1.On 21 November 2018, the Committee requested that the Ministry of Justice submit a memorandum on the following points:
Explain, in light of the Committee’s 26th Report of Session 2016–17 on the draft Non-Contentious Probate Fees Order 2017, why the fees prescribed in paragraph 1 of Schedule 1 to this draft Order (“application for a grant or resealing of a grant”) are considered to be—
2.The Department is grateful for the Committee’s consideration of this instrument, and responds as set out below. References to “the Report” are to the Committee’s 26th Report of Session 2016–17, in which the Committee considered the draft Non-contentious Probate Fees Order 2017.
Fees prescribed are within the powers conferred by statute
3.The Department agrees with the Committee’s comment (para 1.12 of the Report) that “It is an important constitutional principle that there is no taxation without the consent of Parliament, which must be embodied in statute and expressed in clear terms”. The Department’s view is that the enabling power in section 92 of the Courts Act 2003 (“the 2003 Act”), read with section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) gives the necessary clear statutory authority to prescribe the fees set out in Schedule 1 to the draft Order.
4.The probate service forms part of the Senior Courts of England and Wales, and therefore the Lord Chancellor has power to prescribe fees payable in respect of the probate service in accordance with s92(1)(a) of the 2003 Act.
5.Section 180(1) of the 2014 Act provides that the Lord Chancellor may with the consent of Treasury, in prescribing a fee under s92 of the 2003 Act, “prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”. In doing so, the Lord Chancellor must have regard (amongst other matters) to “the financial position of the courts and tribunals for which the Lord Chancellor is responsible, including in particular any costs incurred by those courts and tribunals that are not being met by current fee income” (s.180(3)(a)). Such fees must be used “to finance an efficient and effective system of courts and tribunals” (s.180(6), 2014 Act).
6.Taken together, the Department considers that these provisions demonstrate Parliament’s clear intention that the Lord Chancellor may set certain fees above cost recovery levels in one part of the court and tribunal system in order to help maintain the efficient and effective operation of the rest of the system. Indeed the fact that the Lord Chancellor is required to consider those courts and tribunals where costs are not being met when exercising the power at section 180(1) of the 2014 Act anticipates this cross subsidisation.
7.There is no restriction in the power conferred under s180(1) of the 2014 Act such that the fee must be directly related to the cost of the service. The Department does not agree with the Committee’s comment that the concept of a “fee” is subject to inherent limitations about the relationship to the service for which it is charged (para 1.8 of the Report). The specific legislative provision in s180 of the 2014 Act breaks the link between the cost of the service and the fee that may be charged; this was clearly the intention of Parliament in making such provision.
8.There is also no restriction such that income raised by probate fees must be reserved to the probate service; as noted above, the probate service is squarely within scope of the legislation, which clearly anticipates cross-subsidisation across the courts and tribunal service. The Department does not therefore agree with the Committee’s comment (para 1.10 of the Report) that more explicit provisions would be expected in legislation to enable the Lord Chancellor to charge probate fees above cost in order to fund other parts of the courts and tribunal system.
9.In contrast, s180(5) limits fees prescribed under s58(4)(b) of the Mental Capacity Act 2005 (which would be charged for services provided by the Office of the Public Guardian), in that these fees must only be used to “finance the efficient and effective discharge of functions of the Public Guardian”. The absence of a similar provision for probate fees makes it clear that no such restriction was intended.
10.The powers in s180(1) of the 2014 Act have previously been used (and approved by Parliament) in this manner. The Civil Proceedings Fees Order 2008, for example, sets enhanced fees for the issuing of a money claim by reference to the value of the claim; from £35 for a claim not exceeding £300, to £10,000 for a claim exceeding £200,000 (see Fee 1.1 of Schedule 1 to the Civil Proceedings Fees Order 2008). Similarly, the Upper Tribunal (Lands Chamber) Fees Order 2009/1114 sets the fee for certain proceedings by reference to a percentage of the amount awarded by the Tribunal (see fees 9 and 10 of Schedule 1 to that Order). The fees raised under these orders are not reserved for the funding of the area in which they are levied, but may be used, for example, to support the operation of the criminal courts.
11.The Department does not agree with the Committee’s comment (para 1.9 of the Report) that the non-contentious and administrative nature of probate means that it should be distinguished from other matters dealt with by the courts and tribunals system. As noted above, there is no such distinction drawn in s92 of the 2003 Act or s180 of the 2014 Act, and therefore there is no statutory basis for drawing a distinction between probate (or other non-contentious matters) and litigation for the purposes of the fee powers.
Fees prescribed are consistent with the contemplation of Parliament
12.The Department considers that the fees prescribed in Schedule 1 to the draft Order are within the scope of fees in the contemplation of Parliament when enacting s180 of the 2014 Act.
13.The Report notes that the Parliamentary debates made references to the costs of litigation, and did not expressly mention probate as a non-contentious procedure (para 1.17 of the Report). The Department does not consider however that these references should be taken as excluding non-contentious proceedings. Indeed, since (as set out above), probate and other non-contentious matters are caught by the legislative provisions, one would expect that if there were an intention for such matters to be excluded, then this would have been explicitly discussed.
14.The fact that there was no specific reference to probate in the Parliamentary debates cannot be taken as an indication that Parliament intended for non-contentious probate fees to be excluded from the scope of the power under s180 of the 2014 Act. There are a wide range of court and tribunal proceedings within the scope of the provisions, and it cannot be expected that each of these would be discussed by Parliament individually.
15.We consider that the proposals in this Order are consistent with the power under section 180 of the 2014 Act, as well as the assurances given to Parliament at the time. Fees are recoverable from the estate, and setting fees by reference to the value of the estate—with the lifting of the lower threshold for paying fees from £5k to £50k—ensures the affordability of fees for those who ultimately bear their cost. As provided for by the 2014 Act, Parliament has the opportunity to scrutinise these particular proposals as part of the affirmative procedure.
16.We hope that the explanation as set out above is of assistance to the Committee in its consideration of this instrument.
Ministry of Justice
27 November 2018
Published: 7 December 2018