Non-Contentious Probate (Fees) Order 2018

Lord Garnier Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Northbrook (Con)]

My Lords, clearly, after an hour and 20 minutes, this non-contentious probate order is misnamed. It is interesting that opposition to it unites the noble Lords, Lord Marks of Henley-on-Thames and Lord Beecham, and the Daily Mail. I am also in strong agreement with my noble friend Lady Browning that it is a distinctly un-Conservative policy that will alienate our natural supporters once a lot of them have woken up to what is going on.

I will not talk about the order in detail because everyone else has discussed it, but the fee of £6,000 for an estate of £2 million is high if, for instance, a main residence is taken into consideration. It is not just I and other noble Lords in this House who disapprove of the order. A helpful Law Society brief which I do not think has been touched on so far states:

“The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive … It is unfair to expect the bereaved to fund/subsidise other parts of the court and tribunals service, particularly in circumstances where they have no other options but to use the probate service”.


Echoing the Law Society’s concerns, as many other noble Lords have stated, our Secondary Legislation Scrutiny Committee has stated that it has very serious concerns that the order,

“arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power”.

Similarly, the Joint Committee on Statutory Instruments, as other noble Lords have stated, raised concerns as to whether the order is intra vires, noting that it makes an unexpected use of the power conferred by the enabling Act.

The Law Society wholly agrees with the two committees that the current proposed fee is a misuse of the fee-levying power under Section 180 of the Anti-social Behaviour, Crime and Policing Act. I will not join in the debate about this section and the different views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Pannick, except to say that once you start levying this sort of thing, what is to stop any amount being levied by way of an extra fee, or even applying to other aspects of the legal system?

[Lord Garnier (Con)]

Surely the point therefore is to take on board the point made by the noble and learned Lord, Lord Judge: attack the primary legislation, not the secondary legislation. We have rather missed the boat on the primary legislation.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Garnier Excerpts

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Lord Garnier (Con)]

My Lords, I do not wish to be impertinent. This is my first intervention and exchange with the Government Front Bench on any legislation. My diffidence is reinforced by the fact that I was not a functioning Member of the House in the earlier stages of this Bill. I note what the noble Lord, Lord Marks, said in relation to the minimum qualifications required, and quite correctly, he points out in anticipation of what the Government seek in Amendment 5 what an authorised person may not do. It is probably my fault, but I am not entirely clear what an authorised person may do. Once one knows what an authorised person may do, it might be possible to reach an intelligent conclusion on what the proper level of qualifications should be.

[Lord Neuberger of Abbotsbury (CB)]

My Lords, as has been said, the purpose of this part of the Bill is to introduce a degree of flexibility and take the pressure off serving judges who are under considerable pressure at the moment, as we all know. It is right and proper that the officers who are appointed to carry out these very low-level judicial functions—and the principle is accepted—should have appropriate qualifications. However, echoing what the noble Lord, Lord Marks, said, the qualifications will be determined either by regulations or rules set down by the rules committee, which have to be put before this House, and approved by the Lord Chief Justice. Given the large number of low-level decisions which will be involved in this case, rather than fettering either of those bodies by legislating on the sort of people who can do this job, why not leave it to the Lord Chief Justice and the rules committee or the regulations? Our minds in this House cannot cater for these circumstances because, as the noble Lord said, we do not know all the types of orders which these people might be expected to make. We will have the regulations and we will trust the Lord Chief Justice and the Senior President of Tribunals.