Opposition to the Tory attack on council housing
By Eamon Dyas
The Right to Buy policy instigated by legislation in 1980 became the foundation on which the housing policies of successive governments over the past 40-odd years have evolved. But it is important to understand that this did not happen because of any organic evolution of societal values. It happened because the political and economic ground had been prepared in advance by an ideologically driven Conservative Party’s desire to roll back the influence of the State. Council housing was viewed as the single most important component in people’s lives that required opening up to the discipline of the market.
However, having said that, it was not a policy that until the 1970s had the support of the Conservative Party. Until the 1970s the Conservative Party had more or less adhered to the consensus on publicly funded housing that had its basis in the Labour Government’s 1949 Housing Act. In that sense it was something that had been viewed as an element of social policy almost as sacrosanct as the NHS. The Tories might tinker with the operation of the way both operated but they retained a commitment to the principles on which both rested.
Although a handful of Tory local councils had been advocating a more aggressive policy of council house sales since the 1950s, as late as 1972 the vast majority of Conservative local councils continued to adhere to a policy which treated such sales with circumspection. The extent of their caution was revealed in The Times when it reported that:
“Figures issued this week by the Department of the Environment show fewer than 50 Tory-controlled boroughs having sold 20 or more houses last year. Thirty-five sold a smaller number and more than 70 none at all. Leicester, Bradford, Preston, Exeter, Gillingham (Kent), Maidenhead, Huddersfield, Harrogate, and Taunton made no sales. Weston-super-Mare’s decision not to sell council houses was underlined there at the Conservative party conference on local government in the spring, when ministers expressed their disappointment.” (“No council homes sold in 70 Tory towns”, The Times, 4 May 1972, p.2).
At this time the Conservative Government under Edward Heath was eager to push the issue of council house sales as part of an attempt to undermine Labour’s strength in its urban strongholds (in May 1972 the Government was urging local authorities to sell more council houses by increasing the discount to 20%). Nonetheless, although the Heath Government had a policy of encouraging council house sales it continued to adhere to the principle that local authorities remained the best-placed institutions to decide these matters. There was no desire on the part of Tory Government to circumvent their powers through a policy of providing tenants with a legal Right to Buy.
Despite this, it was at the local level that a legal Right to Buy policy began to be advocated by a small number of Conservative local authorities and it was from there that it began to be pushed through the party’s structure. One of the leading experts on the Right to Buy scheme explained it thus:
“The promotion of council house sales had been pioneered by Conservative local authority leaders rather than the Party nationally. The Conservatives’ frustration over the ability of local authorities to resist sales increased along with their willingness to breach local autonomy and local democracy. Electoral calculations also influenced Conservative party ambitions to break up the concentrations of council house ownership, which were thought to underpin the Labour Party’s electoral support in cities. By the 1970s, the Right to Buy had become an exhortation policy linked with uncritical assertions about the merits of home ownership and market processes. Local authorities’ reluctance to sell was castigated and associated with socialism and electoral advantage rather than local knowledge or opinion.” (The Right to Buy?: selling off Public and Social Housing, by Alan Murie. Published by Policy Press, University of Bristol, p.30)
So, although Tory party policy on council house sales went on to became associated with the Thatcherite free market ideology, the original Tory policy on council house sales was not designed to underpin that ideological position. Rather, the policy was originally viewed as part of a pragmatic strategy to disrupt the cohesion of the urban Labour vote at local level.
But a mere two years later, by 1974, the Tory policy on council house sales had evolved to the extent that it could no longer be seen in that context. It now assumed the characteristics of a Right to Buy policy which was capable of becoming an integral part of Margaret Thatcher’s wider free market vision.
Since that time, the way in which the Right to Buy policy has been appraised has tended to steer clear of an explanation that relies on any consideration of the political aspects of its evolution. Even the author of the above quotation goes on to expand his explanation of the issue without attaching any significance to the political conditions that contributed to the change of focus by the Conservative Party at national level in the 1970s or the way in which that policy appeared to have gained the confidence of the electorate in 1979.
Since 1979, the logical gap opened up by the absence of an explanation that provides sufficient emphasis on the political conditions has been filled by explanations that rely on a sociological perspective. Even when it doesn’t openly say so, that perspective carries with it a view that sets the evolution of council home sales in the context of the inevitable working through of a basic instinct that ultimately finds expression in a desire for home ownership. In other words, the Right to Buy policy is to be understood as the inevitable culmination of the pressure generated by a natural desire on the part of council tenants for ownership of their council homes. But such explanations only gain currency if we strip away the political context in which the Right to Buy policy evolved and only consider the extent to which council tenants availed themselves of the option of buying their council homes when the opportunity arose.
However, it would be wrong to conclude from the numbers involved that this was the result of a natural instinct given free rein by a free market ideology. In other words, there is nothing to show that the majority of those same tenants would not have continued to reside quite happily as council tenants had there been no political and economic conditioning leading up to that situation. (I explained the relevant political and economic conditioning in the last issue of Labour Affairs so it’s not necessary to repeat them here). It was those conditions, based on a mixture of fear and inducement that, combined with the predicament of the Labour Government in the late 1970s, that ensured the Right to Buy policy became the law of the land in the 1980 Housing Act. And it was these political and economic conditions that were behind the manifestation of the desire for home ownership that emerged among council tenants after 1979.
But that is not how the issue is generally viewed. The peculiar circumstances leading up to the electorate’s endorsement of the Conservative Government in the 1979 election is not something to which many commentators attach any pivotal role. In many ways this should not come as a surprise as there is very little room for accommodating explanations along those lines if it is not in the interests of either of the conventional political expressions to do so. On the one hand, those approaching the issue from the political perspective of the right will see the Conservative Party’s Right to Buy policy as the fulfilment of the natural instinct of council tenants to become home-owners. On the other hand, those commentators that view the issue from the political perspective of the left will be reluctant to delve too deeply into the results of the Right to Buy policy in ways that place it in the context of the events that confronted the Labour Governments in the late 1970s. That reluctance is partly attributable to the fear of acknowledging the fact that raw working-class power as expressed through the trade union activity of the time may have contributed to the emergence of Thatcherism and with it the destruction of a council housing system that had been a central feature of the Welfare State since the Second World War. The result of all this has been the emergence of an unspoken alliance between the right and the left in their acquiescence in an explanation that rests on the Right to Buy being viewed as part of a social evolution continuum in which politics played little or no part.
Labour opposition to the Right to Buy policy
This perspective is also a factor in the failure to acknowledge the extent of the initial Labour opposition to the Right to Buy policy. The following quotation is an example of the way in which that opposition has been relegated to a kind of historical footnote:
“The Labour Party initially expressed opposition to the right to buy because it infringed on local democracy and depleted the supply of rented housing in high demand areas. Labour’s manifesto at the June 1983 general election referred to ending the enforced sale of council houses, empowering public landlords to repurchase homes sold under the Tories on first resale, and providing that future voluntary agreed sales would be at market value (Lund, 2016). Labour did not lose the general election simply because of this opposition, but the view that supporting the Right to Buy was an electoral necessity became accepted wisdom. Labour’s opposition was short lived and, after 1983, both Conservative and Labour parties nationally supported the right to buy.” (Murie, p.37)
While that’s fine in so far as it goes, this description of the opposition to the Right to Buy policy fails to do justice to the extent of the original opposition of the Labour Party at Westminster and in local government.
It is generally forgotten that the disaster the Labour Party suffered in the 1979 general election was not reflected in the local government elections held on the same day (3 May). Labour went into those local elections having, in the previous years, suffered several setbacks in local government elections. Those losses came in the wake of changes in local government boundaries brought in by the Conservative Government in 1972. The changes involved a significant reduction in the number of local authorities and the creation of a number of new metropolitan counties. Subsequent local government elections resulted in the Conservatives gaining control of many local authorities which in turn became serious promotors of a policy of council home sales. Therefore the Labour Party approached the 1979 local elections with the object of winning as many of those councils as possible.
The result of the 1979 local government elections was that Labour, while not achieving its more ambitious target, nonetheless achieved a more than satisfactory outcome. Labour gained 766 seats and won from the Conservatives control of Barrow-in-Furness, Coventry, Derby, Ipswich, Nottingham, Sandwell, Tameside, and Welwyn Hatfield. Labour also took control of several councils in which there had been no previous overall control. Those were: Bassetlaw, Carlisle, Hartlepool, Newcastle-under-Lyme, and South Tyneside.
Aside from that, the surge in the Labour local government vote saw the Conservatives lose (to no overall control) the councils of Birmingham, Cambridge, Kirklees, Leeds, Pendle, Rochdale, Rugby, Warrington, and Wyre Forest.
These results meant that, although they did not represent an absolute success for Labour they did represent a set-back for the Conservatives. Particularly significant was Labour gaining control over Coventry, Derby, Hartlepool and South Tyneside. But no less important was the fact that they had managed to deprive the Conservatives of control of Birmingham and Leeds – two of the main Tory Right to Buy flagship councils.
It has to be emphasised that these results came after the battle lines on council house sales had been firmly laid down between Labour and the Conservatives. There was no way in which anyone voting in these local elections could have been unaware of the issues involved. The Labour Government, in the months prior to the election, had made its position clear.
On 5 March 1979, Peter Shore, the Environment Secretary, told the Commons that the Labour Government intended to compel those local authorities that were felt to have been profligate in their policy of selling off council homes to cut back on their sales. He also announced that the Government intended to make changes to the rules governing local authorities which would have the effect of restricting sales of council houses to sitting tenants of at least two years’ standing. This was directed at some Conservative local authorities, notably Greater London Council which had adopted a policy of “free market” sales backed with generous discounts for tenant buy-outs and to buyers who were not necessarily sitting tenants.
In response to this announcement, Michael Heseltine, the Conservative Opposition spokesman on the environment, attacked the Labour plans and stated that the Conservatives would cancel them as soon as they formed the next Government. Thus, it was that the issues surrounding the Right to Buy were clearly visible to the electorate two months prior to the general and local government elections. That those elections, held on the same day, produced two different and apparently contradictory results can only be explained if the electorate felt they were voting on two different major issues at the time. On the one hand, the electorate in the General Election felt that the incumbent Labour Government had to go because of its failure to control what was seen to be an increasingly assertive and irresponsible trade union movement. On the other hand, that same electorate remained unconvinced that it was necessary to abandon the inherited policy on local council housing as part of that change. At the very least, these results indicated that the Right to Buy policy of the Conservatives fell a long way short of being mandated by the electorate in 1979.
But the Right to Buy policy was always destined to play an important role in Thatcher’s vision as it offered the means by which she could construct her “people’s capitalism”. In such circumstances the Thatcher Government was not going to abandon or modify it in the light of disappointing local government results. Instead, it ignored the contradictory outcome of the local government elections and insisted that it had a mandate to push on with its plans for the Right to Buy.
So, on 12 May, just over a week after the general election that brought the Thatcher Government to power, Michael Heseltine laid out the new Government’s plans. He announced that they would be abolishing “the restriction introduced by Mr Callaghan’s Government in March which limited councils to selling homes only to tenants who had occupied them for a minimum of two years”. He also promised that the Government would “introduce plans for the widespread sale of council homes to tenants within the next few days.” (See: “Council house sale plans expected in a few days”, Daily Telegraph, 13 May 1979). In the meantime, he issued a Directive instructing all local councils to abide by the policy which he said had been mandated by the electorate in the recent general election.
Some days later, on 17 May, in the debate in the Commons on the Queen’s Speech, Heseltine stated that it was the Government’s intention to introduce legislation in the Autumn of 1979 to bring into law the Conservative Right to Buy policy – a policy he described as representing a “social revolution”. Discounts would now start at 30% for tenants of under three years, 33% for those in their fourth year, and an additional one percent for each year thereafter rising to a maximum of 50% after twenty years. He also sought to induce prospective buyers other than council tenants to purchase a council property “for their own exclusive use”. Discounts to such buyers were either 20% or 30% depending on a pre-emptive right to buy-back within five or eight years with similar authority provided to new town corporations. As to those Labour local authorities that continued to hold out against the immediate implementation of the Government’s Right to Buy policy he again emphasised the mandate that he claimed his Government was given in the election and castigated them for depriving their tenants of what he now described as their right.
Those local authorities that continued to refuse to implement the Right to Buy policy did so on the basis of challenging the Conservative claim that it had been mandated in the May 3 elections. As far as they were concerned it remained just a Tory policy capable of being defied until it became law. Among those local authorities that continued to resist Government pressure was:
“Manchester, with over 100,000 council homes, is the largest authority barring sales. It has declared its intention not to sell until forced by law. Other authorities banning sales include Sheffield, with 90,000 homes; Sandwell, West Midlands, 58,000; Sunderland, 50,000 and Hull, 44,000.
Councils banning sales are: Barnsley, Gateshead, Newcastle, North and South Tyneside, Tameside, St. Helens; Salford; Knowsley, Coventry, Ipswich, Peterborough, and North East Derbyshire. London boroughs forbidding sales include Brent, Camden, Hackney, Haringey, Lewisham, Newham, Islington, Lambeth, Southwark, and Tower Hamlets.
Authorities still considering whether to ban include Stoke-on-Trent and Wolverhampton. Action in Liverpool, which has 77,000 homes, is stymied until at least Thursday because no clear political control lies with any party group.” (“Council sales blocked”, the Guardian, 22 May 1979, p.2).
Aside from these there were many local authorities that implemented the policy reluctantly because of Government pressure rather than conviction. Those authorities that continued to oppose the policy were not exclusively Labour but naturally the Conservative Government reserved its main pressure for those that were under Labour leadership. The Conservatives consequently framed the resistance of Labour councils in terms that depicted them as hypocritical. During his speech to Parliament on 17 May 1979 Heseltine deliberately distorted what the Government’s policies represented when he pointed out that several Labour representatives had previously been the beneficiaries of the sale of council houses and in so doing he laid the basis for how that resistance would henceforth be depicted:
“In resisting, as they so often do, the sale of council homes, the practice and position of the Labour movement on this issue is nothing less than humbug. In Coventry, the Labour chairman of the social services committee bought his own council home. In Grimsby some time ago, a leading member of the Labour group, when in opposition, bought his own council home, publicly declaring ‘It’s too good a bargain to miss’. His Labour council when it took control of Grimsby, then stopped all other council tenants from buying their own homes.
“In Slough, two Labour councillors, having bought their council home when the Tories controlled the council, then voted to stop all further sales when Labour took over. I am glad to say that they subsequently lost their seats.
“The recently departed hon. Member for Bristol, North-West, Ron Thomas, bought his council home and, as the whole House knows, so did Jack Jones. The story is the same elsewhere. In the Labour movement, for councillors, for MPs and for trade union leaders, it is really a case of “I’m all right, Jack, but the rest of you will he kept down as tenants to bolster the appetites for power of petty Labour bosses.”
“I can conceive of no piece of legislation which would give me greater pride to introduce in this House than that which embodies the measures I have described. It is no less than a framework for a social revolution. It provides an opportunity of dramatic and immediate benefit to our people. I cannot fail to notice that, when we genuinely seek to spread wealth widely among working people, it is the Labour Party which frustrates it. The people have spoken, and we shall bring new hope and new opportunities to them.” (Hansard, 17 May 1979)
What Heseltine failed to state however was that each of those purchases by Labour or trade union representatives took place within the existing policy on council house sales – a policy that, without depriving local councils of the right to make the ultimate decisions about such sales, had previously benefited thousands of council tenants. As was shown earlier, those policies had always facilitated the sale of council houses where the local authority felt it was appropriate in terms of its responsibilities to balance the available housing resources with local needs. What the Conservative policy was about to do was not only to deny those local authorities the management of those resources but also remove their capacity to meet future housing needs – something that, as a result of the Conservative Government’s own Housing Act of 1957 they had a statutory obligation to do.
Peter Shore, in his reply to Heseltine, hit the nail on the head when he said:
“The Secretary of State must face some basic problems. How does he reconcile the freedom of democratically elected local authorities to determine their housing policies, including housing sales policies, with the compulsory right to buy? Yesterday, one Secretary of State was saying how much the Government deplored central Government regulation and interference in the discretion of local government. A day later we have the most serious intrusion into the rights of elected councils that we have ever seen in the area of housing policy.
“How can the Government reconcile with the right to purchase the obligation placed on local authorities since the Housing Act 1957 to consider housing conditions in their districts and the needs of the districts with respect to the provision of further housing accommodation? Where demand and supply for rented accommodation are in balance, the right hon. Gentleman can say that there is no insuperable problem, but how can he argue the case for the right to buy in areas of housing need, particularly the big cities and great conurbations?” (Hansard, ibid.)
But of course, that was then and this was now. In that sense the debate on the Queen’s Speech on 17 May 1979 was illustrative of the extent to which the post-war consensus on council housing had been shattered.
The Labour Party based its opposition to the Right to Buy policy on the twin objections that it infringed the principle of local democracy as well as depriving local councils of their capacity to respond to local housing needs. The party at Westminster continued to support those local authorities that were refusing to comply with Heseltine’s Directive as it was not yet a legal obligation. This would remain the case until the Housing Act was passed in 1980 at which time it ceased to be a policy and became the law.
Labour obstruction of the 1980 Housing Act
The right of council tenants’ to purchase their council homes assumed legal status with the coming into force of the Housing Act on 3 October 1980. But that was not the end of Labour opposition either inside or outside Westminster. Inside Westminster, the two main politicians behind the formulation of the Labour case were Peter Shore and Gerald Kaufmann. Outside Westminster the main opposition came from trade union opposition and from a number of Labour local authorities.
Given that the Right to Buy was now the law of the land it was not possible for local authorities to refuse to implement it without leaving themselves open to legal action. But, in implementing the legal requirement inherent in the 1980 Housing Act many council employees were being compelled to act against a significant component of their basic belief and conscience. The day after the Right to Buy became law The Times reported that council officials in several Labour local authorities were refusing to distribute the appropriate application forms to tenants wishing to purchase their council homes. Some branches of NALGO (the local government officers’ trade union that was later to form part of UNITE) encouraged their members not to have anything to do with council house sales which included the handing out of purchase application forms – an action that had the tacit approval of the council authorities. The Times report went on:
“In Thamesdown (based on Swindon), officials referred inquiries [about purchase application forms – ED] to the Department of the Environment’s regional office at Bristol. Mr Leslie Gowing, housing committee chairman, denied the council was acting illegally. “We are not stopping tenants from buying their homes. The Act does not say that we have to hand out the forms. If the tenants manage to get the forms from elsewhere, and fill them in correctly, then we will sell them their homes.” (“Town Halls defy Government over house sales to tenants”, The Times, 4 October 1980, p.3)
Aside from Thamesdown, The Times reported that a similar situation existed in other Labour-controlled local authorities including Newcastle upon Tyne and Sheffield (then under the leadership of David Blunkett, a man who at the time was considered a rabid Red but went on to become a New Labour stalwart under Tony Blair and later rewarded for his services with the title of Lord).
Yet, there were some local councils that remained committed to a policy that would put them on the wrong side of the law. Rochdale council initially took a decision not to implement the Act but stopped short of outright defiance. Instead, they decided that they would have nothing to do with the administration of the Act and adopted similar tactics as Thamesdown and the other councils. The leader of Rochdale council, Stephen Moore, in announcing the decision said: “We are not breaking the law. We are simply saying that we do not want to be any part of selling our properties.” He went on to say that under the terms of the Act the Government had power to bring in a commissioner but: “When we have 9,000 people on the council house waiting list there is no way we are going to sell any of our houses.” (See: “Opposition to homes plan grows”, The Times, 10 October 1980, p.2).
As the weeks passed, opposition among local authorities to the implementation of the Act increased both in scale and intensity. On 5 November Greenwich Council became the first authority to come out and openly say that it had no intention of implementing the Act. The event was reported in The Times as follows:
“The London Borough of Greenwich last night became the first local authority in Britain to refuse to implement the new Housing Act which gives council tenants a statutory right to buy their homes.
By 35 votes to 19, the council adopted a resolution by its housing committee on Tuesday to reject 880 applications for purchase. Three Labour members are understood to have voted with the Conservative opposition.
Although several councils, led by Rochdale, Greater Manchester, and supported in some cases by the National and Local Government Officer’s Association, have indicated their intention to disobey the law, Greenwich is the first to declare open defiance. Councillors said last night that among more than 30,000 tenants there was little support for the Government’s right to buy legislation.
Under the Act, Department of the Environment officials may now pre-empt the role of council officers and conclude purchase agreements with tenants. But the department is thought to be unwilling to take action until it has had further talks with the councillors.” (“Greenwich refuses to sell council homes”, The Times, 6 Nov. 1980, p.4).
The reference to the Government’s reluctance to take immediate action against the council was an acknowledgement of the scale of the opposition among the country’s local authorities and it initially decided to tread warily. Although the Government had the power to appoint a commissioner to take over the work of selling council properties in those local authorities that were failing to do so it was an action that would require the cooperation of the office bureaucracies involved. For that reason, despite the ongoing Government threats, such action was always going to be a last resort on the part of the Government.
However, from the Government’s perspective, it was also aware that delaying such action would have the effect of encouraging further defiance on the part of local authorities and a time would be reached when it was no longer possible to do so.
In the meantime, there were other pressures that could be brought to bear on the recalcitrant local authorities. The main pressure was through the withholding of the central government grant. Already, in September 1980, the Government had announced it was withholding the grant from 14 councils. The declared reason for this action was because they were considered over-spending councils. However, the fact that 13 of the 14 were Labour-controlled councils that were also opponents of the Right to Buy policy was not lost on those affected. However, not all Labour-controlled councils could be accused of over-spending and in those cases other pressures were required and not all those pressures would come from the Conservatives. For instance, it is difficult to believe that no internal Labour pressure was involved in the decision of 24 Labour councillors to vote with the Conservative opposition at the meeting of Greenwich Council in January 1981 which overturned its earlier policy of defiance (see: The Times, 23 January 1981). The Labour Party was not about to confirm the earlier image of the party among the electorate as the party of anarchy by supporting any open defiance of the law.
Although the Labour Party at Westminster continued to oppose the Right to Buy policy after it became law it always insisted that any opposition should be within the law. In that regard it continued to support those local councils that exercised their opposition through legitimate means. The situation with Norwich City Council highlighted this quite clearly.
Norwich City Council decided early on to ensure that its opposition to the Right to Buy policy would be within the law. Consequently, it operated a policy based on a refusal to prioritise the procurement process. David Ennals, the Labour MP for Norwich North later explained the Council’s actions it in a letter to The Times:
“In relation to housing, the question is not, ‘Should housing authorities comply with the terms of the 1980 Housing Act?’ Of course they must, whether they agree with the provisions or not, it is the law.
The questions are much broader, bearing in mind other statutory responsibilities of housing authorities. What priority should be given in terms of the time of elected members and professional staff to responsibilities such as housing the elderly, the disabled, single people and the homeless? What priority should be attached to processing improvement grant applications, repair and renovations, and housing transfer applications? How much should these priorities be influenced by an ever-lengthening waiting list of inadequately housed people as opposed to a waiting list of well housed tenants who have applied to buy their houses, maisonettes or flats?
Above all, are decisions such as these best taken by locally elected people who know intimately the local needs as opposed to being determined by ministers and civil servants in Whitehall?” (“Letters to the Editor”, The Times, 10 December 1981, p.13).
In other words, as far as Norwich Council was concerned the 1980 Housing Act, while it gave the prospective purchaser (the tenant) the right to buy his or her council dwelling, it did not impose on the selling authority (the council) any obligation to divert its office resources to prioritising such sales over its other statutory responsibilities. Just as any vendor remains in charge of the process at their end of a sales transaction even after a sale is agreed, so too is the Council entitled to arrange its resources according to its perceived priorities while processing council house sales.
The effect of the action of Norwich Council was to slow down the rate of council house sales. This meant that by October 1981, only 884 applications for the sale of council dwellings in Norwich had been admitted by the Council. Initially, it appears that even the Government was unclear on the legality of Norwich’s actions. By December 1981 however, fearful of the implications of the example being set by Norwich, the Conservative Government decided that the time had come to bite the bullet.
On 3 December 1981, Michael Heseltine announced in the House of Commons that he had notified Norwich Council of his intention to use his powers under the 1980 Housing Act to intervene to assist tenants of the council in the exercise of their right to buy their homes. Heseltine’s announcement was met with indignation in the Commons with Labour’s Gerald Kaufmann pointing out that Norwich City Council was one of the most successful and progressive housing authorities in the country. He further pointed out that Norwich City Council’s record of council sales was not the worst in the country and in fact there were 53 Conservative-controlled local authorities in the country that had not sold a single house!
Because there were many other local authorities acting in the same way as Norwich the general feeling was that Norwich was being singled out because it was seen as a council with “an incomparable record of public housing” and had gained a reputation of being a council with a continuing strong commitment to protecting council housing.
Convinced that it was being singled out unfairly Norwich Council decided to challenge the Government’s legal right to usurp its powers in the manner proposed. The case was taken to the High Court where on 18 December 1981 Lord Justice Donaldson and Mr. Justice Robert Goff ruled against the Council’s request that Heseltine’s order be quashed because it believed that the Minister had acted unreasonably and unlawfully. (See: Daily Telegraph, 19 December 1981, p.6).
At this point it’s worth considering the political instincts of the senior judge in the case, Lord Justice Donaldson. He it was who presided at the trial that wrongfully convicted the Guildford Four in 1975 and who expressed the opinion after the verdict that he regretted he couldn’t hang the accused. He also presided at the trial of the Maguire Seven in 1976 and was heavily criticised by the later inquiry into his handling of the trial. Such were his Conservative sympathies that during his tenure as the first and last President of the Industrial Relations Court in the 1970s that 181 Members of Parliament signed a petition demanding his sacking.
Despite this setback, so confident was the Council in its legal position that it then pursued its case in the Court of Appeal where the case was heard by Lord Denning (the man who Margaret Thatcher called the greatest judge in modern times), Lord Justice Kerr and Lord Justice May on 23 January 1982. When the Appeal judges brought in their ruling on 9 February 1982 it was to confirm the original decision of the High Court. In his summing up Lord Denning accused the council of not acting in good faith and claimed that “they were misguided, and they must answer for it.” He said that the 1980 Housing Act imposed a duty on local authorities to process sales to tenants “effectively and expeditiously.”
He further ordered that the Norwich City Council be liable for costs which were estimated at £20,000 and refused them leave to appeal to the House of Lords.
There were many who found Denning’s interpretation of the responsibilities of local authorities under the Act capricious. This hung on his emphasis on the need for councils to process the requests from tenants “effectively and expeditiously” without taking account of the effect of other contending statutory obligations on the ability of councils to do so. The office and bureaucratic resources of local authorities remained under pressure as a result of existing obligations and the arrival of the highly bureaucratic process of selling council homes had to be balanced alongside these other obligations. In doing what it did Norwich Council was not refusing to process house sale applications. It was merely refusing to prioritise those sales over and above its other obligations.
Whether Norwich City Council was exploiting that confusion in the Act for political purposes was neither here nor there when it came to the law and Denning’s comments on the good faith or otherwise of the council was not an issue in law. That only became an issue if it was shown that the council was consciously and deliberately defying a clear instruction that was inherent in the 1980 Housing Act. What the Court of Appeal was being asked to judge on was whether the 1980 Housing Act imposed a clear obligation on local authorities to prioritise their responsibilities under that Act above its other statutory obligations. Denning’s judgment did not address that issue.
Instead, the judgment was based on whether Michael Heseltine was entitled under the Act to intervene in the work of a local authority when that authority was not deemed to be selling its housing stock fast enough.
However, the Denning judgment, because it refused Norwich City Council leave to appeal to the House of Lords, became the law of the land without being adequately clarified either in his own judgment or by the House of Lords. There is good reason why this particular issue was left unaddressed in the judicial process. The 1980 Housing Act was not specifically framed to instruct local authorities to prioritise their statutory obligations under that Act over and above their statutory obligations inherited under previous Acts of Parliament. To have framed the Act in that way would have left it open to the charge that it was elevating a council’s responsibilities to sell its housing stock above its statutory responsibilities to the homeless, the disabled and the old as well as to its existing tenants (by delaying urgent repairs).
Consequently, for the judicial process to have done what the Act was deliberately framed not to do, would have opened a controversy that had the potential to damage the Government and the Right to Buy policy. Far better to ensure that the issue be left where it was always intended to be – unaddressed and safe from clarification – but continuing to imply that it superseded all existing statutory obligations.
What the culmination of the judicial process achieved under Denning was that it compelled local authorities to treat the 1980 Housing Act as if it contained a specific instruction to prioritise the sale of their housing stock even though it did not. The effect of the ruling was that in future those local authorities that previously treated applications for house sales on an “as and when” basis would now feel compelled to prioritise such applications.
And just in case any local authority might feel the urge to once more test the issue in law the Conservative body on Norwich City Council demanded that the Labour councillors who authorised the court application be personally liable for paying the £20,000 costs involved.
Michael Heseltine was later to claim that his department took meticulous care in how it framed the 1980 Housing Bill to ensure that it covered every aspect of a possible legal challenge when he said:
“we briefed a barrister from outside government to assume that he had been retained by a dedicated Marxist council, committed at any lawful price to frustrate the right to buy. It was a valuable exercise. Loopholes were found and closed.” (Where There’s a Will, by Michael Heseltine, Arrow Books, London 1990, page 79).
But what the Norwich City Council case showed was that even if a loophole remained the courts could be relied upon to ensure that it was not treated as one even at the cost of it then becoming a deliberate obscuration.
After the Norwich case the Labour Party continued to oppose the Right to Buy policy but the main attention of the party was taken up by the turmoil within the party at national level. Michael Foot became leader after the resignation of Callaghan in 1980 and his left-wing policies ensured that the media would depict him in a negative light (in much the same way that Corbyn was to be depicted 35 years later except with Foot it was based on ridicule while with Corbyn it was based on venom). The party then went through a serious split with some of its leading figures leaving to form the Social Democrats in March 1981 (who then went on to form an alliance with the Liberal Party which lasted through the 1983 and 1987 elections). On top of that Thatcher’s Falklands War in 1982 continued to bear electoral dividends.
This all meant that although the party went into the General Election in June 1983 with a commitment to reverse the Right to Buy policy the odds were heavily stacked against it winning that election. Although the election resulted in a Conservatives landslide almost on a par with 1979, the local government elections that followed almost a year later (on 3 May 1984) witnessed a different picture for Labour – one that also emulated the 1979 local elections.
By this time Neil Kinnock had replaced Michael Foot as leader of the party and the local election results left Labour with an increase of 88 seats and a share of the vote that was within one percentage point of the Conservatives (38% as against 37%). In the context of the Right to Buy policy probably the most symbolic result of that election was the gain by Labour of the Birmingham metropolitan borough. Given that Birmingham had been one of the leading flagships for the Conservative Right to Buy policy and the place where Labour hadn’t managed to win in 1979 (although it had deprived the Conservatives of overall control at that time), winning that borough in 1984 was a highly symbolic event. Aside from that there was also the significant fact that despite the mauling that Norwich City Council had suffered in the courts between December 1981 and February 1982 as a result of its obstruction of the Government’s Right to Buy policy the electorate remained loyal to the party when it again returned a Labour council in May 1984.
Thus it was that the pattern of elections since 1979 appeared to show a lack of trust in the party at national level but a continuing significant measure of support for Labour when it came to local politics among an electorate that remained sceptical of the Tory Right to Buy policies.
While this was something that could have been built upon, the Party’s focus on national issues meant that policies that remained important at the local level were inclined to be neglected. The result was that the 1983 General Election was the last election that the Labour Party fought on a ticket of opposition to the Conservative Right to Buy policies.
After Neil Kinnock assumed the leadership of the Party on the resignation of Michael Foot, he had set out to move the party away from the left policies which he held responsible for the disastrous 1983 General Election result. The success of the Social Democrats in siphoning off Labour voters reinforced Kinnock’s determination to re-position the party as the party of the centre-left and by so-doing to take the ground occupied by the Social Democrats. As the Social Democrats had supported a modified version of the Right to Buy policy it was believed that this was a factor in its success in 1983 and so it was that after that election Labour opposition to that policy became an early victim of Kinnock’s vision for the party. Consequently, Labour went into the 1987 general election having dropped its opposition. However, this and the other sacrifices made by Kinnock in his attempt to redesign the party on the centre-left failed to convince the electorate and the result in 1987 represented almost an equally disastrous one for Labour as it had been in 1983 with the party only picking up 20 seats and the Conservatives only losing 21.
That then is the story of how the Labour Party managed to move from a position where its housing policies were based on an active opposition to the Conservative Right to Buy to one where its housing policies became reliant on an accommodation with that policy – the implications of which continues to stifle its thinking on housing policies to this day.