by John Mayer
‘No, not this time. This time they’re using a straightforward part of the Housing (Scotland) Act 1988. And I think this time, they may have the law on their side. I’ll have to dig that out and think about it. Oh, and we’re keeping this to ourselves, for the moment.’
The word had spread that a Monday showdown was coming sometime around noon. In the gown room of Glasgow Sheriff Court the morning light had fought its way through clouds thousands of feet deep and was accordingly low; as low as McLane felt. An old wooden sign in Reception said that Lord Sunnybrook was to preside all day. At 9:45 in the forenoon, McLane tried arguing with the Clerk of Court that his were complex cases and he needed a whole day to argue the law; but that was countered with a look of derision from the stressed-out Clerk who was just trying to get out of his office and into the courtroom:
‘Mr McLane or is it Baron McLane? I apologise if I got your title wrong, but you must understand that this is not Parliament House. I don’t expect you have much, if any experience of summary evictions, but at a glance I can tell you that these sixty-five cases sent by Glasgow City Council are all from the same part of the city. They’re all founded on the same facts and the same law - which is used very regularly in this court. If the Council wants their house back, they get it. It’s that simple. So I’m sorry but we don’t think of these cases as complex. A whole day is out of the question. Lord Sunnybrook wouldn’t hear of it.’
McLane tried pleading for an extension of his Hearing from ten minutes to half an hour, but the Clerk simply shook his head, picked up his heavy bundle of case files and left the room with McLane’s ten minutes remaining on the busy court schedule.
Pacing the bustling corridor was impossible. This indeed was not Parliament House. Then McLane had an idea. Stopping a young woman court lawyer who was carrying so many case files she could hardly see over her bundle, he figured she would know the answer to his question:
‘Err, excuse me. Is there a library in this court?’
Recognising the Keeper of the Advocates' Library in Parliament House who’d recently been installed Baron McLane of Calton, the young lawyer looked astonished to see him in her workplace. Daily grind was more the order of her day than being a Member of the College of Justice in Scotland and putting one’s case before the highest judges in the land:
‘A library? Oh yes. There is one, but nobody really has time to use it.’
‘Good. If you could just show me where it …’
Nodding over her shoulder the young lawyer motioned: ‘Go down those stairs at the end of the corridor. The door has a keypad on it, but I don’t think it’s working. 4782 if you need it.’
Even before he had time to thank her, the young lawyer had vanished into a swarm of junkies, homeless teenagers and police officers.
The hand-written chart on the wall indicated that someone was keeping the loose-leaf law books up to date and just as the busy young lawyer had thought, the place was empty. Taking a seat in a corner, McLane read again the short legal article in the Housing (Scotland) Act. But just like the last time and the time before that, he saw no trap door. No word, clause or sentence that he could prise open and like some kind of jail breaker, call upon his clients to follow him through an escape hatch and out to freedom. Instead it simply read:
Article 278 Section 9 sub-section 3 (2) (d): ‘Any tenant who sub-lets the forementioned house without the prior written consent of the landlord will be deemed to have done so in assignatus utitur iure auctoris and will accordingly be in material breach of the tenancy.’
Article 278 Section 9 sub-section 3 (2) (e): ‘Any tenant of the landlord who sub-lets the forementioned house without the prior written consent of the landlord and therefore in breach of the last mentioned subsection 3 (2) (d) shall, provided that the illegal sub-let has been for longer than three calendar months and subject to an order of the Sheriff Court, be liable to summary eviction without appeal.’
At first glance, the Clerk seemed to be right. But then he tried an old trick he’d learned from his Devil Master: read it backwards, as though the sentence had been written in Latin. That way, you can check the sense of what’s written.
Ten minutes! What could he do in a court in ten minutes? Nothing. Sub-lets were common in the Calton. ‘Swappies’ as they were known, meant that newlyweds could get a house near family in return for someone in another part of the city getting a house closer to an older relative. There was just no other way of making this kind of convenient arrangement. Glasgow City Council didn’t want to help and everyone knew that going to their Member of Parliament to lobby on their behalf, despite pre-election promises, was a complete waste of time.
None of the tenancies coming up in court this morning was under three months long, so that was no help. But thinking about a few names he knew, McLane saw one odd thing. They all lived in the same street bar one, which although it had a different street address, was on the corner of the street named in all the other cases. There were plenty of other ‘Swappies’ in the Calton to pick, so why pick on only this street? Desperately undoing the pink legal cotton tape around his bundle of papers, McLane pulled out an Ordnance Survey map of the Calton. Spreading it on the inadequate desk in front of him, he smoothed out the folds as best he could. Next he opened a file marked ‘News Cuttings Etc’ and flicked through a few dozen pages which Tucker had put together as a way of knowing what was public knowledge and what wasn’t. Matching the two, he got an idea. But what could he do about it?
With his head bowed down close to the table and his hand covering his eyes, McLane heard the squeak of the door opening but paid no attention. It took only a second thereafter for the library silence to be shattered. That shrill voice could only come from one man:
‘Ah McLane. There you are. Someone said they saw you coming down here. I thought I’d use the place as a gown room. The crush of changing upstairs among those plebeians is just too horrid. Wouldn’t you agree?’
Standing six feet seven tall, in a frock coat, wing collar, Cambridge tie and bowler hat, the unmistakeable figure of Heriot Pembroke QC was the last thing McLane wanted to see.
‘You’re not here for my cases, are you?’
Looking past McLane to the wall behind, Pembroke’s words came out covered in slimy derision: ‘I am. And why not?’
‘Well, summary eviction housing cases are a bit below your pay grade, are they not?’
Laying down his kid leather, brass framed bag and slapping his leather gloves into his bowler hat, Pembroke raised his nose: ‘Quite the contrary, dear boy. Quite the contrary. Glasgow City Council pay me very well. Very well indeed, I may say.’
It was what happened in private in the Petition Court in Parliament House that had really stuck in McLane’s throat. A private signing of a Petition for a public authority! But without even a locus to speak in that case, far less appear in court for someone who wasn’t his client, McLane was barred from raising any appeal: and the man now dressing himself for court knew it. Watching this pompous ass hum and whistle, McLane kept coming back to one word ‘Petition’. Lowering his head so that his eyes might not give away the idea in his mind, McLane tried to think this through.
After a few minutes of churning the idea through his legal mind, McLane got up and took a few steps over towards a printer lying under a screen. With his idea now fully formed, McLane took pleasure in asking:
‘Do you mind old boy? I need to get some paper from this printer behind you. There’s a good chap.’
Pompous to the last, Pembroke moved his things the very minimum McLane needed to pick out a dozen pages of blank white paper. Shifting his seat more into a corner so that Pembroke couldn’t see what he was writing, McLane thought through his strategy one last time. Satisfied he was on sound legal ground, he pulled from his bag a bottle of ink, a nib pen and a blotter he wasn’t sure would work on printer paper, and began.
Glasgow Sheriff Court
in the matter of
Glasgow City Council -v- Elspeth Kerr
igan and Ors
In the name and authority of Her Majesty Queen Elizabeth the Second, by the Grace of God, Queen of the United Kingdom of Great Britain and all Her Realms and Territories, Defender of the Faith and Head of the Commonwealth:
Unto Her Royal Majesty’s Servant in Justice, Lord Sunnybrook
My Lord,
Humbly Sheweth: that the Petitioner is Baron McLane of Calton QC, humble and devoted servant of this court who appears before the court today for the foresaid Elspeth Kerrigan of No4 Crownpoint Road in the Calton, Glasgow and all others mentioned in the Summary Eviction Proceedings at the instance of Glasgow City Council.
This Petition is for the following purpose:
Primo: that the said Glasgow City Council has issued to the said Elspeth Kerrigan and others, statutory Notices under and in terms of Article 278 Section 9 sub-section 3 (2) (d) and (e).
Secundo: That further to these proceedings, in terms of letters written by Glasgow City Council to the said Elspeth Kerrigan of No4 Crownpoint Road in the Calton, Glasgow and all others mentioned in the Summary Eviction Proceedings at the instance of Glasgow City Council all dated …
Clasping case files to their chests, about thirty lower court lawyers had gathered around the oak panelled walls of the courtroom to watch this clash of the Wise Men From The East. Behind the judge’s red leather chair, a grand stained glass window bore the emblems of the Glasgow city motto with the words emblazoned in pure white at the top:
Via Veritas Vita : The Way, The Truth, The Life.
Just as in Parliament House, a Macer called ‘co-ou-rt’ for all to stand; but to McLane he looked a rather shabby figure who could do with a few lessons from old Jimmy Robertson in Parliament House.
In a similarly shabby wig and gown, Lord Sunnybrook ambled onto the bench and without a look, far less a bow to anyone, sat down, put on his reading glasses and grunted: ‘Let’s get on with it. We don’t have all day here you know.’
Pembroke rose, coughed slightly and bowed deeply: ‘My lord, I appear upon the instructions of Glasgow City Council’s Chairman of the Planning Committee whose Petition is now before the court. In my humble and respectful submission, the terms of the Petition are in everyday legal language and need no further explanation. I have with me, should it be disputed by my now noble and learned friend, the illustrious Baron McLane, proof that all of the named tenants of my clients have sub-let their houses for more than three months - many for several years, in fact - in clear breach of the Housing (Scotland) Act. I do not know what Mr McLane will say, but I trust he won’t waste the court’s time trying to obfuscate what is a simple set of facts. I move your lordship without further ado to Grant the Prayer of my Petition for summary eviction of them all. And with that, my lord, I rest.’
‘So noted, Mr Pembroke. Your pithy and accurate submission does you credit, sir. Now Mr err or whatever it is you call yourself nowadays. We don’t hold with such things here. We prefer utilitarianism. Now, what do you say?’
Rising to his feet, McLane was doing everything in his power to forget Tam Fraser’s clear description of Lord Sunnybrook as he laughed and joked with his Brothers behind the Loyal Orange Lodge in Bridgeton.
Bowing respectfully, more to the Court Mace than the judge himself, McLane opened:
‘My lord, I do not and won’t try to dispute the fact that all of the addresses on this Petition are those of people who lived in the Calton and who were - note ‘were’ - tenants of the Petitioners, namely Glasgow City Council. But as to the names, well, that’s a very different matter; which I may require to deal with at some length.’
It was a well-known fact amongst the lower court lawyers in Glasgow, that Lord Sunnybrook hadn’t opened a law book since leaving university. On coming back alive from the Second World War where so many good men had fallen, Captain Sunnybrook had been elevated by his cousin who was then Lord Justice General of Scotland to the dignity and title of Lord Sunnybrook, Sheriff Court Judge in Glasgow. In his eyes, it was only natural that his son should succeed him. The present Lord Sunnybrook decided cases only on the basis of what he thought to be right and wrong; not what the lawmakers in Edinburgh or London thought ought to be the law. Removing his glasses, he barked at McLane:
‘What in God’s name are you talking about - ‘were tenants’? They’re not ghosts. They’re all there in the houses in this Petition. Dear, dear. Is this a taste of what I’m to suffer today?’
Ignoring that foolish presumption, McLane smiled up at the bench: ‘Well, it’s very simple, my lord. A plain reading of the law shows that Glasgow City Council is trying to evict the wrong people.’
Going red in the face, Lord Sunnybrook gritted his teeth and shook his head:
‘I’ve never heard such nonsense. Wrong people! Wrong people! If a tenancy comes to an end, for a lawful purpose such as demolition and re-development, then subject to getting an order from me, the landlord can evict the tenant and get on with the redevelopment. It may have escaped your notice, sir, but it’s done all over the country and that’s the end of it. So I repeat, Baron McLane -what in God’s name are you talking about?
Every one of the lower court lawyers checked their colleague on either side, but only a few faces seemed to light up:
‘It’s not a matter of what I’m talking about. I’m dealing with what the law actually says. A plain reading of Article 278 Section 9 sub-section 3 (2) (d) is ‘Any tenant who sub-lets the forementioned house without the prior written consent of the landlord will be deemed to have done so in assignatus utitur iure auctoris - that is entered into a lease with another person unknown to the landlord - and will accordingly be in material breach of the tenancy.’
In layman’s language, that means the tenant had no right to sub-let the house and is accordingly in material breach of the contract of lease. I don’t dispute that for a moment.’
Both Lord Sunnybrook and Pembroke scribbled down verbatim what McLane had just said. From the bench, Lord Sunnybrook made sure of what he’d heard:
‘Did I hear you correctly? You just said that you don’t dispute that every one of the tenancies in Mr Pembroke’s Petition is in breach. Is that right?’
McLane bowed: ‘Indeed it is, my lord. I don’t dispute that for a moment. But I must bring your lordship’s attention to the following sub-section, namely Article 278 Section 9 sub-section 3 (2) (e). That provides ‘Any tenant of the landlord who sub-lets the forementioned house without the prior written consent of the landlord and therefore in breach of the last mentioned subsection 3 (2) (d) shall, provided that the illegal sub-let has been for longer than three calendar months and subject to an order of the Sheriff Court, be liable to summary eviction without appeal.’
That says, in equally clear terms, that it’s the tenant who is in breach - and I repeat the subsection is clear that it’s only the tenant who is in breach who can be summarily evicted. Well, as far as I’m concerned today, Glasgow City Council can go to every address mentioned in the Petition and attempt to evict the original tenant who is in breach of the contract of tenancy. But I can save them the time, because they won’t find any of them at those addresses. That’s the point of sub-letting - it’s a swap. So before your lordship today, I accept that as a matter of law, the people who now live at the addresses in the Petition are there illegally. In fact, traditionally in the law of Scotland, such a person who is factually integral to such a lease arrangement but is legally no part of it, is called a ‘stranger’. However, most if not all of these strangers has been at those addresses for over a year and paid rent to Glasgow City Council: which rents have been accepted without objection. The strangers therefore now have the law of tacit relocation on their side. That means, having accepted their rent for years, in order for Glasgow City Council to evict these strangers, they’ll have to give each of them a minimum of one year’s Formal Notice. That’s the law.’
Lord Sunnybrook held his breath as a few dozen heads around the walls of the court nodded in agreement with McLane’s c
risp legal analysis. Sunnybrook’s decisions were never appealed as a matter of law, because he never decided anything on the law. He always used his own twisted interpretation of the facts to decide which way he’d rule. But this case was different, and he knew it. Inhaling deeply through his nose, the judge looked at Pembroke and waved his hand as though at a child:
‘Sit down. I’m going to hear Mr Pembroke.’
With his head down and sliding his polished fingernail along the lines of the subsections, Pembroke paused at the appropriate places and nodded involuntarily. That sign made it clear to every lawyer in the court that Pembroke had lost today’s battle. Getting to his feet, Pembroke began:
‘Well, that’s not how I read the provisions, my lord. I think perhaps today the court has been treated to Mr McLane’s own novel interpretation of the law. He is rather well known in … another place … for doing that.’
McLane was about to object, when Pembroke pressed on:
‘But just supposing Mr McLane is right my lord, which I don’t accept, he has only dealt with one aspect of the Petition. He has carefully stayed well clear of the second and most important part of the matter. My Petition seeks an Order from your lordship which is in two parts. The first part is about the evictions. But by far the more important Part Two is about demolitions.
If I may, I shall quote the most recent letter sent to these so-called strangers. My lord it says this; ‘Glasgow City Council has decided to demolish your area for the very good reason of raising the living standards - including express transportation - of the whole city and by extension, the whole country. We have no doubt that the Sheriff will Grant the Order for Demolition and when he does, the Council will instruct its Department of Civil Engineering to begin to demolish certain parts of the Calton beginning with Crownpoint Road. You should make your application for the Council’s generous relocation package at least fourteen days before moving out of your house. If you do not apply at least …
My lord, what I am about to say next is not part of the law, but is at the heart of the matter. These houses, quite apart from being required as part of a national transport strategy, are uneconomic. Badly uneconomic. Indeed I can go as far as to say, that so far as the Calton is concerned, Glasgow City Council has been ‘out of pocket’ if I may put it that way, for many years. The rents were fixed decades ago and have not increased in line with the cost of living or even the national rate of inflation. I could say that for many years now, Glasgow City Council has been doing the residents of the Calton a favour by allowing them to live there.
