Bringing rights home?

District Judge Nic Madge updates on human rights challenges in housing cases and the rulings in the judicial pipelineLord Justice Laws, while addressing a Judicial Studies Board seminar on human rights held for the Supreme Court judiciary, said: We shall be much better placed to cope with the impact of the [European] convention .

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if we avoid the serious mistake of treating the convention as an alien add-on to our law.We must regard these new rights this new statutory code as belonging to a continuum with the principles already established in common law.By adopting this approach, he went on to add, we stand the best chance of establishing a muscular, substantive, but at the same time moderate and so far as possible politically uncontroversial human rights jurisprudence.

(reprinted in JSB Journal, issue 11, 2000, page 3)Lord Justice Laws was referring specifically to areas such as privacy and freedom of expression, but this approach, perhaps reduced to the aphorism With minor exceptions, English and Welsh law has always been European Convention on Human Rights compliant, may explain why so few Human Rights Act challenges so far have been successful.

Housing law has not proved to be an exception to this general rule.Introductory tenanciesThe first challenge to be heard was on the application of Johns and McLellan v Bracknell Forest DC, (2000) 21 December, QBD, Administrative Court.Two tenants asserted that the introductory tenancy regime, whereby some local authority tenants are denied security of tenure during the first year of their tenancy (Housing Act 1996 part V), is incompatible with the convention.

Mr Justice Longmore dismissed their applications for judicial review of decisions to commence possession proceedings.

He found that article 6 (right to a fair hearing) is engaged where an introductory tenant invokes the review procedure to challenge the landlords decision to bring possession proceedings (section 129).

Furthermore, the local authority agreed that a review panel is neither independent nor impartial.

However, there was no violation of article 6 as the remedy of judicial review provided a sufficient right of review to comply with article 6(1).

Mr Justice Longmore also held that article 8 (right to respect for home) was engaged and that a local authority landlord would therefore need to justify any decision to evict an introductory tenant as being necessary and proportionate.

He found that the introductory tenancy scheme was justified as pursuing a legitimate objective and as being both necessary and proportionate at both a national and local level.

Both applications for judicial review were dismissed.

However, Lord Justice Keene granted permission to appeal on 28 February 2001 and directed an expedited hearing.

He stated that it was properly arguable that the characteristics of local authority review panels mean that the legislation is not compatible with convention article 6.

Also awaiting decisions in the Court of Appeal are the questions whether the Housing Act 1988 section 21 (mandatory right of landlord of assured shorthold tenant to possession after service of two months notice) is incompatible with convention articles 6 and 8 and whether registered social landlords are public authorities within the meaning of the Human Rights Act 1998 section 6(3).

These propositions were argued in Poplar Housing and Regeneration v Donoghue, CA on 7 March 2001.

The Court of Appeal has reserved judgment.Possession proceedingsIt has been argued that convention rights will play a key part in even routine possession claims .

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In proceedings brought by a public authority to claim possession of residential premises, article 8 will be immediately engaged and the court will need to address the right of respect for the defendants home.

(Housing and the Human Rights Act: A Special Bulletin Jan Luba QC, page 40)However, the Court of Appeal has adopted a less radical approach in two cases involving possession proceedings.

In Castle Vale Housing Action Trust v Gallagher (2001) 23 February, CA the landlord obtained an outright possession order against a secure tenant on the grounds of nuisance and annoyance and convictions for arrestable offences (Housing Act 1985 schedule 2, ground 2).

The anti-social behaviour had been committed by the tenants daughter and her boyfriend.

They had bought their own property by the date of judgment.

The Court of Appeal substituted a suspended possession order in place of the outright order, but doubted whether article 8 made any difference to the way courts have always approached the question of the reasonableness of making possession orders.

However, it held that article 8 did reinforce the importance of only making an order depriving someone of his or her home in circumstances where a clear case was made out.

In Lambeth LBC v Howard (2001) 6 March, CA an outright possession order was made against a secure tenant who had been convicted at Horseferry Road Magistrates Court of a course of harassment of a female neighbour and her daughter contrary to Protection from Harassment Act 1997 sections 2(1) and 2(2).

In possession proceedings a circuit judge made an outright possession order.

On appeal the defendant submitted that the possession order breached convention article 8.

His appeal was dismissed.

As the judge pointed out, there was a need to find a fair balance and to protect the rights of the neighbours and other members of the public.The judges findings on this issue could not arguably be regarded as incompatible with the Human Rights Act.

The eviction had to be in accordance with the law in this case and had to be balanced against the neighbours right to live in peace.

An outright possession order was necessary in consequence of the past obsessive harassment.

The judges reasons, findings and conclusions could not be criticised.Adverse possessionAs 2 October 2000 approached there were rumours that members of the Chancery Bar would argue that the rule that squatters may obtain possessory title as a result of 12 years adverse possession deprives landowners of their possessions, contrary to article 1 of the first protocol.The first indications are that the courts are unlikely to find that the law relating to adverse possession breaches the convention.

In JA Pye (Oxford) Ltd v Graham [2001] EWCA Civ 117, (2001) The Times, 13 February, [2001] EGCS 19, CA, Lord Justice Mummery, referring to Limitation Act 1980 section 15 which provides that no action may be brought to recover land after the expiration of the date the right of action accrued, said: These provisions do not deprive a person of his possessions or interfere with his peaceful enjoyment of them.

They deprive a person of his right of access to the courts for the purpose of recovering property, if he has delayed the institution of his legal proceedings for 12 years or more after he has been dispossessed of his land by another person, who has been in adverse possession of it for at least that period.The extinction of the title of the claimant in those circumstances is not a deprivation of possessions or a confiscatory measure for which the payment of compensation would be appropriate: it is simply a logical and pragmatic consequence of the barring of his right to bring an action after the expiration of the limitation period.In any event, they are provisions provided by law and are in the public interest.

They are reasonably required to avoid the real risk of injustice in the adjudication of stale claims; to ensure certainty of title; and to promote social stability by the protection of the established and peaceable possession of property from the resurrection of old claims.

The conditions in the 1980 Act are not disproportionate; the period allowed for the bringing of proceedings is reasonable; the conditions are not discriminatory.District Judge Nic Madge sits at West London County Court