Look, I have to be honest, this is getting silly now.
On evictions during the now commenced lockdown, the Lord Chancellor, Robert Buckland QC, has once again written a letter to the High Court Enforcement Officers Association (and one has to presume written in similar terms to county court bailiff bodies). Here is the letter.
On the one hand, this is an expected extension of the ‘Tier 2 and 3’ restriction on evictions to the whole of England during the lockdown.
On the other hand, this is a complete farce.
I previously noted the, shall we say, questionable legal status of an ‘eviction ban’ accomplished by a ‘request’ of the Lord Chancellor to the bailiffs’ organisations. This is now a ‘request’ which asks the bailiffs’ organisations to make exceptions for trespasser, ASB, fraud and ‘unoccupied after tenant death’ cases – heaven knows how the bailiffs are to know the ground of possession, as a warrant is based on a possession order which may well not specify the precise ground on which it was made.
And then there is the statement that the Lord Chancellor “will shortly introduce an exemption for cases with extreme pre-covid rent arrears”. Is this also to be done by a letter?
If the rationale for any suspension of evictions is that it is really not a good idea to be evicting people in the middle of a pandemic, then any exemptions don’t make sense. It is not as if the public health rationale is affected by the reason for eviction. People with pre-covid rent arrears don’t face or cause any less of a public health issue on eviction than anyone else. The coronavirus doesn’t rely on references.
But the reason I think this is particularly iffy and indeed dim, in that previously, it was only from a landlord position that any legal challenge to the legality of the Lord Chancellor’s suspension of evictions by letter was likely to come. See for example, this from David Smith, observing (quite correctly, I think):
The problem with the Government’s approach is that it is almost certainly unlawful. It is not open to Bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so. They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.
So far, no landlord challenge has been brought. It may be that the NRLA has parlayed the threat of one into ‘encouraging’ the Lord Chancellor making exceptions. But just as the Lord Chancellor cannot lawfully suspend evictions by a request, neither can the Lord Chancellor lawfully carve out exceptions to his request, on a personal whim, and that might give rise to other challenges.
It has, as I say, got silly. Evictions, or the lack of them, who gets evicted and who doesn’t, are not at the whim and fiat of the Lord Chancellor. This needs to be put on a statutory footing immediately. I don’t know a single housing lawyer, no matter who they act for, who thinks this is lawful.