Judicial review challenge to end after Government uses emergency procedure to formalise requirement for bailiffs not to enforce warrants and writs

The Government has issued a statutory instrument under emergency procedures to prevent, except in specified circumstances, bailiffs and High Court Enforcement Officers (HCEOs) attending at a dwelling house to execute a writ or warrant of possession, execute a writ or warrant of restitution or deliver a notice of eviction.

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 were laid yesterday just days after the Ministry of Justice was threatened with a judicial review challenge over an ongoing refusal by bailiffs and HCEOs to enforce warrants and writs.

The regulations came into force today (17 November) and apply to England.

The specified circumstances in the regulations allowing attendance are “where the court is satisfied that the claim is against trespassers who are persons unknown or where it was made wholly or partly on the grounds of anti-social behaviour, nuisance, false statements, substantial rent arrears that predate 23rd March 2020 or, in cases where the person attending is satisfied that the dwelling house is unoccupied at the time of attendance, death of the occupant”.

A case is said to involve substantial rent arrears “if the amount of unpaid rent arrears outstanding at the date on which the order for possession is granted is at least an amount equivalent to 9 months’ rent”. Any unpaid rent arrears accrued after 23rd March 2020 must be disregarded for this purpose.

The regulations also prevent use of the procedure set out in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (c. 15) to take control of goods located inside a dwelling house.

The Explanatory Memorandum acknowledged that since 20 September, the Lord Chancellor had asked bailiffs not to enforce evictions in areas subject to local lockdown regulations which place restrictions on gatherings in residential properties. Following the introduction of the Health Protection (Coronavirus, Local Covid-19 Alert Level) Regulations 2020, bailiffs were asked not to enforce evictions in areas designated as Local Alert Level High (2) or Local Alert Level Very High (3).

The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 (“the national health protection regulations”) introduced a national lockdown in England from 5th November until 2nd December 2020.

In an article last month explaining the judicial review challenge, David Smith of JMW Solicitors had said it was not open to bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asked them to do so. “They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.”

He told Local Government Lawyer that the introduction of the statutory instrument would mean an end to the judicial review challenge.

In his latest article Smith said: “This is a bit of a mess. Clearly it has been rushed and my threats of court action have now doubt increased the rush. But this never needed to happen at all. It could all have been done properly months ago in a sensible fashion without under the table guidance and letters and without the threats of court action.”

He also noted that the statutory instrument only applied in England. “So in Wales either landlords can use bailiffs and High Court Enforcement Officers or alternatively they are acting unlawfully by refusing to take action. Presumably the Welsh assembly will now hurry out their own regulations.”

The Secretary of State for Justice issued The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 in exercise of the powers conferred by sections 45C(1), (2), (3)(c) and 45P of the Public Health (Control of Disease) Act 1984(1).

“These Regulations are made in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England,” the statutory instrument says.

“The Secretary of State considers that the restrictions and requirements imposed by these Regulations are proportionate to what they seek to achieve, which is a public health response to that threat.

“In accordance with section 45R of that Act, the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.”

The Explanatory Memorandum states that the aim is to ensure protection for tenants from being evicted both during the period while the national health protection regulations are in force and the subsequent mid-winter holiday period.

“During this time, public services and businesses may be closed or running at a reduced capacity and securing alternative accommodation may present increased practical difficulties; the Government therefore believes it is right to prevent the enforcement of evictions, in order to reduce the risk of virus transmission and avoid placing additional burdens on the NHS and hindering local authorities in their public health response at a time when pressure on services is most acute.”

Regulation 2 – Residential Tenancies (Protection from Eviction) – expires on 11 January 2021. Regulation 3 – Taking Control of Goods – expires on expiry of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (S.I. 2020/1200).

The Explanatory Memorandum says, however, that the statutory instrument, having been made under the emergency procedure, will automatically cease to have effect at the end of the period of 28 days beginning with the day on which it is made unless, during that period, it is approved by a resolution of each House of Parliament.

No impact assessment was prepared for the Regulations.