RULES, REGULATIONS AND ORDERS (Hansard, 11 February 2002)

§ Mr. Cash
I beg to move amendment No. 10, in page 42, line 39, at end insert— '(4A) Before making any order under any provision of this Act, the Lord Chancellor shall consult the Rule Committee.'. Among other things, the clause prescribes certain powers that are conferred on the Lord Chancellor to make not only rules and regulations but different provision for different cases. Furthermore, any such power is to be exercisable by statutory instrument. The clause then explains the procedure to be followed, where the statutory instrument is laid before Parliament.
Subsection (4) states that a statutory instrument concerning land registration rules, certain rules under part II or section 119, regulations under paragraph 5 of schedule 9 or certain orders is subject to annulment in pursuance of a resolution of either House of Parliament. However—the Minister has heard me express a view on this before—there is no explicit provision that, when any such order is made, the Lord Chancellor is under an obligation to consult the rule committee.
Significant practical implications arise in respect of a number of the important changes that are being made, such as extending compulsory registration of title or varying the length of time required for upgrading a possessory title by order. The principle on which consultation operates as a matter of law is no doubt well known to the Minister and, for that matter, most emphatically to the Lord Chancellor, who is required to consult all and sundry, much as Gilbert and Sullivan have required him to sing many a song for his sins since the composition of "Iolanthe" or any other great opera. The lord high executioner in this case, the Lord Chancellor, has that facility. He should be required, in my judgment and that of professionals, to consult the rule committee. 32 It would be astonishing if the Government wanted to resist any such provision. I am interested to learn whether the Minister has an ingenious way of satisfying me that the lack of consultation in the Bill is compensated for by the fact that the consultation will take place in practice. He knows that consultation means no more than "I hear what you say." There is substantial case law on the subject; one does not have to comply with the arguments made during consultation, but one is required to listen.
I know that the Government are a listening Government; at least, I am told that they are. I believe that the Minister is a listening Minister; it would be progress if he assured us that the Lord Chancellor will consult the rule committee, even if he is not prepared to accept my simple amendment. If he is not prepared to give that assurance, it follows that, astonishingly, the Government have no intention of consulting the rule committee. I am engaging in this didactic exchange entirely on my own and am waiting for him to respond. I am sure that he understands that this is an important matter, and will want to consult the rule committee.

§ Mr. Wills
indicated assent.

§ Mr. Cash
I am glad that the Minister has just indicated that he will do so. However, if he does not wish to entrench my proposal in legislation, I trust that he can give me an assurance that the rule committee will be consulted as a matter of course. I should be delighted if he would do so, and shall not to try to pre-empt or anticipate what he has to say. It is not only members of the rule committee who expect an assurance, but everyone in the professions, as well as the many millions of people concerned about the way in which the rules, regulations and orders will operate. If the Minister can give that assurance in the best spirit of transparency, to which, I know, he is patriotically committed, that will guarantee that the measure can go ahead as smoothly as possible.

§ Mr. Wills
I know that the hon. Member for Stone (Mr. Cash) takes these matters extremely seriously, so I shall try, at some length, to reassure him.
There are two types of order-making power in the Bill. I will deal first with the administrative orders for running the land registration system, of which there are three: a power under clause 99, as the hon. Gentleman will recall, to designate a particular land registry office as the proper office for certain applications; a power under clause 101 to make fees orders for dealings with the registry; and a power under clause 111 to make fees orders for dealings with the adjudicator.
The power to designate where particular applications are handled is an internal matter for the Land Registry, allowing the registrar to even out the levels of work, and therefore processing times, at different offices. It also allows him to set up specialist teams to deal with complex or rare types of applications. Those orders are often made at relatively short notice to address difficulties as they arise. As now, it is intended that they should be made swiftly, and merely laid before Parliament afterwards. There is no need to create any greater scrutiny or delay in their implementation by involving the rule committee; the Bill as drafted reflects that.
The second power is to make a fees order for dealing with the registry itself. Fees orders are currently made by the Lord Chancellor with the advice and assistance of the 33 rule committee; I am pleased to be able to confirm to the hon. Gentleman that that situation will continue under clause 101.
4.15 pm
The other rule-making power that I mentioned is that relating to the fees of the adjudicator. As I explained in the Second Reading Committee on 29 November 2001 at column 9 of Hansard, the adjudicator provisions are designed to establish a new and independent judicial officer to determine registration disputes between individuals. Responsibility for the administrative arrangements for the new office will lie with the Lord Chancellor's Department, not the Land Registry. It is not appropriate to jeopardise that independence by subjecting the adjudicator rules or the fees order to the scrutiny of the Land Registry's own rule committee.
Of the three administrative order-making powers under the Bill, only one should fall within the scrutiny of the rule committee, and the Bill as drafted achieves that already.
I turn to the second category of order-making powers, which cover a number of rather disparate areas. First, there will be orders to extend beyond the changes introduced by the Bill the triggers for compulsory registration of land in general, and for demesne land. Then there are orders to adjust the period after which upgrading of title can occur. Finally, there will be orders to extend the system to cover submarine land, and to adjust the qualifying term of leases for compulsory registration of title. All these order-making powers are subject to the negative resolution procedure.
As the powers involve not the running of the land registration system, but adjustments to the statutory framework under which it operates, it is Parliament rather than the rule committee that should direct the order-making process.
The changes that will be brought about by orders made to extend triggers for compulsory registration of title and to reduce the length of leases requiring registration will have a particular impact on the operation of the property market. The relevant clauses therefore impose duties on the Lord Chancellor to consult before exercising those powers.
The Government made a commitment in another place to consult the rule committee during the consultation process under those clauses, a commitment which I was happy to repeat during Committee debates. The rule committee members will, however, be consulted as individuals who have useful background knowledge and expertise to add value to the discussion, but the responsibility for the scrutiny of the orders remains with Parliament.
With regard to these more fundamental order-making powers, the Government believe that the involvement of the rule committee members is already ensured when and where it is of value, and in a way befitting their role in that order-making process.
Given my explanation and the importance which I know the hon. Gentleman attaches to scrutiny by Parliament, I invite him to withdraw his amendment.

§ Mr. Cash
As usual, the Minister has gone to some length to explain the Government's arguments, and I am 34 grateful to him for his competent explanation of their approach. I believe that it is still desirable for the provision to be included in the Bill, but I gather—I would be grateful if the Minister could at least nod, if he thinks that I have got the message right—that for practical purposes, the rule committee will be engaged in a proper consultative process, notwithstanding the fact that he does not want that to be set out in the Bill.

§ Mr. Wills
indicated assent.

§ Mr. Cash
I was a little concerned when I heard the Minister say—I do not want to misquote him—that perhaps it would be more appropriate for the matter to be left to Parliament than to dealings with the rule committee. Enthusiastic as I am about the democracy that lies at the heart of our system and on the Floor of the House, having served for some years on the Statutory Instruments Committee—a burden that I was invited to sustain by the Whips of the time, which gave me an opportunity to see the workings of that Committee, and the manner in which statutory instruments then move inexorably to the Floor of the House and receive such detailed examination, as we all know—I would have much more faith in the Minister's assurance that the rule committee would be involved in the consultative process, in the knowledge that its members have their feet on the ground and would deal with these matters in a practical manner.
The issues will indeed crop up and will be far better dealt with by those who are engaged in professional practice and who have hands-on dealings with the consequences of the matters covered by orders and regulations. I would not mind betting that I will turn out to be right, and that a good deal more consideration will be given to these matters by the rule committee than would ever be contemplated by the great authority of the Statutory Instruments Committee or by Members of Parliament. Without wishing to be cynical, I would qualify what the Minister said. In practice, these matters will be sorted out on the ground with the rule committee. I am glad that he has indicated that that is how he thinks it will work in practice, and I hope that he is right.
On the basis that the Minister and I have arrived at something of a mutual understanding, and that there will be a degree of consultation in practice, I beg to ask leave to withdraw the amendment.