…or why Human Rights are always Human Rights.
It is often said that it is in times of crisis that we show our true selves. The selfish care for themselves first, while the caring going about looking after the most vulnerable. During the lock-down period, we’ve seen that, both in our local communities and at the national scale. Take the Scottish and UK governments, for example. The fact that its golf courses and garden centres that are the first things that are opening post lock-down, and that we are more likely to see our nannies that our nanas, and ask “Who does this crisis show them to be”?
The same can be said for Starmer’s renewed Labour Party. In the most extraordinary circumstances, the new leader has had the chance to set the tone of his party going forward. Part of that is how the Opposition reacts to the Government’s handling of COVID-19 (and if PMQ sessions are anything to go by, this side of things is going well). But, the other side of that coin is by acting where the Government refused to. One such area is protection for private renters, both in England and in Scotland.
Last week, the UK Labour Party set out a ‘five-point plan’ for renters in England, to try and protect them, their homes and their saftey. These five points were:
- Extend the temporary ban on evictions for six months or however long is needed to implement the legal changes below.
- Give residential tenants the same protections as commercial tenants, by protecting them from being made bankrupt by their landlords for non-payment of rent.
- Bring forward the government’s proposal to scrap Section 21 ‘no-fault’ evictions and outlaw evictions on the grounds of rent arrears if the arrears were accrued because of hardship caused by the coronavirus crisis.
- Once evictions are prevented, grant renters at least two years to pay back any arrears accrued during this period.
- Speed up and improve the provision of Universal Credit, as Labour recently called for, and consider a temporary increase to the Local Housing Allowance to help prevent risk of homelessness.
Of the above, it is point 4 that has caused the most controversy. The proposal to only delay re-payment of arrears, and not cancel them has drawn controversy. This has come, not only from the continuity Corbyn section of the party, but also from the soft-left Open Labour faction also. An open letter to the Leadership to change the policy, which has been also drawn the support of some MPs, has now surpassed 5,000 signatures. It calls on the Party to:
- Cancel, at the tenant’s request, payments of rent, for any tenant experiencing any drop in income.
- Cover, at the tenant’s request, utility payments, for any tenant experiencing any drop in income.
- Halt all eviction processes due to failure to produce rent until employment stabilises.
It is point 1, that has cause the most controversy. The Labour Party cannot and should not adopt this policy; to do so would be reckless and dangerous.
Opposition to Landlords is within the Labour Party’s DNA. The argument, in a simplified form (and with which I have sympathy) is that if you have a house to let you have a house to spare – and all you have done is extract profit from the needs and demands of others.
What is also in the Labour Party’s DNA, however, is a respect for the Rule of Law and Human Rights. The Party is a parliamentary cause, of course, not a paramilitary one. It is here that we run into an issue with the proposal.
The European Convention on Human Rights (ECHR) is the basis of Human Rights Law across Europe (and has, I will take this opportunity to highlight, nothing to do with the European Union). Article 1 to Protocol 1 to the ECHR (A1P1) is as follows:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
So, let’s break that down – this A1P1 aims to protect people’s property. Its purpose is to prevent, for example, the government deciding to deprive citizens, any citizens, of their property arbitrarily. There are, of course, allowances and exceptions (for example tax or compulsory purchase orders), but the general rule is that the Government should not act in such a way that would deprive someone of their own, legally acquire property, without good cause. This is quite a wide-ranging protection of property, and it has been held (in European and UK Court level) that ‘rights under a contract’ fall within the definition of “property” [cf. Solaria v Department for Business Energy and Industrial Strategy [2019] EWHC 2188 (TCC)]. The key test in applying ECHR Law in a UK context is ‘proportionality’: Assuming the policy is legislated for, is the action taken proportionate to tackling the issue it aims to address? “Proportionate” requires the law to meet a 4-point test:
- Is the problem important enough to justify interfering with someone’s human rights. [Importance]
- Whether the action taken would address the problem identified. [Connection]
- Could something else be done to achieve the same objective, which interfered less with Human Rights? [Necessity]
- Does the Positive gained through interference with those Human Rights outweigh the Negative caused to those whose rights are interfered with. [Balance]
What the Open Letter calls for is for the ‘cancellation’ of rent due over the period due to ‘any’ drop in income. Firstly, the question is – do we have to care about Human Rights at all. Some have suggested not, we don’t.
These people are wrong. The European Court of Human Rights has long held that rights under a contact can count as property, and, ordinarily, rights under tenancies do. [James & Others v UK; Application No. 8793/79].
We must ask, then, whether this meets the proportionality test. Saying the aim is “preventing homelessness or eviction”, we can say that The Importance and Connection stages of this are uncontroversial; there have been a string of cases that have held that government policies about rent controls are sufficiently connected to the aim of preventing homelessness or tackling social injustice, which is sufficiently important to justify interference with Human Rights. But it is after this, the proposed policy runs into problems.
Can we say that by cancelling rent the government is doing only what is Necessary to achieve the aim sought? This, surely, we must answer ‘no’. The Open Letter answers itself here, there is an alternative to ‘cancelling’ rent here: ‘covering’ it (like it proposed to do with utility bills). The proposal to deliberately deprive people of their income (ill-gotten, undeserved or otherwise) that people have contracted to pay them is more than is what is required to protect them from homelessness. The Balancing section of the test doesn’t need to be considered – but if it did, weighing the gain to tenants (which would be ‘paying no rent’, not more than would be gained under a ‘covering’ rental payments) against the loss for landlords (which could potentially include losing ownership of the property itself, which would not be an outcome under a ‘covering’ model) would suggest the interference is disproportionate.
FOR VIEWERS IN SCOTLAND:
On top of all this, for the Scottish Labour Party to adopt this position would be doubly dangerous as, under s.29(2)(d) of the Scotland Act 1998 all Acts of the Scottish Parliament to be compliant with the ECHR, which, as established, this would not be. If this was to be adopted as the Labour position in Scotland (which thankfully it hasn’t been so far) then we would be supporting a law lacking competence – and highlight that we do the same. A year before an election, that wouldn’t be a great position to be in.
So what could be done, then? There would be nothing to prevent the government paying rent on behalf of tenants, as this would ensure that Landlord’s rights were respected, while still achieving the aim of ensuring that people aren’t evicted. This solution should please everyone, and is (essentially) the Party policy: tenants keep their homes and are prevented from eviction, and Landlords receive the payment to which they are legally entitled. But, I suspect that it is the second part of that sentence that is not pleasing everyone; which takes us back to where we began.
It is often said that it is in times of crisis that we show our true selves – and some have shown that the law is only important to them when it suits them, which when society is being tested, is not a comforting discovery.
The Labour Party isn’t a pressure group, but a parliamentary party that is seeking to become a party of government. If we can’t show that we’re committed to upholding the law, then we wouldn’t deserve it. We cannot just uphold the law and respect Human Rights only when its convenient to us or fits in with our ideology – that’s why we have Human Rights as a fundamental part of our constitution. Sure, we may see our breach as justified and righteous and common sense; but what about the reintroduction of the Death Penalty, which others see as common sense; or the tightening of immigration rules which can result in separated families, which others see as justified? Human Rights are Human Rights, not just when they’re convenient.
There are meaningful steps that both the UK & Scottish Parliament can take to minimise the grotesque accrual of property we’ve seen in cities across the UK and Scotland, but once that property has been accrued, matters become significantly more difficult. There are steps that can be taken, including the introduction of rent controls, which have have been found to be compliant with A1P1, as has security of tenancy and (to a more limited degree) conversion of tenancy to ownership – but when done openly, properly and in the full knowledge of all the parties involved.
That is what is expected and required in a Western Democracy. Anything less is a failure of ourselves.
Paul Cruikshank 