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Lord Dubs: My Lords, first, I shall be delighted to buy the Minister a drink at any time when we are not sitting here engaged in discussion, and I promise him that it will not be a poisoned chalice; it will be whatever is his favourite tipple, and more than one. There is an offer!

I listened to what the Minister had to say. I am tempted to quote the Deputy Prime Minister, who said that his practice in business was to delay paying his bills for as long as possible. But perhaps it would be churlish of me to quote Mr. Heseltine in that context or to develop that argument. I hear what the Minister said; I am not convinced, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 101 [Recovery of possession where grant induced by false statement]:

Earl Ferrers moved Amendment No. 133:

Page 71, line 17, after ("by") insert ("(a)").

The noble Earl said: My Lords, in moving Amendment No. 133 I shall speak also to Amendments Nos. 134 and 185.

Clause 101 introduces a new ground for possession for assured tenancies where the landlord has granted a tenancy as a result of a false statement which was made knowingly or recklessly by the tenant. Local authorities and housing associations can already apply to the courts for possession of a secure tenancy which has been obtained by deceit under Ground 5 in Schedule 2 to the Housing Act 1985. Housing associations now let on assured tenancies but there is no comparable ground for possession for assured tenancies under the Housing Act 1988.

Amendments Nos. 133 and 134 extend Clause 101 to cover false statements which are provided by a third party at the tenant's instigation in order to persuade a landlord to grant an assured tenancy. False information by third parties may be provided so as to obtain social housing. Indeed, Clause 161 of the Bill will enable prosecution of third parties, and not just the tenant, for making false statements in connection with an application for housing through the housing register. Letting agents also report problems arising from false information in references provided by third parties. The extended provision will cover references and other written or oral statements provided by third parties.

The Government see Amendments Nos. 133 and 134 as a sensible and logical extension of Clause 101. Amendment No. 185 would make similar provision in Ground 5 in Schedule 2 to the Housing Act 1985 for secure tenancies. I beg to move.

On Question, amendment agreed to.

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5.30 p.m.

Earl Ferrers moved Amendment No. 134:

Page 71, line 17, at end insert (", or
(b) a person acting at the tenant's instigation"").

On Question, amendment agreed to.

Clause 82 [Notice under s. 146 of the Law of Property Act 1925]:

Lord Lucas moved Amendment No. 135:

Page 54, line 4, leave out ("any other part of the notice") and insert ("the notice--
(a) to indicate that the tenancy may be forfeited, or
(b) to specify the breach complained of,
whichever is the more conspicuous.").

The noble Lord said: My Lords, in moving this amendment, I shall speak at the same time to Amendment No. 263. Amendment No. 263 will commence Clause 82 at the same time as Clause 81: two months after Royal Assent. Amendment No. 135 is concerned with the provisions in Clause 82 of the Bill in relation to the service of a notice under Section 146 of the Law of Property Act 1925, which is concerned with forfeiture. The clause requires that any such notice should contain a statement of the effects of Clause 81 of this Bill. That provides that a landlord may not exercise the right of forfeiture in relation to a dispute about service charge payments unless the amount due has been agreed by the tenant or determined by a court.

The Bill as currently drafted requires that the words of advice in the notice must be in characters not less conspicuous than those used in any other part of the notice. The noble Lord, Lord Dubs, expressed concern in Committee about the possible ambiguity of this wording and we agreed to reflect on it. Paying attention to amendments tabled by the noble Lord, Lord Dubs, may, as my noble friend Lord Ferrers said, be a dangerous business. To choose an analogy, it may be akin to playing Russian roulette. If that is the case, I hope that the cartridge is a blank, because we have agreed to go along with the arguments that the noble Lord was putting forward at Committee. Therefore, Amendment No. 135 provides that the relevant information in the notice must be in characters no less conspicuous than those which specify that the tenant may forfeit his lease or the breach which the tenant has allegedly committed. I hope that the noble Lord, Lord Dubs, will agree that we have gone sufficiently far to satisfy the point that he was putting forward at Committee. I beg to move.

Lord Dubs: My Lords, I thank the Minister for having, as it were, met the point which we put forward in Committee. I am most grateful to him. He was tentative in saying that he will accept suggestions coming from these Benches. I hope that he does not feel like that. The suggestions are put forward in order to improve the Bill and everything is clear in what we are saying. I am grateful that the Minister has seen fit to accept the point that we put forward earlier.

On Question, amendment agreed to.

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Clause 83 [Determination of reasonableness of service charges]:

Lord Archer of Sandwell moved Amendment No. 136:

Page 56, line 28, leave out from beginning to end of line 7 on page 57.

The noble and learned Lord said: My Lords, with this amendment it may be for the convenience of your Lordships that we discuss Amendments Nos. 137 to 139 and 141 to 143. It certainly gives me hope that we appear to be discussing them at a moment when the Government have moved into a more receptive mood. Perhaps I may at the outset repeat the declaration of interest which I made in Committee. This amendment expresses the deep concerns of the Council on Tribunals, which I am privileged to chair.

Noble Lords who were in their places at nine o'clock in the evening of 13th June may recollect that in Committee I moved a rather modest amendment to this clause. Your Lordships will be relieved to hear that I do not propose today to repeat everything which I said on that occasion. Clause 83 proposes to transfer from the county court to the leasehold valuation tribunals a jurisdiction to decide the reasonableness of service charges under Section 19 of the Landlord and Tenant Act 1985.

There are good reasons for that and the Council on Tribunals would welcome it, subject to two matters. First, legal aid is not available for advice and representation in proceedings before leasehold valuation tribunals. I shall not elaborate on that. I said something about it in Committee and the noble Baroness, Lady Gardner of Parkes, and I must resolve our differences on some other occasion.

Secondly, the clause proposes that the parties to proceedings shall be liable to pay fees which will amount, over a period, to the total cost of providing the tribunal's service. I am aware that it is proposed to apply a similar proposal to courts in civil proceedings. Those unfortunate enough to be involved in litigation will be required to pay for the cost of providing the machinery of adjudication. For myself, I find that an application of market principles which amounts to reductio ad absurdum, but it is not within the remit of the Council on Tribunals and this amendment does not seek to address that.

What alarms the council is the proposal in the Bill to extend that principle to tribunals. The Franks Committee in 1957 and the Donoughmore Committee in 1929 recognised that one advantage of tribunals is that they are relatively inexpensive and no one is likely to be deterred from pursuing their rights from a fear of the financial implications.

If that principle is to be breached, surely it should be after a clear proposal to that effect, preferably in a Green Paper, with wide consultation and, I venture to hope, a debate in both Houses. It ought not to be by a provision in Clause 83 of a Bill on a different subject applying to one part of the jurisdiction of one tribunal.

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The noble Earl, Lord Ferrers, said a moment ago that what mattered was the effect of the words of an amendment on the Bill. I hope at least that the words of this amendment are quite unambiguous. This amendment seeks to remove the whole obnoxious provision from the Bill.

Perhaps I may add a word of explanation. Those of your Lordships who recollect the debate at Committee stage may have noticed an unusual feature of this amendment. It would be normal to move a fairly wide amendment in Committee and, after discussion, to move a more restrictive one on Report. It was at Committee stage that I moved a less ambitious amendment simply to provide for someone whose means were such that, if they were involved in civil proceedings in the courts, they would be entitled to qualify for legal aid with a nil contribution and to declare that such a person should not be required to pay fees under this provision since by definition they could not afford to pay them.

I am aware that the Government propose giving power to the Secretary of State to provide for the remission of fees on grounds of means and to empower the tribunal to order one side to reimburse the other for fees. But I believe that that fails to address the problem for two reasons. First, I believe that it should be made clear in primary legislation that those who by definition cannot afford to pay fees should be exempt from paying them and that that clear message should sound forth from the Bill itself. Even if there were an undertaking that an appropriate provision will be included in rules under the Bill, I do not believe that that would be satisfactory.

Secondly, in any event, no such undertaking has been forthcoming. It may be within the discretion of the tribunal to make such an order, but I do not believe that that is the way in which the matter ought to be dealt with. If someone is considering whether to enforce their rights--usually, in this class of case, against a property company--they should not be concerned that although it may be all right, no one can predict what the tribunal will order. They might be at risk of having to pay fees. Clearly they cannot take the risk.

I made that very modest proposal in Committee hoping that there might be a compromise because I do not believe that the best should be the enemy of the good. Alas, the good was not on offer. The Government opposed my well-intentioned compromise. When he replied in Committee the noble Lord, Lord Lucas, announced--going, I believe, as far as he reasonably could given his brief--announced that the Government proposed, presumably in regulations, to provide that a litigant, before embarking on proceedings, will know whether he will be liable for fees so that he can then either embark upon the proceedings without that fear or he can reconcile himself to the loss of his rights. That is a crumb of comfort but it falls a long way short of what we might have hoped.

I should add that in Committee the noble Lord, Lord Meston, who, at the moment is not in his place, pointed out that the wording of the proposed new Section 31(B)(6) is not as clear as some of us might have hoped, and I ventured to hope that the Government would respond at least to that point.

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If it is intended to respond, even to that, there is no indication on the Marshalled List. Apparently, the Government do not consider it possible that they may be wrong about any aspect of this. I would have settled for my amendment in Committee in order to protect those who, by definition, cannot afford to pay fees from having to run that risk. I might even be tempted today in a certain eventuality to settle for Amendment No. 139 which stands in the name of my noble friend Lord Dubs although I make the offer without prejudice at this stage. But it appears that no compromise is on offer. Certainly no compromise was on offer in Committee.

Therefore I have tabled at this stage the amendment which I should have tabled at the outset to remove from the Bill the whole principle of justice for sale and to preserve inviolate the principle that justice is provided by the community as of right.

If the Government wish to introduce the principle of fees on a full cost recovery basis in the case of tribunals and to reverse a principle which has been established at least since the Donoughmore Committee in 1929, then I hope your Lordships will have none of it. I beg to move.

5.45 p.m.

Lord Gisborough: My Lords, I should like to speak to Amendments Nos. 138 and 142 standing in my name dealing with the same matter. Clauses 83 and 86 empower the Secretary of State to make provision by order for the payment of fees in respect of any application to the tribunal at a level so as to cover the reasonable costs of the service.

I welcome that proposal to take service charge disputes in long leasehold private residential property out of the county courts and into leasehold valuation tribunals because I supported the Government's aim to make it much easier and more affordable for lessees to challenge unfair service charges.

When this matter was originally discussed with the Government, it was understood that these fees would take the form of an application fee and would be set in the region of £500 per case. The Government now propose that the fees should vary from case to case and should be set at a level to cover the cost of each individual case. The Minister suggested during the Committee stage debate that a simple case, lasting for example two hours, might cost £500 whereas longer cases would need to be charged at a rate of about £2,000 per day. It is my understanding that service charge disputes are rarely simple and it is difficult to envisage what could usefully be achieved in two hours.

The Government's latest position appears to move well away from the concept of an application fee and is a major and most unwelcome departure in the administration of our justice system. No other judicial process requires the applicant to underwrite the court costs. Given that the tribunal will have discretion to make an award for the fees and that therefore ultimately it may become payable by the lessee, it also seems to move a long way from the Government's original concept of affordable justice for lessees. Also, the move from a fixed fee, which would have given certainty

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regarding cost to potential applicants, to a limitless variable fee will undoubtedly deter applicants from seeking redress via the local valuation tribunal. We must remember that many of the people who will be seeking to have a fair service charge may be old people on fixed incomes and those people who are the least able to risk having to pay a high and limitless cost for the tribunal.

My amendment will not hold up the passing of the primary legislation or frustrate its admirable intent. It will simply enable discussions to take place between the Government and interested parties on the most appropriate level and structure of the fees to be levied before any order is made in respect of them.

My amendments have been subject to wide consultation and have a great deal of support with regard both to their principle and the detailed drafting. I commend the amendments to the House.

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