laspo lords briefing by squash

8/3/2019 LASPO Lords Briefing by SQUASH

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House o Lords Brieng Paperwith respect to the Legal Aid Bill Clause 130

December 2011

IntroductIon

Squash (Squatters Action or Secure Homes)is deeply concerned about the impacts ocriminalising squatting in residential propertieson homeless and vulnerable people, as proposedby Clause 130 o the Legal Aid, Sentencing,and Punishment o Oenders Bill. We believethat Clause 130 is unjust, unnecessary, andunaordable, and call on the Lords to opposeits inclusion in the Bill.

About SQuASH

SQUASH (Squatters Action or SecureHomes) is a campaigning organisation which,since the early 1990s, has worked to protectsquatters and other vulnerably housed people.

We are undertaking extensive research intothe impacts o the proposed criminalisationo squatting. As part o this we are gatheringthe views and experiences o squatters andothers who are at risk o being impacted.

We campaign to raise awareness o theseimpacts and give voice to squatters and othersexperiencing insecure housing. SQUASHare in a unique position as one o the onlyorganisations researching squatting in the UKrom within the diverse world o squattingitsel. It has been recognised as such rom thebeginning, with SQUASH research quotedextensively within the Home Oce ResearchPaper 94/1 in 1994. Our broader aim is to

provide resources or the achievement o securehousing or all.


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House of Lords Brieng Paper

ExEcutIvE SummAry

Squash (Squatters Action or Secure Homes) is concerned about theimpacts o criminalising squatting in residential properties on homeless andvulnerable people, and believe that Clause 130 is unnecessary, unworkable,and unaordable.

1. ba case 130

Clause 130 seeks to criminalise those who enter a residential property as atrespasser with the intention o staying there.

It was introduced into the Legal Aid, Sentencing and Punishment oOenders Bill (Legal Aid Bill) at the third reading in the House oCommons, meaning it has not gone through a Committee stage or seriousdebate in the Commons.

Te clause was introduced ollowing a consultation, Options or Dealingwith Squatters, in which 96% o respondents opposed criminalisation.

2. veae pepe, heessess a eas ihs

Squatting is a last resort or many people who nd themselves homeless.Research has shown that 40% o homeless people have used squatting tohouse themselves and avoid street sleeping. Clause 130 will expose vulnerablepeople to the criminal law, and leave many with no option but to sleep rough.

We also believe that Clause 130 is likely to be abused by landlords seeking toevict those with insecure tenancies quickly and cheaply.

3. Ep ppeies

Te new oences will only make a substantive legal dierence in the case obuildings which are empty and unused.

Te number o empty properties in the UK is widely acknowledged as deeplyproblematic, and squatting is in part symptomatic o this situation.

Te government is currently working on a new Empty Homes Strategy, and

we believe that squatting should be treated within that ramework, ratherthan within the current Legal Aid Bill.


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4. ueessa e iia a

Te inclusion o Clause 130 directly contradicts the coalitions overarchingpolicy agreement not to create unnecessary new laws. Residential occupiersare already adequately protected rom trespass under the Criminal Law Act1977, and both the Criminal Bar Association and the Law Society oppose theintroduction o a new criminal oence or squatting precisely or this reason.Te negative impact on vulnerable people o Clause 130 means that thisunnecessary new criminal law is not benign.

5. uaii a s

Supporting ex-squatters through housing benets or homelessness provisionwould be a burden on the public purse at a time o welare cuts.

Te Metropolitan Police stated in their response to the Ministry o Justicesconsultation on squatting that the changes would cause unnecessary expenseand drain resources.

Establishing whether or not someone is breaking the law will be extremely

complex, given the intricacies o tenancy contracts and o propertyclassications which designate a property as residential or not. It is unjustto remove the settlement o such disputes rom the purview o the courts andincreases the likelihood o illegal evictions.

6. respeie iiaisai

Clause 130 proposes to criminalise existing squatters. SQUASH believe thatretrospective criminalisation o squatters would undermine a undamentaltenet o English Law and the more recent Human Rights Act.


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bAckground

Clause 130 0 the Legal Aid, Sentencing andPunishment o Oenders Bill (Legal Aid Bill)eectively criminalises the act o trespass in residentialproperties. It was introduced to the Legal Aid Bill by theJustice Secretary during the Tird Reading o the Bill inthe House o Commons. Te clause has thereore notbeen through a Committee Stage or received signicantscrutiny by MPs. Squash believes that the introductiono such a signicant oence at this late stage is entirelyinappropriate, a concern that was echoed by a number

o MPs during the Commons debate on the Legal AidBill.

Clause 130 was introduced subsequent to a Ministryo Justice (MoJ) consultation, Options or Dealingwith Squatters, which ran rom the 13th July 2011to the 5th October 2011. Despite the consultationbeing targeted primarily at landlords, Squash acilitatedalmost 2,000 responses rom those who would beaected by the new law. Response to the consultationwas overwhelmingly opposed to the criminalisation osquatting, with 96% against such a move, includingthe Law Commission and the Metropolitan Police (seeAppendix or notes on the consultation responses).1 TeMoJs response was published on the 26th October,with the resultant new clause being passed throughthe Commons just our working days later, on the 1stNovember. Squash eels that the discounting o theviews o those who were alerted to the consultationthrough our campaign is a signicant point o principleand may be unlawul. Tese respondents included adiverse range o individuals, rom homeless people topeople who had had positive experiences o squatting in

their local community.

Criminalising a whole section o society, particularlyyoung people, requires proper consideration o itsimpacts, and we are seriously concerned that therehas not been adequate time or this to take place,particularly considering the overwhelming oppositionto such a move within the consultation responses. Manyyoung people were engaged with this campaign, and wend it hugely disappointing that a message is being sentback to them that consultation with the Government

is an ineective and impotent exercise. Te speedwith which the legislation has been rushed throughhas subverted the democratic process, leaving no time

or individuals to communicate with their MPs or or

campaign groups to analyse the proposals and make surethey are well-understood.

vulnErAblE PEoPlE,HomElESSnESS, And tEnAntSrIgHtS

Criminalising squatting in residential buildingscriminalises some o the most vulnerable homelesspeople in the midst o a housing crisis. Tis does

nothing to help solve their homelessness problems,whilst exposing them to the criminal justice systemthreatens to diminish their chances and exacerbate theircondition.

Homeless people who use empty buildings to housethemselves are among the most vulnerable people insociety. Research by Crisis, Te Hidden ruth aboutHomelessness, has ound that squatting is a commonresponse to homelessness, with around 40% o homelesspeople using squatting at some point. O homeless

squatters, 78% have approached their local authoritiesor help and been reused, despite being acknowledgedas homeless. As human rights group Liberty have stated,Clause 130 will expose vulnerable homeless peopleto the criminal law. I passed, clause 130 could leaveindividuals with no choice but to sleep on the streets.2

It is widely recognised that we are in the midst o ahousing crisis, with more than 42,000 householdsocially classed as homeless, and 2 million amilies onthe council house waiting list. It has been estimated by

government ministers that cuts to housing benet willleave another 40,000 households without shelter, andmortgage repossessions are orecast to number around45,000 in 2012.3

In addition, Squash believes it is likely that the newlaws will be abused by unscrupulous landlords seekingcheap and ast means to evict tenants. Many tenants,particularly some o the most vulnerable and precarious,may not have written contracts. Currently suchindividuals are protected by the recognition in law oa range o non-written agreements, but this new clause

will transer powers o adjudication rom the courts tothe police, who will be required to make decisions on


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the doorstep. Te appropriate source o scrutiny will be

removed and the law will be open to abuse, ultimatelyweakening the protection o tenants.

EmPty ProPErty

It is already a criminal oence under the Criminal LawAct 1977, section 7, to occupy a persons home, or ahouse that someone is due to move into. Hence Clause130 will only make a substantive dierence to propertieswhere no one lives, which are empty and abandoned.

Tere are at present 737,491 empty properties inEngland and Wales.4 In the midst o housing crisis, it isundamentally important that more is done to ensurethat empty residential properties are brought back intouse as homes; squatting is ullling this unction in only2% - 4% o these empty properties.5 Te government iscurrently working on a new Empty Homes Strategy, andSquash believe that squatting should be treated withinthis ramework. It has already become apparent inCommons debate that the criminalisation o squattingis reducing the options open to the government ordealing with the crisis in empty homes, and we believethat this issue must be treated prior to that o squatting.6

Squash estimate that almost 2 million people couldbe housed in the current number o long-term emptyproperties; o which 312,000 are ready or occupation,117,000 need redecoration, and 317,000 needmajor improvements.7 Buildings that require majorimprovement have oten been transormed by squattersto create comortable and creative living and socialspaces with scant resources, as an intermediate solutionto homelessness in England and Wales.

Te Bradord Residents Survey on Empty Propertiesdemonstrates the negative externalities o derelictbuildings in local neighbourhoods. Te survey oundthat 77% o the respondents had one or more emptyproperties in their neighbourhood. When asked aboutthe Impact o an empty home on you personally, othose aected, 81% said that It is an eyesore in theneighbourhood, 78% said It causes blight, and 67%said It becomes a dumping ground or rubbish.8Te Empty Properties Survey 2008 gures show that

property owners are not overly concerned about thenegative externalities (such as blight and fy tipping)which their empty properties might generate in the

local area with over 60% not concerned and their

contribution to the housing shortage registered as theirlowest concern (74% not concerned).9 Squatters canact as a deterrent rom leaving properties empty, andwhen given rights to occupy, they maintain, repair andguard these empty properties rom the issues raisedabove.

unnEcESSAry nEw crImInAl lAw

No new criminal law is necessary: occupiers and

intending occupiers are already well protected bycriminal law. Tis was highlighted by 162 legal expertsin a letter to the Guardian: We want it to be clear thatit is already a criminal oence or a squatter to occupysomeones home, or a home that a person intends tooccupy, under the Criminal Law Act 1977.10 It wason this basis that both the Criminal Bar Associationand Te Law Society [Appendix, Note 1] opposedthe creation o a new criminal oence or squatting intheir consultation responses. Te Metropolitan Police[Appendix, Note 2] noted in their response to the MoJconsultation that the law was broadly in the right placeand that the existing array o oences allowed them totackle the worst cases o squatting (e.g. where squatterscause the rightul home-owner to be displaced).

A House o Commons research paper published in 1994points out that Orders 24 and 113 have been availableto landlords since the 1970s, and were introduced toassist landowners against the resurgence o squatting.Criminal oences or trespass already exist whichprotect rightul property occupiers, under the CriminalLaw Act, 19773, so that i the trespasser ails to leave the

premises i asked to by a displaced residential occupier(DRO) or a person who is a protected intendingoccupier (PIO), they may be physically removed and/orthe police may be called to remove them.11

In addition to this, there is the question o the lacko a solid evidence base noted in the consultationresponse; the Magistrates Association is in generalreluctant to see new laws being created without properanalysis o why existing powers may not be workingsatisactorily.12 Squash agree with this position, and

question the governments rush to introduce newcriminal legislation around a phenomenon that is notgenerally well understood and very under-researched.


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Te coalition agreement commits to prevent theprolieration o unnecessary criminal oences.13

Te introduction o a new criminal oence o squattingis unnecessary since property occupiers and ownersare adequately protected under existing legislationand squatters do not, as a general rule, enter occupiedpremises. Since the introduction and implementation oa new oence will needlessly and unjustiably negativelyimpact and criminalize homeless and vulnerable peoplewhilst leaving the wider problem o empty homes

untouched, this unnecessary new oence is not benign.

unworkAbIlIty And coSt

Te government have not attempted to estimate thecosts o these proposals. Squash have estimated the costso criminalising squatters, which would burden thepublic purse, especially while welare services are beingcut. Squatters currently save taxpayers in England andWales between 21 52.7 million a year because theydo not claim housing benet. I a new law to criminalisesquatting orced those who currently squat to claimbenets to permit their move into the private rentalsector, it would cost the taxpayer between 35.9 89.8million a year. Criminalising squatting may increase theburden elt by the already over-stretched homelessnessprovision o local authorities and charities. For example,this move would see between 10,400 130,000 under-25s join the currently overstretched waiting list oryoung people seeking accommodation,which theCitizens Advice Bureaux (CAB) has highlighted is agrowing problem.14 15

Te costs o enorcement would also be very high. Teull impacts on the police have been detailed by theMetropolitan Police (representing the Association oChie Police Ocers - ACPO):

Criminalisation o squatting and subsequentenorcement would have an impact on policing, interms o community relations, local policing objectivesand cost. Tere would be a clear public expectationregarding enorcement. Tis is likely to be ocused in

areas which have a high concentration o buildingssubject to unlawul entry and occupation, but alsowhere there are squats which attract particular attention.

At the same time contentious debate surrounding this

subject may attract protest rom groups who supportsquatting and voice concern about housing issues inLondon. Tis could attract urther attention withchanges to housing benets and pressure on socialhousing. Signicant work would need to be undertakenwith the communities aected, local councils andrelated third sector organisations, to ensure thatenorcement would be carried out in a proportionateand appropriate manner.16

Squash has estimated that i all the current squats were

evicted, it would cost an additional 29.3 73.3millionin police and magistrate costs to enorce.17 It should alsobe noted that squatters would be able to claim Legal Aidunder the new law, which they currently do not claim incivil cases regarding possession. SQUASH believe that aull Impact Assessment o the proposed legislation mustbe conducted by the Public Accounts Committee orthe National Audit Oce, beore any such legislation isdiscussed.

Clause 130 is also likely to be unworkable, since itdemands that the police make decisions on the doorstep

about complex points o criminal and property law. Asmentioned above, it would be dicult or the police toquickly ascertain whether or not suspected trespassers(i.e.squatters) are in act vulnerable tenants whom anunscrupulous landlord wishes to evict quickly, easily,and illegally. Te protection oered to such peopleby the civil process, which requires oversight by ajudge prior to eviction, would be lost. Te ambiguousand loose wording o the clause, perhaps an eect oits rushed insertion into the Legal Aid Bill, urthercompounds the polices dilemma: or example having

to judge what constitutes residential with very littleguidance is problematic. Tis ambiguity opens thepolice to criticism and numerous civil suits or illegaleviction.

rEtroSPEctIvE crImInAlISAtIon

Te present wording o Clause 130 criminalises thosewho are currently squatting in a residential building.Article 11, subsection 2 o the Universal Declaration o

Human Rights states that: No one shall be held guiltyo any penal oence on account o any act or omissionwhich did not constitute a penal oence, under national


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or international law, at the time when it was committed.

Nor shall a heavier penalty be imposed than the onethat was applicable at the time the penal oence wascommitted. Retro-activity o oences is extremely rare(usually applied only in cases o war crimes and sexualoences). It is widely seen as undermining the ruleo law as it does not leave room or the individual toproperly exercise choice and exhibit intent, and is thus aundamental tenet o English Law.

concluSIon

Tereore to summarise, SQUASH believe that theLords should oppose Clause 130 o the Legal Aid,Sentencing and Punishment o Oenders Bill (the LegalAid Bill), or the ollowing reasons:

Te proposed amendment is problematic as inreality it is ar too signicant a proposal not to havereceived ull parliamentary scrutiny.

It has the eect o making criminals out o some o

the most vulnerable in society who are seeking tomeet their basic need o shelter.

It will urther exacerbate the dual crises ohomelessness and empty properties.

Creating unnecessary new laws is a burden onthe judiciary, the police and the taxpayer, andundermines some undamental government policieson public expenditure, housing and homelessness.

In practice it will be unworkable, and will havesignicant implications or public resources andbudgets.

Enacting the legislation retroactively contradictsundamental tenets o English Law and the HumanRights Act.

Tese issues could be mitigated by the introductiono amendments to the Clause, such as that alreadywritten by Crisis which would exempt propertieswhich have been let empty or more than 6

months. o discuss urther details o amendmentswhich could reduce the negative impacts o theseproposals please get in touch with Squash.


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notES

1 Options or dealing with squatting: Response toConsultation CP12/2011; Ministry o Justice, 130October 2011 http://www.justice.gov.uk/downloads/consultations/options-dealing-with-squatting.pd

2 Libertys Second Reading Brieng on the Legal Aid,Sentencing and Punishment o Ofenders Bill in theHouse o Lords. Page 38 (96) We are concerned thatthe proposed new oence will largely aect empty orabandoned homes and will expose vulnerable homeless

people to the criminal law... [it] could leave individualswith no choice but to sleep on the streets, exposingthem to acute suering and considerable risks totheir personal saety. At the very least Liberty supportan amendment proposed by Crisis which would seean exception to the new criminal oence where theoccupied property has been empty or more than 6months and where there are no steps being taken tobring it back into use. http://www.liberty-human-rights.org.uk/pds/policy11/liberty-s-second-reading-brieng-on-the-legal-aid-etc-bill-in-the-house-o-.pd

3 Sources or gures: 42,000 homeless - Communitiesand Local Government, Live ables on Homelessness:http://www.communities.gov.uk/housing/housingresearch/housingstatistics/housingstatisticsby/homelessnessstatistics/livetables/; 2 million on councilhouse waiting lists: http://england.shelter.org.uk/campaigns/housing_issues/waiting_lists; Eric Pickleswarns David Cameron o rise in homeless amilies risk,2 July 2011; Te Guardian http://www.guardian.co.uk/politics/2011/jul/02/eric-pickles-david-cameron-40000-homeless; Mortgage repossessions 45,000 - Council o

Mortgage Lenders http://www.cml.org.uk/cml/media/press/3119

4 Empty Homes Agency Figures 2010: http://emptyhomes.com/statistics-2/breakdown-o-statistics/

5 SQUASH Research Report: Property Ownership,ransactions and Housing Afordability in England andWales. Available on request.

6 See House o Commons debate on empty homes, 29

November 2011: http://www.theyworkoryou.com/debates/?id=2011-11-29a.910.0&s=empty+homes#g914

7 SQUASH Research Report

8 Results o Bradord Residents Survey;Bradord Empty Homes; http://www.bradord.gov.uk/NR/rdonlyres/0DB1DFF8-1FF0-4DAB-9704-54D2B61B6130/0/BradordEmptyHomesResultsoResidentsSurvey.pd

9 Empty Properties Survey 2008; Te Universityo Nottingham Survey Unit and East Midlands

Empty Property Forum; May 2008; http://www.bsh.org/ukhpp/empty-properties/publication.cm?lang=00&thePubID=6CE4799C-15C5-F4C0-999C09189EF6ED4E

10 Squatting law is being misrepresented to aid ministersreorms, claim lawyers; 25th September 2011; TeGuardian http://www.guardian.co.uk/politics/2011/sep/25/squatting-law-misrepresented-claim-lawyers

11Wilson and Wendy, Policy on Squatting in the CriminalJustice and Public Order Bill [Bill 9 o 1993/4], Research

Paper 94/2, House o Commons Library, 10 January1994.

12 Options or dealing with squatting: Response toConsultation CP12/2011; Ministry o Justice, 26October 2011, p.19. http://www.justice.gov.uk/downloads/consultations/options-dealing-with-squatting.pd

13 Te Coalition: Our Programme or Government; May2010, p.10. http://www.libdems.org.uk/siteFiles/

resources/PDF/Government/Coalition-Programme.pd

14All gures in this paragraph are taken rom SQUASHResearch Report.

15 Housing issues on the rise or under 25s says CitizensAdvice. June 2011. http://www.citizensadvice.org.uk/index/pressoce/press_index/press_20110606.htm

16 See Appendix, Note 2.

17

SQUASH Research Report


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APPEndIx - notES from

conSultAtIon rESPonSES

From the Ministry o Justice Consultation Response:Options or dealing with squatting: Response toConsultation CP12/2011; Ministry o Justice, 26thOctober 2011

[ne 1] ciia ba Assiai a Te laSie

Te Criminal Bar Association and the Law Society

strongly opposed the creation o a new criminal oence.Tey both argued that the current law was eective andthat unnecessary new regulation should be avoided. TeLaw Society argued that squatting was a rare problemand introducing new oences when there was alreadya range o existing oences would be disproportionateand counterproductive. Tey queried whether the policewould have the resources to enorce new oences whenthey appeared to be unwilling to enorce existing laws.(Page 10)

Te consultation paper acknowledges that there are noreliable data on the nature and extent o squatting. Inthe absence o any such evidence, we have no reason tobelieve that the existing law does not deal adequatelywith squatting. Te civil remedies available appear tous to be adequate and there is a suciency o criminaloences already available as remedies. From theinormation provided, we eel what may be required isor existing remedies to be more vigorously enorcedrather than any changes to the criminal law. (CriminalBar Association)

Te current law deals adequately with squatting. Homeowners are protected by section 7 o the Criminal LawAct 1977. A home-owner will be a displaced residentialoccupier, or, i they are not yet residing in the property,a protected intended occupier. It is a criminal oenceor a squatter to remain once they have been inormedo the displaced occupier or a protected occupier. Tepolice can arrest any trespasser who does not leave.(Law Society p.20)

[ne 2] Te mepia Pie

Te Metropolitan Police, responding on behal othe Association o Chie Police Ocers, considered

that the law was broadly in the right place and thatthe existing array o oences allowed them to tacklethe worst cases o squatting (e.g. where squatters causethe rightul home-owner to be displaced). I changeswere made to legislation, however, they could see thatthere might be a case or widening existing oences toensure that residential properties which are not currentlyunder occupation are protected by any new oence, orexample homes under renovation or second properties.Tey warned that new oences could have an impact onpolicing in terms o community relations, local policing

objectives and cost. Tey pointed out that many o theknown squats in the London boroughs were occupiedby oreign nationals and signicant work would needto be undertaken with the communities aected, localcouncils and related third sector organisations, to ensurethat enorcement was carried out in a proportionate andappropriate manner. (p.10)

224 squats were identied across London as a resulto the MPS survey. Tis included both residential andnon-residential property, and single or multi-occupancypremises. No specic data was captured regarding the

status o these properties prior to being occupied, butthe majority o the reports suggested that they wereempty or abandoned. However, the actual number osquats in London is suspected to be signicantly higherthan the reported gure. (p.16)

Te Metropolitan Police similarly suggested that i anew oence were created, it should perhaps be linkedto buildings that are in use and driven by reports romvictims:

In these circumstances enorcement is more likely totake place where buildings are in use, and not where


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abandoned or dilapidated, or where buildings have been

empty or a long time. Such an approach may also helpwith preventing alse or vexatious allegations. (p.25)

Te Metropolitan Police said:

Criminalisation o squatting and subsequentenorcement would have an impact on policing, interms o community relations, local policing objectivesand cost. Tere would be a clear public expectationregarding enorcement. Tis is likely to be ocused inareas which have a high concentration o buildings

subject to unlawul entry and occupation, but alsowhere there are squats which attract particular attention.At the same time contentious debate surrounding thissubject may attract protest rom groups who supportsquatting and voice concern about housing issues inLondon. Tis could attract urther attention withchanges to housing benets and pressure on socialhousing. Signicant work would need to be undertakenwith the communities aected, local councils andrelated third sector organisations, to ensure thatenorcement would be carried out in a proportionateand appropriate manner.

Many respondents suggested that a new oence woulddiscourage the positive community activities which it issaid can be provided by squatters. One was concernedat young people receiving criminal records and beingpunished or their enterprise and initiative. (p.35)

For more inormation please contact SQUASH:

[email protected]

SQUASH CampaignDecember 2011

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