Government fees charged where there is no, or doubtful, authority to do so – Lords Committee criticises poor information provided by three departments

The Committee notes that, although the instruments were laid by three different departments, the explanatory information provided in each case was especially poor. In particular, none has included critical information such as:

• An explicit statement that fees have been, or may have been, paid inappropriately in the past and that there is a risk of legal challenges in relation to the fees.
• What, if any, actions the department is taking in relation to people who have paid such fees, and how long any review will take.
• How many people have paid fees over time, and the sums of money involved.
• Why fees have continued to be charged after the unlawfulness, or possible unlawfulness, came to light.

Because of the lack of important information in the explanatory material in each case, the report sets out clear guidelines for what should be provided in future instances. As well as the points above, this includes how and when the situation arose, how and when the unlawfulness or possible unlawfulness was detected, and the various legal analyses if the position is not clear cut.

The first instrument concerned is the Draft Immigration and Nationality (Fees) (Amendment) Order 2024, laid by the Home Office and drawn to the special attention of the House in the Committee’s 3rd Report. This would correct a situation where certain fees in the immigration system, relating to the assessment of English language proficiency in the visa system, have been charged to applicants without the necessary statutory authority to do so.

The second instrument is the Recognition of Overseas Qualifications (Charges) Regulations 2024, laid by the Department for Education (DfE) and drawn to the special attention of the House in the 4th Report. This provides a statutory basis for charges for the assessments of comparability of UK and overseas qualifications provided by the UK’s National Information Centre. The DfE states that while its view is that such a basis is not required, it had identified a “legitimate alternative analysis” and that it was therefore “prudent” to introduce statutory backing.

The third instrument is the Architects (Fees, Electronic Communications and Miscellaneous Amendments) (Amendment) Regulations 2024, laid by the Ministry of Housing, Communities and Local Government (MHCLG), also drawn to the special attention of the House in the 4th Report. This legislation sets out who is liable to pay certain fees to the Architects Registration Board (ARB). MHCLG told the Committee that as well as improving transparency, the instrument removes the risk of a legal challenge to the ARB’s ability to charge fees, and that it had decided to legislate “to put the matter beyond doubt”.

Lord Thomas of Cwmgiedd, Member of the Secondary Legislation Scrutiny Committee said:

“It is a deeply regrettable departure from standards of good and proper government that Government-backed fees are being charged with no lawful basis to do so – or when that backing is doubtful.

“If such situations do come to light, it is of course right that legislation should be brought forward to correct the position. However, in doing so the Government should be open and honest with Parliament and the public about the background, meaning that the explanatory material should provide a full, balanced and rounded description of the context.

“We have now set out what that means in practice and we expect departments to adhere to it in the future. If they do not, we will not hesitate to ask Ministers to explain themselves to the Committee”.