My title refers to the famous fragment taken from Franz Kafka’s novel The Trial and published separately in 1915 as Before the Law. For those not familiar with the parable, a man from the country seeks admittance to the law. At the entrance to the law stands a guard, who refuses his request but offers the man a stool on which to wait. For days and years the man waits. He tries everything he can to gain admittance, importuning the guard with appeals and bribes. But though the guard listens to everything the man says and accepts everything he offers, he always replies that the man cannot enter yet. Finally, as he feels death approaching, the man asks the guard one last question. Since everyone seeks admittance to the law, how is it that in all the time he has been waiting no-one else has tried to enter? The guard replies that no-one else could have been admitted, since this door was made specifically for the man. ‘And now,’ he says, ‘I am about to close it.’ In my reference to this parable, the entrance before which the man waits is that of human rights. This text and the accompanying images were delivered as a presentation at Law at the Margins of the City, a conference held at the Birkbeck School of Law on 26 March 2019.
‘Housing is a human right!’ is the cry you’ll hear on every march, demonstration and protest about the housing crisis in London. I understand the point, which is to assert that housing should be a human right; and, in fact, Article 8 of the European Convention on Human Rights, which was incorporated into UK law in 1998, clearly states that:
‘Everyone has the right to respect for his private and family life, his home. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society.’
Rights, however, are not guarantees, and while UK law grants me the right to own a residential property, it doesn’t guarantee me the means to purchase one. Still less does it guarantee my right to housing I can call a home, with security of tenure and a rent I can afford. 66 years after it was adopted by the Council of Europe, and days before we leave the European Union, housing in the UK is most definitely not a human right. As evidence of which, this is a summary of some of the appeals to UK law to uphold our rights made by housing campaigners over the last decade, together with the response to those appeals by the UK government, local authorities and the legal system.
1. The Right to Equality
In 1999 the Aylesbury estate in Camberwell was targeted for ‘refurbishment’ by Southwark council, which subsequently proposed demolishing all 2,759 homes. The redevelopment by Notting Hill Genesis housing association proposes 3,575 new dwellings, with the planned loss of at least 778 homes for social rent.
From April to October 2015 a Public Inquiry (pictured) was held into the Compulsory Purchase Orders (CPO) by Southwark council on the homes of leaseholders on the First Development Site of the Aylesbury Estate regeneration scheme. Among the objections by the Aylesbury Leaseholders Action Group were that no new homes for social rent will be provided on the new development; that the scheme is financially unviable; that the options for refurbishment and infill had not been considered; and that the scheme will not benefit the wider area, which is a legal requirement for the issuing of CPOs.
In September 2016 the Secretary of State for Communities and Local Government upheld the Government Inspector’s recommendation not to confirm the CPO. The primary reason was that, in contravention of Section 149 of the Equality Act 2010, the CPOs would have disproportionately negative effects on elderly residents unable to afford to buy new properties in the area, on children forced to move to new schools, and on residents from black and ethnic minorities separated from their communities. Southwark council, therefore, was in breach of its ‘Public Sector Equality Duty’.
In response, Southwark council sought a Judicial Review in the High Court to overturn the decision, but this was refused. However, in April 2017, following increased offers to leaseholders, the Secretary of State lifted his block. Finally, in April 2018, the Aylesbury Leaseholders Action Group withdrew its objections to the CPOs after reaching a confidential agreement with Southwark council. Financial compensation, in other words, had been exchanged for human rights. Meanwhile, the demolition of the Aylesbury estate and the social cleansing of the residents continues.
2. The Right to Transfer
In 2009 the West Kensington and Gibbs Green estates were targeted for ‘regeneration’ by Hammersmith and Fulham council, which subsequently proposed demolishing all 760 homes. The redevelopment by Capital & Counties Properties proposes building a total of 7,500 units spread across the entire Earl’s Court and Olympia sites.
In response, in 2011 residents formed West Kensington and Gibbs Green Community Homes, and in 2015 they commissioned Architects for Social Housing (ASH) to draw up a feasibility study for the refurbishment and improvement of the two estates. Through our design proposals, ASH was able to find space for an additional 327 dwellings on the estate, a 50 per cent increase, without demolishing a single existing home. Residents voted to build 250 of these, of which the market sale of 180 would pay for the refurbishment of the estate, with around 70 new-builds allocated for homes for social rent.
In August 2015 West Kensington and Gibbs Green Community Homes served legal notice on Hammersmith and Fulham council (pictured) applying, under Section 34a of the Housing Act 1985, for the Right to Transfer their homes from the local authority and into their ownership. After considerable lobbying by the residents, the regulations for this legislation had finally been published at the end of 2013.
In response, the newly-elected Labour council, having first taken legal advice, wrote to the Conservative Secretary of State for Communities and Local Government requesting that he refuse this Right to Transfer. Four years later, residents are still waiting for the council to recognise their application and for the Secretary of State to consent to the transfer.
3. The Right to Manage
In 2012 the Cressingham Gardens estate in Streatham was targeted for ‘regeneration’ by Lambeth council, which subsequently proposed demolishing all 306 homes and redeveloping the site with 464 new properties, of which 274 will be for market sale.
In November 2015 a Judicial Review in the High Court (pictured) ruled that Lambeth council’s unilateral decision to remove the option to refurbish the estate and two further options for infill development had been ‘unlawful’, as it had not carried out a proper financial analysis of these alternatives. Undeterred, and following a brief re-consultation, in March 2016 Lambeth council announced its plans to go ahead with the demolition.
In response, residents requested a second Judicial Review on the grounds that the cabinet had dismissed the residents own People’s Plan, a 400-page document, in less than a week. This proposed enacting their Right to Manage the estate through a Resident Management Organisation that would undertake repairs, maintenance and major works. In December 2016 the High Court ruled in favour of Lambeth council, which continues to refuse to acknowledge the People’s Plan.
That same month the London Mayor published his Draft Good Practice Guide to Estate Regeneration, a consultation document that received widespread criticism of its numerous failings, not least by ASH. In response, in February the London Mayor initiated a further consultation on new policy on residents ballots for estate regeneration. Over this consultation period the Mayor declared a moratorium on any Greater London Authority (GLA) funding for new schemes. However, it subsequently emerged that during this period no less than 34 schemes has been quietly signed off by the Mayor. This included Cressingham Gardens estate, which was signed off in December 2017, with the effect of excluding the council’s decision from retrospective balloting. Even before the new policy was published, in February 2018 residents petitioned the Mayor to grant them a ballot on the council’s decision to demolish the estate. He has yet to respond.
In November 2018 residents of Cressingham Gardens secured a legal ballot on whether to take back control of repairs and maintenance on the estate from Lambeth council. 82.5 per cent of tenants voted in favour.
4. The Right to Return
In February 2017 Haringey council selected international property developers Lendlease as its joint venture partner on the Haringey Development Vehicle. This was a 50/50 partnership that would hand over £2 billion of public land and assets for redevelopment on scores of sites across the borough.
In October 2017 the High Court heard the grounds for a Judicial Review requested by campaigners from Stop HDV (pictured). These were that the council had set up a limited company with a commercial purpose; that the decision had been made by cabinet rather than full council; that the council had failed in its statutory duties of consultation; and that it had failed in its Public Sector Equality Duties to black and minority ethnic (BME) residents whose homes were threatened with demolition by the HDV. The following February the judge refused the review on all counts. Campaigners launched an appeal, but this too was refused in October 2018.
Haringey council’s successful defence was that, under GLA policy published in February 2018, all residents in the more than 20 estates that would be demolished by the HDV had the Right to Return to properties on the new development. This Right to Return, however, was entirely conditional upon residents’ financial ability to afford the increased rent and sale prices. Indeed, in the equalities impact assessment for Haringey’s Housing Strategy 2015-2020, in mitigation of the negative impact this strategy would have on BME residents facing prohibitive increases in their housing costs, the council had recommended ‘accessing jobs and also increasing their incomes to a sufficient level to afford the new homes on offer as a result.’
In July 2018, following a process of deselection of pro-HDV councillors, Haringey council announced it was scrapping the Haringey Development Vehicle. This has not, however, stopped the council proceeding with its estate regeneration programme, and the same month the council set up a wholly owned private development and management company. In response, Lendlease threatened to sue the council for breach of contract. Finally, in November 2018 Lendlease announced that it had reached an out-of-court settlement with Haringey council for an undisclosed fee.
5. The Right to Information
In 2014 Central Hill estate in Crystal Palace was targeted for ‘regeneration’ by Lambeth council, which subsequently proposed demolishing all 476 homes and redeveloping the site with options up to 1,530 new properties, of which half would be for market sale.
In April 2015 Architects for Social Housing was invited in by residents to draw up design alternatives to demolition; and in February 2016, at a meeting of over 120 residents, we presented our proposals for the refurbishment of all 476 existing homes and the infill development of up to 242 new dwellings, a more than 50 per cent increase, at least half of which would be for social rent. A ballot conducted by the Save Central Hill campaign showed that 77 per cent of residents were in favour of these proposals, which have received over 700 signatures in support, with a further 2,400 against the demolition of the estate.
In response, in June 2016 Lambeth council published a brief statement declaring our proposals to be ‘financially unviable’. The basis to this was a Draft Financial Viability Appraisal by chartered surveyors Airey Miller, who were subsequently awarded the contract on the council’s 6-estate demolition programme. Our inspection of this appraisal, however, revealed not only that it was based on miscalculated figures, inaccurate assessments, false claims and deliberate misunderstandings of ASH’s proposal, but that the figures on which its financial feasibility had been dismissed had been redacted (pictured).
This initiated a series of requests, under the Freedom of Information Act 2000, for Lambeth council to make the unredacted financial information public. Despite our appeals to both the GLA and the Information Commissioner’s Office, Lambeth council continues to refuse to supply us with this information. Their argument for doing so is that the council-owned company under which Central Hill estate will be redeveloped, marketed and managed is a commercial project in partnership with private development partners and financers. Therefore, despite the fact that it will lead to the demolition and privatisation of a council estate that is home to over 1,200 people, not only the financial figures for the council’s proposal, but also the redacted figures in the feasibility study of ASH’s proposal, are both judged to be ‘commercially confidential’.
In the middle of this struggle for information, in March 2017, some 8 months after we made our first FOI request and 10 months since we had presented our proposals to the council, Lambeth cabinet announced its decision to demolish Central Hill estate.
In September 2018 ASH published a report which calculated the council’s redevelopment option for 1,530 new-build properties would cost over £570 million, recouped over 60 years. These are figures that accord with Airey Miller’s own estimate. In contrast, drawing on a feasibility study of our plans by quantity surveyors Robert Martell & Partners, ASH’s proposal was estimated to cost £97 million, and that the scheme could repay its construction costs and debt interest within 25 years.
In January 2019 Lambeth council told residents that, five years after targeting if for regeneration and nearly two years since it condemned their homes to demolition, it is considering options for the refurbishment and infill development of Central Hill estate.
6. The Right of Assembly
In August 2018 campaigners occupied the Old Tidemill wildlife garden in Deptford and placed it under ‘community protection’. After attempts at negotiation with Lewisham council and appeals to the London Mayor to intervene had both fallen on deaf ears, this was a last attempt to defend the site against plans by the council to demolish both the garden and the adjoining Reginald House, a block of 16 council homes, preparatory to its redevelopment by Peabody housing association.
In September 2018 Lewisham Council sought a legal ruling to evict campaigners. However, although the judge at Bromley County Court confirmed the council’s Right to Possession of the Old Tidemill garden, he ruled that this could not take place until a week after a High Court hearing, to be held the following month, at which campaigners would seek a Judicial Review of the legality of the council’s plans. At the October hearing the judge refused this permission, and two weeks later, while a request for a second Judicial Review was still being considered, the council sent in over a hundred masked bailiffs supported by the Metropolitan Police Force to evict the occupation in a dawn raid.
In response, the evicted campaigners set up a protest camp on a patch of land beside Reginald House (pictured), and in November 2018 the council, which the previous year had issued a Private Space Protection Order (PSPO) on the entire borough, threatened campaigners with prosecution if they did not leave within 24 hours. PSPOs, which were originally called Dog Control Orders, where introduced by the Anti-Social Behaviour, Crime and Policing Act 2014, and carry a fixed penalty of £100 or a court summons with a fine of up to £1,000 and a criminal conviction.
In February of this year the request for a second Judicial Review was refused. However, the following month Bromley County Court again turned down Lewisham council’s request for permission to evict the protest camp, ruling that it hadn’t considered protestors’ Freedom of Expression and Freedom of Assembly under Articles 10 and 11 of the Human Rights Act 1998 before making their decision. Campaigners have until the end of March to prepare a case against Lewisham council.
At a costs of £105,000 for the eviction itself and £35,000 per day for security around the Old Tidemill garden, whose 74 mature trees they have now cut down, Lewisham council has thus far spent an estimated £1.4 million on bailiffs and security.
7. The Right to the Law
What all these examples show is that recourse to the law is not a recourse to justice. It is, at best, a delaying tactic, from which campaigners can extract the time to generate publicity and raise public awareness about the injustice they are fighting. But justice has never come from the law, to which, moreover, we have unequal rights. In all these examples campaigners have had to raise tens of thousands of pounds in legal fees from crowd-funding; while councils, in contrast, can draw on millions of pounds set aside in their budgets to pay legal teams to contest cases brought against them. The fact these funds have been paid by the constituents they are trying to evict is not the least injustice of this imbalance in the respective parties’ right of access to the law.
Lawyers can only enact the law, they cannot change it. From the Localism Act 2011 to the Housing and Planning Act 2016, from the Government’s Estate Regeneration National Strategy to the documents published by the GLA under the title Homes for Londoners, the state has passed legislation and policy to accommodate the social cleansing of Inner London being implemented through the estate regeneration programme. If campaigners are to oppose its injustices, they need to apply the political pressure to change those laws from serving the beneficiaries of the housing crisis to defending the people suffering it – changes that go beyond the appeasements and limitations of human rights. If we don’t, we will continue to sit, demanding our rights, before a door that has been made for us, and which is now about to close.
Architects for Social Housing