Monthly Archives: Jan 2022

Trespassers and will-be-trespassers: Anti-encampment injunctions and the recent Court of Appeal decision

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Two weeks ago, I wrote about the provisions in Part 4 of the Police, Crime, Sentencing and Courts Bill that would criminalise unauthorised encampments and empower police officers to confiscate property, including mobile homes, on suspicion of such activity. Three days later, the Court of Appeal handed down its decision in London Borough of Barking and Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13. This decision is the second Court of Appeal decision dealing with anti-encampment injunctions. The term anti-encampment injunctions refers to the phenomenon, now about seven years old, of local authorities applying for interim or final injunctions to forbid encampment in any of the public spaces in the local authority area. Anti-encampment injunctions are sought with members of the Gypsy, Roma and Traveller (GRT) communities in mind. For some information about the relevant characteristics of those communities, please see my last post here.

The recent decision by the Court of Appeal, which I will call Barking, is an important development in the law relating to injunctions generally. It is particularly important with respect to anti-encampment injunctions and anti-protestor injunctions. Interesting lines of case-law have developed around these two subjects. Legal issues have arisen when injunctions have been sought against individuals whose names are unknown to the applicant (described in claim forms, application notices and judgment titles as persons unknown), and in particular when injunctions have been sought not only against a fixed group of unidentified individuals but also against a individuals who may join the group after the grant of the injunction (described in the cases as newcomers). Issues arise because injunctions are powerful coercive tools that are generally only granted against individuals that are on notice of the injunction or can be put on notice. The Master of the Rolls, Sir Geoffrey Vos, took the opportunity in Barking to survey all the cases he considered relevant and clarify the law.

The decision in Barking is of far-reaching importance. In this blog post I am only trying to explain its relevance in the original context of the proceedings, which is anti-encampment injunctions. The effect of Barking on local authorities’ ability to restrain protest or other activities, and the secondary issues decided in the case, are not explored here.

I will first summarise two cases concerning anti-encampment injunctions that pre-date Barking. I will then explain the proceedings that gave rise to the High Court’s decision in Barking, the High Court’s decision itself, the Court of Appeal’s decision, and finally my view on the impact this will have on the practice of anti-encampment injunctions.

The first case we should look at is called Harlow District Council and another v Stokes and others [2015] EWHC 953 (QB) (I will call it Harlow). This decision was handed down on 3 March 2015, and it is short enough to be worth reading in full. In this case, Harlow District Council and Essex County Council (the second claimant) applied for an interim injunction to forbid encampment on any of the public spaces in the district of Harlow in Essex. The defendants to the action, who were the subject of the injunction sought by the councils, were 64 named defendants and “Persons Unknown being members of the traveller community who have unlawfully encamped within the borough of Barking and Dagenham”. The defendants were not represented in court.

The judgment tells the story of the antisocial behaviour of “certain traveller families”, “predominantly […] members of the McGinley and Stokes family”, since their arrival in October 2013 [2]. That time had seen encampments on 109 sites in Harlow, none of which had planning permission [3]. No application for planning permission had been made in respect of any of those sites, but Harlow council had failed to provide any suitable suites for encampment. As the judge, the late Mrs Justice Patterson DBE, a planning specialist, said delicately at [4]: “the council is required to make provision for gypsy and traveller accommodation within the district, but at present there is a policy void on that particular issue.” The judge went on to say that the encampments had been on “highway verges, grass verges, schools, enterprise zone land or public amenity land” [7], before setting out at length at [10] the negative consequences of the encampments that had been reported by the two authorities. These included deposits of human excrement, piles of rubbish left on vacated sites, damage to land by fires and tyres and the removal of bollards erected by Harlow council to prevent access to sites. Further, the defendants had been accused of antisocial behaviour consisting of “the presence of loose, untethered and aggressive dogs, abandoned horses, noise from generators, loud music and nuisance caused by children, vans driving and parking on public footpaths, cycle tracks and public open space” [11]. These problems had provoked anti-GRT prejudice in the area (characterised by the judge as “community tension”) and caused temporary school closures. The judge described efforts to engage with the defendants, which had failed.

The authorities sought “a district wide injunction” [16]. It is not explicit in the judgment exactly what such an injunction would forbid, but it can be inferred that it is the establishment of any encampments by the defendants on public land. The judge said at [17]:

It is, of course, a matter of fact and degree as to whether a district wide order, as is sought, is proportionate. I have no doubt, as a result of the circumstances which I have set out, that the order sought is both necessary and proportionate. First, there has been a clear breach of planning control for some 17 months and it is reasonable to apprehend further breaches should no further action be taken. Second, persistent efforts by the public authorities to deal with the problem by other means have failed. Third, the approach of the local authority hitherto has been expensive to the public purse, both in terms of money, but more significantly in terms of time spent without any visible change to the behaviour on behalf of the defendants. Third [sic], the consequences of the unlawful behaviour and breach of planning control are not conducive to the best interest of the other law abiding residents within the district.

She went on to say that the balance of convenience was “heavily” in favour of granting the injunction. She made the order, effectively requiring the defendants to leave Harlow.

Three points emerge from this case that are of broader relevance. First, the defendants were not represented. Although counsel for the authorities would under such circumstances be under a duty to raise any facts or legal principles required to enable the court to reach a just decision, there was no one to tell the local GRT community’s side of the story. Second, Harlow council was in the position of having to deal with the symptoms of a systemic problem: the “policy void” where Essex’s provision of sites for GRT encampments should have been. While antisocial behaviour of the kind described in the judgment cannot be excused, the proximity of encampments to schools and public amenity land appeared to be a result of there being nowhere more suitable to stop. Third, relatedly, in as much as the presence of unauthorised encampments represented a problem for Harlow council, requiring the campers to leave Harlow did not so much solve that problem as move it on to another local authority area, unless and until that authority either applied for and secured its own district-wide injunction or had sufficient sites on which GRT families could legitimately stop.

The second case I think we should look at is called London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12; [2020] PTSR 1043 (I will call it Bromley). This judgment of the Court of Appeal was handed down on 12 January 2020, nearly five years after Harlow. The judgment of Lord Justice Coulson, with whom the Senior President of Tribunals (Sir Ernest Ryder) and Lord Justice Haddon-Cave agreed, is long, but once again it is worth reading in full because it is an accessible and detailed treatment of some important and complex issues. The history of this case is that Bromley council applied for a borough-wide injunction, similar to that successfully sought in Harlow, prohibiting encampment on any public spaces in Bromley. The council was successful in securing an interim injunction. Nine months later, it sought to convert this into a final injunction that would last for five years. The High Court (Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge) declined to do so: [2019] EWHC 1675 (QB). The transcript of the ex parte judgment in the High Court can be read here. With the benefit of submissions from London Gypsies and Travellers, a charity that intervened in the proceedings, the judge found that an injunction prohibiting encampment would be disproportionate, but she did order an injunction prohibiting fly-tipping. Bromley appealed to the Court of Appeal, and a number of interested local authorities intervened, as well as Liberty, the civil liberties charity, and once again London Gypsies and Travellers.

Coulson LJ reported that, since the Harlow decision, there had been something of a “feeding frenzy” of local authorities applying for borough-wide injunctions against encampment. At the start of 2020, there were 38 such injunctions in place [10]–[11]. However, the hearing before Ms Mulcahy had been the first at which the GRT community had been represented (by a lawyer or otherwise). This gave her, and now gave the Court of Appeal, the opportunity to take a step back and assess the new phenomenon.

Coulson LJ set out the relevant law, dealt with the appeal before the court, and then gave general guidance on the issue. As to the first point, among other matters, he highlighted at [40]–[48] the House of Lords decision in South Bucks District Council v Porter and another [2003] UKHL 26; [2003] 2 AC 558 and the decisions of the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 399, Connors v United Kingdom (2005) 40 EHRR 9 and Buckland v United Kingdom (2013) 56 EHRR 16. These cases, together, set out the level of protection that GRT individuals enjoy as a result of Article 8 of the European Convention on Human Rights in respect of their homes and their cultural traditions. As to the second point, the appeal was dismissed. Coulson LJ considered that there had been no error in Ms Mulcahy’s approach to the proportionality exercise and that she had been entitled to reach the conclusion that she had reached.

As to the third point, Coulson LJ made some general statements about the law in this area, avowedly reluctantly, at the request of the parties [99]. These statements can easily be read in full at [100]–[109] but can be summarised as follows:

  • The lack of designated transit sites has prevented local authorities from solving their problems. The provision of such sites is the only way to resolve the tension between the Article 8 rights of the GRT community and the common law of trespass [100].
  • Local authorities need to engage with their local GRT community, certainly before applying for a borough-wide injunction. If the local authority cannot demonstrate such engagement, for example in the form of an equality impact assessment for a proposed injunction, an application is likely to be refused [102]–[103] [108(d)].
  • Injunctions against persons unknown are exceptional measures because of the onerous burden they place on individuals not present or represented in the courtroom [104(a)].
  • Local authorities should understand and respect GRT culture, traditions and practices [104(b)].
  • When considering an application for an injunction, a court will take into account the status of the GRT community as a vulnerable protected minority, the local authority’s efforts to provide suitable accommodation, and the cumulative effect of injunctions elsewhere [104(c)–(e)].
  • Borough-wide injunctions, and injunctions for longer than a year, are unlikely to be granted [105]–[106].
  • Evidence of criminal conduct or of risks to health and safety supports an application for a wide injunction [107].
  • Applications for injunctions should evidence alternative suitable encampment sites, or run the risk of being disproportionate [108(a)–(c)].

The judgment concludes at [109] with these sweeping words: “Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.”

Bromley represented a recognition of the unsustainability of the widespread adoption by local authorities of anti-encampment injunctions. If one accepts the narrative that unauthorised encampments on public land cause unavoidable problems, moving those encampments from one local authority area to another only moves the problems elsewhere and unsettles the displaced GRT community. Yet if a local authority area becomes disproportionately affected by unauthorised encampments because GRT individuals have been pushed out of other areas by injunctions, applying for a similar injunction itself appears to be the simplest solution.

This brings us to the Barking case. These proceedings began when the Enfield council applied for an anti-encampment injunction: London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB). Mr Justice Nicklin declined to order an injunction and adjourned the application to enable the issues arising in the case and others to be properly considered. That was on 2 October 2020. Two weeks later, it was decided to join all the claims in which anti-encampment injunctions had been granted. This means that dozens of local authorities were parties to the proceedings (they can be identified in Appendix 1 of the High Court judgment). In late January 2021, there was a hearing before Nicklin J in order to review existing injunctions against new developments in the law relating to injunctions against persons unknown. These conjoined proceedings are the Barking proceedings. One of the key issues that had to be decided was whether a final (that is, not interim) anti-encampment injunction could bind newcomers. Newcomers are individuals who at the date of the judgment do not fall within the definition of those affected by the injunction, but who by their actions later come within that definition. For example, if an injunction is granted on 1 April 2021 against persons unknown forming unauthorised encampments in the borough, a newcomer is someone who forms an unauthorised encampment in the borough after 1 April 2021. The question was whether such individuals could be bound by a final injunction. This is important because interim injunctions are generally limited in time by a return date on which the court reviews the injunction, and operate in principle only until the court resolves the dispute between the parties, while final injunctions are generally in place for longer and are a substantive remedy.

On 12 May 2021, Nicklin J produced a long judgment ([2021] EWHC 1201 (QB)). On the key issue that we are concerned with, namely whether final anti-encampment injunctions bound newcomers, Nicklin J gave the answer no. Nicklin J considered that two authorities, Attorney General v Times Newspapers Ltd (No. 3) [1992] 1 AC 191 and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802, established the principle that a final injunction operates only between parties to proceedings. Anti-encampment injunctions did not fall within an exception to that principle. See the judgment in summary at [121]–[124], and in detail at [161]–[189]. In the light of this and other decisions on legal points in the judgment, Nicklin J discharged a number of existing anti-encampment injunctions that he had decided were impermissible [244]. Finally, he set out, at [248], rules for claims against persons unknown generally.

The local authorities appealed to the Court of Appeal. The court was asked to deal with a number of issues, but principally the question whether final anti-encampment injunctions could bind newcomers. In a word, Sir Geoffrey Vos MR, with whom Lord Justice Lewison and Lady Justice Elisabeth Laing agreed, decided that the answer was yes. Nicklin J had been wrong to decide otherwise.

Sir Geoffrey Vos summarised a number of recent authorities at [21]–[58]. He then summarised and analysed Nicklin J’s judgment. Among other things, he said that Nicklin J had drawn a “fundamental difference” between interim and final injunctions that was not supported by the cases [74]. Rather, “there is no meaningful distinction between an interim and a final injunction” [77]. He also said that Nicklin J’s proposition that it was a fundamental principle that a court could not grant a final order against someone not party to proceedings had no basis in authority [75]. As far as the Court of Appeal’s decision in Canada Goose meant that, it was wrong. Instead, the Court of Appeal’s decisions in South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 and Ineos Upstream Ltd v Persons Unknown and others [2019] EWCA Civ 515; [2019] 4 WLR 100 made clear that final injunctions could be granted against newcomers, and Nicklin J should have followed those cases [99]. The guidance that Nicklin J gave at [248] “requires reconsideration” as a result [108].

That was the main point established in the judgment. Of the rest of the judgment, the most relevant passage to us is at [102]–[108], where Sir Geoffrey Vos addressed the broad terms of the guidance given by Coulson LJ in Bromley with some scepticism. He said at [105] that it is GRT individuals, and not any community, that has Article 8 rights, and that those rights do not lead to an automatic conclusion in any application for an injunction, but must be balanced against other rights in the circumstances of the specific case, such as a landowner’s right under Article 1 of Protocol 1 to the peaceful enjoyment of their property. The same goes for Coulson LJ’s statement at [109] that “the gipsy and traveller community have an enshrined freedom not to stay in one place but to move from one place to another”. That right, protected by Article 8, is qualified, not absolute, and must be balanced against the rights of others and the public interest in each case [106].

What are we to make of this? First, given the contradictory judgments by the Court of Appeal, this authoritative decision by the Master of the Rolls is to be welcomed at least for the certainty that it brings to local authorities and others (notwithstanding any application for permission to appeal to the Supreme Court). Second, the emphasis on everything-depends-on-the-circumstances is legally sound but little practical guidance is offered to help courts considering applications for injunctions to balance the rights of GRT individuals in encampments with the rights of other local residents that are violated by unauthorised encampments. Even if everything depends on the circumstances, an authoritative judgment can set out a useful starting-point, a list of factors to consider and how to weigh them. Third, it is now clear that anti-encampment injunctions can apply to newcomers, meaning that their reach is not limited to those who have already unlawfully encamped on public land. Anti-encampment injunctions have not lost their sting. Although the decision in Bromley may have encouraged courts to take a more measured approach, local authorities may return to their use of these injunctions as a key tool to oppose any antisocial behaviour associated with unauthorised encampments. Between this phenomenon and Part 4 of the Police, Crime, Sentencing and Courts Bill (if passed), GRT individuals leading a traditional itinerant lifestyle will find the number of spaces on which they can safely stop continue to shrink. A real solution to this problem on a strategic level, or even a desire among policymakers to look for one, is nowhere in sight.

What I’ve been doing this week

I hope it doesn’t give too much away about my character (that readers haven’t already gleaned) if I say that I have fallen in love with Frasier. The simple stories, screamingly funny lines and loving skewering of pretentiousness is just what I need after, before or during a day of law. I’m on season 5. I have no idea how the reboot will work but I will be there for it.

Section 21 and the Supported Housing Sector

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In April 2019 Theresa May’s Government announced its plans to repeal Section 21 of the Housing Act 1988 (as amended by the Housing Act 1996) and put an end to so-called ‘no fault evictions’. Long controversial, Section 21 allows landlords to evict tenants who have assured shorthold tenancies (ASTs):

  1. after a fixed term tenancy comes to an end, provided there is a written contract; or
  1. during a periodic tenancy (i.e. a tenancy with no fixed end date).

The landlord must give the tenant 2 months’ notice in writing but does not have to provide any reason for the eviction.[1] The provision is subject to some caveats and safeguards to protect the rights of tenants but, even taking these into account, it still allows for the eviction of tenants who have taken good care of a property, kept up with rent payments, and abided by all the conditions of their tenancy. This is in contrast with the provision under Section 8 of the 1988 Act, which states that a landlord can only commence proceedings to take possession of a property let on an assured tenancy if one of the limited range of grounds in Schedule 2 of the Act applies.

Being required to move with only 2 months’ notice would no doubt be a headache for anyone, but it can take a particular toll on families with school-age children, disabled people, people living in rural areas with a shortage of rented accommodation, and people living in poverty, who may struggle to find alternative accommodation within their budget and can ill afford to pay the extra costs associated with moving. It is no surprise therefore that the announcement that the Government planned to abolish Section 21 was widely celebrated by housing charities and campaigners.

Coming up to three years later, however, and the provision remains in force, despite the pledge to repeal it being repeated in the Conservative manifesto for the 2019 general election.[2] The 2021 Queen’s Speech promised that the Government would respond to its 2019 consultation on the issue and publish a White Paper by the end of the year, but in October 2021 it was announced that the White Paper would be delayed until 2022.[3] Meanwhile, analysis of Ministry of Justice figures by the Big Issue Foundation found that some 25,000 Section 21 notices were issued between the April 2019 announcement and November 2021, while campaigning organisation Generation Rent have suggested that rising eviction rates since Covid-related protections were removed could result in one no-fault eviction every 32 minutes this winter. This is an especially grim state of affairs given that, for a while, it seemed that the pandemic had shifted the conversation on poverty and homelessness and highlighted the inequities and insecurities faced by private renters, especially those living at the lower end of the market.

But if the focus of the promised reform is on protecting private renters, what does all this have to do with supported housing? It turns out quite a lot, as I discovered when I spent a year working in the policy team at the National Housing Federation between September 2019 and September 2020, covering supported housing among other policy areas. The NHF is the trade body for England’s housing associations, representing around 900 members ranging from major social landlords managing over 100,000 homes, to small specialist providers with just a handful of properties.

Many of its members also provide supported housing, either exclusively or alongside general needs accommodation. This wide-ranging term can be used to refer to any accommodation where housing-related support is provided as part of a tenancy. Housing associations deliver around 70% of England’s supported housing, including sheltered and extra care housing for older and disabled people, homeless hostels, mental health stepdown units and domestic abuse refuges.[4] Of the rest, around 20% is owned and managed by local authorities, and the remaining 10% by a mixture of private and voluntary sector organisations. The kinds of support offered in these schemes vary widely, but they include job coaching and skills development training, counselling and wellbeing checks. They are all aimed at helping residents maintain their tenancies and live as independently as possible. For many residents in supported schemes, the only viable alternative would be residential care, hospital or another secure institution.

For a type of housing designed to meet the needs of some of the most vulnerable groups in society, it might seem strange to learn that supported housing providers quite often let properties via ASTs. One might assume that security of tenure would be paramount in such schemes and indeed many supported homes, especially sheltered and extra care housing for older people, are let on a lifetime basis. However, there are a number of reasons why supported housing providers might need to take possession of a property urgently, even where a resident has not fallen behind on their rent or otherwise breached their agreement with the landlord. They can be roughly divided into four themes, though there is some overlap.[5]

  1. Loss of support

Funding for support services in supported accommodation can be withdrawn for planned or unexpected reasons. Commissioning cycles have a role to play, local authority-commissioned services often being made available to clients for a maximum period of two years, after which they are expected to be able to live independently or their landlord is expected to help them find appropriate accommodation to move onto. In these circumstances, it is always understood that the tenancy will only last for the maximum period for which support is available. Sometimes, however, support may be withdrawn unexpectedly. This can occur where support services are funded or directly provided by an external agency, which suddenly ceases to operate for reasons beyond the control of the housing association. Whether or not the cessation of funding is anticipated, the fact remains that many residents in supported housing are not in a position to maintain their tenancies without the correct support services in place. Tenancies which continue unsupported risk breaking down in a chaotic way which can be harmful and traumatic for residents and costly for social landlords.

  1. Residents’ changing support needs

Different types of supported housing offer different services, some much more intensive than others. Sometimes during the course of a tenancy, a resident’s support needs may evolve. They might start out in a high-support service and over time discover that they are able to live more independently. Conversely it may become apparent that they require a greater level of support than their current housing provider is able to offer. Ideally residents in this position will be able to move into more appropriate accommodation by mutual consent, but sometimes a resident might be understandably reluctant to move. In such circumstances housing providers may seek to terminate a tenancy, in the interests of ensuring that residents are properly supported and that very limited supported housing stock is allocated as fairly and effectively as possible.

  1. Safety of other residents

Some client groups in supported housing can suffer from serious mental and physical health challenges, substance misuse issues and potentially chaotic behaviour. In services designed to be temporary, residents with very high support needs, which pose a potential risk to their own safety or that of others, will often be given a licence to occupy rather than a tenancy agreement. However, in certain circumstances, even in schemes which are intended to offer long-term or lifelong support, staff may feel that they need to evict a resident at short notice for the protection of other residents. Section 21 is far from an ideal mechanism in such circumstances, but it does offer greater speed than Section 8 proceedings and greater certainty than an application for an emergency injunction. 

  1. Long-term unavailability of the property

Supported housing schemes can sometimes have rather complex operational models, whereby buildings are leased and services such as care, mental health provision, housing management support or skills training are subcontracted to other organisations. It is far from unusual for a scheme to have a housing association landlord but a charity or private agency providing housing management and support services. Likewise, it is common for housing associations to lease supported housing properties from a freeholder for a number of years, after which it must be restored to the freeholder with vacant possession, or to lease properties the value of which is affected by ‘planning blight’ because they are in the proposed path of a significant publicly-funded infrastructure project. All of these models allow providers to keep services running in a very challenging funding environment, but they also mean that it is not always possible for landlords to guarantee their residents full security of tenure.

If Section 21 is repealed and no thought is given by Government to the peculiarities of supported housing provision, there is a risk that providers may start to offer more licences and fewer tenancies, giving residents even less security than they would have under an AST. Worse still, providers dealing with especially complex leasing arrangements or precarious funding streams might simply stop providing services altogether. It is therefore to be sincerely hoped that the anticipated White Paper will give serious consideration to the issue.

When we consulted with members during my time at the NHF, there were a range of opinions on potential ways forward. There was fairly widespread agreement that Section 21 is a blunt instrument, which is not especially well-suited to the requirements of the supported housing sector, but also a high level of concern over what the impact might be if all supported housing tenancies effectively became lifetime tenancies overnight.

There was a degree of enthusiasm for the idea of creating a specific new ‘supported housing tenancy’, which might sit alongside some of the other specialist provisions considered in the Government’s 2019 consultation document, for example relating to private lettings to students, the sub-letting of farm buildings by tenant farmers, and the letting out of property designed for use by religious workers during periods of non-use for that purpose.[6] The idea was that the existence of the tenancy might be tied in some way to the ongoing provision of support services. However, it quickly became apparent that creating a single tenancy type to cover the vast array of service models encompassed by the term ‘supported housing’ was likely to be all but impossible.

Retaining ASTs for supported housing providers, while abolishing them for everyone else, seemed highly unlikely to be acceptable to the Government, and would leave social landlords in the morally questionable position of offering less security of tenure than private renters would automatically enjoy after the new measures came into force. Excluding tenancies in supported housing schemes from assured status, and therefore from statutory security, by adding them to the list of exclusions in Schedule 1 of the 1988 Act, would raise even greater moral objections. Schedule 1 sets out a range of tenancies which cannot be assured, including student lettings which are specifically tied to a course of study, holiday lets and licensed premises. Such tenancies can be terminated by a simple notice to quit. While potentially rather practical, adding accommodation for some of the most vulnerable people in society to the list of tenancy types which cannot be assured would be difficult to defend from a political and moral perspective.

That leaves adding a new mandatory ground for possession to Schedule 2 of the 1988 Act as the most workable solution. This schedule sets out a range of grounds on which a landlord can issue a notice seeking possession under Section 8 of the Act. Some, such as Ground 7A concerning anti-social behaviour and Ground 8 concerning serious rent arrears, relate to breaches of the tenancy agreement by an assured tenant. Others deal with circumstances where possession is legally necessary, even if the tenant has done nothing wrong. For example, Ground 2 allows for possession by a mortgagee where the landlord has defaulted on payments on a mortgage on the property which predates the tenancy.

While Section 8 proceedings are not as expeditious as a Section 21 notice, introducing a new mandatory ground for possession for supported housing would at least ensure that providers had some mechanism for moving residents on in circumstances where funding for support had been withdrawn, resident safety demanded it, or a building was no longer available. In its response to the Government consultation on this issue, the NHF provided some suggested wording for the proposed ground and suggested that it ought to apply only to non-profit landlords (namely charities and community benefit societies), to prevent poorly regulated for-profit providers from exploiting it as a loophole in the new law. In practice, it seems probable that any such provision would have to be worded in such a way as to encompass local authority landlords too. Crucially, however, the new ground would be limited to circumstances where

  1. the purpose of granting the tenancy is from the outset explicitly limited to that of providing temporary accommodation (specifically defined); or
  2. the tenancy is a designated short-term tenancy; or
  3. the tenant relies for the successful maintenance of the tenancy or for their own safety and wellbeing on support that is provided by or for the landlord by means of funding by an agency independent of the landlord and not subject to its influence or control, or is provided directly by such an agency, and the agency ceases to fund or provide the support; or
  4. the tenant relies for the successful maintenance of the tenancy or for their own safety and wellbeing on support and this support is no longer available; or
  5. the support that is provided to the tenant is not in line with the tenant’s needs. [7]

In any of these circumstances, the tenant would also need to have been given written notice in the tenancy agreement, or in a separate document served at the same time, that this ground might be used. The idea behind drawing the circumstances in which the proposed ground would apply fairly narrowly is to ensure that supported housing residents would only be subject to no-fault possession in very limited circumstances in which housing could not otherwise be provided for them.

This seems like a relatively fair compromise and, crucially, does not leave thousands of extremely vulnerable people with less security of tenure than they have at present. Nevertheless, what struck me very strongly while working on the Section 21 repeal consultation with members at the NHF, and afterwards reading the briefing that my colleagues produced on the subject, was how many of the challenges facing the supported housing sector as a whole have been thrown into sharp relief by the proposed abolition of no-fault evictions. If the supported housing sector enjoyed adequate and consistent revenue funding, then residents would not be required to leave at short notice because support services had been unexpectedly terminated. If there was capital funding available to increase the supply of purpose-built accommodation, then providers would not be so acutely constrained by the need to manage their limited stock effectively. If local authority commissioners took a strategic approach to assessing the need for housing-related support services and commissioned them accordingly, perhaps the sector would be less reliant on piecemeal lease-based arrangements. A recent House of Commons Library briefing paper on Section 21 at least acknowledged the need to consider supported housing tenancies when implementing legislative changes in this area. It is to be hoped that one of the tangential consequences of the forthcoming White Paper will be to foster a new appreciation for the sector.

What I’ve been reading….

Over Christmas I read The Topeka School, a semi-autobiographical novel by American poet and author Ben Lerner. Lerner’s roots as a poet definitely show. The novel is beautifully written, offering vivid portraits of the lives of its cast of characters as it jumps between perspectives and time periods. It is also fascinated by the idea of language itself, its many uses and the power it can bestow on those who know how to use it well. And it’s extremely funny. Definitely recommended.

[1] It should be noted that, due to the Covid-19 pandemic, the notice periods that landlords were required to give tenants were temporarily extended for landlords who gave their tenants notice between 26 March 2020 and 30 September 2021.

[2] Conservative Party Manifesto 2019, p. 29.

[3] For a full timeline and summary of the measures consulted on to date, see House of Commons Library Research Briefing by Cassie Barton & Wendy Wilson, ‘The end of ‘no fault’ section 21 evictions‘, 29 December 2021.

[4] The figure is taken from the DWP & DCLG Supported Accommodation Review, November 2016, but it seems unlikely that it has changed significantly in the intervening years.

[5] Further detail can be found in NHF Renters’ Reform strategy: Proposal for providers of supported housing and temporary accommodation, June 2021.

[6] See MHCLG, A New Deal for Renting Resetting the balance of rights and responsibilities between landlords and tenants: A consultation, July 2019, pp. 40–43.

[7] NHF Renters’ Reform strategy: Proposal for providers of supported housing and temporary accommodation, June 2021, p. 19.

Image credit: “Key to the open door” by Tawheed Manzoor is licensed under CC BY 2.0

Part 4 of the Police, Crime, Sentencing and Courts Bill and Article 14 of the ECHR

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The Police, Crime, Sentencing and Courts Bill (which I will simply call the bill) is nearing the end of the Parliamentary ping-pong process. It is at the report stage in the House of Lords, having had its three readings in the House of Commons. Although there is still time for further amendments, it is highly likely that the bill will be passed in something resembling its current form. Many aspects of the bill have been seriously controversial and experts have commented at length on the merit or otherwise of the proposed legislation. I would like to ask an analytical question. How would Part 4 of the bill, if enacted, be interpreted by courts? In particular, is it compatible with Article 14 of the European Convention on Human Rights, which guarantees freedom from discrimination?

Part 4 is entitled “Unauthorised encampments”. The long title of the bill appears to allude to Part 4 somewhat euphemistically as aiming “to make provision about the removal, storage and disposal of vehicles”. The aim of Part 4 is to address the perceived problem of members of the Gypsy, Roma and Traveller communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. (I will use GRT as shorthand for Gypsy, Roma and/or Traveller, without wishing to elide the differences between distinct cultures.) Part 4 seeks to achieve this aim by creating a new offence, which is again named euphemistically the “offence relating to residing on land without consent in or with a vehicle”, and by creating associated powers for the police to confiscate property, including vehicles, belonging to anyone suspected of committing an offence.

The formal history of these proposals, in brief, is that the government consulted from April to June 2018 on proposed powers to deal with unauthorised development and encampments. The then Secretary of State for Housing, Communities and Local Government, the late James Brokenshire, published a consultation response in February 2019. This did not propose the creation of a new offence. Later in the year, a second consultation was launched, this time by the Home Office. This consultation ran from November 2019 to March 2020. This consultation proposed the criminalisation of unauthorised encampments. The Home Secretary, Priti Patel, published a response in March 2021. This coincided with the publication of the bill. Interested readers can compare the responses to the 2019 consultation questions with the 2021 government response and the proposals in Part 4 of the bill.

Part 4 of the bill comprises three clauses. They were originally numbered 61 to 63 but are now numbered 63 to 65, which is how I will refer to them. The bill can be read in its current form here. It is mainly clause 63 (that is the original clause 61) with which we must concern ourselves.

Clause 63 inserts a new offence at section 60C of the Criminal Justice and Public Order Act 1994, entitled the “Offence relating to residing on land without consent in or with a vehicle”. I will simply call this the offence. Clause 63 also adds sections 60D and 60E to the CJPOA. Section 60D creates powers for police to seize and retain property involved in the suspected commission of the offence. Section 60E provides for forfeiture orders in cases of conviction of the offence.

The new offence created by the proposed section 60C is a little fiddly, but the main part of it, which is formed by clause 63(1)–(4) at pp. 58–59 of the bill, can be summarised as follows:

A person P, who is over 18, commits an offence if:

  1. P resides, or intends to reside, on land without the consent of the occupier, O, and
  2. P has, or intends to have, a vehicle with them on the land, and
  3. O or a police officer requests P to leave the land and/or remove P’s property from the land, and
  4. Either
    1. P fails to comply with the request, or
    2. P enters the land within 12 months of the request with the intention of residing there with O’s consent and with a vehicle on the land, and
  5. Either
    1. P’s residence on the land has caused or is likely to cause significant damage or disruption, or
    2. P’s offensive conduct on the land has caused or is likely to cause significant distress.

In summary, the proposed section 60D means that, if a police officer reasonably suspects that the offence has been committed, they may seize any relevant property, including any relevant vehicle, to be retained for three months. If notice is given that no prosecution will be brought, the property must be released, but if a prosecution is brought, the property may be retained until the conclusion of proceedings.

In summary, the proposed section 60E means that, if someone is convicted of the offence, any property that was seized under the proposed section 60D may be subject to a forfeiture order. Forfeiture means that the property is permanently taken from the offender.

As I have already said, the aim of these proposed provisions is to address the perceived problem of members of the GRT communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. GRT communities are culturally distinct groups which share some traditions, primarily a nomadic lifestyle that is nowadays predominantly maintained in caravans (although not all GRT individuals lead a nomadic lifestyle). GRT communities are the subject of a high level of racism in the UK, which is more widely socially accepted than most forms of racism and which is in large part based on a prejudiced association between GRT individuals and crime and antisocial behaviour. The situation of GRT families is complicated by a long-standing shortage of allocated sites for encampment, following the abolition (by section 80 of the Criminal Justice and Public Order Act 1994) of the statutory duty (in section 6 of the Caravan Sites Act 1968) on local authorities to provide such sites. 

That is the context of the proposals. Their effect at face value is that, if a traveller family were to move their home onto a patch of land, and a police officer reasonably suspected that they had been asked to go away and had refused to do so, and they also suspected that the family’s presence was causing significant disruption, the officer could seize the family’s home and all its contents and hold onto it for three months, or until it was certified that no one in the family was to be prosecuted, or until the conclusion of proceedings if they were prosecuted and acquitted, or potentially forever if they were prosecuted and convicted.  

The context is relevant because it might inform how a court would interpret the proposed provisions. The offence, while applying to everyone, targets a specific group of racial and cultural communities. This raises the question whether there is anything in the United Kingdom constitution that could influence the interpretation of the offence in order to avoid a discriminatory effect.

The UK constitution is famously characterised by Parliamentary sovereignty. There is no written bill of rights that limits legislative power. The orthodox view is that primary legislation that tramples on fundamental rights, any way conceived, remains legally valid, with possible exceptions around institutional questions such as attempted abolition of courts. However, there is one well-established constitutional safeguard against discriminatory legislation. It is provided by section 3 of the Human Rights Act 1998, which requires courts to interpret legislation as far as possible so that it is compliant with the rights contained in the ECHR, which, at Article 14, include the right to non-discrimination in the enjoyment of the other protected rights. There is a second, more speculative, constitutional protection from discrimination. This is the constitutional principle of equality to be found in the common law. It is controversial whether such a principle exists, and, if it exists, what are its content and nature. Even if its existence were accepted, it would be unlikely to produce a different outcome in this case from Article 14 of the ECHR. Analysis of it is best left for another day.

In the recent Court of Appeal decision of R (Kaitey) v Home Secretary [2021] EWCA Civ 1875 at paragraph [91], Singh LJ summarised the process to be followed when section 3 of the Human Rights Act might come into play as follows.

91. I would summarise the approach which needs to be adopted in the following order:

(1) First, ascertain the ordinary meaning of legislation, having regard to all the usual aids to interpretation. This is not a purely linguistic exercise but seeks to give effect to the purpose of the legislation. The aids to interpretation include the presumption that Parliament does not intend to put the UK in breach of its international obligations, including those under the ECHR.

(2) If – but only if – that ordinary interpretation would give rise to an incompatibility with the Convention rights, section 3 requires a different interpretation so far as possible. This is a strong form of interpretation, which is not the same as ordinary interpretation.

(3) If, even then, it is not possible to give the legislation a meaning which is compatible with Convention rights, the court has a discretion to make a declaration of incompatibility under section 4 of the HRA (if it is one of the courts specified in that section).

So the first stage is to find the ordinary meaning of the legislation. This we have done. The second stage is to see whether that meaning is incompatible with Article 14. The Joint Committee on Human Rights of the House of Commons and the House of Lords published a report on 2 July 2021, which states, at paragraph 39, that it is “likely” that the proposed provisions would contravene Article 14. (The report also raises the possibility of  incompatibility with other Articles of the ECHR, but we will not discuss that today.) The report does not contain any structured analysis of Article 14, which would be necessary to establish incompatibility. We can do this ourselves. The relevant four-stage test was given by Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at [8] as follows:

In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.

Before addressing the four-stage test, we need to identify precisely the different treatment or difference in treatment, the hypothetical claimant, and their comparator. This is stage zero.

The European Court of Human Rights has held that Article 14 prohibits indirect discrimination, that is a general measure that has a disproportionately prejudicial effect on a particular group: DH v Czech Republic (2008) 47 EHRR 3 at [175]. This means that we do not need to frame the different treatment clumsily as: GRT individuals are subject to criminalisation and the confiscation of property for pursuing their traditional way of living, that is nomadism, to a greater extent than other individuals are penalised for pursuing their traditional way of living, that is permanently in settled accommodation. Instead, we can say: The offence has a disproportionately prejudicial effect on GRT individuals because it criminalises behaviour associated with their traditional way of living, that is nomadism. Our hypothetical claimant is a GRT individual who commits the offence, because they must be demonstrably affected by the impugned measure: Buckley v United Kingdom (1997) 23 EHRR 101. Their comparator is an individual who occupies or intends to occupy another’s land without a vehicle and who causes or is likely to cause significant disruption. For the sake of example, a wild camper in a tent. The vehicular element is the distinguishing feature of the offence and of the way of living threatened by the offence.

Does the offence fall within the ambit of a Convention right? Yes. This is a low hurdle. The ambit of a Convention right consists of both the rights protected by an Article of the Convention and any additional rights falling within the scope of an Article that a state decides to protect: Fábián v Hungary (2018) 66 EHRR 26 at [112]. It is established that Article 8 (right to private life) protects the right of GRT individuals to practise their itinerant cultural tradition: Chapman v United Kingdom [2001] 33 EHRR 399 at [96]. The offence makes it more difficult for GRT families to do so, and it interferes with their use of their homes. So it seems that the offence falls within the ambit of both Article 8 and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) of the ECHR.

Is the difference in treatment on the ground of a characteristic listed in Article 14? Yes. The difference in treatment is on the ground of “association with a national minority”, because GRT individuals are members of a minority group in the UK, and the criminalised behaviour is associated with that minority group.

Are the hypothetical claimant and their comparator in analogous situations? Yes. Again, this is a low hurdle. Unless there are obvious relevant differences between the (hypothetical) claimant and the comparator, we should proceed to the fourth stage of the test: AL (Serbia) v Home Secretary [2008] UKHL 42; [2008] 1 WLR 1434 at [25]. There are no obvious relevant differences between a GRT individual who occupies another’s land with a vehicle and causes or is likely to cause significant disruption and a camper who causes or is likely to cause significant disruption. It cannot be argued that the presence of a vehicle makes a difference because that is more disruptive, since both hypotheticals involve actual or likely significant disruption.

Is the difference in treatment objectively justified? Then burden now passes to the state to show that the difference in treatment is objectively justified. This involves the application of well-trodden proportionality analysis. The relevant four-stage test was given by Lord Reed in in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39; [2014] AC 700 at [74] as follows:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the right, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom is applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

In an Article 14 case, it is not the measure as a whole, that is the offence, that must be justified. Rather, the different treatment itself has to be justified: A and others v Home Secretary [2004] UKHL 56; [2005] 2 AC 68 at [68].

Finally, the state enjoys a margin of appreciation with respect to justification, which means that its decisions about when differences justify different treatment must be accorded a level of respect that depends on the circumstances: Carson v United Kingdom (2010) 51 EHRR 13 at [61]. Different factors within the whole set of circumstances may pull in different directions in this regard: R (SC, CB and eight children) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428 at [130].

With these points established, we can undertake the four-stage proportionality analysis.

Is the objective of the measure sufficiently important to justify the limitation of a protected right? The government’s March 2021 consultation response, referred to above, introduced “the case for action” as follows:

Unauthorised Encampments can, in some cases, cause harm and misery to those affected by them and it can be time-consuming and costly for local communities to have them removed.

Some of the harms and problems that are caused can include:

  • interference with electricity, water or gas supplies
  • animals out of control or attacking people using the land or passing nearby
  • animals defecating on the land without owners subsequently clearing up
  • excessive noise pollution as a result of behaviour such as playing loud music or revving the engines of motor vehicles
  • improper deposit of human waste or sewage (such as bath water)
  • failure to remove excessive litter
  • disposal of clinical waste

The response also refers to the costs incurred by local authorities and private individuals in addressing the enumerated harms and problems.

The objective of addressing these problems, which can collectively be described as antisocial behaviour associated with unauthorised encampments, at first appears to be sufficiently important to justify the limitation of the right to non-discrimination. However, it would have to be demonstrated by evidence that these problems are in fact associated with unauthorised encampments, that is with trespassers with vehicles, as opposed to those without vehicles: Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164; [2018] 4 WLR 60 at [109]. Analysis of such evidence is beyond the scope of this blog post, but it would be necessary for a state seeking to discharge the burden of justification to base its case on evidence. The association of unauthorised encampments with antisocial behaviour of the kinds described by the government, if based on anything less than indisputable evidence, would simply constitute racial prejudice against GRT individuals. The aim of addressing the problems associated with unauthorised encampments would then not be legitimate. We can proceed with the analysis, not assuming that such evidence exists, but in order to know what the answer to our question would be if it did exist.

Is the measure rationally connected to the objective? The measure intends to dissuade the establishment of unauthorised encampments and to quickly bring to an end any that are established. This would contribute to the achievement of the objective of preventing antisocial behaviour associated with unauthorised encampments. Again, if and only if the state can show based on evidence that unauthorised encampments are associated with the problems it describes, there would be a rational connection.

Could a less intrusive measure have been used? Three alternative approaches to addressing the problem present themselves. First, if the police powers associated with the offence were less harsh, for example if pre-conviction or even pre-charge confiscation were not available, the effect on GRT families would be reduced. Those who would temporarily lose their homes could, in theory, be limited to those genuinely causing significant disruption. This would be less intrusive, although still seriously intrusive. However, it is arguable that the deterrent effect of the offence would then be reduced. Second, the perceived problem of unauthorised encampments is capable of being addressed through the planning process rather than through the criminal law. If local planning authorities allocated sufficient sites for GRT encampments, there would be no need for unauthorised encampments. Third, the requirement of being on land with a vehicle could be removed. This would still criminalise being seriously disruptive on another’s land, but it would not target GRT individuals in any way. This would significantly reduce, if not eliminate, the discriminatory effect of the proposed provisions. However, it is unclear if this would qualify as a suitable substitute measure, since the objective of the provisions is to address the antisocial behaviour associated with unauthorised encampments specifically. Given the complexity of this issue, it is likely that a court would refrain from putting itself into the place of the legislative decision-maker by deciding that an alternative measure would have been equally effective. But this is uncertain.

Has a fair balance been struck between the offence’s effects on GRT individuals’ rights and the importance of the objective? We have reached the crux of the proportionality exercise, where the margin of appreciation is relevant. The greater the margin of appreciation, the less convincing must be the objective justification of the measure. In cases involving general economic or social policy, such as welfare benefits cases, the court applies a manifestly without reasonable foundation standard. This is a wide margin of appreciation, where a measure will only be held to be disproportionate if it is manifestly without reasonable foundation: R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 at [92]–[93]. This is not such a case. On the contrary, this case concerns discrimination on the basis of ethnic origin, which is considered a form of racial discrimination, and which, whether direct or indirect, requires a very narrow margin of appreciation to be accorded to the state: Biao v Denmark (2017) 64 EHRR 1 at [94], [131] and [138]. Very weighty reasons unrelated to ethnic origin must be shown to justify the discriminatory effect of the offence.

How severe are the effects of the measure on GRT individuals’ right to non-discrimination? They are severe indeed: GRT individuals can lose their homes because a police officer suspects that they intend to reside on another’s land without the occupier’s consent and that this would cause significant disruption. GRT individuals can suffer life-changing consequences as a result of a police officer’s suspicion. That suspicion could be informed by anti-GRT prejudice. Even if a decision by a police officer to confiscate property were later shown to be flawed because it was based on prejudice and so not on reasonable suspicion, serious damage would already have been done to the family whose home was confiscated. This harm applies overwhelmingly to GRT individuals because the requirements of the offence apply overwhelmingly to those who lead a nomadic lifestyle that is part of GRT communities’ cultural heritage. In short, the discrimination is very grave.

How important is the objective to the extent that the difference in treatment will achieve it? The harm that persistent antisocial behaviour can cause should not be underestimated. Addressing that is an important objective. However, it is the choice to specifically criminalise GRT individuals that must be justified. Given the level of justification the state must show in a case of discrimination on the basis of ethnic origin because of the inherently unacceptable nature of such discrimination, and the gravity of the effects of the discrimination in this case, the objective of addressing antisocial behaviour associated with unauthorised encampments is not sufficiently important to justify the discrimination at hand. In other words, the discrimination is disproportionate.

That is the end of the Article 14 analysis. Since we have concluded that a court is likely to find that the proposed provisions are incompatible with Article 14, we can move on to Singh LJ’s stage 2 of statutory interpretation (see Kaitey above). We apply section 3 of the Human Rights Act to interpret the provisions to avoid incompatibility, if this is possible.

There is a lot of case-law on what kind of interpretation is considered possible under section 3. In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607; [2016] ICR 903, Underhill LJ quoted Sir Andrew Morritt C’s summary of the law from Vodafone 2 v Her Majesty’s Commissioners of Revenue and Customs [2009] EWCA Civ 446; [2010] Ch 77 at [37]–[38]. In short, a section 3 interpretation can depart from the literal meaning of legislative words and can read in additional words. However, a section 3 interpretation must be compatible with the underlying thrust of the legislation. Nor can it require the court to make decisions which it is unequipped to make. 

How could the proposed provisions be interpreted in order to avoid the discrimination that we have found? The problem is that the provisions are directly, although not explicitly, targeted at GRT individuals. The discrimination is not a side-effect of the legislation. It is a fundamental feature. This means that a section 3 interpretation is unlikely to be possible. Interpretive amendment of the provisions would need to create some kind of exception for GRT individuals, which would entirely defeat the purpose of the legislation. It would go against the grain because the grain is discriminatory.

This means that a court’s only remedy would be to make a declaration of incompatibility under section 4 of the Human Rights Act. This would not have the effect of striking down the provisions or otherwise rendering them ineffective. Under the UK constitution as predominantly understood, that is not possible. It would send a message to the government, to Parliament, and to the public about the non-compliance of the legislation with human rights.

As we have seen, the discrimination against ethnic minority individuals inherent in this legislation is remarkable. It may be that it prompts the courts to take an unusual step in the defence of the constitutional value of equality, which is at least arguably ambient in the common law as well as crystallised in Article 14 of the ECHR. However, the law as we understand it would permit the proposed offence and the attached police powers to be effective. The constitutional function of section 4 of the Human Rights Act in such a situation is to encourage the legislature to think carefully about whether it wishes to legislate contrary to human rights. Analyses such as this, if they are sufficiently rigorous, can pre-emptively serve a similar purpose in an informal way. It remains to be seen whether this Parliament is susceptible to such encouragement.

Image from Friends, Families & Travellers.

What I’ve been doing over the holidays…

My new year’s project is to learn to play chess properly. This is proving to be harder than I thought it would be and probably much harder than if I had taken it seriously ten or fifteen years ago. I have made a start on Fundamental Chess Openings by Paul van der Sterren, which is very engaging so far. Recommendations of books, strategies or states of mind are most welcome.