The right to housing in the UK and France

Enforceability and effectiveness

Dr Jane BallNewcastle Law School, Newcastle University

Paper delivered at Barcelona University 9 May for “Study Space VII

The nature of the right to housingSimilar function different mechanics

• France and England are close and do extremely similar things - the same “law job” (Llewellyn)

• Voluntary and other bodies co-operate across borders a process of diffusion of political and practical ideas

• But the different legal approaches are quite structural•They go back to the serious schisms during the Napoleonic wars and before

•Differences are deliberate and relate to historic responses to property rights and responses to modernity

•These mechanical and institutional differences cannot be dismissed on the basis that they are functionally similar

•The schism does not just affect France

One idea, two systems The French – English split

The French-type ‘right to housing’ (singular) is found globally

•It is heavily predominant in countries with a Napoleonic legal system (Oren, 2014)

•It is relatively new as constitutional or administrative law – the Netherlands 1901, France 1994

•It tends to be a collective right opposing ‘capital’ as in the European Social Charter but that is changing

•It is absolutely necessary for these systemsNo ‘right to housing’ in England except in popular discourse

• It has housing rights (plural) almost by definition individually enforceable – What are you enforcing exactly?

From the general to the particulartraditional lawyer communication problems

Constitution Broad doctrinal concepts Statutes Administrative law Regulatory detail Principles from cases Enforcement processes

French – top down

English – bottomup

No right to housing in LEGAL terms

HOUSING RIGHTS

RIGHT TO HOUSING

Housing rights

Uses of the French right to housingwhy only bits of it are enforceable (1)

• Conceptually brilliant in categorization • A broad declaratory objective :

• A general objective never fails until you define it• Necessary as a BASIS for the generic categories of law

• Confirmed by the Constitutional Court but may still only give access to administrative or private law remedies for particular statutory measures

• A lobby against property supported by structured bargaining by collective organizations – the rugby scrum approach

• Content variable politically thus NOT necessarily enforceable as a generality

Areas of application of the right to housing in French lawThere are three main areas of application, as the basis: 1. For the rights of tenants against landlords2. For urban planning and planning policies

relating to housing generally3. For welfare and other social objectives from

homelessness to social housing allocation – this might be enforceable in England and France

A tailored version of the right to housing will appear at the beginning of the different codes and statutes which often say:

“The right will be implemented in the framework of the statutes that govern it.”

England and traditional housing rights

• England does not have a right to housing in the continental sense• English law is specific, detailed, often empirical and practical with a traditional but changing antipathy to “sweeping statements”

• The law must be “certain” and housing allocation is based primarily on duties on local authorities, rather than rights

• There is no need to base rights on constitutional rights • The law is generally not a bargaining position - intended to be enforced as it is, not in the future, hence narrow, and specific

• Tends to consider whether something can be enforced before doing it – e.g. judging principle in equity “Equity will not act in vain”

And thusIn French law• housing rights starts with something large –e.g. the right to decent housing for everyone and

• then restricts that

In English law• Housing rights start with a whole series of small things

• These are implemented (or were)• thus sounds a lot less good than the French

A case example borrowing homelessness legislation• French visitors were impressed by the Scottish “right to housing” which gives individual homeless people the right to accommodation, with a right to recourse, in about 2000

• The Scottish law was actually an extended version of a longstanding UK statute which was an approach developed since the 1930s thus a “right” is in the English sense - enforceable by individuals in the sense of judicial review

• The English law applies: • If someone is ‘homeless’ in the sense that it would be unreasonable for them to stay where they are

• It applies to objectively ascertainable categories assessed by the local housing authority all of whom get a range of help

• Only those in ‘priority’ need get accommodation immediately and those with the highest cumulative need are first in the queue

Chances of successAssumptions of similarity are wrong• To enforce something there has to be the will for someone to enforce it and the institutional capacity to deliver it

• Let’s look at the available housing to meet this need in the case of social housing:

•Scotland - around 35% •England - around 22%•France – 22%

BUT the likelihood of homeless people accessing social housing has tended to collapse in both England and France

English difficulties in housing the disadvantaged

• Privatisation of social stock - Local authorities were generally forbidden to build • Where to put people pending longer-term solutions? – contracting with private sector

• All is becoming eroded by government neglect of the process, loss of funding, legal aid, and benefits and now peremptory removal of applicants to distant places

• BUT strengths of the English system after long experiment

•Impartiality by local authorities which is still often trusted

•Formerly effective measures to limit pushing candidates into other local authority areas

French problems housing the homeless (1) Distributional problems with social stock

• Social housing stock is very geographically patchy nationally and within towns

• NIMBYISM – social mix construction often makes things worse

• Stock replacement is always slow - 70 percent of housing stock in 2050 is in existence now (Renard)

• Individuals think it normal to have two homes:•On divorce – an effective requirement to see children

•Moving for jobs•Older generation and younger generation may not share

•Town and country Who is to stop them?

Social Housing Distribution in France

French problems in housing the homeless (2) allocation of social stock

What you mean by ‘social’?• English social housing traditionally allocated the vast majority of social housing stock to those most in need, impartially distributed

• France has a universal system of allocation so that:• A third of social housing construction is for sale for owners

• Only 25 percent of housing is theoretically accessible to disadvantaged people and that route is often practically blocked

• Often a substantial number of places are part-funded by employers and reserved for their employees

• There are informal local quotas for ‘risky’ types of tenant (Ball, 2012)

• Need criteria are taken to be alternatives not cumulative

‘Housing disadvantaged people?” (Ball, 2012)French NIMBYISM or insiderness

• French local authorities are very independent-minded and constitutionally empowered to be so• Community and nimbyism are different sides of the same coin and there are intense local loyalties

• Social housing is built traditionally in a close partnership between mayors, organized labour and employers with the State who control access by committee:• The right to housing is the responsibility of a disempowered central state

• This strongly favours, existing tenants, local voters and working people who sit on housing allocation committees

• Allocation is about general local need, not disadvantage

French application of the right to housing (DALO) to voluntary bodies• Particular disadvantaged people can sue the government if not housed by social landlords or voluntary bodies after a prescribed period (10 years in Paris)

• The 25% stock theoretically allocated by the State was transferred to be distributed under the justiciable right to housing (opposable)• It’s a long procedure with low success rate adjudicated by the “social partners”

• But it will produce useful case principles• Impositions of a tenant have been excessively rare •That could be a breach of the social landlords rights

DALO and voluntary bodies (associations)

• DALO provides no accommodation for the homeless pending their application• This and legal complexity mean individuals need the support of voluntary bodies

• There is an imposition of duty on associations to house people

•This is because the government funds bed places

•It doesn’t mean the associations have capacity to meet demand and is a bureaucratic constraint for limited homelessness places

•Fosters disputes between associations to support their sort of disadvantage

THE CRISIS CONTINUES

What can we conclude about effective rights to housing?In a society prone to recessions and booms the effective rights to housing must be flexible nationally and very long-term

• There must be attention to affordable, short-term stockEngland and France have rarely built for very poor people and builders and financiers are still reluctant – Thus social institutions matter

• Usually poor people colonise homes not built for the poor• This means current construction is a tool for inequality

The right to housing in its general form has to propose something that fits national institutions and circumstances BUT

• Diversion of benefits to lobby groups is a major problem• Allocation of publicly subsidized housing should ensure that pushing applicants off elsewhere is controlled

• You are not any better off making the impossible “enforceable”