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Lord Monkswell: My Lords, we are all indebted to my noble and learned friend Lord Archer of Sandwell for introducing his amendment so cogently. I sense that there is wide agreement around the House for the concept behind it, if not for its technical wording, but, knowing my noble and learned friend as well as I do, I am sure that he has got that right also.

At this point perhaps I should declare that I have a vested interest in this subject in that the origin of my title and of my ability to be a Member of this House arises from a constitutional and legal change which bears on this argument. Those of your Lordships who are familiar with the works of Dickens will remember the case of Jarndyce v. Jarndyce which went on for years and years, eating up all the money, so that there was nothing left for the complainants at the end of it all. My ancestor on whom the title was conferred broke that logjam in chancery by introducing a new court to help reduce the cost and delays of British justice. I have a slight vested interest.

I remind the House of the remarks of the noble Lord, Lord Weatherill, last week during the debate on the constitution. He suggested that we needed to be careful about the unintended results of any changes that we made. I suspect that the Government's plans to charge people who wish to take a case to the tribunal will have

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unintended consequences. These have been alluded to already by a number of noble Lords, but I remind the House of three possible consequences. One is that justice may be denied to poor people. The second is that there is a high risk that, instead of going to the relatively cheap and less time-consuming tribunal, people will go to the courts, clog them up and cause problems for others who seek justice. The third consequence--which I do not believe has been mentioned but should be recognised--is that if people cannot obtain justice through the normal procedures and mechanisms provided by the legal framework, there is a high risk that they will take the law into their own hands. That may be one of the unforeseen consequences. How they might do that I hesitate even to postulate. But in considering what one suspects is a major constitutional change one must be very careful as to how justice is done in this country.

6 p.m.

Viscount Bledisloe: My Lords, I had not intended to take part in these proceedings but have been moved to do so by what I have heard. With regard to the points made by the noble and learned Lord, Lord Archer, if the Government are minded to make the courts fully cost-bearing, surely that is a matter which should be addressed head on in relation to the courts, with a full debate and Bill upon the matter. It represents a radical change in the philosophy of the centuries. If we are to have full cost-bearing courts, let us debate it with a Bill. It is wrong to slip that into a housing Bill in relation to a particular part of the jurisdiction of a tribunal and to have a minute portion of the tail of the dog before we have debated whether the philosophy of the dog is desirable. Surely, this should be postponed until a Bill comes forward which contains the entire philosophy of the Government on fully cost-bearing justice, if indeed that is to be their philosophy.

If there are to be fees, I am deeply impressed by the argument of the noble Lord, Lord Gisborough, against fees which vary with the length of the case. Presumably, the fee under subsection (2)(a) is to be paid by the applicant. If I am a devious landlord and I know that an application will be made and that the fee to be paid by the applicant will depend upon the likely length of the case, all I have to do is say to the applicant that it is a very complicated matter which raises many principles, that I shall call 14 valuers, 15 engineers and 14 roofing experts and the case will last three weeks. The lady or gentleman in question of modest means will then be told that the fee is enormous and will not be able to bring the case. It is no consolation to that individual to know that if he wins the case in the face of all those experts he may get back his fee. If the fee is to depend upon the likely length of the case, it will be very easy for unscrupulous people to deter applicants.

I strongly support the idea that for the moment these provisions should be left out and introduced in primary legislation directed to the sole question of whether justice should be fee paying.

The Earl of Kinnoull: My Lords, I should like to speak to Amendment No. 139A. Although it does not

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deal with precisely the same point, it has been tabled to cover the same matter. The noble Lord, Lord Monkswell, the noble Viscount, Lord Bledisloe, and the noble and learned Lord, Lord Archer, have struck a strong chord on the whole issue of charges levied by the tribunal. Like other noble Lords, I have received correspondence on this matter. I believe that the noble Lord, Lord Dubs, has received correspondence from the Bar Council. I have received correspondence from the Royal Institution of Chartered Surveyors and the Council of Mortgage Lenders, both of whom have an active and experienced hand in this matter.

When I consider the case put by my noble friend, I hope that it is not the Treasury that has insisted upon this issue. He appears to have a number of options to consider on these amendments. In principle, I support the case advanced by the noble and learned Lord, Lord Archer, that there should be no charges for the tribunal's costs. My second choice is the cap of £500 advanced by the noble Lord, Lord Dubs. My amendment introduces the concept of transference. One must remember that this is to do only with service charges and is not a major housing issue. Service charges can be dealt with by arbitration, the arbitrator normally being appointed by the President of the Royal Institution of Chartered Surveyors. The costs will be circa £150. The tribunal hearing may be a very simple operation. This is a recognised way of reaching a fair compromise.

The Earl of Lytton: My Lords, most of the points that I would have made have already been made and I shall not go over them again. I am chairman of the Leaseholding Enfranchisement Advisory Service, which is a joint government and industry funded advisory service. That body sets out to provide independent and impartial advice to long leaseholders who exercise their rights, principally under the 1993 Act but also under the 1987 Act.

The advisory service would have considerable concerns about this matter. My concerns have grown as I have considered the question of charging for the services of the tribunal in connection with service charges. First, I am concerned as to where the principle stops. Do we then have charges being levied for other aspects of the tribunal's work? What about other tribunals, as the noble and learned Lord, Lord Archer, has pointed out? That would give rise to real concern about giving advice, particularly in being able to persuade leaseholders--I believe the House recognises that they tend to be in a more vulnerable position--that they have a ready fallback in the form of access to the tribunal.

Two points need to be mentioned here. There are circumstances in which it is appropriate for the tribunal to charge: first, where recourse to the tribunal is a purely voluntary matter; and, secondly, where some kind of adjudication system arises out of a contractual agreement between the parties, such as a commercial rent review arbitration. But that is something which is imposed by statute and I feel that the circumstances are different. I do not advocate a free-for-all. It may be appropriate to have some kind of registration fee, in precisely the same way as one pays a fee to a local

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planning authority for a planning application which is intended to cover those costs. However, that is a contribution. It is not supposed to be the case that local authorities necessarily recover all their costs in those ways.

If it is intended that the costs should be discretionary, I should wish to know how that discretion is to be exercised and to have the benefit of that explanation before the Bill leaves this House. Short of that explanation, I should be nervous about the full costs of recovery. Even a cap of £500, as suggested by the noble Lord, Lord Dubs, in Amendment No. 139, could be unfair, especially if the disputed part of the service charge--it may a good deal less than the whole--is quite modest. I am talking about a few hundred pounds, which makes a great deal of difference to a pensioner in, say, a tenement block. I believe that the charging will create a barrier in terms of access to justice. We have heard about that and about the possibility that it is open to abuse by an adversary who possesses greater economic might. That is an important consideration and I wish to associate myself with that argument.

There is a further point. If the tribunal may determine costs on its own administration and decide how they are to be met, it is almost inevitable that it will be drawn into questions as to how the costs in the action of the parties are to be dealt with. If the tribunal is not going to consider those--for instance, if the conduct of one of the parties has exacerbated the costs of the tribunal hearing--how is that line to be drawn? That matter needs to be dealt with.

I do not advocate cheapness so that the facility is abused, but cost must not be a barrier. However, at the same time, it can justifiably seek to eliminate the frivolous repetitive application. If that is not correctly achieved in this House, there will be a form of "entryism", a syndrome which a colleague of mine referred to as hammering on the fingers of those trying to get into the lifeboat. I am increasingly nervous that that is happening here. No one in the country at large is asking for the tribunal to charge in the manner supposed in the Bill; not landlords, not tenants, not the property industry, nor the professionals. But the basic principle needs explaining.

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