The push for a winter ban on evictions from rented homes has run into inevitable claims that such a move would flout constitutional protections over property rights. The protections are strong but there is still scope in the Constitution to delimit them according to social justice principles.
This provides an opening for the Government to proceed with a proportional ban to protect the most vulnerable tenants. It should seize the opportunity now. Make no mistake, this is but a small salve in the property crisis and certainly not the cure. Homelessness is again at a record high and almost 1,500 families are in emergency accommodation. With letting vacancies in short supply, termination notices rising sharply and the cost of living surging, many renters forced from a tenancy in winter months would face a daunting struggle to fund or even find alternative housing. It is an appalling prospect.
Legal scholars believe a temporary moratorium on evictions to counter threatened economic hardship would have good chance of withstanding legal challenge. For ministers, the risk is worth taking. They should move ahead to calibrate a ban within constitutional parameters. The greater risk by far is that escalating homelessness becomes entrenched at a level so high that it becomes impossible to turn the tide or to make any appreciable inroads in curtailing it. The human dimensions for people without housing are especially grave, with stark implications for family life, work and education.
For the leaders of a wealthy State, the political dimensions are no less significant. If there is confrontation in court, so be it. Opponents insist a winter ban would lead in spring to a rent arrears crisis and evictions cliff-edge. However, the Government can guard against an arrears build-up by excluding defaulters from the moratorium. More fundamental still is the need to boost housing supply, increasingly difficult as that no doubt is in the face of soaring inflation and planning turbulence. The eviction bans of the coronavirus shutdown provide both a precedent and a guide for what can be done.
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Sweeping bans early in the pandemic were grounded in the need to stop people moving around, in the interests of public health. The rationale later was economic hardship and the restrictions narrower in scope, the assessment being that a generalised moratorium would be more difficult to sustain legally as society opened after lockdown. The net point is clear. Property rights are not absolute – and the Constitution specifically provides for their regulation. A nuanced approach that seeks to carefully balance the rights of tenants and landlords can pass muster if shown to be a necessary and proportionate interference in the exercise of such rights. That can be done in the present situation. There is no reason for delay.