Moral Rhetoric and the Criminalisation of Squatting

Vulnerable Demons?

Lorna Fox O'Mahony, David O'Mahony, Robin Hickey, Lorna Fox O'Mahony, David O'Mahony, Robin Hickey

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317807940
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This collection of critical essays considers the criminalisation of squatting from a range of different theoretical, policy and practice perspectives. While the practice of squatting has long been criminalised in some jurisdictions, the last few years have witnessed the emergence of a newly constituted political concern with unlawful occupation of land. With initiatives to address the 'threat' of squatting sweeping across Europe, the offence of squatting in a residential building was created in England in 2012. This development, which has attracted a large measure of media attention, has been widely regarded as a controversial policy departure, with many commentators, Parliamentarians, and professional organisations arguing that its support is premised on misunderstandings of the current law and a precarious evidence-base concerning the nature and prevalence of 'squatting'.

Moral Rhetoric and the Criminalisation of Squatting explores the significance of measures to criminalise squatting for squatters, owners and communities. The book also interrogates wider themes that draw on political philosophy, social policy, criminal justice and the nature of ownership, to consider how the assimilation of squatting to a contemporary punitive turn is shaping the political, social, legal and moral landscapes of property, housing and crime.

Part 1 The state Critical perspectives on criminalisation in the neoliberal state

1 The political economy of trespass Revisiting Marxist analysis of the law's response to squatting

Neil Cobb

DOI: 10.4324/9781315815565-1

There was nothing in the election manifestos of either of the parties that formed the UK’s Coalition Government in May 2010 to indicate that they would seek to strengthen criminal laws against squatting in England and Wales.¹ However, within a year of the indecisive general election that brought the Government to power the phenomenon of squatting had once again assumed prominence in political discourse as a serious social problem, in need of a new legal response. The Ministry of Justice’s consultation paper on the matter was unequivocal in its condemnation of the ‘distress and misery’ caused by squatters, while drawing particular attention to the devastating effects of squatting on homes and communities.² It was not thought necessary to provide systematic evidence of the extent of the problem; much was made instead of individual complaints about squatting by Members of Parliament (MPs) and the public, and news reports detailing specific examples of the nuisance caused by squats, in which particular attention was drawn to the presence of urban squatters in expensive properties in the most affluent London postcodes.³

¹ However, the Conservative Party has been vocal in the past in its advocacy for criminal laws against squatting. See discussion in P Vincent-Jones, ‘Squatting and the Recriminalisation of Trespass’ in I Loveland (ed), Frontiers of Criminality (Sweet & Maxwell, 1995). ² Ministry of Justice, Options for Dealing with Squatting. A Consultation Paper (Ministry of Justice, 2011). ³ Website: Ibid 3.

The Ministry of Justice announced almost immediately after the consultation that it would be pressing ahead with a new criminal offence against squatting in residential buildings,⁴ even in the face of trenchant opposition from squatter advocacy organisations,⁵ housing lawyers⁶ and homelessness charities.⁷ The new offence was introduced as an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, which was by then already making its way through Parliament. The clause was met by overwhelming cross-party support from MPs,⁸ and would appear subsequently as a flagship policy in the Government’s housing strategy for England.⁹ The Bill received Royal Assent in May 2012 and the offence, now contained in section 144, came into force that September.¹⁰ According to reports, at least 69 people were arrested and charged under section 144 in the first year of its implementation. While many of those convicted received fines or conditional discharges, several were sentenced to a full custodial term.¹¹ The first person to be jailed was Alex Haigh, a 20-year-old apprentice bricklayer who had travelled to London from Plymouth in search of work only to be arrested when he was found by police living with several others in an empty Pimlico flat owned by the London and Quadrant Housing Association. Haigh was convicted and sentenced to 90 days’ imprisonment at the West London Magistrates’ Court.¹²

⁴ Ministry of Justice, Options for Dealing with Squatting. Response to Consultation (Ministry of Justice, 2011). ⁵ Squatters Action for Secure Homes, Criminalising the Vulnerable: Why We Can’t Criminalise Our Way Out of a Housing Crisis. A Parliamentary Briefing (SQUASH, 2011); Squatters Action for Secure Homes, Can We Afford to Criminalise Squatting? (SQUASH, 2012), both online at: http://www.squashcampaign.org. ⁶ S Malik, ‘Squatting law is being misrepresented to aid ministers’ reforms, claim lawyers’ Guardian (25 September 2011), online at: http://www.theguardian.com. ⁷ K Reeve, Squatting – A Homelessness Issue: An Evidence Review (Crisis, 2011); see also K Reeve and S Coward, Life on the Margins. The Experiences of Homeless People Living in Squats (Crisis, 2004), both online at: http://www.crisis.org.uk. ⁸ Hansard, HC Debates, 1 November 2011, vol 534, cols 864–894. The new clause was passed by 283 votes to 13: see col 892. ⁹ Her Majesty’s Government, Laying the Foundations: A Housing Strategy for England (The Stationery Office, 2011) 42, online at http://www.gov.uk. ¹⁰ N Cobb, ‘Property’s Outlaws: Squatting, Land Use and Criminal Trespass’ [2012] Criminal Law Review 114. Media reports were soon circulating that groups of urban squatters, deterred by s144 from occupying empty residential buildings, had begun to move instead into empty commercial premises. In response, several Conservative and Labour MPs are now petitioning the Government to extend the offence still further to protect commercial as well as residential property owners: O Bowcott, ‘Criminalise squatting in commercial premises, say Tory MPs’, Guardian (30 November 2013), online at http://www.theguardian.com; N Cecil, ‘Make squatting in commercial property a crime, ministers told’, Evening Standard (10 September 2013), online at http://www.standard.co.uk. ¹¹ This data was released by the police and Crown Prosecution Service following a freedom of information request submitted by online newspaper Huffington Post UK: see T Moseley, ‘Squatting law, a year on: 69 charged and one jailed for 90 days’ (31 August 2013), online at: www.huffingtonpost.co.uk; O Quine, ‘No more squatters rights: 69 prosecuted in first year that new law came into effect, CPS data reveals’, Independent (1 September 2013), online at: http://www.independent.co.uk. ¹² E Twinch, ‘First person jailed for squatting’, Inside Housing (28 September 2012), online at: http://www.insidehousing.co.uk; O Bowcott, ‘First squatter jailed under new law’, Guardian (27 September 2012), online at: http://www.theguardian.com.

Haigh’s story is of particular relevance to this chapter, which revisits the contribution of Marxist scholarship to analysis of the legal regulation of squatting.¹³ At its high point in the 1970s, Marxism seemed to offer a highly persuasive account and critique of capitalism systems and their on-going impact on social life: their deep-rooted inequalities, capacity for destructiveness, intrinsic instability and propensity to crisis. It also seemed to provide the foundations for a meaningful anti-capitalist movement grounded in the struggles of the exploited classes and the promise of capitalism’s inevitable replacement by socialism. However, Marxism’s fortunes have undoubtedly waned in recent years; as Eagleton has noted recently, ‘[i]n 1976, a good many people in the West thought Marxism had a reasonable case to argue. By 1986, many of them no longer considered that it had’.¹⁴ Perhaps the main challenge it faced was the apparent victory of liberal democratic capitalism in the wake of the collapse of actually existing communist states, which would lead some (prematurely) to declare the ‘end of history’.¹⁵ It would also struggle to respond to scholarly critique of many of its basic assumptions, including those levelled by Neo-Marxists and the New Social Movements against the economic determinism at the heart of Marxist orthodoxy.¹⁶ Nevertheless, in more recent years there has been something of a revival of interest in Marxism as a potential framework for explaining the causes and consequences of the 2008 global financial crash, which has plunged Britain into what is considered the most significant period of recession since the 1930s.¹⁷

¹³ While Marxist analyses of squatting and its regulation have had significant influence in recent years other theoretical frameworks have also been applied in this context. See, for instance, Manjikian’s recent ‘securitization’ perspective: M Manjikian, Securitization of Property Squatting in Europe (Routledge, 2013). ¹⁴ T Eagleton, Why Marx was Right (Yale University Press, 2011) 3. ¹⁵ F Fukuyama, The End of History and the Last Man (Free Press, 1992). ¹⁶ See, particularly, the ground-breaking Neo-Marxist text by E Laclau and C Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Verso, 1985). ¹⁷ A Callinicos, ‘The Crisis of Our Time’ (2011) 132 International Socialism, online at: http://www.isj.org.uk. This has led to publication of new books on Marxism by established scholars such as Eric Hobsbawm and Terry Eagleton: E Hobsbawm, How to Change the World: Tales of Marx and Marxism (Abacus, 2011); Eagleton (n14).

As well as an important decade for Marxism, the 1970s were also a time of significant economic upheaval in Britain, as the post-war economic boom gave way to prolonged recession, unemployment and industrial unrest.¹⁸ It was a period, too, in which the British Government resorted to an increasingly punitive response to various social problems, including a mass deprivation-based squatting movement, which, among other things, would result in the partial criminalisation of squatting in residential premises across England and Wales by the Criminal Law Act 1977.¹⁹ Marxist commentators at the time interpreted this ‘law and order’ politics as the state’s defensive response to the vulnerability of the ruling capitalist classes at a time, they argued, when the latter’s dominant socio-economic position was rapidly deteriorating. In particular, the new offence against squatting was seen primarily as an ideological tool, designed to neutralise the threat posed by squatting to the hegemony of private property rights while obscuring the connection between the mass squatting movement and the deepening inequalities of the capitalist housing market. This ideological work was achieved in large part through a new moral panic centred on squatting and the squatter, by which public support for the new offence was eventually won.²⁰

¹⁸ A Beckett, When the Lights Went Out: Britain in the Seventies (Faber & Faber, 2010). ¹⁹ See, generally, S Hall, C Critcher, T Jefferson, J Clarke and B Roberts, Policing the Crisis: Mugging, the State, and Law and Order (Macmillan, 1977). ²⁰ See, generally, P Vincent-Jones, ‘Theory and Method Reconsidered: A Marxist Analysis of Trespass Law’ (1987) 16(1) Economy and Society 75.

This chapter draws from these Marxist insights to explore the parallels between the first wave of squatting regulation in the 1970s, at a time of profound crisis and instability, and the UK Coalition Government’s introduction of section 144 in the wake of the recession triggered by the 2008 financial crash. The chapter suggests, broadly, that the introduction of section 144 must be understood primarily as a consequence o...