Thursday 11 August 2011

Evicting those convicted of Riot Crimes from social housing?

If the landlord is a registered social landlord and the tenancy is assured - then its Ground 14, Schedule 2, Housing Act 1988.  If the landlord is a local authority and the tenancy is secure - then its Ground 2, Schedule 2, Housing Act 1985 - both Grounds 2 and 14 say this -

The tenant or a person residing in or visiting the dwelling-house—

(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b)has been convicted of—

(i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)an [indictable] offence committed in, or in the locality of, the dwelling-house.

The Court then has to go on to consider whether it is reasonable to make a possession order and must take into account the following:

The court must consider, in particular—

(a)the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b)any continuing effect the nuisance or annoyance is likely to have on such persons;

(c)the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

If any public sector employees are convicted of Riot Crimes....

Any public sector employee convicted of an offence arising out of the recent public disturbances should be considered for dismissal or some other disciplinary sanction (a fair procedure of investigation and disciplinary process must be followed - see the ACAS Code). Our teachers and youth workers are in loco parentis, medical professionals have duties to save our lives and civil servants have duties to uphold and enforce the law.  Any of these convicted of offences of dishonesty or public order cannot be trusted in these important public positions of trust.  Any convicted should face the prospect of potential penalties at work. Dismissal for misconduct can include dismissal for offences committed away from work: in Singh v London Country Bus Services Ltd [1976] IRLR 176 the EAT held that ‘conduct’ in this context: “does not have to be something which occurs in the course of the actual work, or at the actual place of work, or even be connected with the work, so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when he is doing his work”. Or the dismissal could be for for some other substantial reason - in the case of Harper v NCB [1980] IRLR 260 the EAT that confirmed that a reason is substantial if “the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and that he genuinely believed this to be fair” so long as the reason is not “whimsical or capricious…which no person of ordinary sense would entertain…” (para 8).

Wednesday 10 August 2011

The raw end of the Rule of Law

There is an very unfashionable philosophical school of jurisprudence which sees Law as merely the rhetorical expression of the power of the state.  Law merely sets down in words the directives of the State, telling the citizens what to do and what not to do. Usually the words are enough - people comprehend them (or at least the basics) and obey them.  Sometimes, like Monday night in London and last night in the West Midlands and North West, the words are not enough.  There is required a physical manifestation of the words to enforce their meaning.  We rely on the Police forces of this country to provide that physical manifestation - to enforce the law.  Sometimes that physical manifestration has to get very physical - if people are smashing windows, stealing goods, setting fires and threatening and taking life then the Police have to appear, intervene and apprehend.  If the perpetrators fight back and resist arrest, then the Police must move in and fight back.  Many lawyers prefer to see Law as merely existing in the abstract (positivism is the posh name for this) and like to think that it has nothing to do with a police officer in riot gear banging a rioting teenager on the head in the lawful exercise of his power to remedy breaches of the peace.  The events of this week (so far) are one of those thankfully rare reminders that at the end of the day, after all of the pontificating in the Supreme Court is over, the ultimate expression of the rule of law is its raw unmitigated enforcement, by force, when that rule is being flouted by so many and in such a flagrant way.  The preservation of a democracy sometimes, thankfully rarely in this country, requires the use of force - the quaint historic expression in our tradition is the preservation of the Queen's peace.  I should like to thank every one of the sworn Constables who kept the peace outside my front door last night and who protected my family from harm.  That they should have to intervene with the use of force against citizens is regrettable, but essential - and notwithstanding that sometimes some their number fail us, they should receive our overwhelming support.

Tuesday 9 August 2011


The Legal Authority to deploy troops on to the streets of London tonight..........

Civil Contingencies Act 2004 - 

Section 19
(1)     In this Part “emergency” means—
(a)     an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region,
(2)     For the purposes of subsection (1)(a) an event or situation threatens damage to human welfare only if it involves, causes or may cause—
(a)     loss of human life,
(b)     human illness or injury,
(c)     homelessness,
(d)     damage to property,
(e)     disruption of a supply of money, food, water, energy or fuel,
(f)     disruption of a system of communication,
(g)     disruption of facilities for transport, or
20  Power to make emergency regulations
(1)     Her Majesty may by Order in Council make emergency regulations if satisfied that the conditions in section 21 are satisfied.
(2)     A senior Minister of the Crown may make emergency regulations if satisfied—
(a)     that the conditions in section 21 are satisfied, and
(b)     that it would not be possible, without serious delay, to arrange for an Order in Council under subsection (1).
(3)     In this Part “senior Minister of the Crown” means—
(a)     the First Lord of the Treasury (the Prime Minister),
(b)     any of Her Majesty's Principal Secretaries of State, and
(c)     the Commissioners of Her Majesty's Treasury.
(4)     In this Part “serious delay” means a delay that might—
(a)     cause serious damage, or
(b)     seriously obstruct the prevention, control or mitigation of serious damage.
21  Conditions for making emergency regulations
(1)     This section specifies the conditions mentioned in section 20.
(2)     The first condition is that an emergency has occurred, is occurring or is about to occur.
(3)     The second condition is that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency.
(4)     The third condition is that the need for provision referred to in subsection (3) is urgent.

22  Scope of emergency regulations
(1)     Emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made.
(2)     In particular, emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of—
(l)     enable the Defence Council to authorise the deployment of Her Majesty's armed forces;

Tuesday 2 August 2011

Judicial Merrygoround

OK - are you sitting comfortably:

Sir Anthony May has retired and been replaced by Sir John Thomas as P of the QB (Hallett LJ to be his deputy).  Lord Wilson has left the C of A  to go to the Supreme Court. Smith LJ, Sedley LJ and Jacob LJ have all retired (all will be sadly missed).  They have therefore been replaced in the C of A by Rafferty J (QB), McFarlane J (Fam D), Davis J (QB), Lewison J (Chan D) and Kitchen J (Chan D). In addition David Steele J has retired.  Those vacancies have been filled by Andrew Popplewell QC,  Robert Hildyard QC,  Charles Haddon-Cave QC, HHJ Globe QC and Rabinder Singh QC - albeit there does not seem to be a replacement for McFarlane J in the Fam D (perhaps this will follow)......

Monday 1 August 2011

Have been the Supreme Court

Not been posting for a while - have been a little detained in the Supreme Court.  Absolutely beautiful building with superb facilities -

Talking of which, I see that there are now two vacancies - a Scottish gap created by the untimely death of Lord Rodger and an anticipatory position vacant pending the retirement of Lord Brown.

 I understand that Lord Reed, of the First Dvision of the Inner House of the Court of Session is tipped to fill the Scots slot (he has been sitting temporarily in the SC for Lord Roger - most particularly in the fascinating pleural plaques appeal -) and has replaced Lord Roger as Visitor of Balliol College, Oxford.

As to the Lord Brown vacancy - how about Lady Justice Arden - about time for another Lady and would produce the first husband (Lord Mance) and wife team in the SC (or H of L)?  Or perhpas Mummery LJ (employment), Carnwarth LJ (as a reward for looking after Tribunals) or perhaps Moses LJ for a bit of public law experience?

Or will they go for another outsider - Lord Faulks QC?