Section 4(1) of the Statutory
Instruments Act 1946 provides that a statutory instrument which
is required to be laid before Parliament after being made shall
be laid before it comes into force provided that, if it is essential
that an instrument should come into force before being laid, the
Lord Chancellor and the Speaker of the House of Commons must be
notified forthwith of that fact and of the reason why it was not
laid before coming into force.
1.3 Section 4(2)(b) of the 1946 Act requires any
statutory instrument which is required to be laid before Parliament
and is sold by the Queen's Printer of Acts of Parliament to bear
on its face either a statement showing the date on which copies
of it were laid or a statement that copies of it are to be laid.
1.4 This Order was not laid until 30 October, after
the Committee had drawn these matters to the attention of the
Department for Constitutional Affairs. Neither the copies provided
to the Committee nor the instrument as originally published bear
the statement required by section 4(2)(b) of the 1946 Act.
1.5 In response to a request from the Committee,
the Department provided a memorandum for the Committee (printed
at Appendix 1) and witnesses from the Land Registry gave oral
evidence.[1] In its memorandum,
the Department states that the fact that it had not been laid
earlier was due to an administrative oversight, that notification
was given to the Lord Chancellor and the Speaker, before laying,
on 30 October, and that the Order will be reprinted displaying
the laying date. Previous Land Registry Fees Orders were made
under the Land Registration Act 1925, which did not require them
to be laid before Parliament. The change in procedure made by
the 2002 Act was overlooked. The Land Registry candidly admits
that those involved in the preparation of the Order did not read
the relevant section of the 2002 Act[2].
The Department expresses its deep regret, and the Land Registry
unreservedly apologises for the earlier omission.
1.6 The Committee accordingly reports this Order
for
- an unjustifiable delay in laying it before
Parliament;
- an unjustifiable delay in notifying the Lord
Chancellor and the Speaker that it came into force before it was
laid;
- failure to comply with section 4(2)(b) of
the Statutory Instruments Act 1946.
1.7 Section 102 of the 2002 Act confers power to
prescribe fees to be paid in respect of dealings with the land
registry and to make provision about the payment of prescribed
fees. By virtue of section 128(1), this power includes power to
make different provision for different cases.
1.8 Generally this Order prescribes either fixed
fees in respect of dealings or scale fees, which are determined
according to the amount or value of the transaction concerned.
However:
- article 4(3) allows the registrar
in certain cases to reduce a fee if it appears to him that the
fee is excessive and to waive the fee if it appears to him unreasonable
that the applicant should pay a fee;
- article 6(3) prescribes a scale fee for a large
area application but allows the registrar, if he considers that
the cost of the work involved in dealing with the application
would substantially exceed the scale fee otherwise payable, to
direct that an additional fee be paid (the total fee not to exceed
the cost of the work involved);
- article 9(3) allows the registrar, if he thinks
fit, to waive any fixed fee or part of a fixed fee or any category
of fixed fee;
- article 9(4) provides that, where the registrar
considers that the cost of the work involved in dealing with certain
applications would substantially exceed any fee otherwise payable,
such additional fee as he may direct as appropriate to cover the
excess cost of work involved shall be payable;
- article 11(1) provides that, where an amount
exceeding the fee payable under the Order has been paid, there
shall be refunded any excess remaining after the deduction, if
the registrar so directs, of an amount not exceeding £10
in respect of the cost of repayment;
- article 11(3)(a) provides that if any application
is cancelled or withdrawn, no part of the fee shall be refunded
unless the registrar so directs, and
- article 13 provides that, on an application for
which no other fee is payable under the Order and which is not
exempt from payment, there shall be paid such fee (if any) not
exceeding a fee in accordance with scale 1 as the registrar shall
direct having regard to the work involved.
1.9 The Committee asked the Department to identify
the powers under which these provisions were made. The Department
does not seek to rely on any powers other than section 102 and
128(1), but it considers that it must have been Parliament's intention
that there may be flexibility so that in prescribed circumstances
an applicant may be relieved of paying a fee which substantially
exceeds the cost of the work involved, or required to pay an additional
fee when the cost substantially exceeds the normal fee. It suggests
that in this respect the powers in the 2002 Act are not different
from those in the 1925 Act. It appears to the Committee that the
Land Registry formed this view, not from the wording of the Act
itself, but from the explanatory notes to the Bill which became
the Act (the Bill having been prepared by the Law Commission and
not the Department) and from the explanatory notes to the Act[3].
Quite apart from the obvious need to refer to the enabling powers
themselves rather than to secondary sources the Committee does
not consider that the explanatory notes to the Bill suggest that
the power has not been altered; indeed, they suggest that changes
may have been made.
1.10 Section 145 of the 1925 Act conferred power
to make orders with respect to the amount of fees payable
under that Act, regard having been had to the value of the estate
or charge involved. In the Committee's view, a power to make orders
with respect to the amount of fees is considerably wider
than a power to prescribe fees. A power to prescribe a
fee is a power to specify the amount of a fee or the means by
which it is to be determined. The Committee notes that powers
to "make provision about" matters appear frequently
in the 2002 Act, and that section 102 itself confers power to
"make provision about" the payment of prescribed fees,
which suggests that a distinction was intended. The specific provisions
of this Order referred to above purport to confer a discretion
on the registrar to set a fee which is higher (subject to a prescribed
maximum) or lower than that prescribed, to set a fee (subject
again to a prescribed maximum) where none is prescribed, or to
waive a prescribed fee. The registrar is therefore effectively
given a power to prescribe fees himself in certain circumstances.
Section 102(a) allows the Lord Chancellor to prescribe the fees
by order; it does not allow him to delegate that function to the
registrar. The Committee does not accept the Department's apparent
view that this provision authorises a degree of discretion to
be conferred on the Registrar.
1.11 The Department suggests in its memorandum that
the power to make provision about the payment of prescribed fees
is wide enough to encompass the circumstances when a fee or full
fee is not to be paid, although the Department appeared subsequently
to acknowledge that this argument is weak[4].
In the Committee's view, provision about the payment of prescribed
fees encompasses matters such as the time and manner of payment,
as are contained in articles 14 and 15 of this Order, but as the
fees must necessarily have been prescribed, it does not encompass
conferring a discretion on the registrar to vary their amount.
Nor does the Committee consider that such discretion can be justified
by the power for the Order to make different provision for different
cases.
1.12 The Department acknowledges that, for other
reasons, there is doubt as to the vires for article 11(1) and
(2), and has already taken steps to prevent further deductions
from refunds of overpayments and to set up a procedure for repayment
of deductions already made under the Order.
1.13 The Committee accordingly reports articles
4(3), 6(3), 9(3) and (4), 11 and 13 for doubtful vires.
1 Ev 1-3, Qq 1-29 Back
2
Q1 (Mr Timothy). Back
3
Qq 4, 6, 10 (Mr Twambley) Back
4
Q18 (Mr Twambley) Back
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