Non-Contentious Probate (Fees) Order 2018

Debate between Baroness Hamwee and Lord Pannick

Tuesday 18th December 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, there are two aspects to this debate. There is the suggestion that these regulations are unconstitutional, which the noble Lord, Lord Marks, has argued, and there is the argument as to whether this is fair, the point made by the noble Baroness, Lady Browning, and the noble Lord, Lord Beecham.

When the noble Lord, Lord Marks, tells the House that something is of constitutional importance, I normally get excited and follow him eagerly into the Division Lobby—but I cannot do so today. These regulations are not ultra vires but plainly valid and within the scope of what the House approved in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. The point of that provision was to confer power on the Lord Chancellor to charge fees which are higher than the cost of the services being provided.

Section 180(1) states the Lord Chancellor may,

“prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”.


It could not be clearer. The noble Lord, Lord Marks, then says that one part of the courts system cannot be used, even under that provision, to act as a cross-subsidy for another part of the courts system. My answer is look at Section 180(3), which says that the Lord Chancellor, when he sets these charges, must have regard to,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible”—


in the plural. It is general, not specific. And if there is any doubt about that, look at Section 180(6), which adds what the purpose of the fees must be. The fees,

“must be used to finance an efficient and effective system of courts and tribunals”.


The whole purpose of these provisions as I understand them is to confer a power on the Lord Chancellor to charge a fee higher than the cost of a service, in order precisely to provide funds that will enable the courts and tribunals system in general to be financed. There is no question of a lack of validity in these regulations.

It is then said that this is unfair; the noble Baroness made a powerful speech. But let us be realistic. Lawyers—and non-lawyers as well—have been complaining with increasing power and force in recent years that the legal system is in desperate need of additional resources. We need more money for legal aid, for improvements to the courts estate—which is in a disgraceful condition—and for improved judicial salaries to ensure that the high quality of our judiciary is retained. That money has to come from somewhere—and the choice is very simple.

Of course you could raise general taxation, but the same people about whom the noble Baroness, Lady Browning, is rightly concerned would equally complain if their taxes were raised. The money is needed; the legal system—the courts and tribunals which the Lord Chancellor has to protect—are in a desperate position. The money is desperately needed. I am no more enthusiastic about these regulations than other noble Lords, but it seems to me that, given the problems we face, these regulations do impose a charge which is reasonable in its content and is a reasonable means of raising some of the revenue required to fund the courts and tribunals system of this country.

[Baroness Hamwee]

The noble Lord has construed parts of Section 180; I think he has got it in front of him because he has been reading from it. My question about Section 180(3)(b) was addressed to the Minister, but the House respects the noble Lord and I wonder whether he has views about the Lord Chancellor having to have regard to the competitiveness of the legal services market in this situation.

[Lord Pannick]

I am grateful to the noble Baroness for her observation. My answer to the noble Baroness is that, yes, the Lord Chancellor is obliged to have regard to,

“the competitiveness of the legal services market”,


but I understand that to apply only in a context where there is a competitive market. Of course, in many contexts there is. But, like the noble Baroness, I do not understand there to be a competitive market for probate, and in my judgment that provision does not require the Lord Chancellor to have regard to a factor which is simply not relevant to the topic we are discussing.