Lots of bloggers are writing indignantly about this Order. What is it exactly, and what does it actually say? The links in the heading and below go to the official text, but I will try to talk you through it.
It is already law. It came into force on 6th April 2006. It is a "statutory instrument" which is a form of "delegated legislation." Delegated legislation is made by a Minister without Parliamentary debate or positive approval, under specific powers in an Act of Parliament. Sometimes Acts which give ministers such power are called "primary legislation" or "enabling acts" and such delegated legislation is called "secondary legislation".
In my opinion, there is far too much secondary legislation. I think it is irresponsible of our MPs to entrust so much power and discretion to ministers. It is one more way in which they are failing in their duties to us. They are failing to scrutinise new laws adequately and allowing the Executive to get away with too much.
Ministers adore secondary legislation. The Legislative and Regulatory Reform Bill, for example, would be the enabling Act to end all enabling Acts. Ministers would have general widespread powers to make secondary legislation, without the need for a specific enabling Act. Adolf Hitler pushed through just such a law in his first months in power.
This secondary legislation, however, is quite inoffensive. It only sets out the "prescribed exceptions" to the power to make Empty Dwelling Management Orders (EDMO's) and the "prescribed requirements" to be complied with by a local authority asking a tribunal to make an EDMO. The indignation now being expressed should properly have been heard when The Housing Act 2004 was passed. It is an index of the mediocrity of HM Opposition and the British Press that there was no uproar then.
Once you accept the horror of the EDMO concept, Ruth Kelly's exemptions look OK on the face of them. As you would expect, they cover all the Labour Party's client groups (e.g. people absent "for the purpose of receiving personal care by reason of old age, disablement, illness, past or present alcohol or drug dependence or past or present mental disorder"). However, there are a lot of people who could be at risk. Those who have not got around to selling a house they have inherited, for example. That's the one the press has picked up on. Another group could be expatriates or servicemen abroad who have bought a house to return to, but did not live there before they left.
Fortunately, my wife has established her permanent residence in our UK home, although she spends a lot of time with me in Russia as a visitor. If she had not done that, or if (God forbid) she were to die, my home and principal investment would be at risk as our present house in the UK is not the one we lived in before we left to work abroad.
The prescribed requirements are again (if you accept the pernicious principle of the Act) sensible. The local authority must produce evidence of "reasonable efforts" to inform the owner of the possible EDMO, and of all their attempts to persuade him to arrange for his property to be occupied "...as required by the Act..." (damn their impertinence!).
All this shows that the current fuss over the Order is two years too late. All the bad stuff is in the Act. Follow the link to that and have a crack at reading sections 133 to 138 if you are interested (and don't forget to read Schedule 7, as I did - when first writing this post - until corrected by a comment from the man behind the idea of the EDMO).
The wording of section 138 on compensation for third parties is particularly interesting. It says a tribunal "may" order compensation to anyone whose property rights have been affected, but the principles of such compensation are not defined and it is entirely in the tribunal's discretion. I am not at all sure that adjoining owners will be compensated or that, if they are, the compensation will reflect their real loss. I would have to do more research on the composition of the relevant tribunal to take a firmer view on that (and this blogging thing is only a hobby done in snatched moments of a busy life, you know).
Whether or not you have a defence or a claim for compensation, you will be put to a lot of trouble and cost if your local Labour busybodies (dear God, please assure me no Tories or Liberals would do something so disgusting) decide to try to seize your house. The more such laws are passed, the greater the "chilling" effect on free expression. More and more people are too much at the State's mercy in many such arbitrary ways, for them to oppose the Government with the vigour that its status as the nastiest of the modern era deserves.
Local authorities can already expropriate ("compulsorily purchase") property for public purposes. I see no reason why they shouldn't do this in the case of "abandoned" housing in order to use it for social housing. If they did so, however, they would have to go through a complicated process and pay compensation for the full value of the property. An EDMO is a power not forcibly to buy at market value (which is bad enough) but to take and use your property for a period, against your will. Your capital is tied up, deployed for government use. They will account to you for net income, but their duty of care to maximise that it far from clear and they can deduct costs (including administrative costs) which as inefficient public authorities will be high (and may even be loaded unfairly). Besides, if you decided (for whatever reason) that you didn't want income [see examples in comments], who is the local authority to second guess you?
Consider also the plight of the neighbours. For whatever reason, they will have social housing tenants inserted amongst them. My wife and I considered buying a modest apartment in London a while back, to which we would have retired. Almost every apartment in the building was empty, having been bought as a London "pied a terre" by various wealthy foreigners. Were the local authority to seize all the empty apartments and turn them into social housing (a) our lives would have become intolerable, (b) the value of our home would have plummeted and (c) our chances of selling out would have been nil. Maybe or maybe not the tribunal would accept their defence that they were second homes. Maybe or maybe not they or their representatives would be on hand to respond to notices.
Compare and contrast to a compulsory purchase solution, whereby at least we would have been out on the market with the full value of our home looking for somewhere else. The power to make EDMO's is wrong in principle and capable of abuse in discriminatory ways. When Tony Blair's home was vacant because he couldn't find a tenant, he was reasonably sure that his mate Prescott (whose pile of garbage all this is) would not use his powers against him. I am not sure than any opponent of the government, or of a Labour authority, can feel so safe.
If Britain were to experience a housing market crash on the scale of that at the end of the Eighties' boom (and I don't see why it shouldn't) a lot of people might have to relocate for work but be unable to sell their homes because of "negative equity". Six month delays in such circumstances are quite likely. The only way a mortgage company can protect itself in such circumstances (for it is also screwed if an EDMO is imposed on a property subject to its mortgage) is to go into possession - i.e. enforce the mortgage. Even if an owner has a temporary relocation package which allows him to service his debt on a vacant house, the building society or bank may be forced to seize the property to avoid the risk of an EDMO. It will be more difficult for British expatriates to buy houses to which to retire, because their mortgage lenders will (if well advised) be concerned about EDMO risk.
As a matter of principle, I object to government using other people's property in this (or any other way). If there is a genuine social need to be met in housing, government and local authorities have many ways to meet that need. It is typically nasty and dictatorial of New Labour to try to interfere in the use of peoples' private property in this way. What is mine, is mine. If I choose to use it, not use it, or burn it down, that should be bugger all to do with the State.
The Opposition cannot be blamed for having failed to prevent this law from being passed. Under our Constitution, the winner takes all. But they are highly to blame for having failed even to make it a matter of public debate then, and for continuing to ignore it now.
Unfortunately, Dapper Dave is busy "triangulating" non-traditional Tory supporters, such as the homeless and Labour councillors. To defend the sacred rights of Englishmen to their private property is just too Old Tory for him.
The Housing (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (England) Order 2006