Non-Contentious Probate (Fees) Order 2018

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Hunt of Wirral]

I can think of many other court situations; I anticipate that the Minister will have a great list for my noble friend Lord Deben. There are many occasions on which you pay a fee; at the end of the day, it is intended to cover the costs of the system. This goes slightly further, I agree, but within a ring-fenced system—if I could have my noble friend’s attention—the money cannot go just anywhere. It has to go toward enhancing the Courts & Tribunals Service. I think this is the right way forward to ensure we have the access that I described earlier. I warmly commend my noble friend the Minister and I support his order.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this order relies above all on Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. As that name perhaps suggests, it was a great Christmas tree of an Act. One recalls its passage all too well; it occupies no fewer than 231 pages of the Queen’s Printers’ copy, with 186 sections and 11 schedules.

This House discharges its scrutiny function very carefully, with great conscientiousness, but perhaps, just occasionally, Homer nods; did we perhaps nod here as we reached towards the end of this mammoth Bill? Of course, we must now construe and apply Section 180 as enacted. That said, while Section 180 contains apparently no limits whatever to the extent of its permissible use, provided always that the excess funds raised are devoted to the efficacy of the Courts & Tribunals Service, ought we not to construe it somewhat fastidiously so as to guard against its use for what is essentially a tax-raising exercise?

Of course, cross-subsidisation is permissible, but is it no less obviously the case that a point will come at which what is purportedly an enhanced fee with a view to cross-subsidisation becomes truly a tax, improperly raised without primary legislation? Suppose that the proposed maximum here of £6,000 were, not the £20,000 suggested last year but, say, £60,000 for estates over £20 million. What would we say? We know that £145 million is to be raised by this order for cross-subsidisation, but why only £145 million? The deficit in the service is something like £1 billion, so why should £500 million not be raised for cross-subsidisation?

Is the proposed schedule truly a schedule of fees or does it at some point, disguised as such, descend in reality into a schedule of taxes? That, I would suggest, is the question for your Lordships. I shall listen carefully to the Government’s arguments—indeed, to all the arguments. Only at the end of the debate shall I decide how to vote. I recognise that that may be regarded as a somewhat unusual approach in this House, but I have a certain nostalgia for my earlier occupation.

[Baroness Hamwee (LD)]

My Lords, I too declare an interest, as a solicitor. I have not practised for some time, so I will not hand out cards suggesting that colleagues consult my old firm. It was the suggestion about advances made by solicitors from their office accounts that consolidated my interest in this topic. However, I want to make a wider point and to ask one very specific question.

I believe that tax is a good thing. It is the price of a civilised society and so on but it must be transparent. It is a question of trust and honesty on the part of government. It is all part of the very topical but for ever issue of citizens’ trust in the Government and how that Government raise money. It is also part of joining up across departments and subject areas, and asking departments to look for their own income generation in the way that this proposal does. Income generation is important but it is not helpful if it is completely siloed.

The Minister refers to Section 180 of the Christmas tree Act, but I rather think that the public—I do not include the subset who understand the origin of the probate service and the family courts—would find it not immediately obvious that fees for the grant of probate should finance the court service generally. They might not say that they are doubtful about whether it is intra vires, but questions will be raised in their minds.

As I understand it, currently there is full recovery of the costs of the probate service. The Minister has referred to improvements to the service, and those must be welcome, but I believe that I have read somewhere that they will lead to savings, not costs, although I dare say that an initial investment is involved. As has been said, there is no option but to use the probate service, which adds to the question of whether one is paying for a service or paying a levy, and that perception is compounded by the administration being the same, regardless of the value of the estate.

My specific question is about Section 180. Subsection (3)(a) requires the Lord Chancellor to have regard to,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible, including … costs incurred by those courts and tribunals that are not being met by current fee income”.

The subsection goes on, joined by the word “and”, to paragraph (b), which states that the Lord Chancellor must also have regard to,

“the competitiveness of the legal services market”.

I do not believe that there is a market in grants of probate administration. I will be grateful if the Minister can explain to the House how that provision has been considered, what regard the Lord Chancellor has had to the competitiveness of the legal services market and what conclusion the Lord Chancellor has reached.