Bailiff-enforced evictions have been banned during the pandemic. But landlords eager to give tenants the boot are finding ways around this rule. Since the start of lockdown, there has been an extraordinary increase in the number of tenants facing applications from landlords to control the terms under which people live in their homes.
Sometimes the playing of loud music is given as the reason. Other times it’s because the TV is left on when neighbours are trying to sleep. Perhaps they have had visitors who slammed the front door of their block. But while the circumstances are often mundane, the effect on those who find themselves kicked out can be devastating.
Depending on the case, judges can make all sorts of different orders, from a curfew limiting when music can be played, up to an order excluding the tenant from their home for a certain period.
A few weeks ago, in my work as a housing lawyer, I represented Gaspar, a tenant who suffers Post-Traumatic Stress Disorder after he was attacked in his home. Gaspar’s illness causes him to cry out. The shouts are quiet, but they are strange. They disturb those who hear them.
A judge had already tried to deal with Gaspar by evicting him from his home for 30 days, presumably as a warning. He survived that month by sleeping in parks or on buses. The day before the order expired, he went back to his home, only to collect the medication which blocks the worst of the symptoms. On his way out of the building the police stopped him: a neighbour had seen him and complained.
Nuisances they might previously have tolerated now crossed the line
When, finally, Gaspar managed to obtain a lawyer it was no particular challenge to show that none of the orders affecting him should ever have been made. A psychiatrist’s report made it clear that Gaspar knew whether he took his pills or not; but what he could not control was his behaviour. He wasn’t aware of the noises he made, and couldn’t restrain them. Expecting him to obey a court order was a waste of everyone’s time.
It is easy to see how a landlord could be trapped in to thinking that they needed to do something. Its housing officers were receiving phone calls from the other tenants. Those tenants were locked in their homes in a way they never were, prior to the lockdown. Nuisances they might previously have tolerated now crossed the line. Getting an order from a court was less intrusive than permanently evicting him.
Gaspar’s is not an unusual case: I have represented clients in so much distress they wouldn’t leave their home to go to court, tenants who suffered much worse illnesses but which had been in apparent remission for more than a decade.
In the pandemic, housing law has become both more ‘social democratic’ (where tenants have been unable to afford their rent, they have been shielded for some time from the consequences of their arrears) and more ‘authoritarian’ (much more of it is about neighbours complaining about their fellow tenants). The good and the bad co-exist, side-by-side.
Often, when people warn about the risk of despotic rule, they portray the danger as what ordinary people do – complaining against a vulnerable neighbour, for example. But tenants do that because the rules governing their lives have been set in certain ways. Parliament has provided a clear route to force an unwanted neighbour out. But it gives tenants no means of redress when a landlord turns down their own request to move.
That realisation – that the situations set by the law shape how we behave – might also help to explain some of the concern about the positions taken by the government in this last week, first with the policing of protest, and then with Police, Crime, Sentencing and Courts Bill.
What’s the difference between good and bad government? The former makes law through Parliament. The latter takes important decisions via secondary legislation, in other words rules drafted by ministers, over which Parliament has only a limited oversight. (Between 1950 and 2014, 169,000 statutory instruments were laid before parliament and only 16 were rejected, or around one in every 10,000).
Since Covid began, we have had a Coronavirus Act 2020 which was allowed little discussion in the Commons and received Royal Assent after just four days of parliamentary scrutiny. We have seen important social changes made without a vote in Parliament, or sometimes even any legislation at all.
New Regulations have been made, introducing fixed penalty notices of first £1,000, and then £10,000 for people who breach the Covid rules, with no right of appeal. More than sixty ‘main‘ Coronavirus Regulations have been made, or more than one per week for a year.
There is a convention that criminal laws should not be made by ministers but by Parliament. Criminal laws should be foreseeable and accessible, so that all who break them can be punished, no might how high or low they are. But those soft rules disappear in a context when ministers are asked to explain rules, not by other politicians, but by the press, and when the enforcement of the rules appears to be as much about putting ministers and their allies in the clear as punishing breaches.
We have also seen the unedifying spectacle of ministers criticising increasing numbers of lawyers, calling those who represent immigration detainees ‘activist lawyers‘, ‘lefty lawyers‘, or ‘lefty human rights lawyers‘. That language coincided with a knife attack on a London law firm, one that the solicitors blamed on the government.
This history helps to explain, for example, why critics are so worried about clauses in the Police, Crime, Sentencing and Courts Bill giving minister the powers to decide what sorts of possible disruption are serious enough so that protests could be banned. Critics are fearful, both of the instincts of police officers, and of what ministers will do with these powers. As with anti-social behaviour injunctions, if you make a bad law, it will come back to bite.
Over the past year, the impression Boris Johnson’s government has given is that it is extremely comfortable with governing without scrutiny, even if, in doing so, it does real damage to our idea of Parliamentary sovereignty. Ministers also appear happy with the idea of giving police any number of extra powers. This is worrying and something we could soon come to regret. The next time the government takes a pop at ‘lefty lawyers’ it’s worth treating their criticism with the scepticism it deserves.
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