Criminal Liability in Regulatory Contexts Responses - Law ...

Residential Landlords Association
1.186 This response looks at the issues raised in the consultation paper in the context
of regulatory enforcement in the field of housing law and environmental health
law as it relates to housing, in particular. The last major piece of legislation in this
field was the Housing Act 2004. Along with the British Property Federation this
Association took the lead in representing landlord’s interests. We promoted
various amendments to the legislation which were debated in the House of Lords
and some of which amendments were accepted by the Government. We liaised
on an ongoing basis with the Bill Team and the Bill Lawyer.
1.187 The Association warmly endorses the various proposals put forward by the Law
Commission in this report. It is long overdue but, regrettably, we are very
doubtful that any Government (of whatever political complexion) will listen.
Further, there is the undoubted problem that much of regulatory law now
emanates from the European Union. The standing of the criminal law which must
be grounded in morality is, we believe, undermined by the ceaseless deluge of
new criminal offences which have been created particularly under the last
Government. There seems to be a wish to criminalise the entire business
community. Since so often much of this legislation remains unenforced, it simply
undermines it and brings it into contempt. We are very pleased to see that the
Law Commission has identified the ease with which criminality can be brought
about through secondary legislation as an insidious force driving the plethora of
new and unnecessary criminal offences. Having said this, when dealing with
primary legislation, Government Departments delight in introducing new criminal
offences. There appears to be a touching faith on the part of Civil Servants and
legislators that if they decree that something is to be criminalised that will solve a
problem.
1.188 This Association’s experience is that however worthy individual pieces of
legislation may be the totality of such legislation, particularly if criminal sanctions
are attached, is to dissuade responsible business people, in our case residential
landlords, from engaging in the activity or it becomes such that it is undoubtedly
an element in their decision to disengage. It may be a matter of perception but
the law abiding landlord, who in reality would have little to fear, is concerned with
their reputation. This can therefore influence them in their business decisions.
On the other hand our experience is that so far as the small rogue element is
concerned one can create criminal offences until you are blue in the face but it
makes not one jot of difference to their activities. In between, you have people
who are often ill informed or ignorant who can as a result breach their legal
obligations. They do not merit the full weight of the criminal law. Rather, it is
often a matter of training and education. We believe that an informal approach to
enforcement should be the first method adopted, followed by non criminal
sanctions of the kind talked of in the consultation.
35