Can the Government Ban Evictions to Help with the Cost of Living

As the enormous pressure on ordinary households caused by inflation and fuel price rises starts to bite some have been calling for bans on evictions and various forms of rent control. As some of this occurred during Covid it is not a surprise that it is being called for again. But is it nowhere near as easy to do this as is being suggested. Let’s consider the options.

Longer Notice Periods

One thing that occurred during Covid was substantial lengthening of notice periods for section 8 and 21 notices. However, this was only made possible by primary legislation under the Coronavirus Act 2020. It had sunset clauses in it which have now expired and, in any event the Coronavirus Act could not be used now because it specifically related to Covid-19 and that is not the reason for longer notice periods now. If Parliament, or Welsh Ministers, wanted to do this they could presumably pass legislation. However, I would be surprised if this got through the Westminster Parliament and if Welsh Ministers did it alone they would have to contend with legal challenges seeking to strike down such provisions under the Human Rights Act. More on that bit later on.

Staying Possession Claims

This was actually done during the pandemic by making changes to the Civil Procedure Rules, which govern how the civil court’s handle cases. This is not entirely within the purview of the government as there is a Civil Procedure Rules Committee which makes changes to these rules. During the pandemic the Master of the Rolls wrote to them and told them to change the rules to impose a stay on possession proceedings. They did so although not without a little bit of grumbling as the Master of the Rolls had no real authority to do this. However, in principle the same thing could happen again. Whether the rules committee would do as they were told is a little more in doubt this time and the Civil Procedure Rules are very much subject to being struck down under the Human Rights Act which I mentioned before.

Banning Evictions

The third thing the government did during the pandemic was to simply ban evictions regardless of whether a possession order had been obtained. Initially they did so by the Lord Chancellor writing to bailiff’s and the High Court Enforcement Officers Association and telling them not to execute possession warrants. After being threatened with legal action, as this was unquestionably unlawful, the government then passed regulations to do the same thing. Presumably, therefore a regulation could be passed again now? Well it is not that easy. The regulations were passed during the pandemic under existing public health legislation. That cannot be used is there is not a public health emergency and while the current economic crunch is hugely detrimental to people’s health it is unlikely to qualify. So if the government really wanted to do this then they would either have to do so unlawfully as they did before or pass primary legislation through Parliament.

Human Rights

So back to the Human Rights Act. The government has been less than keen on this recently and has complained about judges overruling the decisions of government ministers. They usually try to say that the judges are overruling the wishes of elected officials while cheerfully ignoring the fact that it is MPs that are elected and that government ministers are actually appointed to serve the Queen as her ministers, rather like judges in fact. However, any legislation that is not a primary Act of the Westminster Parliament is susceptible to being struck down by the courts as a breach of one of the rights enshrined in the European Convention on Human Rights. Acts made in Parliament cannot be struck down, the Courts can merely say they are incompatible and Parliament can, if it wishes, just ignore them. But any Welsh legislation, changes to the Civil Procedure Rules, or regulations banning enforcing possession warrants would be up for challenge.

Landlords are property owners and are therefore protected by Article 1 of Protocol 1 of the ECHR. This prevents them being deprived of their property without proper compensation. Refusal to allow them to re-take possession, especially where the rent is not being paid, would fall within the scope of Article 1. That is a qualified right and so a government can do it if it is a reasonable democratic response to an issue. The question then becomes whether banning eviction and interfering with landlord’s rights in doing so is a proportionate and reasonable response to the cost-of-living crisis. Many people would say it was. But the court will need to consider the wider perspective and whether there are other options that are fairer and more balanced. Requiring landlords to have higher arrears than the current two months level would be a more balanced option but that is unlikely to provide a huge benefit over the longer-term.

Rent Control

Turning to the final proposal, some form of rent control. The problem with this is that rents are largely up because too many people are chasing too few properties. Rent control will not resolve that and as a number of studies have shown may actually make things worse as people who might otherwise have moved out will tend to stay in place to take advantage of a controlled rent. In addition, if rents are capped then how will landlord’s choose between the people competing for their properties. In many cases there will be massive pressure to give “gifts” to obtain properties as has previously occurred in New York.

Conclusion

High rents are largely related to the problem that has been brewing for over ten years as successive governments utterly failed to build sufficient social and private housing to meet future demand. Further sticking plasters will not help here and the only solution is to get serious about housing, have a proper national housing strategy, and then get on with providing the supply to meet the current and projected need. Much as I would like to say there was a quick fix, there really isn’t. Most of the current proposals are unlikely to help and may even make things worse. We need a much more broad-based and fundamental support package and attacking the PRS is not likely to get that.