Tuesday, 31 December 2013

The new Black Acts

It seems we may be entering a new Georgian age. The 18th century is famed for the number of property offences for which the punishment was death. Poaching is most notorious, but a range of other more minor crimes also attracted a capital penalty. As we enter 2014, we seem to be recriminalising offences against property- matters which have perfectly well been protected by civil sanctions previously. The Prevention of Social Housing Fraud Act 2013 is the most extreme example, making it a criminal offence to sublet your council house. It seems that eviction was not bad enough. Now, with the imminent implementation of the Tribunals, Courts & Enforcement Act 2007, another new offence arrives. Under Sch.12 para.68 of the 2007 Act it becomes an offence to interfere with goods taken into control and to obstruct a bailiff. The former replaces the longstanding- if redundant- offences of rescue and poundbreach. The second offence is new and its scope is as yet uncertain. Comparing the new misdemeanour to obstruction of a police officer, it seems likely that the conduct likely to constitute this offence will involve matters less than assault and battery- for which sanctions already exist- and may include nonviolent obstruction, lying, abuse and unhelpfulness. It is interesting to speculate how much this may effect future protest movements- and how much it was intended to inhibit protest. Objections to government policy (especially, of course, tax policy) has often manifested itself through tax refusal. Henry David Thoureau writing On the duty of civil disobedience said that refusing taxes was the "simplest, most effectual, ... the indispensablest mode" of resistance. "This in fact is the definition of a peaceful revolution, if any such is possible." Protest by means of resistance to bailiffs has been fully described in The Victorian bailiff, Distraint and discontent and, most recently, Weapon of authority but I shall illustrate this theme by one further, if rather extreme, example. In 1914 the East London Suffrage Federation proposed a rent strike as a way of demanding the vote for women. In support of this campaign they organised a People's Army. In the context of paramilitary forces forming in northern Ireland at the time, this might have eemed slightly less remarkable than it does now, but it was still a challenging action. The Army drilled at Ford Road, Bow and promised to defeat bailiffs sent to break the strike: if intimidation of landlords did not succeed, and the brokers were put in, "they will rescue the furniture and carry it home in triumph..." (The Syndicalist vol.III, no.1, Jan.1914 p.1; The Woman's Dreadnought Advance issue, March 1914 p.8). If such direct action failed, the Army promised to attend sales, pack the auction rooms and bid a penny per item so as to "baffle the bailiff." The rent strike and action against bailiffs were "The Working Women's Weapon." Despite these brave words of Sylvia Pankhurst, this particular campaign never took off. In fact, the greatest success of the ELF was lobbying against individual distraints during the First World War (Woman's Dreadnought no.25, Sept.5th 1914 p.1)and generally campaigning on behalf of the vulnerable suffering as a result of the conflict. Nonetheless, it is clear that such actions today, even if no violence of any description is provoked, will potentially lead to prosecutions of dissenters, a penalty for their dissent alone. How much the new offence is utilised- and how much it effects the future of civil disobedience- remains to be seen...

Wednesday, 8 May 2013

The dialectics of distraint

Researching the use of distraint for harbour dues etc, (for which see Powers of distress 2009) I came across material also on the use of distraint during the industrial revolution (see The Victorian bailiff- conflict & change c.1), which set me thinking too about the use of distraint as described in Weapon of authority chapter 4.

In the case of Swire v Leach (1865) Serjeant Sandars, appearing as counsel for the plaintiff, argued on appeal that "The right of the landlord to distrain for rent is an exception on the common law of England."  Is this true?

If we consider the granting of powers of distraint to railway and canal companies- as well as to private ports and markets- it seems that this statement is incorrect.  The landlord's right of distraint may have been the first devolution of the state's powers of execution onto a private individual, but the later grants by Parliament are a similar privilege allowed to newer forms of capital.  Just as property in land was favoured with extra-judicial rights, so property rights in industrial enterprises received a similar beneficial treatment, so as to encourage and assist them.

It may be argued that these rights of seizure for toll etc are more akin to distress damage feasant- which may be true- but then, that too is a privilege of the owner of property.  Another interpretation of these instances might be this:  In Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B&A 792 Lord Tenterden CJ characterises these statutory rights of distraint as the result of a bargain with the public.  The beneficiary acts in the public interest, performing a public function, and consequently is given the advantage and encouragement of the use of devolved state rights.  The capitalist ventures his time and resources; this is supported by the Crown which lends its authority to the endeavour.  This a more benign representation of the agreement, but we are still dealing with certain individuals and interests being privileged with rights of self help outside the judicial system for the purposes of enhancing private enterprise and profit (as well as, if not equally with, providing a public benefit).

Many of these private rights of execution have since lapsed, but they still persist in the hands of some private ports and market operators, so the landlord's right is still not unique. All remain examples of state power delegated to private hands.

Wednesday, 3 April 2013

Cameron's poll tax has arrived

The beginning of April saw the replacement of council tax benefit by council tax reduction schemes in every local authority.  The new schemes are not 'benefits'- they are regarded as an extension of the various exemptions and discounts that applied already to the tax; secondly, they are local, not national, so that every council's arrangements will be different in detail.  One thing does apply nationally, though, and that it the fact that everyone will have to pay something.  Previously council tax benefit covered 100% of the liability for those on certain benefits such as Job Seekers' Allowance and Income Support.  Now they must pay a minimum contribution of at least 5%- although their income has not gone up to assist with this.  In fact, as we know, benefit rises have been reduced.

This measure cannot be viewed alone.  It must be considered alongside the bedroom tax and the benefit cap. The impact of these will be to require low income tenants to also contribute extra sums out of their subsistence incomes to cover rent no longer covered by housing benefit.  The benefit cap seems particularly unjust: the major proportion of most weekly benefit payments are housing benefit.  That money, of course, goes straight to landlords to pay their rents.  The weekly benefit entitlements sound enormous, but this is misleading as it is the landlords, not the tenants, who are gaining.  In the present overheated private rental market, it is unrealistic to suggest that tenants can easily move- or move to any cheaper accommodation- and certainly improbable to imagine that most private landlords will negotiate lower rents.  If the HB bill is too high, cap rents- don't punish the consumer!  But that is not how the government has decided to solve this problem.  It seems that they have never heard of "fair rents" or recall the role of the local authority rent officer in fixing a maximum reasonable rent for a property.  That would have been the proper way to address the problem.  Instead, tenants are asked to find money from the sums paid to them for food and fuel to cover large contributions to top up the HB. 

So, what will be the effect?  Well, what would you pay if you had to choose: your rent (or face certain eviction) or your council tax (and face a liability order and a bailiff's visit- when you don't have to let the bailiffs in)?  Any rational person will pay the landlord and not the new council tax liability.  Money will be extremely tight and very difficult choices will be involved, but this is what many advice agencies will have to be telling clients.

What will be the impact for local councils?  They will see rent arrears rising from those hit by the bedroom tax but trapped in their current accommodation; they will see CT arrears rise as people prefer rent over tax.  In addition, as the schemes for reductions have been devised locally at great cost to each council, there will probably be many initial appeals to the Valuation Tribunals to challenge the details and workings of these new regimes.  These will clog up the system and incur substantial expense for local authority staff.

More work for bailiffs, then, but tiny debts owed by people who are desperately short of money.  Nice one, Dave.

Tuesday, 29 January 2013

Fancy a consultation?

At last, we have received the Ministry of Justice response to the consultation issued last year on the implementation of the Tribunals, Courts & Enforcement Act, passed in 2007.

Is there a government department which moves more slowly than MoJ?  Is there a government department which, after such a delay, can produce so little?  What are we promised?  The response is as follows:

  • action to deal with 'aggressive bailiffs.'  This phrase is an invention of the Coalition and does not relate to the reality of day to day experience.  For example, we are told that bailiffs will not be able to force entry at night (I can think of one complaint received in 26 years) and will not be able to enter when only children are present (also, one case in 26 years).
  • we are offered the existing provisions of the National Standard as if they were some innovation;
  • we are (suspiciously) promised 'a set of simple rules' on bailiff procedure.  Is this just more spin and blather or is it a genuine reflection of MoJ intentions?  The draft regulations produced for consultation a year ago were very far from "simple."  They were a nightmare of complexity in places, a fault which was largely the result of the government trying to reproduce all the exceptions and complexity of the present law.  For every rule, different rules applied to the HMRC and to HCEOs.  Why?  More than a decade ago we were promised a single piece of bailiff law.  Instead, last year's draft preserved the status quo- for the simple reasion that the government benefits from the status quo.  Perhaps radical reform is now intended, after all; or perhaps we are just dealing with simplification and attractive headlines for the benefit of the press;
  • we are offered a single simpler fee scale.  This is welcome as fees are the source of so much contention.  That said, the new scale is unlikely to prove popular with debtors and debt advisers because of the substantial increases in fee envisaged.  Simplicity and modernity come at a price, it seems, and the final fees will probably turn out to be somewhat higher than those discussed a few years ago.
What we know for sure is none of this will happen very quickly.  What we are promised is more discussion.  Over the last 15 years we have had working parties on certification, on revising the rules on court bailiffs, on rewriting the current law and on the new qualifications for enforcement agents.  All of these have involved extensive consultation with stakeholders.  The government knows pretty well what all the concerned parties want.  Despite this, we are to have two more working parties to look (again) at the rules and fees and to look (again) at qualifications and training.

New law in force in 2014, anyone???