Book Review
Housing Law and Policy, by DAVID COWAN
Cambridge: Cambridge University Press, 2011, xlvii + 410 + (bibliography + indices) 49pp
(£29.99 paperback). ISBN 978-0-52-113719-5
“In any decent political philosophy the state is not an end to itself but an
instrumentality to be appraised in terms of its contribution to the welfare of its
individuals who compose the national community”1
In Housing Law and Policy, Professor David Cowan, University of Bristol, provides a
comprehensive analysis of the intersections, assumptions and politics of housing law and
policy.2 Written in an accessible manner, this text traces the development of housing law and
policy in England.3 In a time of (yet another)4 retrenchment of the welfare state in England
and Wales,5 Cowan forces us to consider how we think, view, discuss and act upon housing
law and housing policy, focusing on regulation of housing systems, access to housing and
individual rights and responsibilities in housing.
The Universal Declaration on Human Rights6 and the International Covenant on Economic,
Social and Cultural Rights (ICESCR)7 provide that everybody has a right to an adequate
standard of living including housing. The normative content of the ‘right to housing’ goes
beyond merely the provision of shelter, but encompasses the right to live somewhere
H.W Jones, ‘The Rule of Law and the Welfare State’ (1958) 58(2) Columbia Law Review 143 at 143.
Housing Law and Policy, p 1.
3
The book excludes Scotland, Northern Ireland and Wales from its remit, see Ibid, p 14.
4
See, P Johnson, ‘Some Historical Dimensions of the Welfare State “Crisis”’ (1986) 15(4) Journal of Social
Policy 443, N Gilbert The Transformation of the Welfare State: The Silent Surrender of Public Responsibility
(Oxford: Oxford University Press, 2002) .
5
Welfare Reform Act 2012.
6
Article 25(1), UN General Assembly, Universal Declaration of Human Rights 1948 (UDHR) GA Res. 217
(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 (UDHR)
7
Article 11 (1), International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) 993 U.N.T.S.
3 (ICESCR).
1
2
peacefully, in security and with dignity.8 The duty of a state as regards housing under the
ICESCR is to respect and protect an individual’s right to housing, with some duties to fulfil
this right if an individual or family are unable to do so themselves.9 Under the European
Convention on Human Rights,10 whether a state decides to provide a shelter or a home for all
is considered to be a ‘political’ decision.11 Coupled and closely aligned with a rights-based
concept of housing, is the right to property and protection from arbitrary interference with
property or the right to peaceful enjoyment of property.12 In retaining ‘a commitment to
international treaties to which the UK is a signatory’,13 Cowan does not engage substantively
with issues relating to right to housing/property, nevertheless throughout the text this
potential for rights/interests to be in conflict is evident. Clearly situating the origins of
housing law and policy within the welfare state, housing is presented equally as a particular
discipline, a policy area and an exercise of administrative, legal and/or quasi-administrative
function.
Chapter 1 seeks to locate the subject of housing law and policy. Cowan argues that creating a
‘false division’ between law and policy fails to recognise competing versions of law within
the singular framework of housing law.14 Cowan then examines both housing law15 and
housing policy16 separately in this chapter, yet continues to show systematic links between
8
General Comment No. 4, ICESCR, The Right to Adequate Housing (Article 11(1)) UN Doc. E/1992/23 (13
December 1991), para 7. This right to housing includes the right to security of tenure, affordability, habitability
and cultural appropriate housing.
9
See generally, General Comment No. 3, ICESCR, The Nature of States Parties Obligations (Art. 2 para. 1)
UN Doc. E/1991/23 (14 December 1990), para 9.
10
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR), 4 November 1950, E.T.S 5. See also, Human Rights Act 1998.
11
Chapman v United Kingdom [2001] 33 EHRR 399, para 99.
12
Article 17 UDHR, Article 1, Protocol 1 ECHR. It should be noted that the right to property is not protected as
such in any of the main thematic human rights treaties, however under Article 2 ICESCR (and other
international human rights treaties), human rights are guaranteed without discrimination of any kind as regards
inter alia property.
13
Supra. fn 2.
14
Ibid, pp 3-5.
15
Ibid, pp 6-16.
16
Ibid, pp 16-25.
these two ‘separated’ areas of study. Throughout the first chapter, Cowan provides a whistlestop overview of impetus for reforms in housing law and policy spanning three centuries.
From the Poor Laws up to government housing policy in the present day, Chapter 1 provides
a primer on the key concerns of housing law and policy over the last century. This chapter
provides an overview of the conflicting political impetuses between reform of housing law
and policy, from concerns as to morals and health,17 social justice,18 the role of national crisis
that resulted in law reform that long out-lasted that particular crisis (World War One),19
human rights,20 concerns as regards individual behaviour and responsibility21 and reform of
security of tenure.22
The substance of the book then focuses on three over-lapping themes: firstly, regulation of
housing tenure; secondly, access to housing; and thirdly, rights and responsibilities in
housing. In Part I, ‘Regulation of Housing Tenure’, the regulation of property by housing
providers23 is explored.24 Throughout this part of the monograph, Cowan elaborates on the
idea of public, private and mixed regulatory control of different forms of housing tenure.
Policies regulating desire for property ownership are elaborated upon by Cowan, who notes
the linkages made by politics and society at large between work and thriftiness which makes
men ‘steady, sober and diligent’, and property ownership viewed as a reward for individual
endeavour.25 The role of property law in contributing to availability, mode of purchase26 and
17
Ibid, pp 7-11.
Ibid pp 21-22.
19
Ibid, pp 11-12.
20
Ibid, p 14.
21
Ibid. Part III Rights and Responsibilities.
22
Ibid, pp. 12-13 and pp. 22-23
23
Defined as those responsible for provision of housing and those with a role of facilitating housing provision,
Ibid, p 27.
24
Ibid. This includes ownership, private renting, local authority housing and provision of housing by private
registered providers.
25
Ibid, p 31.
26
Ibid, p 34.
18
exclusive possession is emphasised.27 The simplification of transfer and availability of credit
for the purchase of property28 through liberalisation of lending and weakening (to some
extent) of regulatory supervisory regimes,29 contributed to the mortgage crisis.30 With 31% of
households owning their home outright and a further 39% of households owned with a
mortgage or loan,31 the remainder of Part I explores the tenure of the other circa 30% of
persons who are not property owners. Official discourse32 on renting refuses to recognise the
largely amateurish nature of the landlord and tenant relationship33 in modern society,
preferring to softly regulate the private rental market but for some relatively strict controls on
notice and eviction. Regulation of the private rented market is complex, with limited scope
for reform due to the ‘partnership’ approach of government towards the landlord sector,
seeking to limit government interference in the private market.34 Similar private market
influences are explored by Cowan in chapters four and five, where he analyses the regulation
of local authority housing and private registered providers respectively. Local authority
housing was limited in the 19th century,35 but with the turn of the 20th century and the horrors
of World War I, state involvement in housing provision developed under the political rubric
of ‘homes fit for heroes’.36 The development of social housing management techniques,37
reform of the role of local housing authorities38 (including large scale voluntary transfers to
private registered providers of social housing39 and right to buy schemes40) all contributed to
27
Ibid, p 35.
Ibid, pp 37-44.
29
Ibid, pp 44-49.
30
Ibid, pp 44-50.
31
Office of National Statistics, ‘How People are Living in England and Wales’, 31 January 2013.
32
Ibid, pp 54-57.
33
See
34
Ibid, pp 72-75.
35
See Housing of the Working Classes Act 1890, ibid, p. 77.
36
Ibid, pp 77-78. Note how in 2012, the issue of local authority housing for military families came to the fore,
see Housing Minister Grant Shapps MP, ‘Housing help for military families’ 29 June 2012, available at
https://www.gov.uk/government/news/housing-help-for-military-families (last accessed, 17 February 2013).
37
Ibid, pp 79-82.
38
Ibid, pp 79-85.
39
Ibid, pp 92-95. See also, Chapter 5, which discusses in detail the role of regulating private registered
providers.
28
the minimisation of the role of the state in housing provision. As Cowan notes, only “…the
poorest, most marginal populations…” are now accommodated in local authority housing.41
Throughout Part II, “Access to Housing”, Cowan analyses statutory obligations on the state
to provide housing, 42 allocation of social housing, 43 access to the private rental sector,44 the
role housing benefit plays in the private rented sector45 and access to owner-occupation.46
Cowan also examines general exclusions on access to housing in particular as regards asylum
seekers, failed asylum seekers, European Economic Area nationals and other persons from
abroad.47 In a similar fashion to Part I of this monograph, Part II provides the reader with
detailed consideration of the various legal and policy initiatives that continue to impact on
these areas of housing law. Throughout, Cowan reminds the reader of how political discourse
has privileged certain forms of tenure (in particular ownership) without engagement with the
advantages of other means of tenure.48 A key theme that emerges from Part II is that of the
deserving and undeserving as constructed within housing law and policy.49 What comes
across clearly is how political, legal and policy norms can impact on societal discourse
between those deemed deserving (home ownership subsidisation) and those deemed
underserving (migrants, housing benefit claimants, homeless) to support particular lifestyle
and property status choices.50
40
Ibid, pp 85-87.
Ibid., p. 87.
42
Ibid, Chapter 6.
43
Ibid, Chapter 7.
44
Ibid, Chapter 9.
45
Ibid, pp 228-239.
46
Ibid, Chapter 10.
47
Ibid, Chapter 8.
48
See in particular
49
See for example, discussion on homelessness criteria, ibid, pp 162-173 and discussion on housing benefit, pp.
230 – 233 on the role of the rent officer.
50
For more on property as a status indicator, see N.M Davidson, “Property and Relative Status” (2009) 107
Michigan Law Review 757 and F de Londras, Principles of Irish Property Law (Dublin: Clarus Press, 2011),
Chapter 1.
41
The final section of this textbook, Part III “Rights and Responsibilities”, examines the impact
that control of tenure,51 the role of law in protecting against harassment and unlawful
eviction,52 extinguishing/regaining control or possession of property53 and regulation of
behaviour54 have on housing law and policy in England and Wales. What comes across so
unmistakeably in this section is how those with a greater degree of ownership (in the sense of
having the large estate in land) have generally greater rights, with those whose tenure is less
than a fee simple burdened many of the ‘responsibilities’.55
This is an excellent text and adds greatly to Cowan’s previous work on housing law in its
societal, legal and political contexts.56 This monograph achieves its aims of providing an
accessible socio-legal framework for students and practitioners to understand housing law.
However, the text is of much broader relevance than to those with an interest in housing law
and policy; it is an examination of government and governance, rights and control and
ultimately (and successfully) of how, in late modernity, a culture of control57 has enveloped
policy, political, legal and public reactions to housing provision. Not only is this an essential
text for housing law courses, but also for property law courses, courses on theories and
administration of rights, administrative law, and punishment and social control.
Liam Thornton
UCD SCHOOL OF LAW
51
Supra. fn. 2, Chapter 11.
Ibid, Chapter 12.
53
Ibid, Chapter 14 and Chapter 16.
54
Ibid, Chapter 13 as regards property state and condition and Chapter 15 on anti-social behaviour.
55
See in particular discussion of arrears (Ibid, pp 332 et seq) and the discussion on the role of anti social
behavioiur and housing (Ibid pp 354-358).
56
For a full list of David Cowan’s work see, http://www.bristol.ac.uk/law/people/david-scowan/publications.html (last accessed, 17 February 2013).
57
See, D Garland The Culture of Control: Crime and Social Order in Contemporary Society (Oxford; OUP,
2001).
52