Introduction

On a recent train journey through the English West Country, my views of the beautiful countryside were interrupted by the sight of newly constructed housing estates at the edge of villages and towns. What were once green fields and open countryside were being converted into building sites and rows of uniform housing as part of the intensification of suburban and ex-urban development that has its roots in the early 20th century. This latest round of building is part of a new offensive encouraged by successive British governments in the belief that the best way to provide housing for all is to increase the rates of private house building and construction. The views of many politicians and social commentators are that Britain's housing crisis is the product of a deficit in the supply of properties, and that this is resulting in house price inflation that is pricing out many people from gaining access to decent, affordable dwellings. The remedy is to build more, primarily private market housing so that supply will overtake demand and, so it is alleged, depress the price of dwellings and make them more affordable.

In the chapter, I take issue with this market logic and the ‘building more’ argument, and critique its simplistic model of housing that does not convey how markets are manipulated and controlled in ways whereby prices are not simply responses to movements in supply and demand. I note that encouraging the speculative construction of dwellings is not a panacea for the housing crisis. Rather, speculative house building does no more than (re)produce housing that will sell at prices well beyond what many people can afford, and that is often located in places where it is not needed. People's housing needs run deeper than can be solved solely by building more, and it is wrong to think that private house builders, looking to extract as much profit as possible from house sales, ought to be in the vanguard of seeking to solve the diverse problems people face in gaining access to good-quality, affordable dwellings.

In developing these views, I divide the chapter into three parts. First, I set out the key arguments of house-building advocates for why constructing more housing is a solution to the problems people face in gaining access to good-quality, affordable dwellings.

Introduction

Building is indivisible from the actions of governments, and there is no construction that is not simultaneously shaped by state policy programmes, particularly relating to the promotion of economic development. Gordillo (2014) recounts the emergence of state-sponsored investments in the Chaco region in Northern Argentina, in which building and construction are characterised by waves of ‘disruption by bulldozers’ as countless villages are destroyed to make way for new buildings, roads, bridges and towns as part of opening up the region to cattle ranching and agribusiness. For Gordillo (2014), the emergent built environment in Chaco is part of the destruction and spatial obliteration of indigenous communities, a process similar in many other areas. Thus, in Chinese cities like Shanghai, government policy encourages the demolition of traditional lilong housing and alleyways as part of the city's modernisation, a process that involves the displacement of people and their removal to often peripheral, semi-suburban estates.

Both examples illustrate the power of construction to transform space and the social fabric of places, while drawing attention to the role of the state in shaping the (re)production of the built environment. Construction is a highly organised, and institutionalised, process involving many actors, and foremost is the state, which has a major stake in ensuring the supply of buildings and infrastructure. In this chapter, I develop the understanding that the political stratagems of states are linked to the proliferation of building and construction. States, and supranational bodies like the World Bank, support a growthist agenda that, while claiming to benefit all, is part of a politicised strategy that encourages ‘building without limits’. From the opening up of frontier areas by constructing road and rail networks, to the displacement of local communities in places such as the Three Gorges Dam in China, the policies and programmes of states are a major part of why we are building too much and too badly.

In exploring this theme, I divide the chapter into three sections. First, I consider the interrelationships between building and territoriality, or the propensity for states to deploy construction in the process of securing access to, and control over, territory. From the earliest foundations of empires, construction has been pivotal in providing physical infrastructure to facilitate state governance, and integral to developing territorial presence and ambition.

Introduction

Speculation is a dominant feature of contemporary land and property markets and is significant in fuelling the rise in building and construction activity. It is most obvious in the changing vistas of major cities that, since the late 20th century, have spawned numerous tall or vertical buildings, often replacing land uses that command low rental values (Graham, 2016). Goldman (2011) suggests that we are living in an era of speculative urbanism, in which an objective of politicians is to transform land deemed to be of marginal use into lucrative real estate, primarily by attracting flows of global investment to fund the construction of new buildings and infrastructure. From the skylines of Shanghai and Mumbai to those of Lahore and London, the evidence of speculative construction consists of ever-escalating rates of urban development, shaped by the core logic of capitalist urbanisation in which the appropriation and redevelopment of land is intrinsic to the (re)production of economic value.

Speculation is not only the staple diet of capitalist land and property markets, and the driving force behind the building booms of the early 21st century, but also an enduring feature of human society. Investors looking to make lucrative gains from the purchase of land will take a risk on its development, with the expectation that, over the course of time, its market value will increase. Such developments are described by Shin (2013) as ‘pre-emptive’, or part of an anticipatory mode of acting in which actors tend to supply more than ‘can be consumed and with the expectation that demand will follow’. This is a recipe for overbuilding, providing much more than is needed. In this chapter, I develop the argument that speculation is fundamental in shaping the contemporary crisis of construction. This entails the overproduction of buildings and infrastructure, and a regressive urbanism in which the benefits of construction projects do not accrue to the most disadvantaged, while the ecological integrity of the environment is undermined.

I divide the chapter into three sections and begin by outlining what speculative construction is and entails, placing it in its historical context as an enduring and systemic part of building activity. From the Greek city-states to major Roman cities, speculation was a feature of early urbanisation, and is significant in shaping the supply, quality and cost of buildings, particularly dwellings.

Introduction: race, racism and intersectionality

Quite soon after the COVID-19 pandemic reached the UK, its disproportionate impact on Black and other people of colour in our communities and among NHS staff became apparent. We watched the viscerally arresting pictures of the first NHS deaths displaying Black and Brown faces on our news screens. We waited desperately for answers and solutions in the subsequent official reports (PHE, 2020) with the banal ministerial claims that the ‘virus does not discriminate’ ringing in our ears. However, we knew, as Omar Khan, the former Director of the UK's leading race think tank, the Runnymede Trust, was quick to remind those of us that needed reminding: ‘racism is a matter of life and death’ which the pandemic has merely served cruelly to expose and exacerbate. ‘Racism is the real pandemic’ – as the banners of Black Lives Matters (BLM) protesters (shown in Figure 5.1) proclaimed – because COVID-19 does discriminate through inequalities in health, education, housing and employment, impacting and determining ‘the lives of BAME groups from cradle to grave’. In November 2020, the American Medical Association, recognized racism – systemic, cultural and interpersonal – as a ‘public health threat’.

That the severity of the suffering from the pandemic was experienced most acutely by Black and other lives prompted all of us to reconsider injustice. In this chapter, we extend this reflection to the profession of the authors of this book: legal education. As a starting point, it is clear that justice is not available for everyone: from police brutality and deaths in custody against Black lives and those of indigenous and other people of colour across the globe including in (former) colonial centres like the UK; to the sheer negligent disregard which led to the burning of Grenfell Tower; to standing by as people fleeing persecution drown in the waters that surround us.

The Law, Society, Policy series publishes high-quality, socio-legal research monographs and edited collections with the potential for policy impact. Cutting across the traditional divides of legal scholarship, Law, Society, Policy offers an interdisciplinary, policy engaged approach to socio-legal research which explores law in its social and political contexts with a particular focus on the place of law in everyday life.

The series seeks to take an explicitly society-first view of socio-legal studies, with a focus on the ways that law shapes social life, and the constitutive nature of law and society. International in scope, engaging with domestic, international and global legal and regulatory frameworks, texts in the Law, Society, Policy series engage with the full range of socio-legal topics and themes.

Introduction

One of the notorious failings of the UK government in its reaction to the first wave of the COVID-19 pandemic was its inability to ensure that the health and social care frontline had proper and undisrupted access to essential personal protective equipment (PPE), such as masks, gowns and gloves. The story of the failings leading to the PPE fiasco runs largely in parallel to the also failed attempt at boosting the availability of ventilators through the ‘Ventilator Challenge’, and the not more successful subsequent ‘Test and Trace’ programme, including its doubling down in ‘Operation Moonshot’ – which, at the time of writing, has been assessed to be having a marginal impact on the prevention and management of the second wave.

These stories offer a cautionary tale for the future management of extremely urgent public procurement, which will become ever more important given the serious risks of social and ecological breakdown derived from climate change. These stories show the very significant problems that result from having a public sector with insufficient procurement capability, an inadequate procurement strategy and (perhaps more importantly) a very weak procurement governance system largely incapable of ensuring the accountability for outsourced tasks in the public interest (Boeger and Sanchez-Graells, 2019). Perhaps even worse, these stories are not news at all, and the underlying problems not only concern extremely urgent procurement, but also complex procurement projects, as the second phase of the Grenfell Tower Disaster Inquiry is further evidencing.

In this chapter, I will concentrate on the PPE fiasco in the context of the English NHS to explore these broader governance issues. By focusing on the case study of PPE procurement during the first wave of the COVID-19 pandemic, my main goal is to lay bare the more general problems in the UK government's approach to the governance of public procurement and its increasing insularity as a result of Brexit, with the hope that this will show a path for change that could avert even more significant fiascos in the face of the massive challenges that climate change is yet to bring.

Background

There is no need to rehearse here the reasons why the continued availability of adequate PPE is essential to the ability of the health and social care frontline to do their best to save lives.

This book was written during the summer and autumn of 2020. The editors asked the authors to consider how austerity had impacted their areas of legal specialism; and, whether this impact had relevance for the challenges likely to be faced as the United Kingdom recovered from the COVID-19 pandemic. The significant cost of initiatives such as the furlough scheme, and the tax incentives offered to employers within the hospitality and tourism industries, were at the heart of the authors’ task. The UK seemed poised to incur very significant amounts of debt, which was alarming, given recent history. After the financial crash of 2008, the protections of law had seemed to come a very distant second to economic imperatives. The risk of repeating this pattern was pressing. Thus, the authors were asked to consider what might be fixed, now, before the recovery period began.

As the authors began writing in early summer 2020, it was difficult to anticipate the extent of disruption and trauma that soon was to come. By February 2021, when this book went to press, the death of George Floyd in the US state of Minnesota had led to protests around the world. A second lockdown in the UK had occurred. The pressing concerns about procurement of PPE had not dissipated, but, rather, were exacerbated by concerns over the procurement of vaccines – after months of erratic provision of diagnostic testing. Indeed, ‘exacerbated’ would appear to be the theme of developments over the course of writing this book – whether concerns over paying for the cost of government borrowing, surprise at tight touch Parliamentary scrutiny, worries over educational disparity, anxieties over inequality in all aspects of law, profound disquiet over the enormous toll of the virus – all of the concerns that drove the inception of this book, tragically, have intensified as it was being written. This makes the calls for action found in these chapters even more pressing. The crisis is too profound for it to make sense for scholars to wait until the crisis ends, and then to reflect upon the choices that were made. There will be a time for that vein of scholarship, and the scholarship will be valuable – this moment, however, is different. As the crisis still rages, our hope is to contribute to the discussion of choices that might be made.

When the UK government plans its COVID-19 economic recovery, children and their rights must be at the heart of decision-making. All children have been deeply affected by the pandemic. The closure of schools and leisure facilities, the contraction of essential children's and youth services, and increased exposure to stress, poverty, hunger, abuse and domestic violence during lockdown will have significant and enduring consequences and entrench existing disadvantage and discrimination along socio-economic, racial and ethnic lines (see Struthers, Chapter 11). This is especially true for children in conflict with the law. The response to the pandemic has heightened the conditions that draw children into contact with the criminal justice system (CJS) and had a detrimental impact on those currently within it, again perpetuating existing disparities especially for care-experienced and BAME heritage children. These are not, however, new problems brought about by the pandemic or the impending economic crisis. Rather, they are the very predictable consequences of a long-standing failure to address both the causes and responses to childhood offending in a way that is holistic, caring and rights-respecting, and in ways that are good for children, society and the economy.

Drawing on lessons from the decade of austerity, this chapter argues that the COVID-19 recovery period should be founded on principles of genera-relational justice. A genera-relational approach to childhood offending recognizes both the pandemic's disproportionate impact on children and our unique obligations to them. The chapter concludes, optimistically, that recent policy shifts in youth justice – including the intersecting ‘child-first’, trauma-informed and public health approaches – offer more fertile ground for a just response to the impending economic crisis than existed in the post-2008 period. However, to ensure these are embedded and able to survive the vicissitudes of the economy or political mood, they must be accompanied by more robust accountability. There is a great deal happening in this area, so there is a lot of information to share.

Youth justice in the shadow of austerity

In the wake of the 2008 economic crisis, reforms by the in-coming coalition government brought positive results for children in or at risk of entering the CJS, including the conferral of ‘looked after’ status on all remanded children. But it was reform to the system of diversion, alongside changes to police crime recording practices, that was transformative, reversing years of penal expansion under New Labour.

The impact of the COVID-19 pandemic on the UK residential social care sector has been immense and tragic. Elderly, vulnerable and frail individuals living in residential care settings who should have been ‘shielded’ from the virus have died in disproportionate numbers. There are multiple and overlapping reasons for the very high rates of COVID-19 infection and death in residential adult social care settings. Some are immediate policy decisions relating to the management of the pandemic including to discharge older people from NHS hospitals into residential and nursing homes without a negative COVID-19 test result, and to prioritize the supply of (scarce) Personal Protective Equipment (PPE) to NHS providers. Others are endemic to the regulation of residential and nursing care, including the financial models that allow private equity firms to make significant profits while local authority funded placements pay at below cost, family members are required to pay care ‘top-up’ fees, and self-funded residents are expected to cross-subsidize those funded by the state. Low pay and low status for care workers in this impossible financial context then translates into high staff turnover and a reliance on agency care staff (who work for multiple providers). Brexit has compounded this issue, with estimates suggesting there were over 120,000 vacancies in adult social care in late 2019. In this chapter, I will argue that a new model for adult social care, which focuses on fairness rather than profit is the only way to create a stable, safe and sustainable social care sector for the future.

Introduction: COVID-19 in care homes

Residential care settings in the UK were hit particularly hard by the initial outbreak of COVID-19. At the regular Downing Street daily briefing on 15 May 2020, Matt Hancock, Secretary of State for Health and Social Care, claimed that the government had thrown a “protective ring” around care homes “right from the start” of the pandemic. Statistical data collated on deaths involving COVID-19 during the first wave of the virus unfortunately tell a very different story. Far from protecting care homes from the outbreak, some 6,811 care homes in England (44 per cent) had reported suspected or confirmed outbreaks of COVID-19 by 23 July 2020. Similar outbreaks were experienced elsewhere in the UK, with 66 per cent of care homes in Scotland reporting outbreaks, and several care homes reporting multiple COVID-19 deaths in quick succession.

Law and inequality

During troubled times, events that captivate for a minute may quickly be replaced by other, even more troubling developments, and perhaps forgotten. Nonetheless, the quote at the start of this chapter, coupled with Emily Maitlis’ now famous Newsnight speech about how COVID-19 is “not a great leveller” offer a metaphor for what the contributors to this book are arguing – the different effects of, and responses to, COVID-19; the fragmentation of the global, and anxieties about the local scale. At heart, we are concerned with the idea of the public, and the presentation of the public as a homogenous community equally affected by COVID-19. Just like the supposed equal effects of the rule of law, we know that the idea and constitution of the public as well as the rule of law are riven with inequalities. We know that class, gender, race and wealth are cleavages in the supposed homogeneity of the public. And we know that the effects of COVID-19 are visited disproportionately on the already disadvantaged.

Despite – and, perhaps, because of – the economic packages in place to support businesses and others during the pandemic, there are anxieties over how the coming economic crisis caused by the resultant swollen sovereign debt will affect the public. After the last great economic crisis following the bank and market meltdown in 2007– 08, austerity measures were put in place. What might be termed ‘austerity law’ emerged as the need to repay sovereign debt dominated discussions of the economy. It is these questions and anxieties which, virtually, brought us together. We had originally been inspired by the almost naïve questions raised by Dee Cook in her brilliant, innovative book, Rich Law, Poor Law (1988), which uncovered not only the differential approaches to tax and social security fraud, but also sought to explain how these differences had come about at a structural level. Even the architecture of the state emphasized this disparity – the majesty of the former London HQ of the HMRC, as opposed to the jobcentres outside which the labour and income poor queue for assistance.

Introduction

I have spent more time wondering about how to start this chapter on ‘governing’ during the pandemic than actually writing it. Perhaps it could start with the almost daily shock felt in reading headlines and tweets linking Personal Protective Equipment (PPE) contracts and key personnel with the ruling party. Or we might start with the shift in the way of legislating which, on analyses from both the left and the right, has undermined the rule of law and the accountability of the Executive. What was said – rhetorically – about the ‘elected dictatorship’ or the ‘new despotism’ has given way to fresh realizations about its existence; perhaps the question is not, ‘who governs Britain?’, but how is Britain governed? Legislation, and secondary legislation, have combined with other forms of what Robert Megarry termed (in 1944) ‘administrative quasi-legislation’; or, government by media briefing; or, in 240 characters, by tweet, exemplified by a tweet by Robert Jenrick, Secretary of State for Housing, Communities and Local Government telling us that he was stopping evictions.

Another way to start this chapter might have been with a recognition of how things have changed over time. Since the invention of the Code of Guidance by the promulgation of the Highway Code, and successive forms of government by guidance, practice, circular, or letter (all of which seem rather quaint now), governments have used these forms as obtaining selfgovernment by consent. As Ganz suggested (1987: 98), it is an empirical question whether government by consent in this way is effective. However, the point made in this chapter is that the how of governance has moved on in non-uniform ways, generally outside the Parliamentary gaze, and outside circuits of accountability.

To be sure, the impenetrable system of social security rules in this country have been toughened in the pages of statutory and secondary legislation, which has, at least, been subject to limited Parliamentary oversight. However, it is when we drill down into our specialist fields that the method of governing becomes more opaque. I will use the specific example of the methods and mechanisms of governing residential security during the pandemic. By residential security, I am referring to something as basic as being able to stay in our homes; and, of course, during the pandemic that basic human need has become even more significant.

Introduction

This chapter examines what COVID-19 and the response to it has revealed, in the context of housing and homelessness. Our argument is that responses have been limited by what is deemed possible by current housing politics. It goes on to consider the possibilities for a different housing politics, postpandemic, suggesting that we need to find something new, something between the promotion of the entrepreneurial individual and a collective response characterized by uniformity, exclusion and authoritarianism. Perhaps the description of classical music's response to COVID-19 restrictions may provide a useful metaphor. Socially distanced performances and reduced numbers of instrumentalists produce what has been described as an ‘orchestra of soloists’. Applied to housing, this suggests a possibility of combining the individual expression of identity through home and housing simultaneously with a collective effort to achieve a minimum standard of provision. The method may be as important as the goal. We should not be afraid to explore alternatives, to trial messy and slow interventions as long as they reflect an inclusive, democratic and accountable politics as we search for an alternative to the current failed model of marketized housing provision and a discredited albeit collective past.

Housing, homelessness and COVID-19

COVID-19 ratchets up the cruel consequences of the poor-quality housing and homelessness provision that have been a long-standing feature of England's housing settlement. Mortality statistics suggest a correlation between likelihood of death from the virus and overcrowded, shared or temporary housing, a correlation with particularly devastating implications for BAME people who are disproportionately poorly housed. Housing conditions make it difficult to self-isolate, shared facilities enable the spread of the virus, and a lack of access to outside space exacerbates poor mental and physical health. Living on the streets puts those whose life expectancy is already dramatically reduced – pre-pandemic a street homeless man could expect to live to 47 and a woman to 43 – at increased risk from the virus and increases the vulnerabilities of those front line services which work with them. While a £3.2m initiative to provide emergency accommodation provided shelter for 15,000 street homeless people, the accommodation did not work for many rough sleepers; meanwhile new populations of street homeless have emerged, stimulated by job losses, relationship breakdown, and the intensification of domestic violence and mental health issues that have been a feature of lockdown.

Introduction

Public understanding of the risks posed by COVID-19 understandably has focused squarely on health and mortality. As government officials throughout the UK during the first few months of the crisis offered daily hospitalization and death counts, minds inevitably concentrated on the medical risks of COVID-19. Yet the subject of this book is the social costs that will also come in the wake of the pandemic: problems of social disadvantage and suffering that will be less visible – perhaps less compelling in the public imagination – than the primary health impacts. How might law matter to such social problems? What role can law play in the alleviation of this social suffering?

When answering such questions, it is tempting to frame the discussion purely in terms of what government, Parliament or the courts might do to alleviate suffering. The image of law here is one where it has a formal status: enacted through Parliament, interpreted and developed in the courts, and enforced by administration. Equally, the understanding of law's relationship to society is primarily a ‘top-down’ instrumental one: law as a tool of governance to bring about change in society. There is much to commend this way of thinking about law and society. It captures a great deal of what lawyers and social scientists study when exploring law's potential to improve society and the actual impact of law on society. However, to understand the role of law in the response to social suffering fully, we must make two basic adjustments to this familiar way of thinking about law in society.

First, we must recognize that law is not only an instrument of governance but is also a means of challenging the ways in which we are governed. The rule of law, though a much-contested term, speaks of the basic idea that government is constitutionally constrained in what it might do. The familiar contrast between the rule of law and arbitrary action highlights the role of law in holding government to account and reversing abuses of power.

Introduction

The most obvious story about business that could come from lockdown is one of the severe economic strain that will be experienced as a result of the drop in consumer demand that occurs when people are no longer able to move freely. Short-term government intervention will postpone insolvency. The employee furlough scheme aside, this intervention has taken the form of the cancellation of business rates for particular industries (retail, hospitality and leisure) with a cash grant scheme targeted at smaller businesses in those sectors. Other industries, such as fishing, have been similarly supported. Businesses occupying low-value properties have been given small business rates relief. Small-and medium-sized enterprises have been reimbursed for 14 days of employee sick pay if the absence is COVID-19-related to include employees who were self-isolating as well as those who were sick.

However, this support has been insufficient for some businesses. As lockdown has eased there have been numerous announcements of businesses, particularly in the retail, hospitality and consumer goods manufacturing that will not resume trading – for example, Harvey's Furniture, Victoria's Secret, Antler Luggage, Quiz and Debenhams have all announced that they are in difficulties. Large concerns like these will be able to sell their brand name or continue to trade while in administration or under a voluntary agreement as they search for a buyer or reach a settlement with some key creditors; others have announced that they will restructure and trade only in some markets, using particular channels, for example Feather & Black will move to a concession and online business only, and Cath Kidston will be online-only in the UK with stores in Asia. Some smaller corporations will continue as ‘zombie’ companies unable to increase productivity because of the cost of servicing their debts but still crowding out of the market healthier and more innovative rivals.

Business failure on this scale usually offers an opportunity to critique the adoption or not of innovation, the adaptation or not to changing markets and consumer preferences, the ratio of loan to equity capital, the quality of management decisions and so on. However, the light shone by the UK lockdown which required all non-essential businesses to close by 26 March 2020 and its staggered reopening by mid-June illuminated the practices of an apparently successful business.