Book reviews: November 2020

Adrian Stalker

PUBLISHER: EDINBURGH UNIVERSITY PRESS
ISBN: 978-147448216
PRICE: £85

Up to a quarter or one-third of civil litigation connects somehow to housing, while respect for the home is an oft-cited Convention right. Yet, housing law is somewhat of a Cinderella of legal practice, much more important and deserving of recognition than its demure profile would suggest, or than it typically receives. It is also, it has to be said, a tricky area of law, being relatively technical and simultaneously steeped in tradition yet subject to continual evolution and reform.

Thus, it is not an area of law for cursory afterthought, let alone dabbling. For unwary or foolhardy practitioners, it is beset with common law nuances, meandering statutory labyrinths, and procedural pitfalls. In truth, it is an area of law that, for decades, has been crying out for root and branch codification. However, instead, it only ever receives partial legislative attention in varying degrees of tinkering, albeit sometimes at seemingly breathless rate.

Absent a code, what practitioners need is a treatise that they can use both as an atlas and as an Ordnance Survey map, where the current topography has been diligently and exhaustively charted out by an expert and steadfastly reliable navigator. That's exactly what this book is. 

Housing law's said everyday relevance and challenging nature are perhaps two features that have attracted a number of astute legal minds to write on it over the years. This is of great solace to practitioners. Nowadays, Adrian Stalker is among the foremost authorities in this area, and his new edition of this book is the most up-to-date definitive reference manual currently on sale. In a nutshell, it is an absolute “must have” for any Scots lawyer whose practice verges onto this territory, or even near it.

When the first edition was published back in 2007, Stalker was calling at the bar following several years as principal of Shelter Scotland's legal team. Meanwhile, I myself had just taken up the reins of Renfrewshire Law Centre. There, housing law, including evictions, would form a core area of practice for my legal team, being one of the few local firms providing representation in the busy heritable court. Straightaway, Stalker's book attained biblical status. My single copy became the most borrowed and dog-eared item in our library, and soon I had to order a fresh one for each of my colleagues. Accordingly, it seems fitting that, in the author's preface to the new edition, one of those colleagues receives thanks for commentary on draft chapters (and that individual is only one of several specialists who have lent some of their own insight).

If housing law is a tricky area in which to practise, then writing on it must feel like a Sisyphean challenge. This too is reflected in the preface, which observes that the first draft of the second edition was completed back in 2015, only for the author to realise that yet another wave of reform was already on the horizon. Thus, in a sense, this is the third edition, albeit only the second published. It states the law as at 31 May 2020, some 14 years and 11 months onwards from the first edition.

To give a sense of the technical complexity and pace of change that beset housing law, the most recent Housing (Scotland) Act discussed in the first edition was the 2006 Act. Since then, Holyrood has passed two further pieces of primary legislation bearing that name in 2010 and 2014, as well as, inter alia, the Private Rented Housing (Scotland) Act 2011, the Private Housing (Tenancies) (Scotland) Act 2016, the Housing (Amendment) (Scotland) Act 2018, and the Coronavirus (Scotland) Act 2020, while ministers have also laid numerous other associated statutory instruments into law. Moreover, the principal form of private tenancy has undergone fundamental revamping, while the private sector regime has been transferred (almost entirely lock, stock and barrel) over to the jurisdiction of the First-tier Tribunal for Scotland (Housing & Property Chamber).

Meanwhile, for example, the Leases Act 1449 remains sound and enforceable law (being an Act of the old Scottish Parliament, and, as such, written in Scots).

Thus, at a time when the Government had appointed the Gill and Taylor reviews to identify means by which to promote access to justice by simplifying legal procedure, it was simultaneously all out on reforming housing law in a way that, by 2020, would render its procedural framework significantly more elaborate than at the start of the millennium.

This is reflected even by the sheer length of the new edition. Much of the core text remains identical, or subject only to minor clarification or revisal. Nonetheless, principal content now runs to some 547 pages as compared with the first edition's 239. And, whereas the publisher has changed, the book's formatting remains largely the same. Thus, the fact that the new edition is almost twice as long is attributable largely to the foregoing changes in and additions to substantive law and procedure, as well as resultant jurisprudence. Also, the number of chapters is greater, at 15 as compared with the first edition's nine. 

The overall structure and direction of travel remain essentially the name, starting with exposition of fundamental concepts, then charting the law over various forms of procedure and modes of tenancy or occupancy. However, new chapters include, by necessity, one dedicated to private residential tenancies (introduced under the 2016 Act), and another to FTT procedure (where jurisdictional transfer commenced under the 2014 Act). Also, there is an excellent entirely fresh chapter entitled “Public Law, Human Rights and Equality Act Defences”, while the appendix deals with COVID-19 measures.

I was invited to review this book in August. I decided to put off writing till I would have an opportunity to use it in practice. It certainly can be read as a purely academic exercise. Stalker's style is as fluid and cogent as one would wish for a reference dealing with complex concepts in considerable depth and detail – the detail being perspicaciously sifted between the main text and the footnotes, as appropriate. Nonetheless, the real test of any book such as this is in its utility to practitioners at a practical level.

Being myself recently called counsel with a background in housing law, much of my work still relates to this area. And, such is the nature of real life problems meriting counsel's attention that they tend to be those that defy ready answer. Given said extent of legal reform betwixt first and second editions, and in view also of the hitherto intervening dearth of a solid text, lawyers, even those who practise in this area, do nowadays find themselves befuddled, on occasion, and for entirely understandable reasons – be the question whether occupancy constitutes licence or tenancy, or what form of tenancy, or whether court or FTT has jurisdiction, for example.

Accordingly, having now had such opportunity, I can affirm that this book indeed serves not only as an entire treatise, and a moreishly readable one at that, but also as an extremely practical and illuminating day-to-day toolbox. Its index is also carefully drawn up to direct the reader to the most useful text with minimal fuss. Stalker's voice speaks from the pages with clarity, assurance and authority. His passion and conscientiousness for the subject matter are obvious, as are his own years of practical immersion in it in all its aspects. There is depth and detail, but these are pitched at a precisely sweet level, absent any superfluity or confusion as can sometimes beleaguer purely academic works by purely academic authors. Like all truly excellent law books, this efficiently sates the reader's need for useful understanding while leaving one with a sense of having been guided by the author's utmost safe and skilful pair of hands.

This is not a bedtime read. But it is a book for all law students, legal academics, housing law advisers, solicitors and counsel who have any interest in evictions in Scotland. For them, it is indispensable. And for their clients.

Without reservation, I recommend this book. If you work in a firm where more than one of you practise in this area, I suggest you order more than one copy. This book won't spend much time on a shelf in your library.

Jon Kiddie, advocate, Terra Firma Chambers

Matthias Jestaedt, Oliver Lepsius, Christoph Möllers and Christoph Schönberger

PUBLISHER: OXFORD UNIVERSITY PRESS
ISBN: 978-0198793540
PRICE: £80

The United Kingdom has an unwritten and therefore uncodified constitution, a patchwork made of legislation, precedent, convention and the royal prerogative. It has been put under judicial scrutiny of late, most notably in Miller v Secretary of State for Exiting the European Union [2017] UKSC 5, the consequences of which are deftly examined in Joshua Rozenberg's book, Enemies of the People.

In the aftermath of defeat in the Second World War, despite the four state occupation, the Basic Law was agreed (“constitution” being regarded as too high a phrase), over which the German Federal Constitutional Court would ensure adherence. The decisions of the court are not without controversy, not least the recent decision that the European financial bailout by the European Central Bank was ultra vires EU competence. The court has also ruled that there is a presumption that the application of the fundamental rights of the Basic Law simultaneously ensures the level of protection of the Charter of Fundamental Rights of the European Union. Despite this, the authors of this insightful and timely series of four essays point out that “the novel power of the Federal Constitutional Court to declare a statute null and void for violations of the Basic Law generated no controversy”. 

The authors chart the establishment and development of the court and demonstrate how rapidly it established itself, its function and its centrality to law making and application in post-war West Germany. Courts can make references on constitutional issues to the court; the federal cabinet, state governments, and qualified (federal) parliamentary minorities could challenge laws directly; but finally, and not without controversy, the founding legislation enshrined the right of citizens to invoke their constitutional rights before the court (Verfassungsbeschwerden). One of the fissures in post-unification Germany has been that “reunification did not produce a new, pan-German constitution. Instead, the Eastern states simply acceded to the Basic Law”. Many of those who lived in the former German Democratic Republic refer to reunification as the Anschluß, with its echoes of the German takeover of Austria in 1938. 

There is increasing debate in the UK about whether the courts are exercising too much judicial activism, stepping across boundaries. There are increasingly vocal concerns being raised (on both sides of the debate) about the judicial application of human rights, even a question whether the post-Brexit UK will revoke participation in the European Convention on Human Rights. 

Matthias Jestaedt, in his contribution entitled “The Karlsruhe Phenomenon” (a reference to the seat of the court), makes clear that the development of the court and the Basic Law are interwoven and parallel. He writes: “it is 'Karlsruhe' that must render binding judgments on how the Basic Law's provisions must be interpreted and applied. In the final analysis, the Basic Law speaks through the Federal Constitutional Court. The court, therefore, is the Basic Law's ultimate mouthpiece”. This may be axiomatic. However, he observes: “The constitution does not serve merely as special law for politics, but aspires rather to be an all-encompassing system of values that penetrates and encompasses every legal relationship”. 

He offers the view that no other constitutional court is as active in resolving ordinary legal cases. Indeed, in polls, the court secures consistently high measures of trust amongst the people. The court interprets the constitution, but in a nod to the supremacy of the law and an acknowledgment of the status the court has in preserving the application of the constitution, the author notes that following a narrow decision finding an amendment to the constitution on eavesdropping provisions constitutional, it “is telling, for the relationship between the constitutional legislature and Constitutional Court, that a possible 'correction' of a Karlsruhe judgment by amending the relevant provision of the Basic Law would be overwhelmingly perceived and denounced as illegitimately undermining the Court's authority”. 

The court exercises judicial review. While the legislature, the Bundesrat and Bundestag create the law, the Basic Law specifically provides (as an acknowledgment of both the Weimar and National Socialist periods) that “the legislature is no longer 'self-ruling', but rather... an authority bound by and subject to the constitution”. It follows that this weaving of safeguards results in no political question, of itself, being beyond the review of the court. 

Despite this, and the inevitability of the disproportionate publicity given to some decisions, it should be noted that the rate of success of a complaint brought before the court is very slim. Only 2.6% of complaints have been successful in the first 60 years of the court's decision making. Of the complaints brought before the court, 98% are by individuals whose basis of review is a claimed breach of a fundamental right provided by the Basic Law. However, it is interesting to note that the relatively new European democracies which followed the model of the Constitutional Court have not adopted the right of individual complaint. Indeed, while it is available under the European Convention on Human Rights, it is striking not to be an avenue of judicial review of state acts in these democracies. 

As Christoph Schönberger writes, the greatest achievement of the court is that it “became the midwife of the second German democracy. That remains its central achievement. From the beginning, it decidedly distanced itself from the poisoned legacy of the Nazi era, worked toward a fundamental liberalization of the German legal system, and shook up the traditional judiciary”. As with much which drives policy development in Germany, the establishment of the court and its central role within the state and its structures is a reaction “to their totalitarian experiences under National Socialism and Fascism by establishing separate constitutional courts and binding their elected assemblies to basic rights”. The President of the Constitutional Court can often be seen at state occasions standing alongside the President and Chancellor. 

This is a timely book. It demonstrates that the public and state authorities of a once young and now mature central democracy have embraced judicial oversight. The world did not fall in. 

David J Dickson, solicitor advocate, review editor