Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021

Lord Wolfson of Tredegar Excerpts

Thursday 18th March 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the Regulations laid before the House on 19 February be approved.

Relevant document: 47th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the instrument before us prevents enforcement agents—bailiffs—attending residential premises in England to execute a writ or warrant of possession, except in the most serious circumstances. The House will be familiar with the structure and content of the instrument. Although I will deal with the content of the instrument in due course, I want to begin with its duration, because that matter was raised by several noble Lords in the debate we had on 2 February about this SI’s predecessor.

This instrument applies to enforcement action in England and will be in force until 31 March this year. It extends restrictions on the enforcement of evictions that have been in place since mid-November. The current SI expires on 22 February. On 2 February, when we debated the previous statutory instrument, a number of noble Lords raised concerns that the ban was not in place for long enough and that both landlords and tenants would benefit from greater clarity about how long the restrictions would be in force. We have had to balance that need for clarity against an ongoing and changing pandemic, but we have listened to the views expressed by noble Lords. On 10 March, the Government announced that we intend to extend these protections until 31 May, and we will lay legislation to do so shortly. So although the formal position is that this SI takes us up to 31 March, the legislation we will bring forward, as we have already announced, will give people clarity and assurance until 31 May.

That 31 May date is broadly in line with the roadmap out of lockdown. Noble Lords will need no reminding from me that step 3 of the roadmap will be taken no earlier than 17 May, following a review of the data as it appears at the time. Step 3 sees a number of restrictions lifted, including the ban on domestic overnight stays, which is relevant in this context. Noble Lords might ask why the proposed date is 31 May and not linked to step 4, which is scheduled for no earlier than 21 June. The short answer is that we have to remember, when looking at 31 May, that in most cases, bailiffs are now required to give 14 days’ notice of an eviction. In practice, protection from enforcement of evictions will be afforded, in most cases, until mid-June. We believe that that strikes the right balance in the circumstances.

The substantive provisions of the instrument are the same as in the one we debated on 2 February, apart from the duration, which I have already addressed. As I set out on 2 February, the Government have put in place unprecedented financial support to protect renters directly through measures such as these regulations and increasing the local housing allowance rate to the 30th percentile of local market rates in each area. We have made £180 million available to local authorities in discretionary housing payments. Of course, there is also the furlough scheme, support for the self-employed and bounceback loans.

While I will not go through the detail of that again, let me highlight two provisions in the Budget that are relevant in this context. First, as noble Lords will be aware, the furlough scheme was extended until the end of September. Secondly, the support for the self-employed was extended in scope—600,000 people who were not previously entitled are now entitled—and duration, to the end of September. We continue to provide limited exemptions from the ban on enforcement. They are, as previously set out, broadly as follows: where the claim is against trespassers who are persons unknown; where the order for possession was made wholly or partly on the grounds of antisocial behaviour, nuisance, false statements, domestic abuse in social tenancies or substantial rent arrears equivalent to six months’ rent; and where the order for possession was made wholly or partly on the grounds of the death of the tenant, and the enforcement agent is satisfied that the property is unoccupied. Those exemptions are applied by the court on a case-by-case basis.

The critical point is that given that broad sweep of financial support, we consider it unlikely that a full six months of arrears would have accumulated solely because of the effects of Covid-19. Rather, where that exemption applies, it will likely involve significant levels of rent arrears that predate the pandemic, where landlords may now have been waiting for over a year without rent being paid.

In addition, where the court applies an exemption, bailiffs have to give tenants at least 14 days’ notice of an eviction in most circumstances and have been asked not to enforce evictions where a tenant has symptoms of Covid-19 or is self-isolating. In addition, we have introduced a requirement in the Coronavirus Act that landlords in all but the most serious circumstances must provide tenants with six months’ notice before beginning formal possession proceedings in court.

Previously, in Section 21 cases, two months’ notice was needed, and other grounds required as little as two weeks’ notice. The requirement for longer notice was to apply until 31 March, but the Housing Minister laid an SI last week to extend that period also to 31 May. Extending the notice period obviously gives additional protection to tenants. Taking this in the round, that requirement to provide six months’ notice in the majority of cases means that most renters now served notice by a landlord can stay in their homes until September 2021. Our statistics show that the number of possession cases has fallen significantly. In the last quarter of 2020, they were down 67% compared to the same quarter the previous year.

In the limited time I have, I want to take a moment to express my gratitude to the Civil Procedure Rule Committee for addressing the challenges the coronavirus pandemic has caused the justice system and for the considerable work done at some pace by both that committee and the working party under the chairmanship of Sir Robin Knowles. Since I mentioned the judiciary, I extend my respectful welcome to the noble and learned Lord, Lord Etherton, a former chancellor of the High Court and, more recently, Master of the Rolls. Like all noble Lords, I look forward to his maiden speech later in this debate.

So far as the courts are concerned, temporary arrangements remain in place to ensure appropriate support. We have introduced new review stages and a requirement that cases have to be reactivated, and we are piloting a new, free mediation service until August this year. We are conscious that we also have to think about landlords. We consider that the best way to protect landlords is to provide the financial help we have been providing to help renters pay their rent. We are grateful to landlords for their forbearance during this unprecedented time, and we encourage all renters not only to pay their rent but to have an early conversation with their landlord if they are in difficulties.

This instrument provides tenants with protection from eviction up to 31 March. We have announced that we will bring forward legislation to extend that to 31 May. We are trying to strike an appropriate balance during an unprecedented public health crisis to avoid placing additional burdens on the NHS and local authorities. For those reasons, I commend these regulations to the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I should have added that there is time in this debate for the maiden speaker to have a whole extra minute and the welcomer a whole extra 90 seconds if they wish to be so indulgent.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I fear that the somewhat innocuous title of these regulations ought to have a health warning below it along the lines of “Light blue touchpaper and stand well back” because some of the speeches have taken us far and wide.

Let me start with some of the central points. The noble Lord, Lord Hain, said that we live in a police state. We do not. We live in a state with police. I assure the noble Lord and the House that, as I have said on a number of occasions, the rule of law runs through me like “Blackpool” runs through a stick of Blackpool rock. I acknowledge the importance of protest; we will debate that issue in other Bills. I assure the noble Lord and other speakers that that is not an issue so far as I am concerned.

As I have mentioned the rule of law, I want to take a moment again to welcome the noble and learned Lord, Lord Etherton. I regret that he had such limited time for his maiden speech, although at least he got to the Chamber—I was stuck in Grand Committee. He made two points in the short time he had. First, he used the word “unique”. We are indeed living in unique times and must have unique responses. Secondly, he talked about a cross-sector working group. Indeed, a number of the points made by noble Lords in this debate show that what we are talking about is not just a Ministry of Justice issue; it is really an MHCLG issue, and a number of the issues will have been heard by that department. I will personally make sure that they are passed on because, although the Ministry of Justice is responsible for courts and procedures, underlying housing policy, which a lot of contributions have gone to, is not the responsibility of my department. However, the noble and learned Lord, Lord Etherton, is right that, in this area, as in so many areas of government—in my short time here, I have realised this—the acronym OGD, standing for “other government departments”, is about the most important acronym there is. In fact, it seems that all acronyms in the Civil Service are three letters. It loves its three-letter acronyms. I might start calling them the TLAs.

My noble friend Lord Cormack and other noble Lords made another broad point about the way we deal with coronavirus business in this House. I say with great respect that that is well above my pay grade, not least because my pay grade is an unpaid pay grade. I am sure that that point will have been heard by the relevant authorities, but I hope that my noble friend Lord Cormack and others will forgive me if I do not respond to them particularly.

My noble friend Lord Lilley made a broad point about the pandemic measures. In so far as I was included in his charge of palpable nonsense, I respectfully but firmly disagree. What we are seeking to do here is within the public health regulations. We are seeking to provide a balance between the undoubted needs of renters and the undoubted demands of landlords.

Turning to some of the points that are more relevant to this SI, the noble Lord, Lord Shipley, asked about short extensions. That is why I indicated to the House—clearly, I hope—that we will extend this to 31 May. I assure my noble friend Lady McIntosh of Pickering that there will not be a gap. We will ensure that the regulations are seamless.

Why do we not want to put a loan system in place? It is because we do not think that adding more debt is the way out here. We prefer to proceed as the Chancellor has proceeded by giving non-repayable finance to renters and enabling landlords to benefit from such things as mortgage payment holidays, which are available until July.

My noble friend Lord Bourne of Aberystwyth— I am also a former tenant of Gray’s Inn, though I should make it clear I was not evicted—asked whether we are putting something in place for the long term. That is, as I have said, a matter for the Ministry of Housing, Communities and Local Government, but I assure my noble friend and the House that, while it is always a pleasure to speak from this Dispatch Box, I do not want to have to come back time and again with Groundhog Day regulations either. That is why I have done my best to ensure that everybody now has visibility until the end of May.

I will pass on to my colleagues at MHCLG the proposal from the noble Lord, Lord Best, that housing could be sold to social housing landlords.

The noble Baroness, Lady Tyler of Enfield, said that stamp duty helps homeowners; it helps homebuyers, and the reasons for the stamp duty holiday were set out in the Budget. We are trying to maintain a fair balance here between renters on the one hand and landlords on the other. In that context, the point made by the noble Lord, Lord McCrea of Magherafelt and Cookstown, is absolutely right. Evictions are the last resort, which is why we have structured the exemptions in the way we have. The exemptions list is designed to ensure that evictions take place only in cases where they are really required.

One exemption, as the noble Baroness, Lady Greengross, said, is the six months of arrears. As I said in opening this debate, those arrears must be looked at in the context of the unprecedented financial support that this Government have provided to renters.

The noble Baroness, Lady Bennett of Manor Castle, said that we are playing fast and loose with the law. I assure her that that is the last thing I would allow to happen. She may disagree with my views on legal matters, but I can assure her that respect for the rule of law is, as I have said, part of my very being.

Ultimately, as a number of noble Lords mentioned, including the noble Lord, Lord Carrington, we have a balance between renters and landlords. He was right to highlight small landlords. Although I take the point made by the noble Baroness, Lady Grender, that some landlords own a number of properties, there are vast numbers of landlords who own only one or two properties and look to the income from them to pay their outgoings and, for a number of people, their pension income. Although I heard with respect the passionate speech of the noble Baroness, Lady Ritchie of Downpatrick, she looked at it only—I say respectfully—from the point of view of renters.

Our measures have had significant results. The noble Baroness, Lady Grender, said there were over 500 eviction orders in the last quarter of 2020, but that must be compared with the last quarter of 2019—a normal quarter—when there were 22,444. These measures have had a very significant impact. As this debate has shown, I am assailed on the one hand by renters for not doing enough and on the other by landlords for not considering their position. In response to my noble friend Lady Altmann, I am afraid we do not see overseas landlords coming home as a special case; their right to possession will have to be found in the regulations as they are set out.

I conclude the time I have available on a more positive note. A number of speakers mentioned the mediation scheme. Mediation is quite new to our system of law but, in the time that we have had it, it has proved its worth time and again. This is only one area where I am confident that mediation schemes can in many cases achieve far more than a formal court process, and I am proud that we have started the pilot. I confirm that we will look at its results very carefully to see whether we can roll out mediation not only in these cases but across civil justice much more broadly. My experience from my previous incarnation as a practising lawyer and the materials I have read as a Minister show that, in many cases, mediation enables people to resolve their disputes and vindicate their legal rights in a better way than a formal court process can.

In the short time still available, I will respond to a couple of points which I have not yet referred to. When at university, the noble Lord, Lord Bilimoria, squeezed a five-hour essay into two hours’ preparation; today he squeezed a five-minute speech into the two minutes he was allotted. He highlighted the balance we are seeking to draw, and that is the response I give, with respect, to the two Front-Bench speakers, the noble Baroness, Lady Grender, and the noble Lord, Lord Ponsonby of Shulbrede. We will look at what other parts of the country do; I am a great fan of Scots law and will impress on my MHCLG colleagues that they should look at Scotland and other parts of our United Kingdom for answers on this as well.

I assure the noble Lord, Lord Ponsonby, that there is work on what he calls a long-term plan. It is not for me—a mere humble Ministry of Justice Minister—to reveal on a Thursday afternoon the details of that plan, but I am conscious that it is being worked on. Of course we do not want a cliff edge. We need to work out what the response will be from 31 May onwards.

Given the time, I hope that the House will permit me to respond in writing to the points I have not been able to deal with orally. I apologise to those speakers to whom I have not been able to respond personally. I acknowledge the strength of feeling across the House which goes beyond these regulations but, if I may ask the House to focus for a moment on these regulations, I commend them to the House and beg to move.

Motion agreed.