A parliamentary committee has, for the second time, attacked the government’s plan to introduce a sliding scale for probate fees, questioning whether the lord chancellor is acting beyond his powers.

The Joint Committee on Statutory Instruments (JCSI) said today that any fee must bear some relationship to the service provided. It also warned that the proposals appear to be ultra vires and amount to an ‘unexpected use of those powers’. 

At present the fee for probate is a flat £215 for individuals and £155 for those applying through a solicitor.

Under the proposed new banded structure the price would be linked to the value of the estate, to a maximum of £6,000 for estates worth more than £2m. The money generated will be used to fund the courts and tribunals service, the government says. The proposal was laid via a statutory instrument last month but has yet to be approved by parliament.

It is the second time the JCSI has attacked plans to hike probate fees. Before the 2017 general election the government had proposed a similar scale, though that would have resulted in a maximum charge of £20,000. Despite the government’s climbdown, the committee has raised nearly identical concerns.

The committee’s report acknowledges that section 92 of the Courts Act 2003 empowers the lord chancellor to set the level of probate fees - but questions whether parliament could have predicted the power would have been used in this way.

The report states that probate is an administrative process, akin to the registration of a life event. 'Nobody applying for an uncontested probate would think for a moment that they were engaging in litigation. That makes it difficult for the committee to accept that a power to charge enhanced court fees can be extended naturally to require probate fees to reflect the general costs of the court and tribunal system.’

It concludes that the charges 'have all the characteristics of taxation rather than fees', especially given the scale of the proposed increases — 'a rise of up to 3,770%'.

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