Tuesday, 31 March 2009

Paper rights

There is a worldwide phenomenon of ‘paper rights’. By that I mean people are given a right or entitlement as a matter of law but in practice those rights are ignored by public bodies or are rarely accessible in practice. To give a couple of examples.

I’ve acted for vulnerable female refugees with young kids who were placed in grotty bed and breakfast accommodation populated by single, violent, male, alcoholics. The law says they should spend no more than 14 days in such accommodation but they were there for many weeks until they fled in fear. These were victims of unspeakable war crimes trying to regain their dignity and life.

The law says if a homeless person has no priority need or is intentionally homeless they are still entitled to a reasonable period in temporary accommodation. In Glasgow, we know that single men and women who present as homeless are lucky to get a sleeping bag to sleep rough on the street, or at best they might be allowed to sleep on a chair for one night.

It’s awful. And this phenomenon is not restricted to Scotland or the UK. The fact good laws exist on the statute book is only half the battle, we need implementation of those laws in practice – and when they are not being respected, we need practical remedies for citizens to ensure that they are.

In the context of Scottish housing, there is a major inequality between social rented tenants and private sector tenants. Too many tenants in the social and private rented sectors live in properties which are not reasonably fit for human habitation – damp, cold, smelly homes with mould growth and dangerously high populations of the house dust mite – which excretes a potent allergen giving rise to asthma and other illnesses.

Our law of repairs prohibits such living conditions, and we are able to secure paltry sums of damages – maybe a £1,000 per a year for living in extremely substandard housing. What is missing is a remedy to speedily enforce the carrying out of major repairs. But our law of specific implement is hopelessly outdated, and I have tried to use the 1990 Environmental Protection Act but we lost on a 2-1 decision in the Inner House – so we have been unable to use the EPA in condensation dampness cases – unlike in England and Wales.

The Scottish Government introduced the 2006 Housing (Scotland) Act which provides a Private Rented Housing Committee system to enable tenants to get repairs done without legal expense. However, this remedy only applies for private sector tenancies. Why?

I suspect because of the strength of the housing lobby and moreover the fact the Scottish Government realised that if this scheme were extended to housing association or council tenants, ultimately the financial implications of undertaking major repairs would find its way back to the Scottish Government.

So over a quarter of all households in Scotland have no remedy to force their landlord to undertake major repairs. It’s incredible. And there is a conspiracy of silence. I am sure you can think of examples from you own professional experience where vulnerable citizens have a solution on paper but in real life you know that they will never access it.

Yet a strong and independent Scottish legal profession can and does speak up for real rights for real people. Will your Tesco lawyers do that? Answers on a postcard to John Swinney and Kenny MacAskill – oh and you might want to ask Nicola Sturgeon how on earth an expanded dodgy private landlord sector will help vulnerable people?

Wednesday, 25 March 2009

Mother Glasgow

Although born and brought up in Dundee I’ve always felt at home in Glasgow. I’ve now spent more of my life – 21 years - in Glasgow than my home toon. The people, the spirit, the history.

Glasgow’s a fantastic place to live, work and raise a family. Indeed my late Mother loved her trips to Glasgow so much so no further evidence is needed in my book.

In many ways Dundee and Glasgow are very similar: a network of tough working class communities with a sharp sense of humour and a no nonsense approach to life. My gravitation to Govan and Red Clydeside was fate. Where else could someone like me fit in?

Govanites have a tremendous sense of history. Many will tell you the worst thing that ever happened was when we allowed Glasgow to join Govan in 1912! In the heady days of shipbuilding Clyde-built ships were a world class sight to behold – they still are. The independent burgh of Govan was Scotland’s economic powerhouse then.

But times change and new challenges present. But the heart of the people, the communities, remains as strong. Which makes me all the more determined to root out those who would undermine and destroy that spirit.

Over in Govanhill a small number of organised criminals from Eastern Europe – and I am sad to say – a small number of unscrupulous local property owners – are conspiring to exploit vulnerable migrant workers who have come to Glasgow to make a decent life. In the past Glasgow has embraced many immigrant communities: Irish, Jewish, and Asian.

My colleagues at Govanhill Law Centre are already uncovering and challenging some shocking frauds. From the regular theft of workers wages to scams where a con-artist breaks into a vacant flat and falsely lets it out to a Slovakian family for cash up front – only for that poor family to be booted out by the real owner.

And then there are the living conditions – substandard slum housing, health hazards, no water, no heating, overcrowding, rat and coach roach infestations. Yet slum landlords are charging £600 per month for these hell holes. Such exploitation has knock-on effects for neighbours and undermines the wellbeing of the community.

Govanhill Law Centre has now obtained an excellent opinion from Roy Martin Q.C. on the use of Compulsory Purchase Order powers to alleviate substandard private housing in Govanhill. Working closely with Govanhill Housing Association and the local community we are hopeful that some of the problems facing Govanhill can be overcome.

We have the privilege of providing independent assistance to the Leader of Glasgow City Council, Cllr Steven Purcell, on this issue. Cllr Purcell has made a personal commitment to work with the local community to tackle these problems and Glasgow City Council is already putting an extra £3m into private sector housing in Govanhill from next month.

Ultimately, we need the Scottish Government to put up some cash too – but there is great hope, and much to fight for.

Wednesday, 18 March 2009

Hands off our ha’penny

It’s time for UK lenders to keep their hand on their ha’penny and get their mitts off ours. Scots law gives lenders a blank cheque to hit customers with almost limitless fees, costs and legal expenses if they miss a payment.

And I reckon this creates a perverse financial and strategic incentive on lenders and their advisors to take homeowners to court for repossession often unnecessarily. An incentive which is not as apparent furth of Scotland.

The costs of being taken to court for repossession are typically £2,000 to £3,000 – which is the last thing a household struggling to pay their mortgage and prevent homelessness needs. And conveniently this ‘debt’ is slapped onto their mortgage and secured on their home. Nice.

Yet in other civil court cases a creditor’s expenses are fixed by the statutory instrument which regulates what solicitors can be paid for in civil proceedings. However, these normal protections – set out in the Act of Sederunt (Fees of Solicitors in the Sheriff Court) statutory instrument - do not apply for mortgage repossession cases in Scotland in practice.

This is because standard condition 12 of schedule 3 to the Conveyancing & Fedual Reform (Scotland) Act 1970, imports into every Scottish mortgage contract the requirement for a debtor to meet all of the banks reasonable costs on default.

Yet customers have no real control or protection over these costs. And this part of the 1970 Act has never been updated to take on board the existence of the Mortgage Rights (Scotland) Act 2001.

If a homeowner uses the 2001 Mortgage Rights Act to prevent their repossession and gets a case dismissed they would ordinarily only be liable for undefended scale costs of £252 + vat and outlays, or if they had a legal aid certificate the sheriff could modify expenses to nil.

But even if expenses are awarded by the court at that modest sum or are modified to nil under the 1986 Legal Aid (Scotland) Act, lenders in Scotland can still add on all costs and fees – as they see fit – from the 1970 Act provision.

This is a devolved issue and Govan Law Centre is calling on the Scottish Government to act urgently to remove this lacuna in the law, and provide Scottish homeowners with the same protection against potentially limitless or unfair legal expenses that other civil litigants enjoy.

I believe there are reasonable prospects to attract a majority in the Scottish Parliament to come behind this issue in order to create consistency and fairness in our system of civil legal expenses. Change - whether that be introducing a fixed fee and subjecting standard condition 12 to s.18 of the 1986 Act and the court’s discretion - would also ensure that our sheriffs who exercise their discretion on expenses with fairness and consideration were not usurped by an unjust, blanket rule.

Thursday, 12 March 2009

Greed is bad

The work-life balance can be difficult at the best of times but the last few days have been tricky.
Managing a full caseload and an organisation is always a challenge but try being the only bloke at ante-natal classes (I can now master the pelvic-floor exercise though). Then there’s a very long list of drafting projects and campaigns to deliver on time. So the blog has fallen behind and I might as well talk about what I’ve been up to.

Have you ever tried to park at a hospital recently? It was impossible to park anywhere close to Glasgow’s Yorkhill today and with a heavily pregnant lady, let just say we got a ticket. This experience has given me extra impetus in drafting Paul Martin’s NHS Parking (Scotland) Bill.

The Scottish Government have made good progress but they haven’t actually abolished hospital parking charges and it’s clear there needs to be a statutory duty on health boards to make adequate provision for managed car parking. You cannot access the health service unless you can get to a NHS facility. So I see parking as essential to accessing health services: it’s an important part of the NHS.

Section 11 of the Homelessness Act comes into force next month and I’ve been drafting the advice packs to be sent to homeowners and tenants by councils when folk are being taken to court for eviction or repossession. Section 11 should help to prevent needless homelessness and writing something in accessible (sorry that should be ‘easy’) language is a lot harder than I’d thought.

Of course there is a lot more we need to be doing to prevent homelessness and you may have noticed I’ve been banging on about this. While the former Housing Minister wouldn’t give me the steam off his stovies I was delighted to get a call from the new Housing Minister, Alex Neil MSP asking to meet to see what more could be done to help people facing repossession in Scotland.

It’s a breath of fresh air to have a Minister prepared to listen and I am grateful to Alex Neil for that opportunity. We had a constructive meeting this week and I’ll be meeting with him again in a few weeks along with the Community Safety Minister, Fergus Ewing MSP. We’ll see what happens but there’s no doubt we all need to work together to make sure vulnerable households in Scotland get through the recession in one piece.

And that means the pendulum needs to swing a little closer to the citizen and a little further from lenders and their legal teams. I have a few ideas on how we can do that.
I drafted a ten-minute rule bill for Mohammad Sarwar MP which will be debated in the Commons next month. It proposes a statutory maximum on all default or administrative fees imposed in consumer contracts. That would cover insidious bank charges and mortgage arrears fees. Basically, money for old rope.

The banks recently lost their appeal in the OFT bank charges test case and to their great shame are trying to appeal to the House of Lords, even although the Court of Appeal told them not to bother. Big business can be dirty business. Next week the top bananas of the Royal Bank of Scotland and Lloyds will give evidence before the Scottish Affairs Committee.
I wonder if the chairman, Mohammad Sarwar and his parliamentary colleagues will manage to squeeze an apology from RBS?

I reckon it’s time to change company law. UK company law can be summarised by a line from the movie, Wall Street. Greed is good. To be fair, the law perpetuates this. Companies owe a legal duty soley to their shareholders. It’s time to temper that duty.

It’s time to reform company law so that banks owe a legal duty to their shareholders subject to doing nothing which harms the public interest. If we did this we could give our multinationals not only a conscience but a heart too.

Monday, 2 March 2009

Russell in the wind

It's difficult to take the SNP's new culture minister, Mike Russell, seriously. I'm told when he travels he has to book an extra seat for his pomposity. A few years ago he wrote a book on Scottish culture which trashed the residents of most of our towns and cities. Scotland’s former European City of Culture, Glasgow, was described by Mr. Russell as 'closes smelling of urine and rubbish, cluttered with dirt'.

Scotland's cultural attaché cautioned visitors to Glasgow to be careful they don't trip over comatose bodies 'with or without a needle by its side'. Not even Dame Edna's alter ego, Sir Les Paterson with drunken drool coated expletives could have painted a more damaging and inaccurate picture.

My first encounter with Mr. Russell in the early days of the Scottish Parliament witnessed a similarly ill-judged and ill-mannered attack. At the stage 1 debate on the free school meals bill he gave a closing speech for his party grudgingly supporting the bill but lambasting it for being ‘seriously flawed’. I remember sitting in the gallery as the draftsperson and thinking eh?

His evidence was we hadn't defined the word 'pupil'. But the bill only sought to amend section 53 of the Education (Scotland) Act 1980 and the Act itself defined pupil. It quickly dawned on me I was listening to the rantings of someone who had prepared his speech while his lips were moving. This guy had more wind than Windy Miller from Camberwick Green.

I subsequently pointed out Mr. Russell's unfair errors in the letter pages of The Herald, and in his reply both he and his pomposity could not bring it upon themselves to admit they had got anything wrong. Nor could they say sorry. With that in my mind, I wondered if they would now apologise for slagging off half of Scotland particularly as Mr. Russell was now Scotland’s Minister for Culture?

Of course not. There was no apology from the Minister, no humility, no contrition. Instead his spokeswomen insisted this was a story which 'scrapped the bottom of the barrel' when 'the rest of the world were focused on combating the economic downturn'.
Really? Perhaps the Scottish Government’s spokeswomen could explain why Mr. Russell's attention is now focused on demands for a free parliamentary vote on an independence referendum? Precisely how will this help the people of Scotland combat the economic downturn?

What would have happened to Scotland’s financial sector if both HBOS and RBS had went under in an independent Scotland? It doesn’t bear thinking about.

Quite frankly, the only folk interested in an independence referendum during these tough times is a few politicians, pollsters and journalists. Everyone else is worried about their homes and jobs.