Non-Contentious Probate (Fees) Order 2018

Debate between Lord Pannick and Lord Hodgson of Astley Abbotts

Tuesday 18th December 2018 Lords Chamber

[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.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am not a lawyer. I have never applied for probate, I know nothing about the operation of the probate service and I come at this as a babe in the legal wood. But having read the paperwork that was put down and heard this afternoon’s discussion, I see four things. I see us helping the poorest in our society by eliminating any charge for estates between £5,000 and £50,000. I see us ensuring that the maximum charge is never more than 0.5%, and sometimes less than that. I see a maximum of £6,000 on even the largest estate, and I see this providing a degree of cross-subsidy to ensure that we have an efficient courts and tribunals system—a point that the noble Lord, Lord Pannick, has just made. So I say to my noble friend Lady Browning, with the very greatest respect, that those seem to be perfectly good Conservative principles, and I therefore support what the Government are trying to achieve here.

If we chase down the vires point which the noble Lord, Lord Marks of Henley-on-Thames, focused on, surely any amount of return above cost is not allowable in his argument. We are about to have a reduction in the cost, as I read the papers, of £9.30—the estimated reduction in the average unit cost of applying for probate—as a result of the new system. I am not clear—perhaps the noble Lord can enlighten me when he concludes—about whether his proposal is now to reduce the fees, because of course they will be above the cost of providing the service.

I have been involved in the charity and voluntary sectors. I have worked on their behalf, written reports to the Government, supported them and fought their corner in third-party campaigning and other areas. The reports have been well received by the sector, and sufficiently well received that the Government immediately banned any idea of bringing them in—but never mind about that. The point is that they have made a great case about the impact on charities and charitable donations of the imposition of these particular charges. I must say that, however I work the maths and however I try to work through the ideas, I do not see the logic of the more extreme and indeed scaremongering issues that have been raised by many parts of the sector.

It must surely be perverse that under the present system we are charging the same fee to someone who has a £5,001 estate as to someone who has a £20 million estate. That must be perverse and the present system must not be right. This must be a way of improving it.

Privileges and Conduct

Debate between Lord Pannick and Lord Hodgson of Astley Abbotts

Thursday 15th November 2018 Lords Chamber

[Lord Pannick]

I thank the Senior Deputy Speaker. It is one of my remaining ambitions in life to get into his first 11 of lawyers.

I thank all those who have contributed to this important debate. It is striking that no one who has done so has disputed that in all other regulatory, disciplinary or employment areas in this country—in the City as well—if you are accused of a serious disciplinary offence that turns on credibility and have your reputation destroyed, you are entitled to cross-examine, or have cross-examination conducted of, the person who accuses you. It is not a question of “special pleading”—the noble Lord, Lord Warner, used that phrase—for Members of this House; I am asking for the protection accorded to everyone outside this House who faces accusations of similar conduct. It is simply unacceptable for us to apply lower standards.

Perhaps I may briefly respond to the main arguments that I understand to have been advanced. The first is that these are our rules; we are stuck with them. I have to tell noble Lords that if I were appearing in a judicial review for any public body accused of adopting an unfair procedure and I were to say to the court, “Well, those are the rules”, the judge would not for a moment tolerate such an argument. The court would say, “This is not fair”, and it would set aside the decision. In any event, the code, which is the governing instrument, at paragraph 21 requires compliance with,

“the principles of natural justice and fairness”.

There is nothing in the rules which prevents the commissioner in the exercise of her discretion allowing cross-examination in an appropriate case.

[Lord Hodgson of Astley Abbotts]

The noble Lord is talking about a judge applying the law made a by third party. The difference here is that we are talking about us applying rules that we have made ourselves. It is a distinctly different matter. A judge is applying the law of the land; we are applying rules that we have created ourselves.

[Lord Pannick]

We are the High Court of Parliament. One cannot go to court to challenge the fairness of this procedure. This House is obliged to ask whether what has been done in this case is fair. The argument seems to be, “Well, the current rules might be unfair. We don’t accept that they are, but in the future we’ll consider doing something about them”. This is no comfort to the noble Lord, Lord Lester, and it should be no comfort to your Lordships in considering this case. He is entitled to a fair procedure.

The point was then made by the noble and learned Lords, Lord Hope and Lord Mackay of Clashfern, that these are inquisitorial, and not adversarial, proceedings, but we cannot inquire into a matter of this sort and reach a fair conclusion without a process of cross-examination for all the reasons that the noble Baroness, Lady Meacher, eloquently explained.