Housing: courting injustice – 1

One thing is consistent through every change of government:  the rules about renting homes will be messed about, to harm both tenants and landlords

Housing rules are currently within the tender mercies of the Ministry for Housing, Communities and Local Government, whose declared task is to make things better for tenants. Studies showing that every intervention has been a failure and usually counter-productive do not appear to have informed a change in direction. Obvious problems have produced reactions, but rarely wise ones.

Two initiatives are current.  Both were initiated under James Brokenshire, and since he has been unceremoniously booted out of his seat it is possible that his successor, Robert Jenrick, will change direction but until we hear that he has brought authoritative common sense to bear, we must assume that the political capital invested in the two principal ideas proposed will keep them alive.

  • Abolition of assured shorthold tenancies
  • A new Housing Court

As background assured shorthold tenancy were introduced during Margaret Thatcher’s time gradually to replace Labour’s Rent Acts. An ‘AST’ is a fixed term tenancy which, if not brought to an end by two months’ notice, will continue indefinitely until the landlord serves a notice (known in the jargon as a “Section 20 Notice’).  The new proposal is to abolish Section 20 notices, so a landlord could not get his property back unless he can prove, in court, one of a number of listed grounds for possession.  It is unlikely that these grounds will include ‘The rent is too low: I want to improve it and let it to richer tenants’.

Landlord groups have pointed out that these proposals will eliminate the possibility of short-term or interim lets, remove he opportunity for flats to be improved for anything short of a major rebuilding, and will result in numerous properties being removed from the market causing a housing shortage and higher rents overall due to supply and demand.  It also means that landlords who remain in the market will have to command higher rents in order to cushion themselves against the court costs of removing a troublesome tenant, and for the loss of capital value. One might add that tenants will stop worrying about their behaviour: they will really have to trash the place or stop paying rent before the landlord can do anything about them, and even then he has to be a landlord with the spare cash to go to court – and without rent coming in, he may not.

If a tenant refuses to move out, having received a Section 20 Notice, the court procedure should be quick: there is no defence, so the order is made, and after six months with no rent paid the bailiff (yet more cost) may throw them out.  If grounds have to be proven, then that requires a full court hearing, evidence, adjournments, a suspended order while the court gives the tenant a last chance, a new hearing when he defaults again, more evidence, and then and only then can a bailiff be engaged; and if it has got that far the tenant will not go quietly and may be enraged to trash the flat as he goes.

The result is high rents, impoverished landlords and an ever-declining quality of housing stock. Yet the proposal is championed as being for the protection of tenants. Tell that to the next tenant who moves into the trashed flat his landlord cannot afford to repair, paying through the nose to cushion the landlord’s loss and the future risks, and with no alternative because there are few flats left on the market.

The proposals did not come from the Ministry; they came from Shelter, once an honourable charity but which can now join the ranks of the fake charities, funded from our pockets to pump socialist ideas into government.  Their care for the homeless is not doubted, but the ideas they propose to help are the equivalent of helping a drowning man by pushing him deeper into the sea.

Shelter has a strong influence because it can play upon its worthiness of intent, and because it does supply advice for tenants genuinely needing help with the law. Well, I am pleased with the plumber when he does a good job, but I do not then let him and his wet hands play with the electrics too.

In the land of the blind, the one-eyed man is king:  another grip that a lobbying group like this can have is that no one else is as familiar with the Byzantine laws governing housing, and so by ensuring the continued complexity of the law, the lobbyists stay in control.

This though, and the second proposal, the Housing Court, must be the subject of a separate article.

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.

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.