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Questions asked as to whether the MoJ is overreaching its powers

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Ministers are set to press ahead with contentious changes to probate fees, in spite of guidance from a group of MPs and peers that the reforms may in fact be illegal.

Ever since the proposed move from flat fees to a sliding scale of charges was confirmed earlier this year, there has been criticism in some sections of the press that the changes are “a death tax in all but name.”

Now it seems the rebuke may in fact carry some weight and this week the Joint Committee on Statutory Instruments voiced fears that the new rules were indeed tantamount to the Government trying to introduce a new tax without the necessary Parliamentary approval.

Of particular concern to the committee is the size of the increase being proposed; under the present system an estate will be charged a fee of £155 (if a solicitor is used). But once the new arrangements are brought into effect, the largest estates – those worth in excess of £2million – will be faced with a £20,000 bill.

It had been argued that the new system could be ushered in by the Justice Secretary and Lord Chancellor, Liz Truss, through powers available under the Antisocial Behaviour, Crime and Policing Act 2014.

But in its report, the cross-party panel cast doubt on whether this would be lawful.

“The committee is doubtful whether section 180 of the 2014 Act does in express words entrust the Lord Chancellor with the power to impose charges of the magnitude proposed by the draft order.

“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.”

In spite of the argument, the Ministry of Justice (MoJ) today remained bullish and said that it wants the changes, which are expected to raise in the region of £300million, to take effect as soon as possible.

A spokesman for the department said: “We will introduce a fairer system, meaning over half of estates pay nothing and over 90 per cent pay less than £1,000.

“[The fees] will be considered in Parliament after Easter, and come into force as soon as possible.”