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Earl Russell: My Lords, I have never been woken up from a deep sleep by somebody sticking a pin in me, but if I were, I dare say that the effect would be very like that of listening to the speech of the noble and learned Lord, Lord Archer of Sandwell. I agree with every word that the noble Lord, Lord Renton, has just said on this subject. I would like to ask one question by way of clarification. When we hear that the costs shall not exceed the costs of providing the service, does that mean the immediate and direct costs of providing the service or are they to be defined to include overheads as in the case of the photographic charges at the Public Record Office? It received so many complaints on the subject--

Baroness Gardner of Parkes: My Lords, with the leave of the House, perhaps I may say to the noble Earl that we have had the answer before. The costs will include every penny down to the cost of the milk for the office cat.

Earl Russell: My Lords, I am most grateful to the noble Baroness. I apologise for not being here at the previous stage of the Bill. I have been occupied with other business from time to time. That makes more relevant the example that I was about to quote as regards photographic charges of the Public Record Office. Those caused such surprise that a Parliamentary Answer given in this House was stuck up beside the cashier's desk in the photographic office. It explained that the costs were meant to cover the overheads of the office. I am not sure whether there is an office cat, as the noble Baroness suggested. The noble and learned Lord who gave that answer is present in the Chamber. I apologise for not having given notice, but I did not know that this business would arise.

It has been a matter of public policy from the beginning of the limits of legal memory, if not before, to encourage people to have recourse to law because the alternative is for them to take the law into their own hands. I trust that that object of public policy has not now been abandoned.

Lord Roskill: My Lords, I had not intended to take part in this discussion, but perhaps I may venture to say how very much I agree with every word that has fallen from the noble and learned Lord, Lord Archer of Sandwell, and from the noble Viscount, Lord Bledisloe. Some of us were brought up on the principle that it was wrong to sell and to deny justice. That principle goes back, if I am right--the noble Earl, Lord Russell, will correct me if I am wrong--to 1216. If you sell justice, you deny it to anybody who cannot afford to pay that price.

During what I am afraid has been a rather long career at the Bar and on the Bench, I watched a tendency develop, with which I have had great sympathy, to remove specialist cases away from the jurisdiction of

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the courts to specialist tribunals in the hope that they can there be dealt with much more swiftly and much more cheaply, avoiding some of the endless arguments and delays which, unfortunately, proceedings in court at any level are doomed to suffer.

That principle is being challenged if, in sending such disputes to that particular tribunal, 100 per cent. of the cost including, to quote the noble Viscount, the milk for the office cat, is to be charged to the litigant. That is a denial of justice. It is utterly wrong. And it is even more wrong to slip such a provision into this Housing Bill because, as has been said by more than one speaker, it raises a major question of principle. If that question of principle is to be dealt with, it should be done openly and in a Bill dealing with that matter, not in a Bill of immense complication, such as this.

Lord Gisborough: My Lords, I should like briefly to support the amendment. Most of the cases will involve rogue landlords and most of those applying for cases will be less affluent tenants. There is no doubt but that the rogue landlords will use an extension of a case as a threat, knowing that the cost will be out of the reach of the less affluent tenant. There may well be a case for charging a modest fee to stop frivolous recourse to the law, but in principle I support the amendment.

Baroness Gardner of Parkes: My Lords, as we are speaking to so many amendments at once, matters are becoming slightly confusing so I should like to run through each amendment in the group separately.

The noble and learned Lord, Lord Archer, moved Amendment No. 18 with which I have great sympathy, but I would have preferred it if he had sought to eliminate the provisions of Clause 83(3) from line 14 on page 57. There is perhaps a case for making a reasonable charge, as happens with industrial tribunals where someone can be asked to pay a deposit of £150 if it is thought that the case might waste the tribunal's time.

I find subsection (3) of Clause 83 most unacceptable. Amendment No. 19, tabled by the noble Lord, Lord Dubs, is most interesting. It seeks to provide that there shall be no charge until the county court fee is payable.

The amendment which I support most strongly, however, is Amendment No. 20 which stands in the name of the noble Viscount, Lord Bledisloe. It is an excellent provision because, as I understand it from the noble Viscount's introduction, no charge will become payable until the matter becomes a general legal procedure. That would trigger the matter being brought into the tribunal system. I hope that I am right in my interpretation.

My noble friend Lord Kinnoull is about to speak to his amendment which seeks to provide for a charge to be limited to £500. Although I doubt whether an amount should be specified on the face of the Bill--it will soon be out of date--it might not be a bad thing to have such a sum specified in regulations.

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On 18th June, the first time this matter was raised, I asked my noble friend Lord Lucas the following question:


    "Can my noble friend tell me whether, under Clause 79, an individual acting on his own behalf, and at comparatively low cost, can go to leasehold valuation tribunal to query these matters, or will that be an expensive process?".
My noble friend replied:


    "How expensive the action is depends upon the complexity of the case. We believe that the basic charge will be about £500. In relation to a £5,000 service charge for each individual that does not seem excessive".
However, many of the service charges queried will relate to much smaller sums. My noble friend continued:


    "Any individual tenant can apply to the leasehold valuation tribunal or a number can get together as a body and challenge the matter. The cost is the same. The cost may be £500 for something simple or £2,000 a day for a more complicated case".--[Official Report, 18/6/96; col. 178.]
Those figures were quoted again on Report, and have been mentioned again today.

If there is to be a fee--whether it be £150 or £500--it is essential that people know in advance what that fee is. The fee should be the same whether the case lasts one day or many days. As has been said, anyone who is skilful enough or who thinks that it is in their interests to do so can easily prolong a case. Indeed, my experience of industrial tribunals is that some chairmen take very much longer to hear a case than others because they are not so good at ensuring that those who give evidence keep to the point. It is most important that, even if there is a fee, it should not be levied on a daily basis.

Tenants must know where they stand. They must know the cost of having a case heard so that they can decide whether it is worth having it heard at all. There is no doubt but that at a later stage tenants, particularly tenants who lose, will have to pay their landlord's costs because those costs will be included as a legitimate expense and will be added to the next service charge. That point has not previously been made, but I am sure that that is likely to happen.

I have no direct interest to declare, but there is nothing to say that some day I shall not want to use the tribunals. That is why I want to see a fair system. We have heard some effective arguments about whether we want justice to continue in the tradition of the United Kingdom--at low cost, not at the cost of providing the service. That is why I support the amendment in the name of the noble Viscount, Lord Bledisloe.

Lord Ackner: My Lords, it was only yesterday at a garden party that the noble and learned Lord, Lord Archer of Sandwell, made me aware of the proposed amendment and asked me whether I would support it. I do so enthusiastically because I have observed a disturbing tendency in the Government to be myopic about making the access to justice illusory.

We recently debated the Asylum and Immigration Bill. We all know that there is a right of appeal--an important right given to the individual who has failed in

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his application. But we all know also that it is now an illusory right because the individual is cut off from all financial support and is not allowed to work. If he is to exercise that right, he must do so on some rather odd starvation basis.

Recently, we heard about new legal aid proposals--no doubt we will debate them next Session--which make access to justice for those of little means almost impossible. A detailed article in The Times last week by Professor Zander spelt this out in detail. We now face the prospect of another right of access to justice being made illusory. A person is told that of course he can go to the tribunal but if he does so he will have to find a sum of money that he cannot afford or one which makes it stupid for him to risk the expense in which he will be involved. Therefore, I wholly support the criticisms that have been made, and in particular I support the amendment moved by the noble Viscount, Lord Bledisloe.

5 p.m.

Lord Murray of Epping Forest: My Lords, it is astonishing that, after the unanimity of concern about these issues expressed at Report stage from every corner of the House--as acknowledged by the noble Lord, Lord Lucas--the Government should not have seen the light, even the red light, indicated by your Lordships at that stage. All of the arguments advanced today were rehearsed, albeit not as fully, at that stage. I can only assume that the Government's obduracy stems from the fact that they are firmly attached to securing the principle that is under attack this afternoon.

Our concern cannot stop at the effect of this matter on leaseholders who go to these tribunals. This is a precedent which apparently the Government intend to build upon and will quote in future in relation to other tribunals, perhaps even the courts. Let us make no mistake about what we are to decide this afternoon. We are setting a precedent for a number of people, some of whom, while they need justice just as much as leaseholders, are less capable of buying the justice which they need and deserve. Are we to look forward to people going to industrial tribunals in particular and facing the same charges, impositions and requirements to buy justice that they previously had free of charge? That is precisely what we are deciding this afternoon. Make no mistake about it: this will be used as a precedent unless it is now nipped in the bud.


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