A rticle 8 of the Human Rights Act (HRA) 1998 has prompted much litigation and academic analysis in the context of possession proceedings relating to rented property. This high profile may, however, lead observers to exaggerate the practical, quantitative effect of article 8. For tenants with Rent Act, secure or assured tenancies, article 8 is essentially irrelevant, as even the most extravagant understandings of its scope fall short of the statutory protections that each regime provides.
In the local authority context, the primary effects of article 8 have arisen in respect of so-called non-secure tenancies granted by councils in discharge of their obligations under the homelessness legislation. Such tenancies are purely contractual, and prima facie terminable - at the landlord’s initiative - by a valid notice to quit. Article 8’s impact here has been steadily increasing. London Borough of Harrow v Qazi [2003] UKHL 43; [2004] 1 AC 983 indicated that defendants could raise orthodox grounds of judicial review to challenge the instigation of proceedings and the grant of an order; Doherty and others v Birmingham City Council [2008] UKHL 57; [2009] 1 AC 367 confirmed that the orthodox grounds of review would have to be intensified (if only a little) to satisfy article 8; and then in Manchester City Council v Pinnock [2011] UKSC 6; [2011] 2 AC 104, the Supreme Court accepted that article 8 created a freestanding statutory defence which could be applied not just to the court’s decision as to whether to make an order, but also to the various steps taken by the claimant in beginning and pursuing the claim.
More significant perhaps was the Court of Appeal’s judgment in London & Quadrant Housing Trust v R (Weaver) and Equality and Human Rights Commission (intervener) [2009] EWCA Civ 587; [2010] 1 WLR 363, which held that registered social landlords should be regarded as performing a public function per HRA s6 when conducting possession proceedings. Consequently, they too are now subject to orthodox public law and proportionality criteria. This is potentially important in ground 8 rent arrears cases, but especially in Housing Act (HA) 1988 s21 claims in respect of assured shorthold tenancies, which prima facie provides a mandatory ground for possession.
… even if the Supreme Court decides that article 8 is horizontally effective in possession proceedings, there will be few cases in which a court concludes that is not proportionate to grant an outright possession order
It seems likely that most private sector tenancies – whether let by companies or individuals – are now assured shorthold tenancies, and that private sector landlords rely heavily on section 21 to regain possession. There are various ways in which private landlords can be caught by legal complications attending the supposedly simple section 21 procedure. Getting the timing and service of a valid notice right is one such pitfall, as is failure to comply with the provisions of the tenancy deposit scheme or to appreciate that the premises require a licence under the licensing provisions of the HA 2004. Thus far however, such landlords have not had to worry about proportionality defences.
In McDonald (by her litigation friend Duncan J McDonald) v (1) McDonald (2) McDonald (acting by Mr Andrew Hughes and Mr Julian Smith joint receivers), the titular claimants are the defendant’s parents. The parents bought a house for their (psychiatrically disabled) daughter to live in, which they rented to her, with the rent evidently covered (unusually in a parent/child tenancy) by housing benefit. The parents fell into arrears with their mortgage, however, and the subsequently appointed receivers brought the section 21 possession proceedings in the parents’ name.
Ms McDonald’s argument in respect of article 8 was simply that the court – as a public authority per HRA s6 – should conduct its own proportionality review at trial to decide if a possession order should be granted and, if so, on what terms, and that the court should do so even though the claimant itself was not a public authority per section 6. Had she succeeded on the question of principle, the gist of her substantive submissions would have been that the consequences for her psychiatric health of being evicted would have been so severe that they clearly outweighed the landlord’s interests in regaining possession. (It is hard to see any scope for arguing that article 8 could be used to bring a private individual or company within the scope of ordinary judicial review principles as a means to challenge the giving of a section 21 notice or the issue of proceedings, and it seems that Ms McDonald did not pursue that argument).
The Court of Appeal dismissed Ms McDonald’s argument in brief, almost peremptory, terms. Had the court dwelt on the matter a little longer and considered it a little more carefully, however, it might have come to a different conclusion for the judgment in McDonald was curious in several respects.
The first curiosity was the court’s reliance on an old (in HRA terms) case called Donoghue v Poplar Housing and Regeneration Community Association Ltd and Secretary of State for the Environment, Transport and the Regions (interested party) [2001] EWCA Civ 595; [2002] QB 48 to support the proposition that the section 21 ground was compatible with article 8 and there was no need for any sort of proportionality review. This conclusion was simply wrong, both because Donoghue had been overruled sub silentio in Pinnock above, and – more starkly – because after Pinnock a differently constituted Court of Appeal (and notably one headed by Lord Neuberger, who wrote the Supreme Court’s opinion in Pinnock) had quite uncontentiously applied proportionality analysis to a section 21 claim brought by a housing association in Corby BC v Scott; West Kent Housing Association Ltd v Haycraft [2012] EWCA Civ 276; [2012] HLR 23. It seems that neither the Court of Appeal bench in McDonald nor the various lawyers appearing in the case were alert to the Haycraft judgment.
The second puzzle is that the Court of Appeal seemed to accord no weight at all to the point that the horizontal effect of article 8 has been accepted as entirely proper in the context of privacy litigation. Fashion model Naomi Campbell’s action against the Mirror Group is the best known example, in which the House of Lords relied on the horizontal effect of article 8 to introduce a significant extension of the tort of breach of confidence as a means to protect privacy rights (Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457). It is not immediately apparent, and the Court of Appeal in McDonald did not address the point, why article 8 should apply horizontally in the context of media law, but not in the field of housing law.
A third oddity was that the Court of Appeal was similarly dismissive of the point that there is now a clear and growing line of European Court of Human Rights’ (ECtHR) possession cases in which the ECtHR has found article 8 applicable in actions between private parties, among them Zehentner v Austria App No 20082/02; (2011) 52 EHRR 22, Belchikova v Russia App No 2408/062010, Zriliff v Croatia App No 46726/11 and Brežec v Croatia App No 7177/10; [2014] HLR 3). Admittedly, the ECtHR had not said expressly in any of these cases that article 8 does have horizontal effect, but one might think that is because - the ECtHR having applied article 8 horizontally - it did not need saying. However, the Court of Appeal held that this line of authority was not ‘clear and constant’ , and so need not be followed in domestic courts (para 33).
It would not be surprising to see the Supreme Court take a different view on all of these points. It is, however, hard to avoid the conclusion that even if the Supreme Court decides that article 8 is horizontally effective in possession proceedings, there will be few cases in which a court concludes that is not proportionate to grant an outright possession order.
Leaving aside the unlikely scenario of the defendant tenant whose terminal disease is likely to kill him/her in a few months and whose demise would be accelerated by eviction from their home, it is difficult to imagine a defendant whose personal circumstances make their interests in remaining in their home so much more pressing than the private landlord’s interests in recovering possession that it would be disproportionate to make a possession order. This is perhaps one of those areas of human rights jurisprudence where the answer that the Supreme Court gives to an admittedly fascinating doctrinal question will have very little impact on the practicalities of legal relationships.