England & Wales probate fees: an update

flowersThis Blog will be updated with developments on the Non-Contentious Probate Fees Order 2018 as they occur.

Background and details on the proposals, including the fee structure, can be found here.

7 February 2019:

A House of Commons Delegated Legislation Committee has voted 9 to 8 in favour of progressing the draft Non-Contentious Probate (Fees) Order 2018 to the Commons for approval.

Lucy Frazer MP, the Minister responsible for the legislation, confirmed during her speech that the changes will be introduced in April (date yet to be confirmed) and that guidance on how to pay fees will be published before the changes take effect.

The next stage is for the Order to go to the House of Commons for approval. The date for this has not yet been announced.

31 January 2019:

Probate fees due to go before House of Commons Delegated Legislation Committee on 7 February at 11.30am (more information).

Background notes

The Committee’s role is to debate the merits of the statutory instrument, instead of an extended debate in the House of Commons itself.

The proceeding will effectively be like a miniature session of the House of Commons (Lucy Frazer MP will speak as the minister responsible and then the Opposition spokesperson, followed by backbenchers). The Committee cannot block the measure from proceeding to a vote in the House of Commons, but at the end of the debate it will vote on whether the Committee has considered the Instrument. Other MPs can speak, but only those on the Committee will be able to vote at the end.

Once it has cleared this stage the instrument goes to the House of Commons for a vote soon afterwards, in this case, probably the following week.

9 January 2019:

STEP received a reply to a letter to Lucy Frazer QC MP, the Parliamentary Under-Secretary for Justice and Minister responsible for the Non-Contentious Probate Fees Order 2018, which set out our concerns with the proposed changes. The reply restated the government’s rationale for introducing the measure and refuted the assertion that it represented a tax rather than a fee covering the cost of a service. You can read the full reply here.

18 December 2018:

The Non-Contentious Probate Fees Order 2018 was debated in the House of Lords on 18 December 2018. As an affirmative measure it required a majority to pass. The House stopped short of rejecting the Order, but put on record its concerns, with the following Motion to Regret moved by Lord Beecham:

‘This House regrets that the draft Order 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.’

The next stage for the Non-Contentious Probate Fees Order 2018 is to be scrutinised by a House of Commons Delegated Legislation Committee. No date has been set for this and it will depend on other business in front of MPs. STEP will continue to monitor the situation and provide updates where appropriate.

6 December 2018:

The Joint Committee on Statutory Instruments scrutinised the Non-Contentious Probate (Fees) Order 2018 (see the Fortieth Report of Session 2017–19 (PDF)) and drew it to parliament’s special attention:

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act’

The other committee tasked with examining secondary legislation, the House of Lords Secondary Legislation Scrutiny Committee, in the 6th Report of Session 2017–19 (PDF) also drew parliament’s attention to the measure, calling it a ‘stealth tax’.

More detail on these developments can be found here.

Daniel Nesbitt, Policy Executive, STEP 

 

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