The joint committee on statutory instruments, which scrutinises new regulations, said the word ‘fee’ has connotations of recovery of costs, direct or indirect, incurred in the provision of the service concerned or in the administration of the process.

The MoJ says the proposed new fees are expected to generate an estimated £300m per annum in additional income, which it plans to use to fund other areas of the courts and tribunal service.

However, the parliamentary committee says the MoJ needs express authority to charge a fee which exceeds the cost of the service. While it does have this under the relevant legislation, the committee says ‘nonetheless it remains a power to prescribe a “fee”, a concept which is subject to inherent limitations about the relationship to the service for which it is charged – including (arguably) one of proportionality.’

It goes on to note: ‘The Lord Chancellor is not permitted to impose a tax.’

The committee says it has ’a real doubt’ as to whether the Lord Chancellor may use a power to prescribe non-contentious probate fees for the purpose of funding services which executors do not seek to use – namely those provided by courts and tribunals dealing with litigation.

It says that nobody applying for an uncontested probate would think 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.

The committee says the charges suggested by the MoJ appear ‘to have the hallmarks of taxes rather than fees, particularly in view of the amounts that would payable for larger estates and the scale of the proposed increases (from £155 to as much as £20,000 – a rise of nearly 13,000%) – and because the charges are disproportionate to the service provided by the Probate Registry.’

As a result of its objections, the committee has recommended the proposals for ‘special attention’ by parliament. The new fees were due to come into effect next month, but are now likely to be delayed and may not come into force.

Currently a flat fee of either £155 is payable upon a probate application made by a solicitor or £215 for an application made by an individual. These fees were set in 2014 and raise £45m per year, which recovers the full cost of running the Probate Registry.

The MoJ has said it wants to replace the flat rate system with a system of bands linked to the value of the estate (before inheritance tax), and the same rate applies regardless of whether the applicant is a solicitor or an individual.

Estates under £50,000 will pay no fee, and those from £50,000 to £300,000 will pay £300. However, an estate of £500,000 to £1m will pay £4000, which doubles to £8000 for estates of between £1m and £1.6m, rising to £12,000 for estates in the £1.6m to £2m bracket and £20,000 above that.

The minutes of the joint committee on statutory instruments are here.