The Joint Committee on Statutory Instruments’ full report (PDF) has now been published and includes the following conclusion:
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 Committee reached the same view regarding the government’s attempt to raise probate fees in 2017. Underlining this position, the report notes that the Ministry of Justice’s arguments did not ‘dispel the Committee’s doubts about vires expressed in its report on the 2017 Order’.
The depiction of the changes as a ‘fee’ was also challenged by the Committee, which felt the new banded system bore the characteristics of a tax. The report noted that the higher payments were disproportionate to the actual cost of the service and that the measure represented what was in effect a type of stamp duty on probate applications.
The views expressed by the Committee match the legal opinion STEP obtained from Richard Drabble QC in response to the 2017 proposals.
ORIGINAL BLOG 6/12/2018
The Joint Committee on Statutory Instruments has scrutinised the Non-Contentious Probate (Fees) Order 2018, and drawn it to parliament’s special attention.
The committee is responsible for examining the technical aspects of secondary legislation; ensuring that the drafting is correct, clear and within the powers granted by the act under which they are being made. Although it can highlight measures it believes to be of concern, the Joint Committee cannot block or amend legislation itself.
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) has also drawn parliament’s attention to the measure, calling it a ‘stealth tax’.
The next stage for the order in the House of Lords is for it to be voted on; and as an affirmative measure it will require a majority to pass. In the House of Commons a delegated legislation committee will be convened to scrutinise the legislation.
The Joint Committee’s full report on the order, setting out its detailed views, is yet to be published but it is expected to be released tomorrow (Fri 7 Dec 2018).
STEP will continue to monitor the situation and will provide updates where appropriate.