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Act of Parliament and statutory instruments have to be read together, and anything read in an older statute may have been replaced by a later one, or even by a section retrospectively inserted into an even older Act.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 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.
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.
- Housing: courting injustice – 1
- Murmuring the Judges – 1
- The Long March: conspiracy or accident?
- Register the establishment
- A Powers and Bodies Act
- The Rule of Law by Tom Bingham (former senior Lord of Appeal)
- Trials of the State: Law and the Decline of Politics by Jonathan Sumption (former Justice of the Supreme Court)
- The Secret Barrister: Stories of the Law and How It’s Broken
- Montesquieu: The Spirit of the Laws