Probate Service

Debate between Lord Keen of Elie and Baroness Ludford

Monday 27th July 2020 Lords Chamber

[Baroness Ludford]

To ask Her Majesty’s Government what assessment they have made of (1) the operation, and (2) the resourcing, of the Probate Service; and what plans they have to remedy any issues identified.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, current waiting times in the probate service are within expected timeframes, but we expect that to come under pressure as case receipts rise. The service has continued to operate effectively, despite the pressures faced during the Covid-19 pandemic. Additional resources have been, and continue to be, put in place by Her Majesty’s Courts & Tribunals Service to prepare for additional demand following the increase in the overall death rate.

--- Later in debate ---

[Baroness Ludford (LD) [V]]

I thank the Minister for that Answer, but his claims do not mesh with my experiences or those of others. I appreciate that, like other service providers, lockdown has caused challenges for the probate service, but its problems of resourcing and organisation go deeper than that. It was already in the midst of an apparent restructuring. Press articles last month on the chaos experienced by relatives mirror my own saga. I received misinformation, and calls and emails went unanswered. Finally, my husband’s will, which had been deposited with the service, could not be located for a very worrying few weeks—almost a subject for the theatre of the absurd. Only once I had gone on Twitter was my case solved. People who are grieving deserve better treatment than many are getting, not least from the probate service.

[Lord Keen of Elie [V]]

My Lords, I very much regret the personal experience that the noble Baroness, Lady Ludford, suffered. However, particularly during the present crisis, the probate service is working effectively. There was a move in the last year to a digital system. That is bedding in and proving successful. Indeed, the average waiting time for a grant of probate in the period January to March this year was about four weeks.

European Union (Withdrawal Agreement) Bill

Debate between Lord Keen of Elie and Baroness Ludford

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Keen of Elie]

It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.

[Baroness Ludford (LD)]

The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.

[Lord Keen of Elie]

That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.

For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.

I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.

As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.

At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.

The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.