Source: British Parliament News
17 December 2018
Members of the Lords will discuss draft regulations on the fee structure for applications for a grant of probate, in the House of Lords on Tuesday 18 December.
Draft Non-Contentious Probate (Fees) Order 2018
This statutory instrument introduces a new regime of fees for applications for a grant of probate, with a banded structure based on the value of the estate. It increases the estate threshold below which no fee for an application for a grant of probate is payable from £5,000 to £50,000.
It also removes applications for a grant of probate from the generally applicable remissions scheme for courts and tribunal fees (‘Help with Fees’), but retains the Lord Chancellors’ power to remit or reduce a fee in exceptional circumstances. Provision is also made for refunds and remissions in specified circumstances.
Lord Marks of Henley-on-Thames (Liberal Democrat) has proposed an amendment to the motion to approve the Order which is ‘that this House declines to approve the draft Order, because it would be an abuse of the fee-levying power, since the proposed increased fees substantially exceed the cost involved in making grants of probate and would amount to a tax, which should only be introduced, if at all, by primary legislation.”
If this amendment is agreed by the House the draft Order will be stopped and will not pass into law.
Lord Beecham (Labour) has also proposed a motion to regret against the Order, on the grounds that it will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Anti-social Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.”
If agreed, this motion will not stop the Order, but will provid an opportunity for the House to put on record its regret that the increase in fees is far greater than the actual cost of the service.
How do these draft instruments become law?
These regulations are presented as a Statutory Instrument (SI). An Act will often contain a broad framework and statutory instruments are used to provide the necessary detail that would be too complex to include in the Act itself. They are also easier to change than an Act – for example to upgrade the rate of payment each year or amend the necessary forms in the light of experience.
This instrument is subject to the affirmative procedure, that means they it must be debated in both Houses before it can be made law. A vote can be taken on them if the House wishes but is not essential.
Image: House of Lords 2018 / Photography by Roger Harris