Is the Housing Court dead?

Two threads were being spun before the election, in fact during the May ministry, on changes to housing law, and both were bad ideas.  One was to abolish assured shorthold tenancies retrospectively, or as the spinners put it to ‘end no-fault evictions’. The other was to establish a new Housing Court.  The former got through to the Conservative and Unionist Manifesto and to the Queen’s Speech.  I looked at it some months ago intending to revisit it:

The second thread, creating a Housing Court, has gone rather quiet, with the occasional squeak being heard.  A consultation process began at the end of 2018 from the Ministry of Housing, Communities and Local Government. The Law Society were opposed and other bodies responded just by talking about resourcing (or in plain terms, wanting more taxpayers’ money). Is the Housing Court then dead?

The idea of  a dedicated Housing Court is understandable but flawed in concept for three reasons:  first of all it not only putting the cart before the horse, but is failing to include the horse at all; secondly, it will be subject to interest group capture; thirdly, it does not address the major issue.

There is a genuine, deep-seated problem with the current system, and if you doubt that I recommend sitting in a county court office all day.  You may frequently see a strong man break down in tears as his case is adjourned yet again and another month’s mortgage payments are to be made while no rent is coming in and no remedy is forthcoming. The tenant is thumbing his nose at his landlord, paying no rent and may be wrecking the flat so as to make it unlettable, but the landlord cannot do anything.

Some urgent action is needed.  A Housing Court is the wrong action though.

Cart / horse

The fundamental flaw in housing law is that it is complex, hard to find and self-contradictory.  The only experts are those who practice constantly in the field.  There is no single, comprehensive code of housing law.  Instead, innumerable Act of Parliament and statutory instruments have to be read together, and anything read in an older statute may have been replaced by a later one, or even by a section retrospectively inserted into an even older Act.

Typically an Act is passed after a report or a scandal calling for action and may be focussed on a particular list of mischiefs or alleged problems, adding a new complexity rather than smoothing the landscape.

There are contradictions, and inconsistent approaches, which is unsurprising given the piecemeal way in which the law is made.  This inconsistent and incomprehensive branch of law is the fundamental problem which landlords, tenants and courts face, and no new court should be put in place until it has coherent law which it can administer.  If though the law were rationalised, then there would be no need for a new court.

Interest-group capture

Interest group capture befouls many worthy endeavours.  It is a form of regulatory capture, by which a particular lobbying body or interest group takes control of a regulatory or judicial function, and a new Housing Court would be an open target.

The pressure for a new court has come from frustrated landlords, finding their claims for rent and possession pushed back in a queue of other cases The idea has indeed been attacked by tenants’ groups as a landlords’ weapon, but we would soon find that the system is captured by the opposite interest.

The body representing Citizen’s Advice Bureaux saw the idea as creating a landlords’ court and advised that “the power imbalance between landlords and tenants could be made worse”. Shelter, more interestingly, were positive on it (as long as they are given more taxpayers’ money), which alone should make us suspicious.

The idea may be to staff a court with those who spend all their time in the field so as to become experts. However the staff must be recruited, and applications will of course come from those with a particular interest in the field, and successful candidates will be those with long practice acting for tenants.  It needs little imagination to guess the socio-political tendency of the main applicant base, and who will in due course form the interview panel.

There should not be an ideological divide between pro-landlord and pro-tenant as if they were different creatures. Justice should be a neutral forum applying the law even-handedly between individuals, not classes, as it is in the general courts. However in a specialist court that ideal is distorted. The false narrative of eternal class-war is embedded in many and it has informed the shaping of the statutes defining housing law (to the extent that it they have any discernible shape). This idea of opposing, class-based sides will shape the mindset of those seeking to work in any new single-issue court.

The judges may remain fair and neutral, but they are influenced and briefed by their support staff. Then as each decision forms a precedent for the next, the direction of the court as a defender of tenants against their landlords will become institutionalised.

Fundamental toothlessness

A third issue was identified by the Civil Justice Council, which opposed the creation of a specialist court:  the judges currently do understand the law and do apply it justly, but there is poor enforcement.

A thing little spoken-of in the law is that effective landlords are those who ignore the law and evict tenants in ways it does not countenance.  Therefore good landlords are penalised by the Housing Acts for the failings of ruthless landlords, but ruthless landlords are less bothered.

Essentially, if the court eventually orders an eviction, the process of removing the tenant is slow and expensive.  There are too few bailiffs and getting an appointment takes too long, and the bailiff’s costs (and those of a locksmith) must be paid by the landlord already impoverished by months of legal proceedings.

Without enforcement, the courts are no more than vanity.  It is a neglected field though:  those concerned with civil justice do not want to look at the sordid business of actually laying hands on a man and hurling him from his erstwhile home. That is what the whole procedure is there for though: to authorise the landlord to get his own property back. Without that step, all the bewigged judges, clerks, staff and lawyers are pointless.

See also

Books

Puritans and the Pilgrim

The Church Times (which may be some readers’ favourite journal) carried an article recently by Dr Nicholas Fisher, ‘Standing down the Puritan Penumbra’, celebrating the work of Symon Patrick, who played a crucial part in defending the settlement of the Church of England after the Restoration. It is not just a subject of interest to church historians but it contains a strong lesson about the nation’s social and political divisions in our own day.

The history and the conflict

In the 17th century, the Church of England commanded the moral teaching of the nation and potentially its whole social outlook, and so control of it was key to controlling the ideology of England.  The Church’s official doctrines included freedom of conscience in that only the Bible is an absolute standard, but secular authorities would frequently find an excuse for punishing dissentient speech.  (Thomas Hobbes was accused of atheism for some of his ideas even though fully concordant with the Bible.)

Therefore the church in England and in Scotland was a battleground, much as media regulation is becoming a battleground for us today, and dissent from the established church would be punished not for doctrinal reasons, but to control preaching.

Before the Civil War, Parliament’s Puritan faction demanded that the King abolish bishops, to cow them into ceasing their opposition, and when the war was over the victorious Roundheads carried this through; they changed the polity of the Church of England, replacing bishops and dioceses with assemblies and presbyteries. It was a classic political case of the means to an end which became an end in itself, or the fringe demand, put just to be sacrificed in negotiation, which became an unshakable demand.

The old order was restored at the Restoration but it was not a foregone conclusion: Pepys in his diary confides that the King may be forced to concede to a Presbyterian church. In the event, the bishops returned, clergy were required to conform, huge numbers of clergy left to form non-conformist congregations, but it was not over:  strong voices still pressed for the abolish prelacy, to turn the Church of England into a Presbyterian church.

The pressure for Presbytery was strong and growing, and each fault in a bishop, or any slippage towards ceremonialism was held as proof of lapsing towards Roman ways. The move to Presbyterianism was made to feel inevitable.  That is echoed in every age: imperfection is held up as utter corruption and the word ‘inevitable’ breaks resistance. You may think of your own examples.

Into this stepped a clergyman, Symon Patrick. He could see that the Puritans were gaining the upper hand, and so he wrote ‘The Parable of the Pilgrim’, about a pilgrim trying to travel to Jerusalem, and first seeking a reliable guide.

I cannot say the Patrick’s Parable is a gripping read.  It is for from Bunyan’s Pilgrim’s Progress. (written in the same age).  It was popular though, and is credited with convincing the King and the establishment that Presbytery was not inevitable nor was it the will of the people, and that the public mood was for the old ways.

The argument and the outcome

Patrick’s theme in essence was that the Church of England is a reliable guide, and the non-conforming Puritans are a violent, extreme faction who were responsible for the Civil War and would cause another one.

He does not claim that the episcopal version of the Church had the sole claim on truth and does not accuse the non-conformists of false doctrine, except in as far as they claimed to have a monopoly of the way to salvation and of acceptable practice. This then is a key: we are the reasonable men; they are dangerous extremists; remember the horror of the late war, as a revival of it looms in their counsels.

The result was effective: public opinion turned strongly in favour of the bishops, and the Puritans shrank back.  However it also encouraged the secular authorities to impose malicious penalties on non-conformity.  Whether Symon Patrick had that in mind I cannot say, but it makes it uncomfortable to read the triumphalist tone in the Church Times article, perhaps just an echo of the inevitable affection of a biographer for his subject.

Ill-treatment of non-conformists was unprincipled and counter-productive. Since the Restoration, the non-conformist churches and the Church of England have had a mutually supporting role in their mutual antagonism: the non-conformists are often the conscience to admonish the Church of England when it goes wrong, as it frequently does, and they allow preachers to speak out, on matters such as slavery and false doctrines, where the Anglican structure encourages silence and bland following of liturgy. At the same time, the Church of England provides a structure and written standard against which the non-conformist churches may be measured in case they are tempted to stray, as they do without structure: the Quakers have ceased to be Christian in any meaningful sense.

The lessons into modernity

In our own day, the moral teaching of the nation is secularised. Novel, irreligious doctrines coming out of nowhere are established and pressed upon us by secular authorities and those who set themselves up unelected as authorities. Even the clergy of the Church of England are complying.

The argument in Patrick’s Parable holds good today: the Puritans who claim a monopoly of truth are dangerous, and while their positions and arguments may be within the wide cast of honest opinion, they cannot be allowed in charge.

However the position of our own day is reversed from the Restoration period: the establishment has been seized by secular Puritans, little different from those Patrick describes in his Parable of the Pilgrim. They act in the way he warns, and without any apparent sense of irony the New Puritans are ready to accuse dissenting, conservative-minded folk of being dangerous extremists, and spit hatred at them in the name of opposing hate.

The New Puritans are not a myth, as case after case demonstrates: careers ruined, businesses closed and intimidated, others harassed by lawsuits. In this, the radical New Puritan may act as legislator, judge, jury and executioner. After the Long March Through the Institutions, establishment positions are held by left-wingers, so there is little resistance.

Now we need non-conforming commentators. A secular Symon Patrick in our own day would face ostracism, even in the cowed Church, as he would be writing outside the establishment. Maybe it would be coming too late: Patrick wrote to prevent a takeover, but for us, that takeover has happened.

See also

Books

Murmuring the judges – 2

The system of appointing and keeping judges is often under scrutiny. A few little pushes and a constitutional outrage can be committed in the dark.

In a previous article I looked at the condition of the judiciary and concluded that actually the quality of British judges, in all three of the jurisdictions, is very good, possibly the best in the world, and generally neutral in political controversies.  That makes the system a target for activists.

It would be worse if judges were forced to be political, as they are in the United States. British judges do not get to overturn primary legislation they dislike, and delegated legislation can be struck down only on narrow grounds. They are more vulnerable when decisions turn on social attitudes, and in a multicultural and acultural society in the midst of a culture war, there is no cultural norm and no equilibrium.

David Gauke, Lord Chancellor at the time of writing, gave a speech on 3 July 2019 in which he observed the pressures on judges:

“Those grappling with complex problems are not viewed as public servants but as engaged in a conspiracy to seek to frustrate the will of the public. They are ‘enemies of the people’.”

– and that:

“Our judiciary has a reputation for intellectual rigour, careful consideration of the arguments, and a serious-minded determination to each decision based on what is right and not necessarily what is superficially popular. I am not sure that all politicians have the same reputation.”

The easy target in the speech was ‘populism’, but there is more pressure from social justice warriors. A judge stepping out of line in a judgment or an intervention may be attacked more ruthlessly then being called an enemy of the people.  A judge may make the rather obvious point that a young woman who gets recklessly drunk in a low dive wearing provocative clothes is putting herself at unnecessary risk, but those judges who have said that have reaped a whirlwind of complaints. Had they suggested ‘she deserves it’ that would be despicable but just to suggest that people take more care of their own safety should not be criticised.

This post could be filled with pages of examples of magistrates and officials removed for expressing the slightest dissent from the progressivist line, but that would serve little purpose: the process of Twitterstorm, written complaint and disciplinary action is well known. The main point is whether social justice warriors can enforce their will, and to what extent.

High Court judges have a constitutional protection: they can only be removed after a joint address from both Houses of Parliament.  That ensures that they are politically independent.  Over the course of the three centuries since that rule was enacted, only one judge has been removed by this procedure, for criminal abuse of his position. Circuit judges are less well protected, but there cannot be removed at a whim. For those in the lowest positions, and lay magistrates, a word may remove them.

Watch for voices claiming the current system is old-fashioned or, worse still. ‘obsolete’. It will not be the populists who do that, but the ‘unpopulists’; those with a woke agenda.  They will be working in the dark, in committees and all the little offices that that have been infiltrated on the Long March.

We should all worry about making it easier to sack judges, as that they would be removed for petty reasons.  The argument in learned reports will talk of taking action where a judge has committed a crime or corruption, or become a Weinstein, for that is the way to prise the lid off.

The lid off, it would open the way to politically motivated sackings and we would have an ochlocracy.  The Daily Mail headline about “Enemies of the People” was mild and brief compared with pressure from within the establishment; and the new establishment, not the democratic overlay.  Political storms are easy to begin without thought: when the ‘Birmingham Six’ had their convictions overturned, one MP tried to start the process to sack the judge who had gaoled them, but could go no further as constitutional procedure is robust against emotional lashing-out, but when there is a disciplinary procedure, ,that will be another matter: every so often there is a Twitter storm demanding sackings for public officials alleged to have said something unfortunate (whether they did or not – Roger Scruton’s treatment is still raw). When once even High Court and Supreme Court judges are vulnerable, there is no stopping it.

We would end up with fearful, bland, useless judges, taken from the ranks of those meek and willing to be led by the changing fashions of discourse, not those willing and able to command, which is what a judge must do.

See also

Books

The Long March: conspiracy or accident?

The Long March through the Institutions was advocated by Rudi Dutschke, a German, Communist student activist in 1971: he saw the progress of revolution stifled by the established order and so wrote that Communists could subvert this order by infiltrating the institutions which make it up.

As those with Marxist or cultural-Marxist ideas have apparently taken control of all institutions, the conspiracy would seem to have been sprung.  Something does not feel right about this neat theory though.  For one thing, giant conspiracies do not work, and for another, writing your whole plan in a popular book for all the world to see is a terrible way to run a secret conspiracy.

It has happened though, and as ConHome reminds us frequently, research has found five times more labour supporters have been appointed to public bodies than Tories.

Conspiracy or natural selection?

There may be an element of deliberate exclusion of Tories.  This might be the sort of action which is co-ordinated over dinner parties or WhatsApp groups.  This is a conspiracy, but a localised one rather than anything centrally directed.

It can be hard to deny a conspiracy against conservative-minded candidates when we see apparently co-ordinated attacks on such appointees bursting out into the media.  This might just be a ‘Twitter congregation’.  More studies would be needed to determine how much planned co-ordination goes into such attacks (but with few conservatives now in academic positions it may be impossible to commission such research).

There may be other explanations though for the overwhelming dominance of Marxists and cultural-Marxists in institutional positions; essentially that it has been a natural process caused by the characters and motivations of those involved; an osmosis where the red particles pass more easily in through a membrane and others more easily pass out. 

A body which effectively appoints its own successors, or which has an independent appointments board, will through natural processes entrench its own prejudices.  In making appointments, the board will be charged with choosing those considered sound and sensible: it is natural then to think that their own views are the sound, sensible view and that those who differ from them are lacking in principle or intellect.  If charged with ensuring political neutrality, it is natural to think of their own views as neutral and others as political or “fringe”.  Furthermore, it is natural for a board to choose as colleagues those with whom one can work in harmony, who will not challenge their colleague’s own views and assumptions.

A system fine-tuned to fail

A quick review of the positions offered in the quangocracy shows an interesting pattern:  most senior positions are part-time jobs, paid well for the few hours the holder is expected to work, but not as a career salary.  Therefore anyone who wishes to take a management role in a quango must be one who has the hours to spend: an academic, a semi-retired company director, or more particularly an existing quangocrat with a portfolio of positions to keep his family fed.  These are not career-structure positions:  they are to be filled by those with a “proven track record” in the field, which excludes new blood and favours those in the system.

The biggest ‘Public appointments’ advertising section is in The Guardian (which is essentially a socialist political party which happens to run a newspaper on the side).  The implication is obvious.

In addition, these whose instinct is in favour of commerce and enterprise will gravitate to what most of us would call getting proper jobs:  jobs in commercial business where merit is rewarded and wealth created. Those with no liking for commerce will gravitate to jobs living off state largesse.

Our nation’s social history does not help in this: in the days of a regimented class system, a gentleman would live from his rents and landed income, or seek such a worthy profession as the army the Church or the law, while ‘trade’ was considered a low calling.  Now there are few landed estates, the outlets for those who still despise ‘trade’ are academia and the quangocracy.

A man isolated from the realities of commercial life is isolated from reality and unfit to be entrusted with any great charge.  Also, he cannot be expected to appreciate the need for a limited state, if he has no love for any endeavour that is outside the state.

In this way, the institutions of the state will by natural process be filled with those who would despise the commerciality of a whelk stall and be unfit to be entrusted with one.

Challenging the entrenched powers

If all this is so, then reversing it will take more than exposing a conspiracy, as there is no conspiracy:  it requires a fundamental change in the system which makes this osmosis happen.

The reality of the take-over is undoubted, and it is realised as much by the left-wing as by conservatives.  The defence of left-wing hegemony has been deployed on notable occasions:  just months ago Sir Roger Scruton, Britain’s greatest living philosopher, was barred from an innocuous, unpaid position after a targeted attack:  no conservative is to be permitted a position of influence.

Public frustration at the leaden-headedness of bureaucracy and the strictures of public bodies (and alleged public bodies) has grown to anger, and if elections every five years seem to make no difference, the safety valve has gone.

The action to take?  That might require a longer article.

See also:

Murmuring the Judges – 1

Whatever our constitutional woes, we do have not American judges, and thanks be for that.  We have non-political, neutral judges, and that is an abomination to the upcoming radical establishment.

I enjoy the satires of our judges, sitting bewigged and asleep over long, dusty cases in long, dusty courts, but mainly because I know how far it is from the reality in the courtroom and from the bewigged man and women themselves, whom I have frequently met on social occasions (lest you consider that I often find myself up before them in court, which I do not – I’ve never been caught).

Britain has the best judges in the world, so the judges tell me, and it seems a miracle that we do when there are no detailed systems in place to regulate every aspect of their appointment and discipline, but study suggests that they are best just because there are no such systems.  The British constitution works because it is largely unwritten and works by understandings sufficiently flexible to deal with exigencies, and our appointment of judges works by understandings sufficient to their needs.  What is more, it minimises the infiltration of the system by activists.

The faults in America may first be blamed on the circumstances of the creation of the United States in that it was founded by lawyers, and in the full flush of confidence in the Enlightenment.  The system written by lawyers naturally gave primacy to the law as arbiter of all things, even of the very process of making law and the extent to which to may be made.  We have a more nuanced understanding, under the rule of law, but not the rule of lawyers.

Largely the judiciary in all three of the United Kingdom’s jurisdictions has escaped the political fray by not being political:  unlike the United States, British judges do not have power to strike down primary legislation they personally dislike.  Secondary legislation and wild administrative decisions are open for challenge, and there is no shortage of crowd-funded activists who set out do challenge decisions in the courts, but so far the courts have been robust:  it is not their role to make decisions entrusted to the political sphere.  They get close some times, and they can overstep the mark – which may be the subject of a second article.  For now though the line is held to keep judges non-political, without which they cannot hold the respect which necessary for the equal rule of law to prevail.

If all is as well as it could be, naturally the judges are under attack.  Neutrality is a crime in the eyes of the determined radical, the social justice warrior.  They demand control for their opinions of all the commanding heights of the state, and the judges must conform. In the light of that mandate that threats to judicial independence have come and will come and become more strident as each new step is won. The demand for diversity is not isolated and benevolent, but the first necessary step.  It is not to only threat to the stability of the current system:  these I will look at in a Part 2 article.