[Originally posted at Liberal Democrat Voice, 01/11/11]

The Legal Aid, Sentencing and Punishment of Offender Bill has returned to the House of Commons this week. The problems with the Government’s proposed Legal Aid reforms have been apparent for a while. Some people will see their access to justice seriously curtailed, while the courts are likely to silt up with inexpert litigants-in-person. The chances of any money being saved – when considered in the round – are limited. In this context it is good to see reports that Liberal Democrat MPs Tom Brake and Mike Crockart are tabling amendments to seek to address some of the most egregious injustices embodied in this part of the Bill.

But the Bill poses other profound challenges to those concerned with social justice and evidence-based policy making.

In particular, last week Kenneth Clarke introduced a late amendment to the Bill that will criminalise squatting of all residential buildings. While this was ostensibly in response to the consultation that has been running over the summer, it has been clear from the outset that the Conservative component of the Government wanted policy to head in the direction of criminalisation. Inconveniently, those who responded to the consultation were by no means unanimous in their support for extending criminalisation. But it looks like that won’t stand in the way. The Government believes it has a tabloid-fuelled tailwind behind it on this one.

Broadly speaking, at the moment it is a criminal offence to squat someone’s home or to squat a property for which there is a “protected intending occupier” (that is, roughly, an identified person who is about to move in). It is not a criminal offence to squat an empty property. But it can become a criminal offence once the owner of the empty property obtains a possession order and the squatter then refuses to leave.

Over the course of the consultation period Government statements have persisted in misunderstanding or misrepresenting the law in order to argue that change is necessary to make squatting someone’s home a criminal offence. They have been publicly criticised by leading housing lawyers for doing this. It is just one example of a rather cavalier approach to evidence and accuracy (I discussed this further on my blog.) These criticisms have been dismissed or ignored.

The approach throughout has been a bit of a smokescreen. By preying on fears that we’re talking mainly about squatters moving in on homeowners while they’ve nipped out to the supermarket for an hour the Government has moved forward an agenda to extend the criminal law to cover all residential buildings. As Crispin Blunt notes in his foreword to the report on the consultation, the criminal law at the moment isn’t a help to “residential property owners, including landlords, local authorities and second home owners”. This isn’t about homeowners being terrorised. It’s about organisations and individuals who are holding properties empty. And the majority of squatting is of such empty or disused properties. The punishment if convicted of the proposed crime of squatting is a prison term of up to 51 weeks and/or a fine of £5,000.

Why is this a problem? Because the available evidence suggests that squatters are some of the most vulnerable people in society (see, most recently, here). Many are single homeless people who have sought assistance from local authorities but, although recognised as homeless, are not in priority need and therefore are not entitled to social housing. They have often tried to access hostel accommodation but are unable to. Many squat as an alternative to sleeping rough or after a period of rough sleeping. It is a last resort. The incidence of vulnerabilities such as physical and mental ill health is high among squatters. Many are relatively young.

Squatting is a symptom. It is a symptom of the broader shortage of housing and gaps in welfare and support systems. The housing safety net has always been at its weakest for single people. And it is increasingly threadbare.  What purpose will criminalising this population serve?

Under the current system it can undoubtedly take time and effort to regain possession of a squatted property. Some responses to the consultation very sensibly suggested we should try to understand better why the currently law isn’t effective before legislating further. Others noted that current failings are as much about whether the Police have the knowledge and the resources to enforce the criminal law and whether the resources are available in the courts to process the cases. Changing the law so that a larger proportion of squatting activities are criminal isn’t going to solve those problems. Indeed, it seems likely they are only going to get worse.

But criminalising squatting will most likely result in some very vulnerable people having to cope with life with a criminal record. It will most likely lead to an increase in rough sleeping as people seek to avoid the risk of being arrested. And it will most likely lead to even more precarious living. You’ll probably be safe from prosecution if you’re sleeping under a bridge, in shed or in a hedge because they won’t constitute “residential buildings” under the terms of the proposed amendment. But where’s the justice in that?