Stuart Weir (Cambridge, Democratic Audit): You may well believe that everyone in this country enjoys the basic human right not to be thrown out of their home without a court order. They don't. In October last year, the High Court ruled (in a case involving Horsham Properties) that lenders-banks, building societies and investment companies-were entitled to sell properties, including people's family homes, without having first to go to court for an order, following just a single default on a mortgage payment.
That objective has been achieved as a consequence of the mortgage small print- according to the judge, "conveyancing shorthand"-that is in practically every mortgage deed, and that has a devastating effect on a householder's position. The new owner, possibly an investment company or someone seeking a home, is then entitled to a summary possession order against the householder who is rendered by law a trespasser in his or her own home, which they no longer own. There is no defence in law against that claim.
The potential for grave social and economic distress is huge. Home repossessions resulting from defaults on mortgage repayments are rising dramatically. According to the Council of Mortgage Lenders, 45,000 homes were expected to have been repossessed by the end of last year, and 75,000 this year. Some 168,000 people are in mortgage arrears. The Financial Services Authority (FSA) and the Council of Mortgage Lenders report that more than one million households are likely to default on a mortgage payment in the next year.
The FSA and the Council of Mortgage Lenders have both reported that UK sub-prime lenders have been taking an increasingly aggressive approach to repossessions, and predict that this trend is only likely to increase as economic conditions worsen. Hundreds of thousands of people and their families are therefore at serious risk of being thrown out of their homes, without first having had any opportunity whatever to put their point of view to a judge or to try to persuade the court that it is neither fair nor reasonable to evict them.
Andrew Dismore, the Labour MP who chairs the parliamentary Joint Committee on Human Rights, tabled a ten-minute Private Member's Bill, the Home Repossession (Protection) Bill, on 3 February to amend the Law of Property Act 1925 to protect home buyers. The Bill would require a mortgagee to obtain the court's permission before exercising the power of sale where a dwelling-house is involved and to give the courts powers to protect them.
Dismore told the House of Commons that his Bill would ensure that the court that hears the lender's application will have the power to delay the sale of the property and to give the borrower more time to repay. "It does not guarantee that people can stay in their homes indefinitely if they cannot pay the mortgage, but it does ensure that people have an opportunity to persuade an independent court that it is far too early, or disproportionate, to throw them into the street-with bags, baggage, furniture and kids' toys-at the whim of a hard-bitten property company.
"This Bill is about a very important human right: the right not to be thrown out of one's home without a court order. It is a right that affects millions of people, and it is of even greater importance in times of economic downturn such as these. However, it is a right that we simply do not have in this country." He said that the recent court judgment now allows "unscrupulous lenders to sell people's homes over their heads, without having first to go to court, when even just one mortgage payment has been missed." He paid tribute to the government's own measures to protect home buyers in difficulties, but warned that its new "pre-action protocol" and all the other forms of support were "easily circumvented by unscrupulous lenders" who could now sell properties without first having to go to court.
As Dismore pointed out, it is shocking that in Britain in 2009 basic legal protection for home owners is not already part of our law, especially when human rights law requires there to be such protection. He cited the recent European Court of Human Rights judgment in a case against the UK (McCann v. UK) that the right to respect for one's home, guaranteed by article 8 of the European convention, includes such protection:
"The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end... the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case."
Article 11 of the UN International Covenant on Economic, Social and Cultural Rights, which the UK is signed up to, also protects the right to housing. The UN Committee on Economic, Social and Cultural Rights has interpreted this in its general comments to include a right to due process and appropriate procedural safeguards before people may be evicted from their home. The Joint Committee on Human Rights also recommended in its report, A Bill of Rights for the UK?, that any British Bill of Rights should protect the right to housing, arguing that "everyone is entitled to be secure in the occupancy of their home." And the NI Commission on Human Rights has just advised the UK government that a Bill of Rights for the province should protect a range of economic and social rights, including a right to accommodation.
The political/judicial class in the UK is unremittingly hostile to the very idea of protecting economic, social and cultural (ESC) rights (see my book, Unequal Britain: human rights as a route to social justice), but the recent High Court case demonstrates that there is a need to protect people more widely than the Human Rights Act can against a judiciary that will always put property interests above those of ordinary people. As Dismore pointed out, if the United Kingdom had a Bill of Rights that protected such rights, the courts would not have been able to interpret the law in the way that they did in this appalling case, thus allowing lenders to cash in on their security by selling people's homes without first having to obtain a court's agreement that such a drastic step was proportionate in the circumstances. As things stand, there is absolutely nothing to stop the courts giving higher priority to the rights of banks over the rights of ordinary people.
Three points. Much of the political hostility to protecting ESC rights is that it would give the judiciary unwonted precedence over Parliament on essentially political decisions over social, economic and workplace policy-making. The current crisis shows that a Bill of Rights that protects people in the realm of the judiciary as well; and perhaps those (especially those in the government) who resist wider protection of human rights on such grounds could at once take advantage of their political supremacy over the judiciary by taking on Dismore's Bill (which will be read a second time on Friday 26 June) and making it law. This problem is immediate and it is urgent. The judge in the Horsham Properties case said that it was a matter for Parliament to resolve. In the absence of a wider Bill of Rights, there is no alternative but to try to change the law through his Bill.
Secondly, as Dismore argued, a wider Bill of Rights protecting social and economic rights such as the right to housing, could defend hundreds of thousands of ordinary people against more powerful interests at times of economic hardship. He said, "It shows that human rights are, and should be, universal. They are not a villains' charter; they are for the middle-class professional struggling with a mortgage just as much as for the council or private tenant with rent arrears when each falls on hard times. No one should lose his or her home without good reason, without proper and fair justification, and without an impartial court hearing."
Thirdly, there are MPs like Dismore who prepared to take an independent position on matters of principle.
