The Law as it is; and what we need


This is a talk I gave last week to the Focus E15 housing campaign. Their write-up of it is here. It ties what I do in my day job with ideas about how housing should be organised differently, and how far the law can bridge the gap between how things are how they should be.

Let me start with housing. I’m a barrister, which means I’m a lawyer and represents people where they’re in court. I don’t meet clients outside hearings, Solicitors do that. I don’t write letters; I don’t gather documents: solicitors do those tasks too, I show up for the first time at the court hearings, and after the trial you won’t see me again.

Some of the time, I’m trying to get homeless people housed. In those cases you’re always suing a local authority. Since 2013, the governments have been cutting their budgets every year. Something else happened too. During Covid, many experienced housing officers left the work they were doing and the councils have never replaced them. Their absence means is that homeless people are sent decision which make no sense, or which get the law completely wrong. As if the authors were making the first excuse that leapt into their heads, good or bad, to stop them housing the people in the homes they need.

In other cases, we’re arguing about repairs, windows that don’t close, water escaping into the property, or walls thick with mould. Councils won’t do the work, nor will most housing associations. It’s my experience in those cases, that the legal answer’s obvious. Everyone accepts that the landlord needs to make repairs. The landlords are delaying in the hope that tenants will give up, make peace with the fact that their homes are rotting, and the landlords will save money if the work’s never done.

I also represent people threatened with losing their homes. There, I would say, the story is more optimistic. We’ve got the same problem – landlord incompetence – but now it works in the tenants’ favour. Landlords think they can evict a tenant through a section 21 notice, but it’s amazing how rarely they complete all the steps in that procedure. Show me 100 claims for possession based on section 21, and I won’t find ten of them where a landlord has completed all the steps. Tenants win those cases, one after another.

So, what would social justice mean, in housing in London? The first and most basic thing is that we need more homes. That’s the issue in my homelessness cases: local authorities aren’t lying when they complain they have waiting lists of 20,000 or 30,000 people waiting for a proper home. They’re telling the truth when they say they have no spare 3 or 4 bed homes. There are some very obvious reforms that the Labour Party under Corbyn used to talk about: ending the sell-off of council housing, allow local authorities to borrow to build more homes. Any new housing needs to be local authority housing; it is the cheapest and gives tenants the most protection against eviction.

Homes need to be better built. For forty years we’ve been relaxing housing standards, allowing the giant building companies to make smaller and smaller homes, without proper fire safety, and new-build properties with such poor design that of course they’ll leak. Or homes, like the Grenfell towers, where rich Londoners insisted that the council put bright, colourful, plastic sheets around the building’s front, so that all the middle-class homeowners in Kensington wouldn’t need to be reminded of the poverty in which the neighbours lived. And then, of course, it was the cladding that burned.

We need to change the attitude of the landlords. I mean all the landlords. I’m tired of representing tenants in the county court in disrepair cases, where the local authority has ignored the matter for six years and the solicitor has sent them so many complaining letters that when the case is finally before a judge, the solicitor’s bill is £50,000. Yes, the tenant will get compensated too, but I’m talking about the fees claimed by tenants’ solicitors. Think how many hundreds of thousands of pounds each year, millions even, most housing associations and local authorities would save if next time a tenant complained to them, on the first complaint, the landlord said, they’d do the work, with no further prompting.

I’ve seen possession claims brought by landlords who didn’t think about what they were doing but had pound signs ringing in their eyes. They were just thinking that if they could get rid of their existing tenant, how much more rent they could charge. We should say of all private sector tenancies – from now on – so long as the tenant wants to stay there, they have a right to live there for at least ten years. Think of what a revolution that would be if every time a landlord rented out a flat they were thinking. “This isn’t mine anymore. I’ve let go of this property. It isn’t a chance for me to make money, it’s my tenant’s home.”

That brings me on to my third and last topic, the law. Like most left-wing lawyers, I spend much of my time supporting tenants unions, housing campaigns, anybody who’ll organise local residents and bring you all into one room, and fight together for the reforms you need most. But most tenants have no real access to the law.

You can find a lawyer without having to pay if you qualify for legal aid, but most people don’t. If you work and are a single person, you can’t get legal aid if your income after housing costs is more than £800 a month. The government sets that figure as low as it can, to reduce to the minimum the people who are protected.

The law is slow. That’s a good thing if you’re trying to stop possession. Landlord claims for possession can take a year and a half to reach a hearing. But it’s a disaster if you’re the tenant with mould on your walls, and you’re begging for works to begin.

It can feel as if politicians drafted the law to make it incomprehensible to anyone apart from the lawyers and the judge.

Often, when I talk about the law, I’ll be speaking to a room of teachers, professors, even junior lawyers. I’ll ask them how much law they know.

I’ll ask what are the most important terms of their employment contract? What rights do they have, which they could enforce at an employment tribunal but which are missing from their contact? If those right are missing, can they still compel they employer to honour them? How about their obligations to their employer, do they know what they are?

Most people, when confronted with those questions say “I don’t know.” If teacher doesn’t know, if a solicitor doesn’t know what about someone who works in a shop, or is a nurse?

Each of us are bound to each other by mutual duties, the content of which most people don’t know. And yet those obligations are there, and they’re real. They surround us.

The higher you go up the legal system, that sense of the law as unknowable only hardens. Here are a few judges talking about immigration law: they have called it “abstruse”, a “shanty town”, “an impenetrable jungle”. Lord Justice Jackson said that immigration law has “achieved a degree of complexity which even the Byzantine emperors would have envied”. “Immigration law is a total nightmare,” said judge Nicholas Easterman. “I don’t suppose the judges know any more about it than the appellants who come before them.”

As a campaigning group is that you don’t always have to go through the law. Let’s say that someone in your block of flats is being threatened with eviction. Let’s say there’s a date and the bailiff’s are coming at ten o’clock.

Again and again, I’ve represented people and what they till me is they tried to go to the county court to stop the eviction. There were guards in front of the court buildings, they couldn’t get in, they didn’t know if there was a number to phone.

But, if you’re in a block of flats, and you know that on Monday at 10 o’clock someone is due to lose their home, there is nothing stopping a group of you from helping each other, blocking the door. Earn the tenant more time. That can be enough to go back to find a lawyer, go back to court, see if there was a defence available to them.

And then, there are the disputes of the future. Here, in London we’re four days away from the biggest set of co-ordinated strikes this city has seen in years: hospital cleaners, teachers, civil servants, driving instructors, lecturers, train drivers all out together. The government says, if the workers strike, it will change the law – make strikes illegal. Wouldn’t the right answer be to say, if you do change the law, we aren’t going back to work?

Or climate change, does anyone in this room believe the rich would tolerate the strong laws we’d need, to stop them from burning the world?

I hope you get organised. For some you, that will include bringing cases. If it does, I’ll stand with you in court. But the theme of what I’m urging is to organise both inside and against the law.

If any readers are interested in this piece, and what I’ve written about the limits of the law, you might also my book, Against the Law.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s