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Lord Lucas: My Lords, we have suggested that the costs of running the tribunal for those cases could be as high as £2,000 per day. But that does not have to translate directly into a fee which is likely to be payable in any particular case. That will depend on how we arrange the fee structure, the precise nature of that case and its complexity, and the financial circumstances of the applicants. And it is important to remember that in most cases the application will be joined by a number of leaseholders in a block of flats so that the fee payable will be shared among them.
Part of the balance we have to strike relates to public expenditure. As we design a new approach which will have undoubted value for the individuals concerned we have to assess how far any of the cost should properly fall to the public purse. The key point about our amendment is that it would give us that flexibility. I therefore believe that our proposals, taken as a whole, are a sensible way of achieving our overall objective
Noble Lords have said that introducing fees for tribunals should not be slipped into an obscure clause of the Housing Bill. I do not believe that this is an obscure clause of the Housing Bill. I hope that in this House I have never been involved in trying to slip anything into an obscure clause. In Committee we made clear what were our proposals. I am aware that it has caused noble Lords some consternation, but at no stage has there been any attempt by the Government to conceal or misrepresent what we propose to do.
There is also clearly a more general concern that the Government are proposing to institute a fee structure leading to full cost recovery throughout the judicial system. I should like to make a number of points in response to those more general issues. First, the proposals we are making in relation to the resolution of service charge disputes need to be judged on their own merits in terms of the very real improvements they will provide over existing procedures. I make no apology for that.
Secondly, we are not creating a precedent. We do not believe that there is any new issue of principle here. The Government's policy is that the costs of services should be recovered in full from the users of that service. My right honourable and learned friend the Lord Chancellor accepts the principle of full cost recovery for the civil courts and is considering what steps to take to achieve that. More than 80 per cent. of the costs of administering the civil courts is currently recovered through the taking of fees. However that may be made up, it is clear that the principle of cost recovery exists.
The noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Dubs, questioned the principle of the introduction of charges to tribunals. It is important to distinguish between tribunals which fulfil a role analogous to that of the civil courts where fees are already charged and those performing the role of a genuine administrative tribunal determining disputes between an individual citizen and the state. In the latter case, the arguments for imposing a fee are very different. However, leasehold valuation tribunals fall into the former category of tribunals which, in reality, are much closer to courts. Another tribunal in that category is the lands tribunal in respect of which fees have been charged for a long time and in respect of which there has been a cost recovery target for a decade.
I now turn briefly to the other amendments. Amendment No. 99 is consequential to Amendment No. 140, which was carried at the Report stage, and is required because the necessary amendments to Schedule 5 were inadvertently omitted.
I hope that I have set out fairly and clearly our case and our understanding of the amendments and of our proposals in the matter. I suspect that some noble Lords have yet to be convinced by my exposition. There may be those who have more fundamental reasons for differing with the case we have put forward. I await to hear what the noble and learned Lord has to say.
Lord Lucas: My Lords, a litigant who uses the leasehold valuation tribunal where formerly he could have used the county court will find that he is enjoying considerable financial advantages due to the cost regimes and the structure of tribunals as opposed to the county courts. We do not believe that in those circumstances the entire benefit should fall to the litigant rather than being partaken of by the state in order to offset some of the state's costs.
Baroness Gardner of Parkes: My Lords, before my noble friend sits down, can he explain why the cases of contract have been moved to industrial tribunals and no charge is made to people who move from court to tribunal in those circumstances?
Earl Russell: My Lords, before the Minister finally sits down, will he clarify what he has just told us? He said that the Government have not finally decided on the level of fees and want to preserve flexibility. As this is the last occasion for parliamentary input into the Bill, is he telling us that this flexibility is the litigant's inflexibility?
Lord Archer of Sandwell: My Lords, I am deeply grateful to all noble Lords who have participated in the debate. Perhaps at the outset I may apologise to the noble Baroness, Lady Hamwee. I simply had not noticed that she had added her name to my amendment and I am grateful to her.
It is clear that a number of principles are at stake. From time to time the question of legal aid has been introduced, as it was by the noble and learned Lord, Lord Ackner. Clearly, there is an interface between financial provisions relating to legal aid and financial provisions relating to the payment of fees. There will be other opportunities to discuss that. Indeed, I believe that the noble Earl, Lord Russell, has tabled a Question for tomorrow specifically on that subject.
If I were to attempt to unravel all the themes at this stage your Lordships might be rather less than grateful. However, I believe that there was a temptation for the noble Lord, Lord Lucas, to direct most of his concluding remarks at Aunt Sallies which have never really been put forward. No one suggested that the Government were
The noble Lord, Lord Lucas, also said that most of us welcomed the transfer of the jurisdiction to deal with the reasonableness of service charges. Yes, most of us said that right from the outset. What a pity that having made this provision, which has so much going for it, the Government ruin it by ensuring that a large number of litigants cannot take advantage of it. That is the point which is being made.
The Minister gave two answers to the points which were made. If he gave any other answers, I apologise for the fact that I did not discern them. I promise to read what he said. First, he said that when the Government come to consider making the rules they will consider and consult. I should hope so. I should have been surprised if he had announced that the Government did not propose to give any consideration to the matter and had no intention of consulting anyone. It would require a more specific undertaking to set at rest the anxieties which have been expressed today.
Secondly, the Minister said that if access to justice were effectively to operate it would be necessary that it should be efficient justice. I wish I believed that efficiency and justice always necessarily go together. There have been systems of justice which were thoroughly unjust but which could not be faulted on the score of efficiency. If the Government are choosing to set their case on efficiency let us not pretend that that in some way guarantees justice.
I do not propose to say more at this stage. It has been said more eloquently and persuasively by other noble Lords. I say only this as to what we do next. When I saw the amendment tabled by the noble Viscount, Lord Bledisloe, I hesitated because he seeks to link fees payable at the tribunal with fees payable at the county court. I had some hesitation because whatever may be the policy of the Government in relation to the courts, for the reasons given by the noble and learned Lord, Lord Roskill, my noble friend Lord Dubs and other noble Lords, I should have wanted to draw a distinction between the courts and tribunals for this purpose.
However, many of your Lordships have indicated that for a number of reasons, which I fully understand, they are not inclined to support my amendment. I am not sure that at the outset of this series of debates in Committee I should have been inclined to support it. I set it down rather because I became somewhat irritated by what happened to my more moderate suggestions. As a result, I believe that I should give other noble Lords who have tabled later amendments, in particular the noble Viscount, Lord Bledisloe, an opportunity of testing the opinion of the House. For that reason, I beg leave to withdraw my amendment.