Non-Contentious Probate (Fees) Order 2018

Lord Hodgson of Astley Abbotts Excerpts

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.

[Lord Sharkey (LD)]

My Lords, I will not join in the discussion about what is or is not a Conservative principle, but it is clear that this measure is in fact highly contentious, drafted as it is by the irony division of the Ministry of Justice.

Its 2016 predecessor was also highly contentious, as it attempted to impose probate fees of up to £20,000. The consultation response, which has not so far been mentioned, to the 2016 proposal was overwhelmingly negative. It was opposed by both the Law Society and the Bar Council, among others, and both Houses were, to say the least, worried and unenthusiastic about the proposal.

The grounds for opposition were clear. The proposal was a tax poorly disguised as a fee. It may well have been ultra vires. The use of Section 180(3) of the Anti-Social Behaviour, Crime and Policing Act 2014 as a legal base for the absolutely enormous increase in costs may well not have been within what Parliament envisaged. As the noble Baroness, Lady Meacher, noted, there was no indication at all as that Bill proceeded through Parliament that the power in Section 180(3) would be used to prescribe probate fees to fund the courts and tribunal service generally.

The 2018 version of the SI that we debate today is different from its 2016 predecessor in only one main respect: its charges are lower. In the abandoned 2016 version, the probate fee for estates of £2 million was set at £20,000. In this version, the fee is £6,000. That is a reduction in the quantum only. It does not address the objections raised to the principle of such a charge, so very far above the cost of providing the probate service.

As noble Lords have said, the current probate fee is flat across all sizes of estate. It stands at £155 for an application made by a solicitor and £215 for an individual application. Those fees are based on cost recovery. The principle of cost recovery as the basis for charging for the service is abandoned by this new SI. An estate worth £2 million will pay nearly 40 times the actual cost of the service.