Part V               

The impact of Human Rights Law

Introduction

                             5.1              As with other areas of law, the coming into force of the Human Rights Act 1998 has had a significant impact on housing law. A number of challenges to substantive housing provisions on the basis of Articles 8 or 6 of the European Convention on Human Rights have been made in the UK courts. To date none has succeeded, in the sense that the provisions have been declared incompatible, or even required the deployment of the special interpretational duty on the courts in Human Rights Act 1998, section 3.[1] On the other hand, a series of cases have raised procedural issues within which housing law must operate.

                             5.2              In this Part, we first consider the Convention case law, principally relevant aspects of Articles 6 and 8. We then chart how they have been dealt with in the domestic courts since the Human Rights Act 1998 came into force in October 2000. Finally we offer some conclusions about the implications of these decisions for our project.

                             5.3              At the outset it should be noted that the European Convention is concerned mainly with civil and political rights and not social and economic rights. Thus the Convention does not provide a right to housing, either directly by the state or via other mechanisms indirectly (for instance income support), nor does it require housing to be of a certain standard.

The relevant convention articles

                             5.4              The provisions of the Convention of most significance to housing law are Articles 8 and 6, which we deal with in detail below. In addition, Article 1 of the first protocol guarantees a right to property, although it has not featured significantly in the domestic case law.

Article 8

                             5.5              Article 8, which includes substantive protection for the right to respect for the home, provides that:

                                                        (1)      Everyone has the right to respect for his private and family life, his home and his correspondence.

                                                        (2)      There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Definition of “home”

                             5.6              The word “home” includes any premises or shelter used by an individual as his home and in which he has a lawful interest. It can also extend to premises or shelter which an individual is occupying unlawfully, but this would appear to depend on the occupier having some legal interest either in the premises or in the land on which it stands.[2] In general “home” is where one lives on a settled basis.[3] Accordingly, it appears that holiday homes and work hostels fall outside this definition. This is consistent with the English law on security of tenure under the Rent Acts and Housing Acts which exempt certain categories of occupation, including holiday homes, from protection.

                             5.7              However the notion of “home” is not restricted to the physical confines of the property. It also connotes the ability (facilitated by the state) to live freely in it and enjoy it, not merely as a property right.[4]

No right to a home

                             5.8              The jurisprudence of the Strasbourg Court is clear that Article 8 does not establish the right to a home.[5] In X v FRG an East German refugee was unable to establish there was a breach of Article 8 due to the West German Government’s failure to provide him with a decent home. The application was ruled inadmissible.[6]

                             5.9              In Velosa Barreto v Portugal the European Court of Human Rights held that

effective protection of respect for private and family life cannot require the existence in national law of legal protection enabling each family to have a home for themselves alone.[7]

                          5.10              Under Portuguese law the termination of a residential lease was possible only when the landlord needed the property to live there. The Court held that this clause “pursues a legitimate aim, namely the social protection of tenants, and that it thus tends to promote the economic well-being of the country and the protection of the rights of others”. In applying this national provision, the Portuguese courts had not acted arbitrarily or unreasonably, nor had they failed to discharge their obligations to strike a fair balance between the respective interests. Restrictions on a landlord’s rights of repossession can be justified as being in the public interest where they are designed to protect the well-being of tenants.

Article 8(1)

                          5.11              Article 8(1) protects the right to respect for the home. As Harris, O’Boyle and Warbrick point out, “This makes it clear that not every act of a public authority which has an impact on the exercise of the interest will constitute an interference with the Article 8(1) right”.[8]

                          5.12              The interference itself may be in the nature of a personal invasion that takes place at home, for example a forcible entry or arrest at home;[9] alternatively it might be directed at the home itself, as in a denial of a right of access to the home,[10] requisition or compulsory occupation/purchase,[11] destruction or removal of property,[12] eviction or expulsion. It has extended to include environmental blighting or pollution by third parties, where the state had failed to use its powers to protect the homes of applicants from the effects of the pollution.[13]

                          5.13              A home may be taken away through compulsorily purchase procedures and authorities can also take action to close or demolish properties which are unfit for human habitation.[14] Where the applicant lives in the home, such actions may engage Article 8. [15]

Justification under Article 8(2)

                          5.14              Often the state does not dispute that there has been an interference with an Article 8(1) right. The real question is whether the interference can be justified under Article 8(2). To be justified, an interference must be in accordance with the law, for a legitimate aim, and necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The test of necessity involves deciding whether there is a “pressing social need” for the interference. That in turn, in the established case law of the Strasbourg organs, brings in the important concept of proportionality. To be justifiable, the means employed must be proportionate to the legitimate aim pursued. In conducting this examination, it is the nature, context and importance of the right affected and the extent of the interference that must be balanced with the nature, context and importance of the public interest asserted as justification.[16]

                          5.15              The meaning of these requirements appears to be:[17]

                                                        (1)      The phrase “in accordance with law” means that any interference with a private/family right and/or right of an individual to respect for his home must have a basis in domestic law;

                                                        (2)      The aims deemed legitimate under Article 8(2) that are most relevant in the housing context are “the protection of health” and the “protection of the rights of others”;

                                                        (3)      Relevant to any assessment of necessity and proportionality will be:

                                                                                 (a)     Whether “relevant and sufficient reasons” can be advanced for the action taken;

                                                                                 (b)     Whether the rights of all interested parties have been taken into account properly; and

                                                                                 (c)     Whether safeguards exist to prevent, or at least check, any abuse of power.

The European Court has emphasised the importance of the individual’s right to respect for his home in view of its impact on personal security and well-being.[18]

                          5.16              Therefore where the notion of a home overlaps heavily with property rights and the interference stems from the operation of general planning, environmental or health regimes, the difficulties in showing a disproportionate action are substantial. However, Gillow v UK clearly demonstrates the important need to distinguish between the legitimacy of the general legislation and the manner of its application to particular facts. Here the Court was able to hold that whilst the Guernsey residence legislation was not objectionable per se, nevertheless there was on the facts a violation, the action taken being disproportionate to the legislation’s legitimate aims.[19]

Article 6

                          5.17              Article 6 is the key procedural provision of the Convention. The object of Article 6 is “to enshrine the fundamental principle of the rule of law”.[20] In a democratic society, the right to the fair administration of justice holds such a prominent place that a restrictive interpretation of the article would not correspond to the aim and purpose of the Convention. Accordingly, the article is to be given a broad and purposive interpretation.[21]

                          5.18              The phrase “civil rights and obligations” has an autonomous meaning within the convention. The core meaning, historically, related to rights and obligations which arise in private law.[22] However, the Court has now accepted that Article 6(1) can have application to administrative decisions, where they can determine or affect rights in private law.[23] The question has been approached on a case by case basis, and the European Court has not developed a general definition. This has involved looking at the nature or character of the right or obligation, rather than the manner in which it is determined. However, where the rights involved concern property rights, Article 6 will clearly be applicable.

                          5.19              Article 6(1)[24] provides for the right to a fair and public hearing, within a reasonable time, and before an independent and impartial tribunal established by law. It reads as follows.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

                          5.20              In James v UK,[25]the applicants had been deprived of their ownership of certain properties by the exercise of tenants of a right to acquire the properties given to them by the Leasehold Reform Act 1967. The applicants had no remedy in court by which to challenge the exercise of this right once the terms of the statute were satisfied. Although the case concerned the right to property, which was a civil right, the absence of a remedy was not a breach of Article 6. Thus if a state’s law simply deprived a landowner of his right to his property, Article 6 would not apply; there would be no basis for ruling that such rights must be restored or provided.[26] If there is no actionable domestic claim as a matter of substantive national law, then the Article will not apply – Article 6(1) “does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law.”[27]

                          5.21              By contrast, however, Article 6(1) may apply where there are procedural, rather than substantive, bars preventing or limiting the possibility of bringing a domestic claim to court.

it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6(1) – namely that civil claims must be capable of being submitted to a judge for adjudication – if … a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.[28]

                          5.22              For Article 6 purposes, it is the character of the right at issue, rather than that of the parties (whether private or public bodies), the governing legislation or the authority invested with jurisdiction in the matter, which is relevant.[29]

Right of access

                          5.23              The right includes a right of effective access to court.[30] The right also requires that a person be given personal and reasonable notice of an administrative decision which interferes with his civil rights and obligations, so that he has an adequate opportunity to challenge it in court.[31]

                          5.24              The right of access is not absolute but may be subject to limitations, since the right “by its very nature calls for regulation by the state, regulation which may vary in time and place according to the needs and resources of the community and of individuals”.[32] States enjoy a margin of appreciation in laying down such regulation. Nonetheless, the limitations applied to the right of access to court must not be such that the very essence of the right is impaired; they must, moreover, pursue a legitimate aim and comply with the principle of proportionality;[33] and should be legally certain.[34] Hence, restrictions have been held to be in breach of the Convention where, for example, certain bodies were prevented by statute from bringing proceedings in respect of their property.[35]

Time

                          5.25              In civil cases, time usually begins to run for the purposes of the reasonable time guarantee from the initiation of court proceedings,[36] although it may start to run even before the issue of proceedings in certain situations, as for example where an applicant is required to exhaust a preliminary administrative remedy under national law before having recourse to a court or tribunal.[37]

                          5.26              In determining what constitutes a “reasonable time” for the purposes of the article, regard is to be had to the particular circumstances of each case including, in particular, the complexity of the factual or legal issues raised by the case; the conduct of the applicant and of the competent administrative and judicial authorities; and what is at stake for the applicant.[38]

                          5.27              There is no absolute time limit. A fair balance is to be struck between the requirement that judicial proceedings should be conducted expeditiously and the more general principle of the proper administration of justice (also derived from Article 6(1)).[39]

                          5.28              The state is not responsible for delay that is attributable to the applicant. The state is, however, responsible for delays by its administrative or judicial authorities. In a civil case, these might include the adjournment of proceedings pending the outcome of another case, delay in the conduct of the hearing by the court or in the presentation or production of evidence by the state, or delays by the court registry or other administrative authorities.[40]

An independent and impartial tribunal

                          5.29              The adjectives ‘independent’ and ‘impartial’ are the expression of two different concepts. The notion of independence refers to the connection between the judge and the administration whereas impartiality must exist in relation to the parties to the suit. However the court has not always drawn a clear borderline between the two concepts.[41]

Independence

                          5.30              In Langborger v Sweden, the Court stated that

In order to establish whether a body can be considered independent regard must be had, inter alia, to the manner of the appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.[42]

                          5.31              These categories of the notion of independence fall into three categories.[43]

                                                        (1)      The tribunal must function independently of the executive, and base its decision on its own free opinion about facts and legal grounds.

                                                        (2)      There must be guarantees to enable the court to function independently.

                                                        (3)      Even a semblance of dependence must be avoided.[44]

Impartiality

                          5.32              This requires that the court is not biased with regard to the decision to be taken, does not allow itself to be influenced by information from outside the court room, by popular feeling, or by any pressure whatsoever, but bases its opinion on objective arguments on the ground of what has been put forward at the trial.[45]

                          5.33              The court distinguishes between subjective impartiality – the existence of actual prejudice on the part of the judge or tribunal – and objective impartiality – whether a judge offers guarantees sufficient to exclude any legitimate doubt in this matter.[46] The personal impartiality of a judge is to be presumed until there is proof to the contrary.[47]

Administrative decision making and a fair hearing

                          5.34              Where what is at issue is an administrative decision, as will importantly be the case in certain circumstances in housing law, the European organs have developed two alternative approaches to the requirement for a fair hearing. The key development was in the case of Albert and Le Compte v Belgium, in which the court held that

the convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body, which has full jurisdiction and does provide the guarantees of Article 6(1). [48]

                          5.35              The term “full jurisdiction” has led to some confusion, and may be said to be misleading, in that it now appears clear that it does not require that the reviewing court should be capable of conducting a full appeal on the merits, both legal and factual. Rather, the requirement is for “full jurisdiction to deal with the case as the nature of the decision requires.”[49] In relation to the British town and country planning system (a particularly important source of law on this aspect of Article 6), the limited scope of judicial review of administrative decisions in the High Court has been held to be sufficient to satisfy Article 6.[50]

Article 1 of the first protocol

                          5.36              Article 1 of the first protocol guarantees a right to property. The Article consists of three distinct but connected rules.[51] The first rule is a general principle of peaceful enjoyment of property.[52] The second rule prohibits deprivation of possessions, subject to the public interest and the law. The third rule allows states to control the use of property in accordance with the general interest. It has been pointed out that the second and third rules are just particular instances of interference with the right to peaceful enjoyment of property and should be construed in the light of that general principle. In practice the second and third rules tend to be considered first. The concepts that the Article contains are, in common with others contained in the Convention, autonomous, and are not simply to be interpreted according to the principles of the domestic law of the state.[53]

                          5.37              The range of economic interests recognised as “property” under the Article is wide, certainly wide enough to encompass the interests of both landlord and tenant in a rented property.

                          5.38              The article acknowledges the need for states to deprive citizens of their property in the public interest, however. It is clear that this formulation is significantly wider than the limit on interference with the rights contained in Articles 8 to 11, where interference with a right must be “necessary in a democratic society”. The Court has held that, in addition to the normal margin of appreciation given to national authorities in decision making,

the notion of “public interest” is necessarily extensive. In particular ... the decision to enact laws expropriating property will commonly involve considerations of political, economic and social issues on which opinion within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgement as to what is “in the public interest” unless that judgement be manifestly without reasonable foundation.[54]

This may remain the case where the legislation in question transfers property from one private individual to another.[55]

                          5.39              In James v UK, the Court held that the right given to the leaseholder to expropriate the landlord’s entire interest in a property (leasehold enfranchisement) by legislation passed after the landlord acquired his interest was not a breach of the Article. In other cases in the housing field, the Court has found rent controls[56] and the suspension of eviction orders[57] to be compliant with the Convention.

                          5.40              Following the Human Rights Act 1998, the question would fall to be determined by the national courts, but it is clear that a margin of discretion, similar in effect to the Strasbourg court’s margin of appreciation, will be afforded by the courts to the legislature.[58] It would be very surprising if the additional breadth of the margin in respect of this Article was not also reflected at national level.

                          5.41              Article 1 of the first protocol has not to date featured significantly in the application of human rights law in England and Wales since the Human Rights Act 1998. Given the breadth of the definition of property, it might have been thought that significant changes to the rights of either landlord or tenant would be a violation of the article. However, as this brief account of the Article shows, both the structure of the article and the Strasbourg case law thereon suggest otherwise. In particular, it seems highly likely that the adjustment of the relative interests of landlord and tenant in pursuit of better regulation of the rented sector would not amount to a violation of the Article.

The impact of the Convention in domestic law

The nature of registered social landlords

                          5.42              The purpose of the Human Rights Act 1998 is to apply the principal articles of the European Convention on Human Rights to the acts of “public authorities”. Section 6(1) of the Human Rights Act 1998 provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” This is amplified by section 6(3)(b), which provides that a public authority includes “any person certain of whose functions are functions of a public nature”.

                          5.43              To determine at the least the primary application of the Human Rights Act,[59] therefore, courts must decide whether or not a particular party to litigation is a public authority or not. This decision has a double application, because the same considerations will apply to a determination of whether or not a body is subject to the public law procedure of judicial review.[60]

                          5.44              Local housing authorities are clearly public authorities for these purposes.

                          5.45              Housing associations and other registered social landlords are in essence voluntary organisations. Many are charitable. As such, it would be expected that legally, they would be characterised as private bodies. Before the coming into effect of the Human Rights Act, the courts had not treated them as public bodies for the purpose of judicial review.[61] It was the policy of the Housing Act 1988 to consider them as private bodies for all purposes, hence the assimilation of their tenancy structure to that of the private rented sector. However, and despite the enormous increase in private investment in registered social landlords in recent years, they have historically relied significantly on state funding for housing development, and continue to do so (they are registered social landlords because of registration with the Housing Corporation, to facilitate such support). In addition, the major component of the growth in the percentage of social housing owned by registered social landlords recently has been attributable to the policy of large scale transfers of council owned housing, much of which is to purpose-created registered social landlords. Thus it may be said that they occupy a shadowy territory between the public and private sectors.[62]

                          5.46              The courts were confronted with the problem of determining the proper categorisation of a housing association in the case of Donoghue v Poplar Housing and Regeneration Community Association.[63] Ms Donoghue, who had been a tenant of the local authority, became, on the large scale transfer of Tower Hamlets Borough Council’s housing stock to Poplar, an assured shorthold tenant of the housing association, pending the determination of her application to be treated as homeless. That determination went against her, and Poplar terminated the tenancy. Before considering her contention that the procedure for notice-only termination of assured shorthold tenancies interfered with her human rights under the Human Rights Act, the court had to decide whether or not the housing association was a “public authority” for the purposes of the Act. Poplar was a housing association created by Tower Hamlets for the purpose of taking a transfer of its housing stock. Five of its members were also members of the local authority and it was subject to local authority guidance as to how it acted towards its tenants.

                          5.47              The Court of Appeal held that Poplar was acting as a functional public authority.[64] This was based on a contextual approach focusing upon the close connection in the matrix of the particular case between Poplar and Tower Hamlets, and including factors relating personally to Ms Donoghue.

                          5.48              The following generalisations seem to emerge from Poplar:

                                                        (1)      A registered social landlord is certainly not a public authority for all purposes.

                                                        (2)      The test is context specific and focuses on the particular act that is being challenged. The matter is one of fact and degree depending on an accumulation of indications.

                                                        (3)      The analogy with judicial review cases is important. The most significant factor seems to be the extent to which the act in question is enmeshed with the acts of government. This requires a generous interpretation.[65]

                          5.49              The decisive factor in Poplar itself was stated as:

Taking into account all the circumstances … in providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of [the local authority] that it was performing public and not private functions.[66]

                          5.50              The result leaves determining the status of housing associations deeply uncertain. A housing association may be a public authority for some purposes, but not others. Indeed, the relevance of factors relating to the history of Ms Donoghue’s tenancy indicates that they may be public authorities in respect of some tenants, but not others.

                          5.51              Nevertheless, it would appear that housing associations created purposely to receive large scale voluntary transfers are more likely to be “public authorities”. They have been set up in a variety of forms (usually companies limited by guarantee or industrial and provident societies).[67] The local authority which established the association generally has the power to appoint individuals to the board.

                          5.52              By contrast, traditional associations will not have these key ingredients present to the same degree. Such associations assume a wide variety of forms, including companies, charitable trusts, industrial and provident societies, and both part and fully mutual co-operatives. They may have been set up at any time since the nineteenth century. However, some of the relevant ingredients may be present. Some existing associations have taken stock transfers of properties from local authorities. Traditional associations may have taken on activities which were previously undertaken by local authorities such as the day to day administration of applications from the homeless. So each activity and set of circumstances relating to an activity will need to be considered on its merits to determine whether the key ingredients identified by Lord Woolf are present or whether additional equally relevant ingredients are present which pitch the activity into the public sector.

                          5.53              An example of a decision going the other way is provided by R (Heather and Others) v The Leonard Cheshire Foundation.[68] Here the Court found that a charity providing residential care for local authorities was not a functional public authority. In coming to its conclusion, the Court considered the differences between Leonard Cheshire and Poplar, and concluded that “the decision in Donaghue that Poplar is a public authority depended on the close assimilation of its role to that of Tower Hamlets, and its integration with the functions of Tower Hamlets”. There was also no equivalence of the proximity of the tenant to Tower Hamlets, in that she had previously been its tenant.

The approach to Article 8(1)

                          5.54              In Lambeth London Borough Council v Howard,[69]Sedley LJ assumed that any eviction of a tenant fell within Article 8(1);

Respect for a person’s home is neither an absolute concept, nor, given Article 8(2), an unqualified right…It seems to me that any attempt to evict a person, whether directly or by process of law, from his or her home would on the face of it be a derogation from the respect, that is the integrity, to which the home is prima facie entitled.

                          5.55              The Court came to the same conclusion in Poplar Housing and Regeneration Community Association Ltd v Donoghue[70] and McLellan v Bracknell Forest,[71] but it was only in the latter that the point seems to have been seriously argued by counsel.[72]

The assured shorthold regime

                          5.56              In Poplar,Ms Donoghue sought to challenge the procedure for the termination of her assured shorthold, on the basis that the fact that the court had no discretion to deny the landlord an order for possession breached her rights under Article 8. It is important that the decision under appeal was an order of a district judge granting the landlord possession. The Court of Appeal concluded that the eviction did impact on her family life and therefore engaged Article 8(1).[73] Accordingly the question was whether it could be justified under Article 8(2). The availability of a procedure for the orderly recovery of possession at the end of a tenancy was a legitimate aim. The question was whether or not it was proportionate. The court recognised that

This is an area where … the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the HRA does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the convention.[74]

                          5.57              There were several factors which appear to have influenced the decision.

                                                        (1)      The defendant’s lack of security was due to her low priority under the legislation because she was found to be intentionally homeless.

                                                        (2)      She was aware from the outset of the temporary nature of the accommodation.

                                                        (3)      For someone in her position it was understandable that Parliament would provide an expedited procedure to obtain possession, and that the landlord should use that procedure.

                                                        (4)      The defendant also had other remedies she could use, in particular, appeal against the “intentionally homeless” decision, and reference to the ombudsman.

Accordingly, the legislation did not conflict with Article 8. Article 6 did not feature significantly in the judgment.

Alconbury and the requirements of Article 6

                          5.58              In May 2001, the House of Lords gave judgment in the important case of R v Secretary of State for the Department of the Environment, Transport and the Regions ex p Alconbury Developments Ltd.[75] The case concerned the compliance with Article 6 of procedures in which the Secretary of State, who was clearly not an independent and impartial tribunal, took certain planning decisions, subject only to a statutory form of judicial review. The House of Lords found that the provisions were compliant by applying the second of the two alternative approaches to Article 6 from Albert and le Compte set out in paragraph 5.34 above. All of the members of the House agreed that this was the right approach, and that in the case of the procedures under consideration, judicial review did amount to “full jurisdiction” to decide the relevant matters.

                          5.59              However, the members of the House disagreed as to why judicial review was adequate. Lord Slynn laid particular emphasis on the fact that the procedures imposed various procedural safeguards on the Secretary of State’s decision making process, including the fact that there was a planning inquiry, which allowed for a quasi-judicial procedure. On the other hand, Lord Hoffman considered the safeguards to be irrelevant if the question was one of policy, as opposed to the finding of facts. Rather, the reason was the proper democratic deference due to policy decisions by the Secretary of State.[76] Lord Hutton identified both elements as strands within the Strasbourg jurisprudence, but gave greater emphasis to the need for democratic deference.[77]

Introductory tenancies

                          5.60              In Mclellan v Bracknell Forest the Court of Appeal considered the compatibility (or otherwise) of the introductory tenancy regime and the review procedures it contains with the Human Rights Act 1998 under Articles 6 and 8 of the Convention. The decision in this case confirms the position that any eviction will now be considered to infringe Article 8(1) and require to be justified under Article 8(2).

                          5.61              In relation to the Article 8 issue, the Court of Appeal stated that there were two issues to be considered. The first, or “macro”, question asked whether the procedure as a whole was Article 8 compliant. The court dismissed the tenants’ appeal and held that whilst Article 8(1) was engaged, the recovery of possession from introductory tenants under the Housing Act 1996 was justified under Article 8(2). This was because

                                                        (1)      the provision corresponded to a pressing social need, having regard to the interests of other tenants and neighbours in relation to problems of rent arrears and anti social behaviour;

                                                        (2)      the interference was of a limited nature; and

                                                        (3)      the difficulties involved in other methods of legal enforcement meant that the interference was proportionate.

                          5.62              However, there remained a second, or “micro”, question. The Court found that the tenant was entitled to argue that in his or her particular case, it was unnecessary for the local authority to enforce the scheme against him. Clearly, the internal review procedure provided for in the introductory tenancy scheme did not constitute an Article 6 compliant means by which that assertion by the tenant could be determined. However, the court went on to find, essentially following the lead of Alconbury, that that procedure combined with judicial review was adequate.

                          5.63              The court resolved the apparent difficulty that an accusation of anti social behaviour (one basis for seeking possession under the introductory tenancy regime) would appear to involve the finding of primary facts of some difficulty by re-casting the issue as one of reasonableness or proportionality –

If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. That is again a matter which can be dealt with under judicial review either of the traditional kind or if it is necessary so to do intensified so as to ensure that the tenant’s rights are protected.[78]

                          5.64              The method of integrating judicial review with the possession proceedings had already been provided by a pre-Human Rights Act case, Manchester City Council v Cochrane.[79] That case established a procedure by which, if it was arguable that permission for judicial review would be granted, the county court judge before whom the case came up for the possession hearing should adjourn proceedings for an application for judicial review to be made.

                          5.65              In Bracknell Forest, then, it appears that the procedural safeguards imposed by the internal review and judicial review cumulatively render the whole procedure fair in Article 6 terms. One obvious link between the two is the Administrative Court’s role in supervising the review. This aspect led the Court to impose on local authorities a further duty at the stage of seeking possession. The Court considered that

it should be the norm for the council to spell out in affidavits … how the procedure was operated … dealing with the degree of independence of the tribunal … the way the hearing was conducted and the reason for taking the decision to continue with the proceedings.[80]

Fact finding and review: continuing developments

                          5.66              The question of the relationship between fact finding and “full jurisdiction” has continued to exercise the courts. Where fact finding is essential to the determination, the Administrative Court has suggested that judicial review is not enough. In the comparatively early case of R (Husain) v Asylum Support Adjudicator, a case decided before Bracknell Forest, the court considered that

where the decisions of a tribunal are likely to depend to a substantial extent on disputed questions of primary fact, and the tribunal is clearly not independent, judicial review should not suffice to produce compliance with Article 6. The scope for review of findings of primary facts is too narrow to be considered a “full jurisdiction” in such a context. Fact-dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly of findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level.[81]

                          5.67              In Fardous Adan v London Borough of Newham,[82] the Court of Appeal considered that the system for determining homelessness applications[83] was non-compliant with Article 6, despite the availability of a judicial review type procedure,[84] where disputes may arise over findings of primary fact. The local authority officer conducting the statutory review of the local authority’s initial decision was not independent of the local authority, and, given the fact-finding necessary, the court did not have “full jurisdiction”.

                          5.68              The conclusions of the Court of Appeal in Adan were not technically authoritative, however, which allowed a differently constituted division of the Court of Appeal to come to a contrary conclusion in London Borough of Tower Hamlets v Begum.[85]Having reviewed the authorities, Laws LJ said that the critical question in what he described as “two tier” cases was “what are the conditions which determine whether the court process at the second tier, taken with the first instance process, guarantees compliance with Article 6(1)?” He went on:

… the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole … Where the scheme’s subject-matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme’s author.[86]

                          5.69              As is indicated by the terms of this passage (“the court will incline”, “judicial review … may not suffice”), however, it may still be misleading to suggest that there is a simple dichotomy, such that a primary fact finding exercise (even in the context of a legislative scheme which requires fact finding “generally or systematically”) absolutely requires the jurisdiction of the court to encompass a full hearing of the merits of the issue, whereas judicial review type procedures will only be adequate where the question is one of policy or reasonableness. In Bryan v UK,[87] the Strasbourg Court considered that judicial review did amount to “full jurisdiction” in relation to a factual dispute arising in connection with planning enforcement proceedings, laying particular emphasis on the “safeguards” involved in decision making by planning inspectors, and the “quasi-judicial” nature of the decision making procedures involved (albeit that they lacked independence). Bryan was relied on by both Lords Slynn and Hoffman in Alconbury,[88] and the possibility of a compliant non-independent (but “safeguarded”) fact finding exercise followed by judicial review of the legality of the process underpins particularly Lord Hoffman’s speech. Bryan itself could be explained using Laws LJ’s approach – although there was a central issue of fact in the case, planning decisions “generally or systematically” involve the weighing of competing policy and personal interests. It remains to be seen how the case law will develop.

Human rights and housing law: some conclusions

                          5.70              We consider that the way that the case law has developed since October 2000 makes a significant difference to the availability of any procedure by which a public authority landlord can recover possession without a court being able to consider the reasonableness or proportionality of evicting the tenant. In short, any procedure which automatically leads to possession being granted without a court having to exercise its discretion must be accompanied by some other procedure adequate to determine the question of proportionality.

                          5.71              This was the result in Bracknell Forest, in respect of the landlord’s decision to use one automatic possession procedure, introductory tenancies. But in our view, once it is accepted, as it now clearly is by the Court of Appeal, that any eviction engages Article 8(1), the conclusion follows from the general principles of administrative law equally in respect of other automatic possession procedures. Those include the decision to terminate an assured shorthold without grounds, or the decision to use a mandatory ground of possession.

                          5.72              It is unlawful for a public authority to act in a way which is incompatible with a Convention right. Since the successful use of an automatic possession procedure necessarily engages Article 8(1), it is only lawful for a public authority to use it if it can be justified under Article 8(2). It would only be justifiable to use an automatic process if it was, in the circumstances of the case, proportionate. A decision to use an automatic possession procedure unjustifiably would be unlawful, and amenable to judicial review.

                          5.73              But once a state provides for a procedure to determine a question such as this, that procedure must itself be compatible with Article 6. While the Court of Appeal has found that judicial review was compatible in the case of introductory tenancies, that was in the context of an extensive, statutory set of safeguards to ensure that the local authority’s own fact finding and review exercise, while of course not independent and impartial, nevertheless otherwise matched Article 6 norms. In an appropriate case, it is not obvious that it would necessarily so find in relation to the other automatic possession procedures.

                          5.74              The implication of this in practice is that something similar to the Cochrane procedure will become a (minimum) necessity in respect of any use by a public authority landlord of an automatic possession procedure.

                          5.75              These developments will also effect housing associations and other registered social landlords. As we have seen, it will often not be clear in advance whether a particular registered social landlord is a functional public authority for the purposes of both the Human Rights Act and judicial review in respect of any particular tenant. Accordingly, the tenant of such a landlord will have the right to test the character of the landlord (insofar as it relates to him or her) by the same route that is available to the tenant of a local authority. While it is true that the landlord will have an additional argument in the litigation against the tenant, the point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants. Judicial review and a Cochrane type procedure are inimical to such a purpose.

                          5.76              Two final points. First, the case law is still in a process of development. In particular, the whole approach taken by the courts up to the Court of Appeal is based on the conclusion that Article 8(1) is always engaged by an eviction. Should the House of Lords conclude that lawfully conducted evictions do not engage Article 8(1) per se, then the procedural consequences we have discussed above would not necessarily arise.

                          5.77              Second we are very concerned about the uncertainties which surround the application of Human Rights Act principles to registered social landlords. While this may be an issue that should also be resolved by further decisions of the courts, we invite views on whether it should be made clear by statute that registered social landlords should be deemed to be public authorities for the purposes of the Human Rights Act 1998, in relation to their not-for-profit housing activities.