Member Article

Bill of Rights implications for Social Landlords

Plans announced in the Queen’s Speech to scrap the Human Rights Act and replace it with a British Bill of Rights could have implications for social housing landlords, specialist lawyer Jonathan Hulley of Clarke Willmott LLP has warned.

He has called for “reason and vigilance” as emotions run high following the announcement that the Government is preparing to make the move that has been talked about for some time with 130 campaigning organisations warning against any attempt to weaken human rights laws.

Mr Hulley, Partner with Clarke Willmott in London and Head of Housing and Asset Management, said: “The Human Rights Act has been blamed as the source of understandable frustration that the rights and freedoms of some individuals, including convicted prisoners whose rights have appeared to enjoy supremacy over the rights of law abiding citizens.

“But it should be remembered that he primary purpose of the Human Rights Act was to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights. Reference to the word “further” in the context of guaranteeing rights and freedoms under the Convention is deliberate because many of these rights were part of UK domestic law long before the Convention came into force in 1953.

“In the context of Housing Law, Article 8 of the Convention which guarantees a right to respect for private and family life has been the subject of much judicial deliberation, including by the Court of Appeal and the UK Supreme Court.

“It is now settled law that a public authority tenants cannot be evicted from his/her home unless it has been determined by a court that it is proportionate do so, and that if a court concludes that it would be disproportionate to evict a person, notwithstanding the fact that he has no right in domestic law to remain there, it would be unlawful to evict him.

“It is said that a key purpose behind the proposal to scrap the Human Rights Act is to dilute the influence of decisions of the European Court of Human Rights (EurCtHR) on domestic law matters, including in the context of housing law.

“However, as the Supreme Court in Pinnock [2010] observed, the UK Supreme Court has never been bound to follow every decision of the European Court of Human Rights.

This is certainly the position in the context of housing law. The Supreme Court further observed that to be bound by decisions of the European Court not only would it be impractical, but also inappropriate as it would to destroy the ability of the UK Supreme Court to engage in constructive dialogue with the European Court which is of value to the development of convention law. The Court also said that while the UK should usually follow a clear and consistent line of decisions by the European Court, the UK has never actually been bound to do so. In fact, our courts is only required to “take into account” of European Court and not necessarily to follow them

“It is not yet clear whether a British Bill of Rights will provide for a right to respect for private and family life. It is hoped that it will do so and also not be too different in content to the rights enshrined in Article 8 of the Convention. In this context of housing law, our courts’, without much interference from the European Court, can claim to have already given some certainty on this subject. Furthermore, there is little evidence of the European Court having ever undermined the decisions of UK courts on housing law and indeed can only ask our courts to take account of its views, in any event.”

This was posted in Bdaily's Members' News section by Clarke Willmott .