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