Non-Contentious Probate (Fees) Order 2018

Lord Faulks Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, I want to say just a little since the noble Lord, Lord Pannick, has dealt with the law and I happen to agree with him. As your Lordships all know, I frequently disagreed with him in a previous existence. Whenever I did, he appealed to a higher court and was always right. This time I agree with him because I happen to agree with him. I will not repeat the reasons.

I will take a slightly different stance. The debate we have had, assuming that the noble Lord, Lord Pannick, is right—as I say, I agree with him—is whether section whatever it was of some 235 sections produced the power the Lord Chancellor now seeks to exercise. If it did, the problem is not with this statutory instrument, which we are all attacking and which the noble Lord, Lord Marks, has indicted ferociously and accurately, but with the primary legislation, which, I am sorry to say, we probably did not analyse with sufficient care. I was not here at the time, so I do not bear any personal responsibility.

I am sorry to say this, but we were vesting in statute after statute vast powers in the Executive. We do it and we let it happen. We cannot complain if the Executive, having been vested with these powers, choose to exercise them. We vest powers in not just this Executive, but the next one, the one after and the one after that. That seems an aspect arising from the present order that we really should not overlook. We should be more alert when powers are being vested in the Executive to do almost anything by secondary legislation.

That has got that off my chest. Now I declare an interest. Because of the office I once held, I am perfectly well aware of the fact that our civil courts system is in a shambles. It needs funding. It needs much more funding than this funding would provide. If the Lord Chancellor has the powers—as I said, I agree with the noble Lord, Lord Pannick, that he has—this seems a sensible use of them to achieve a very important societal purpose.

[Lord Faulks (Con)]

My Lords, the 2014 Act was passed by Parliament when there was a coalition Government in power. I had the privilege of bringing in enhanced fees that, it has been suggested, should be viewed in rather a favourable light compared with the probate fees that are the subject of this statutory instrument. I certainly do not remember that being the response at the time, although the arguments—namely cross-subsidy—were the same. Indeed, I specifically remember making the point that it was always an option whether you chose to litigate. That has been raised as a favourable point in support of this statutory instrument, where obviously there is no question of choice.

The reality is that both these provisions were there to subsidise the much-needed court system. The noble Lord, Lord Marks, will remember that the coalition Government came to power facing an economic crisis and that a number of cuts had to be made, particularly to the Ministry of Justice budget, which the Liberal Democrats went along with happily, as did the Conservative Party, as a result of which the courts have been feeling the strain and are continuing to in a way that a number of noble Lords have pointed out. This is an attempt to at least alleviate some of that strain.

My noble friend Lord Hunt mentioned the case for cross-subsidisation. I respectfully suggest that he is right. He mentioned a number of areas. I could mention more: non-molestation orders, occupation orders, forced marriage protection orders and female genital mutilation protection orders. There are all sorts of tribunals involving family immigration and asylum that do not pay for themselves but need cross-subsidisation.

Crude though it may be, this order will be a valuable addition to our beleaguered legal system, about which I am sure the noble Lord, Lord Marks, and all in your Lordships’ House share concern. The Government have responded to the initial outcry, if I might describe it as such, about the amounts involved. They have been lowered. I respectfully suggest that the Minister has made out the case.

[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?