This, the second post on the riot related possession proposals (the first is here), looks at an article published on the ConservativeHome website by Jake Berry MP, Parliamentary Private Secretary to Grant Shapps, and Tory MP for the gritty urban constituency of Rossendale and Darwen in Lancashire.

OK, that last bit may be a bit of a fib, but the roads, lanes and bridle ways of Rossendale and Darwen are, it would seem, not without tensions.

“The community in Rossendale and Darwen is strong, with the glue of fantastic schools, strong churches, youth clubs and community groups binding us together. Even with our strong society, we have to acknowledge we have large groups of people who do not feel they are part of this. This was evident from the riot in Bacup.” (source) [Bacup had a population of 15,000 in 1971 and hasn’t grown much].

Given the life on the edge lived on the streets of Bacup, Mr Berry welcomes tougher curfew conditions:

“These tougher curfew conditions will keep offenders in Rossendale and Darwen off the street for longer, stop them socialising in the evenings and keep them away from situations that could land them in trouble again.” (source). [Bacup had the lowest crime level in Lancashire in 2005]

I must tear myself away from the constituency website, as it is not Mr Berry’s views on the glue of strong churches and curfews in Bacup and Rossendale that concern us here, but before leaving I noted that, amongst other ‘social experiments’ leading to social breakdown (although it is still the parents’ fault), he cites ‘selling council houses’. What would Margaret think?

Mr Berry’s article is headlined “Booting out looters, muggers and arsonists is the social contract in action“. To be fair, it is probably not his choice of title, it has the smack of the sub-editor to it. But it does let us know that what follows intends to be what might be generously called a philosophical justification for the DCLG proposals on mandatory possession and for removing the locality condition in the discretionary ground for riot related offences. It has been lauded by Grant Shapps, so we might have justification for taking this to be an expression of the philosophy that is supposed to underpin the proposals.

Therefore it is in the spirit of an analysis of philosophical argument and rhetoric that I shall approach the piece. My comments, like Mr Berry’s article itself, are unsullied by such sordid concerns as evidence and practical outcomes (with one exception, where Mr Berry makes a factual claim, so I must, alas, likewise resort to facts).

In case you have trouble distinguishing between us, the article is in block quotes and my comments are in normal text.

In the light of disgraceful looting and rioting across England last week, it is absolutely right that the Coalition Government should come forward promptly with proposals for stronger housing sanctions against those who choose to wreak havoc in people’s communities. At the heart of the motivations of those criminal looters, muggers and arsonists was a nihilist view – of being immune to any real consequence of their deeds, and lacking any sense of social responsibility for their actions.

While this is but the opening paragraph, our theme is clear. Some bad people have done bad things and don’t care that good people have been hurt by that. Mr Berry takes two daring steps. First to impute a philosophical viewpoint, even a Nietzchian weltanschauung, to the rioters (although actually I think he confuses solipsism with nihilism. The latter view wouldn’t deny consequences to actions, just whether those consequences were based on an objective moral authority). Secondly, while a conventional moralist or jurisprudentialist would see these deeds as being an issue of criminal law, Mr Berry boldly links them with civil sanctions of deprivation of housing. The stage is thereby set. Looters are bad people, probably holding views derived from continental philosophy. They shouldn’t have houses as a consequence.

Tougher eviction powers are not a knee jerk reaction; rather they are another marker of this Government’s consistent commitment to better balance the rights of victims with the rights of those who inflict misery on their neighbours and whole communities.

The consultation on the mandatory ground was issued on 3 August. It was then re-issued with the new amended ‘removal of locality’ proposal on 15 August. In between those two dates, the riots happened. The new proposal was not contemplated on 3 August and is included 12 days later, while the riots took place on 8 August onwards. It is a bold leap to characterise this timetable as considered, but Mr Berry is equal to the task. We should note in passing that the ‘balancing of rights’, a phrase that pre-judges whether there is already a balance or not, is between ‘victims’ and those ‘who inflict misery on their neighbours and whole communities’. One is therefore led to expect that the powers will be concerned with protection of victims and prevention or punishment of perpetrators. Who could not want this?

As a housing lawyer prior to my election to Parliament, I have seen first hand the immense disruption and upset caused by the small number of people who are unwilling to function as responsible member of their community.

Ah, the argument from experience – one I am embarrassed to say I use myself, although at least flagged as being such and therefore doubtful. But here we have a factual statement – the only one in the article – so we must make a small detour into the realm of fact.There is a simple assertion that Mr Berry was a housing lawyer before his election in 2010 and that in the course of his practice he encountered first hand people affected by ASB. On his own site, he states “until I won in the 2010 General Election, I was a lawyer practising in housing law”. So that is up until his election.

Mr Berry, now 32, was a solicitor at the late (and apparently largely unlamented) firm of Halliwells LLP in Manchester until his election in 2010 (bloody good timing to leave, one might add). Which raises a question or two about being a ‘housing lawyer’. Halliwells certainly didn’t have a legal aid housing practice, or even a residential landlord and tenant practice that I have been able to discover. Halliwells don’t even appear to have had a ‘housing management’ practice for RSLs/LAs, which I would count as housing law. Given the disappearance of the firm, it is hard to tell and so I am open to correction, but I have asked questions here and there without anything to the contrary coming up.

A wikipedia entry describes him as having been a commercial property solicitor at Halliwells. A Daily Telegraph profile note states “Jake Berry’s area of expertise is commercial property with a focus on social housing, PFI and development law”. Jake, just because there were houses involved does not make it housing law.

I have asked Mr Berry – via Twitter, admittedly – to tell me about his role at Halliwells and to say what his professional housing law experience was, because I was going to be writing about his article. Sadly, I haven’t had a response.
I’ve just realised – my fault entirely – that there is no chance Mr Berry would have seen my questions via Twitter. So I’ve emailed him.

So the available information suggests that Mr Berry did not practice as a housing lawyer at all, and that it is somewhat doubtful that he had first hand experience of cases involving ASB in his practice as a solicitor. If this is not the case, then I am happy to receive a correction giving details of Halliwells’ housing practice and Mr Berry’s professional involvement in housing cases. As it stands, the only real factual assertion in the article isn’t looking good.

Earlier this month, the Department for Communities and Local Government published a consultation on a fast-track mandatory power of possession. This would apply where tenants had already been convicted by another court of a serious housing-related offence, had breached an injunction taken out against them by their landlord, or had their property closed because of the criminal activity taking place within it. This would help landlords with their existing powers of eviction where tenants or their children commit anti-social and criminal acts in the vicinity of their home.

And here, slipped in, is the first suggestion that it is not just malefactors that may be evicted. The ‘balance’ we had been pointed to between victims and offenders appears to have been shifted a bit, to include the parents of ‘children’ committing ASB. But parents are responsible/to blame for their children, so fair enough. Strangely, there is no mention of adult children, others in the household or visitors. But grey areas have no place in a moral case for mandatory eviction. Mr Berry seeks to make the argument without getting distracted by mere details like culpability, involvement or control, so we should not fault him. Once the principle is established, the rest is mere detail.

It is already the case that where tenants are evicted for anti-social behaviour, it is very likely that they will be deemed to have made themselves intentionally homeless and therefore the local councils will have no duty to provide new settled accommodation. Councils from across the political spectrum, including Hammersmith & Fulham, Greenwich, Nottingham, Salford, Wandsworth and Westminster have already pledged to use these eviction powers against such ‘neighbours from hell’ in the last week.

One must admire the effortless ease with which Mr Berry makes a popular culture reference, although still insisting on scare quotes to protect himself from being believed to actually watch such programmes. However, given that these powers have existed for many years now, this pledge may seem a little tardy, indeed knee-jerk, on the part of the councils, at least if one hadn’t already been told jerkiness of knees was not involved. Unless perhaps Mr Berry refers here to the new proposed powers, in which case there are some questions about their retrospective effect and about the clarity of his sentence construction to be answered.

However, where a tenant or a member of their household decides to wreak havoc in someone else’s community, those powers of eviction do not currently apply. This leaves open a significant loophole to ‘crime tourism’ – a criminal sidestepping such sanctions by simply travelling down the road to commit crime in a different neighbourhood.

And as the article goes on, wider still the net becomes – now it is not just the tenant or their children, but a member of their household that brings down ire on the tenant’s head.But this little extension of responsibility vanishes entirely in the glare of Mr Berry’s triumphal casting of the current grounds for ASB related possession as ‘a sanction’. The promise of his first paragraph is redeemed and magnified, for now criminals are escaping through a loophole! Criminals sidestepping is just a bad thing, no matter what it is they are sidestepping, and loopholes are also bad (unless they are about tax avoidance and overseas domiciles). So this is doubly bad. And it happens just by travelling down the road! A literally stunning confabulation of the principles and functions of civil and criminal law, with a loophole by means of a bus pass thrown in – a masterstroke.

The Government is now proposing to extend landlords’ powers to seek possession where tenants have committed such crimes beyond the locality of their property. I am confident that the vast majority of people think that it’s right that landlords can seek to evict a tenant where they ruin the lives of those living around them.

Oh dear. Perhaps Mr Berry has peaked too soon and exhausted himself half way through. Not only does he have recourse to the device of the ‘majority of right thinking people’, that being a tawdry geegaw of the desperate in the sixth form debating society, but if one is to justify scrapping the ‘locality’ condition, it is best not to justify it by the eviction of a tenant ‘where they ruin the lives of those living around them’. That is the existing law, Mr Berry. Do keep up.

It is important to remember that the provision of social housing – subsidised rents with long or lifetime tenures – is a privilege not an inalienable right.

Mr Berry still struggles to regain his form. A false opposition (for who claimed social housing was an inalienable right?) is another device of the desperate debater. If one term is simply invented – the inalienable right – then the other – the privilege – appears equally made up. A poor move.

Critics of these plans demonstrate an imperfect understanding both of the Government’s proposals and the application of human rights to the termination of tenancies.

Do tell more. As a critic, I wait for my understanding to be perfected.

Under our proposals a landlord seeks possession against a tenant on the basis of a conviction for a crime committed away from the locality of their home, the courts would have to, just as they must at the moment, consider whether it is reasonable to grant possession. But this is stating the obvious: every legal case should be considered on its merits, and everyone has a right to a fair trial.

As a long term abuser of the phrase ‘Of course’, I have a certain admiration for the way Mr Berry slips in ‘this is stating the obvious’. The gulf that this phrase covers – what would or could be weighed in the balance in deciding whether a possession order was reasonable – I discussed in the previous post, so, as a critic, I do not feel that my imperfect understanding has yet been demonstrated. Nevertheless, Mr Berry has improved. The use of ‘obvious’ leading to the insistence on consideration on the merits and a fair trial smoothly glosses over the problems of a mandatory ground for possession, where consideration of merits and a fair trial are not the same thing at all.

But I don’t accept the counsel of despair that says that tenants who have caused mayhem near someone else’s home rather than their own will never be evicted. That’s not my reading of reasonableness.

Jake (forgive the informality, I feel like I have spent some time with Mr Berry at this point), despite his housing law experience, rather presumptuously puts his own (‘common-sense’, no doubt) view of what is reasonable in the place of the Court’s. Because Jake sees no problem with reasonableness, there is no problem. I believe I mentioned solipsism earlier.

Nor do I accept the contention that human rights law and considerations of proportionality mean that tenants who have caused misery through their anti-social and criminal behaviour means that they are protected from eviction, even where the landlord has an unqualified right of possession in domestic law.

Perhaps I was wrong to doubt Jake’s housing law credentials. This masterly summation of Pinnock has made me think again. Although there is at least one too many ‘means that’ in there, this is mere grammatical nit-picking.The elegant use of ‘unqualified right to possession’ asserts Jake’s familiarity with the law, even though it has nothing whatsoever to do with the proposed removal of the ‘locality’ condition. Deploying an impressive irrelevance is a difficult skill to learn. Youngsters, take note from Mr Berry.

The Supreme Court has emphasised in recent judgments the strong presumption that, if local authority landlords have followed proper procedures it will normally be proportionate to make a possession order. The court will give a lot of weight to the local authority’s legitimate aims in seeking possession. The threshold for a successful Article 8 challenge is extremely high and will only rarely be made out.

And the use of the impressive irrelevance is taken to new heights! None of this is relevant to any article 8 challenges to the proposed new law, which will likely focus on lack of justification under Article 8(2), but Jake has claimed the support of the Supreme Court nonetheless.

Indeed, rights cut both ways. Article 8 explicitly states that public authorities can intervene in the interests of public safety, for the prevention of disorder and crime and for the protection of rights and freedoms of others. Law-abiding citizens have a right to conduct their lives and run their businesses without fear of being burgled, mugged or their homes and properties ransacked or set ablaze.

But has Jake forseen the objections? I feel we may be building up to an article 8(2) justification in protecting the rights and freedoms of others. Was his apparent lack of understanding of the relevant law merely a feint? Was Jake just toying with us, before landing the knockout blow?

Tougher eviction powers will provide a real deterrent against future crime. And once such criminals are evicted, a social home will be freed up for a deserving, law-abiding family on the waiting list.

Oh. Is that it, Jake? ‘Deterrence’ is the best you can do? In view of the scale of deterrent effect that ground 2/14 clearly had, or rather didn’t, on the recent événements, this is not convincing. They weren’t all using their bus passes to go through the loophole, you know.As a general rule when one is building to a rhetorical climax, it is as well to have some climactic point to make, or at least a dramatic flourish. Otherwise the result is bathos. A grandly rising thought that punctures itself, as Alexander Pope had it. People tend to point and laugh.

With such lists having almost doubled to 1.8 million under the Labour Government, this will obviously just be a tiny step in the broader mission of increasing access to social housing to those in need. But it is the social contract in action – the state giving a helping hand to those who play by the rules, and withdrawing special privilege from those who wish to harm others in defiance of social responsibility.

A closing flash of erudition and a grasp at a philosophy. But whose Social Contract, Jake? Hobbes – the arbitrary and tyrannical rule that alone can prevent the war of all against all? Locke – where the state as neutral judge arbitrated between the natural rights of its citizens? Or Rousseau – direct rule by the people and the law of the collective?

One must be careful of metaphors and where they might lead. If we are to consider contracts, a general rule of contract law is that damages for a breach are limited to the extent of the breach. In the ‘social contract’, it is criminal law and punishment that occupies that role. What Jake and the DCLG seek are punitive damages, over and above the restitutionary scale, expressly pour encourager les autres. I think it is clear which form of the social contract Jake has in mind, it is Hobbes, with Grant Shapps as the new Leviathan. No wonder Mr Shapps liked the article.

Overall – a C+, at best.