Housing Law Practitioners’ Association
Minutes of the Meeting held on 15 March 2006
Park Crescent Conference Centre
Human Rights and Housing
Speakers:Jan Luba QC, Garden Court Chambers
Nuala Mole, AIRE Centre
Chair:Vivien Gambling, Hodge Jones and Allen Solicitors
Chair: I welcome you to this meeting which is on the topic of human rights and housing. I am Vivien Gambling, the newish Chair of HLPA. Thanks to all of you who did not stand against me at the election in January. Before introducing our speakers I would like to encourage everyone to stay for the Information Exchange at the end of the meeting. There have been one or two extremely important decisions including the decision in the case of Harlow District Council v Hall, which, I hope, we will be able to have some discussion on. In addition, there are various developments on the Legal Aid front and an important announcement to come from the Access to Justice Alliance and a Parliamentary lobby due to take place on 24 May.
Turning to the business of the meeting, can I first ask if there are any corrections to the Minutes from the January meeting? If not, I will introduce the first of our speakers, Jan Luba. I feel I have said this before but Jan, of course, hardly needs any introduction as a long standing member of HLPA, former Vice-Chair and the person who drove the membership campaign of HLPA very effectively. Also, of course, a seasoned speaker, and I hope that he will manage to succeed to make this rather treacherous topic of human rights and housing an entertaining one.
Jan Luba QC: Thank you very much, Viv. Colleagues, it is lovely to be back. It is also very impressive to appreciate how close the Association now is to the wheels of power. After all, who could have had the finesse to organise this particular meeting’s subject matter for this particular Wednesday and arrange for the Law Lords to hand down their judgement a week in advance so that we would all have time to read it and to discuss it at our session this evening. Many of you will be concerned to discuss and consider the speeches of the seven Law Lords which were handed down last Wednesday in the cases of Lambeth v Kay and Leeds v Price. I am delighted to tell you that what that decision means has been the subject of considerable enquiry by your next speaker, Nuala Mole. I am delighted to say that she is going to take up the challenge of taking us to that decision and what it means and what its implications are. Therefore, the work between us has divided in this way; that I am going to cover other developments in relation to human rights and housing and it is Nuala’s presentation that is going to focus on that important decision and the fallout from it. That is why my notes are structured in the way they are. I am looking at, as it were, all the other issues of topicality or interest to a housing practitioner around the human rights legislation and then, after Nuala’s presentation, we are going to have, I hope, a useful discussion about where we go now in the context of the House of Lord’s judgement.
1.Meaning of “Public Authority”
So, colleagues, the first of the issues that I have just gathered for review this evening is the question that arises from the terms of Section 6 of the Human Rights Act 1998 as to what is (or what sort of organisation is) a “public authority” which is constrained to act in accordance with the Convention in peril of having been found to have acted unlawfully. It has been fairly easy going for those of us who work in the housing field because it is pretty apparent which sorts of housing organisations fall within the purview of the term “public authority.” We know, for example, that local housing authorities, local councils, fall within the purview of Section 6, as do statutorily established Housing Action Trusts, as does the statutorily established Housing Corporation, the housing ombudsman, the Crown. A lot of the organisations and outfits with which we have to deal in the housing context are indisputably public authorities. We are told by Section 6, sub-section 3, that “public authority” includes a court or tribunal so all our various housing courts and tribunals from the House of Lords down to the local Leasehold Evaluation Tribunal are public authorities for the purposes of the requirement to comply with the Convention.
What has been, since the Act came into force in 2000, something of an issue is the question of whether a registered social landlord may be a public authority, at least within the definition given in Section 6(3)(b) that is a person certain, a legal entity whose functions are functions of a public nature. We were looking for an all or nothing answer. You will recall, in Poplar HARCA v Donoghue, we were inviting the courts to say yea or nay. Is a housing association, at least one which is a registered social landlord, a public authority or not for the purposes of Section 6? Rather unhelpfully, the Court of Appeal decided that you look on a case by case, organisation by organisation, basis to see whether a particular housing association is or is not a public authority for the purposes of the statute. Case law has, to some extent, moved on since then but not directly in relation to housing associations and registered social landlords. If you are in a position now where you are asking yourself the question, “Is this registered social landlord within Section 6 of the Convention?” then there can be no better starting point, I think, than the Human Rights Joint Select Committee of the Lords and Commons’ report of March 2004 solely on the issue of the meaning of “public authority” in Section 6. A brilliantly well-researched piece of writing. Excellent report. Reviews all the cases. You know the names, the one about the chancel repairs, Aston Cantlow, Leonard Cheshire, they are all there. They are all reviewed in context and I think that report marks, as at March 2004, the latest discussion or analysis of the question. The Joint Select Committee takes the view that the courts have too narrowly interpreted the meaning of “public authority” and have not adopted what the Convention case law might have suggested which is an institutional approach. You look at the outfit and what it does and decide whether or not it is a public authority. Driven by the wording of Section 6(3)(b) the proper approach appears to be to look at what the body is doing in any particular circumstance and ask: is it acting as a public authority in relation to that piece of activity? So, again, I think the Joint Select Committee report gathers neatly together the issues. There is a very good discussion in Alder and Handy’s book, Housing Association Law and Practice but, of course, that is as at 2003 and things have somewhat moved on, as a result of which Alder and Handy have been writing some useful articles in the Journal of Housing Law. I think we are going to find very shortly that we are going to get a decisive indication from the courts, one way or another, in a straight registered social landlord case and we will want to see whether the Poplar HARCA v Donoghue approach survives in the modern era after the consideration of the other, later cases which are discussed in the Joint Select Committee’s report.
Almost in parallel, we have, not quite in the human rights context but more broadly, the question of whether registered social landlords are bodies amenable to judicial review, applying the ordinary principles of administrative law. It is rather surprising that we have not yet had clear authority from the courts on that question. There were lots of straws in the wind. We know, as a result of work on European Union directives and procurement directives, that it seems that housing associations have to be treated as public authorities for certain purposes under European Union law. They have to be treated as public authorities for certain purposes under Value Added Tax law. But on the other hand there are straws going the other way. Registered social landlords and housing associations are not within the purview of the Freedom of Information Act. So we have not yet got a clear legislative steer on whether the remit of judicial review will stretch to housing associations but, again, I think, inevitably very shortly we are going to have a decision one way or the other. I think the nearest we have got to it so far is the decision in R(Mills) v Airway Housing Society, which is, in fact, a refused application for judicial review but for the purposes of entertaining the substantive application the court was perfectly prepared to accept that it was at least seriously arguable that a registered social landlord was within the modern purview of judicial review. So we shall see. Anyway, that seems to me to be where we are on the status of registered social landlords. I hope that those who are working more closely on that particular issue will have something to offer on the Information Exchange on that.
2.The Convention Rights
The second section of my notes simply reviews the main Articles of the European Convention which may be applicable to the housing context to see where we are, as it were, half a dozen years on since the commencement of the Human Rights Act 1998 in terms of the application of the Articles on the domestic scene. I have set out first Article 3, the prohibition of torture and, of course, for our present purposes the important prohibition from degrading treatment or punishment. But as my note indicates, I have really got nothing to add in the light of the Limbuela case. That is, you will recall, the decision on the non-provision of assistance to certain asylum seekers and I think that decision of the House of Lords says all that could conceivably be said about the applicability of Article 3 where the state makes a deliberate decision to leave people homeless, indeed not only leave them homeless but also leave them destitute. In those circumstances the House of Lords were perfectly satisfied that Article 3 might be engaged. So, as housing practitioners we have certainly got something from the first of the Articles for the purposes of my review this evening.
Article 6 of the Convention, the right to a fair trial. Now again, as housing practitioners looking back over the last few years, that has served us well in some respects at least. Were it not for Article 6 we might well still have those disgraceful housing benefit review boards which were not independent, were not impartial and did not provide fair and public hearings in manifest breach of Article 6 (as was plain from the judicial review challenge in R(Bewry) v Norwich CC). But as you know, those were swept away on the back of the implementation of Article 6. In Runa Begum v Tower Hamlets LBC you will recall that the House of Lords decided that the internal review stage of homelessness decision-making was not compliant with the Convention Right in Article 6 and, therefore, was only saved by access, additionally, to the courts by the appeal provisions allowing one to go to the county court in homelessness disputes. So, we have had something from Article 6 even if not all that we would want. I apologise to you for having omitted from the notes the reference to Runa Begum which is [2003] 2 A.C 430.
All the recent “action”, if that is the right word, has been around the scope of Article 8 of the Convention, not least because it contains within the terms of Article 8(1) the only reference in the Convention to housing or the home by the use of the words in the rubric, “everyone has the right to respect for ... his home.” The approach, domestically, tends to be to read the various Article 8 rights disjunctively. So we say, “has the right to private life been interfered with?” “Has the right to family life been interfered with?” “Has the right to respect for a home been interfered with?” Whereas the organs of the Convention in Strasbourg tend to treat it more holistically and ask whether Article 8(1) of the Convention, as a whole, has been interfered with or is engaged in a particular case. The important thing about Article 8(1) for our purposes is, of course, that it is a qualified Convention right. I remind you that the right to respect for a home can be interfered with if the conditions set out in the second sub-paragraph of Article 8 are demonstrated to be satisfied. It is sometimes thought that this is not really one of the most important Articles of the Convention but I am rather pleased to see that in a decision of the House of Lords in another case handed down last Wednesday, the case of Secretary of State v M, which I am going to refer to in a moment, Lord Walker, who gave the main judgement in that case, cited with approval a passage from Connors v UK about the importance of Article 8. In that case the Strasbourg court said that Article 8 “concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.” It is, of course, the words “settled and secure place in the community” that, as it were, engage with the words, “right to respect for a home.” The Court continued that “where general social and economic policy considerations have arisen in the context of Article 8 itself the scope of the margin of appreciation depends on the context of the case with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant.” So Article 8 is an important Convention right; it is intended to protect individual integrity, intended to protect one’s right in the community and when the State seeks to interfere with that right then its scope for manoeuvre will, to adopt the language there, “be looked at with particular scrutiny.”
My notes paint only a few points on the picture of Article 8 because Nuala is going to be covering the impact of the most recent decision of the House of Lords on the question of the interface between Article 8 and possession proceedings. But let me just run through the points if I can here. Some of them, I hope, are still of value. First, what is the meaning of the word “home” in the rubric of Article 8(1)? You will recall that in Qazi v Harrow LBC it was asserted by Harrow that in order to get within the words “his home” one had, additionally, to be able to say, “his lawful home,” or “his legal home” or “his own home”. In other words, that the person had some sort of right in relation to the property. That was rejected, unanimously, by the House of Lords. All that one needs is a link, a factual link, between the individual and the particular property as their residence. In O’Rourke v UK Mr O’Rourke sought to assert that a few nights in bed and breakfast accommodation was sufficient to constitute a link with property which would amount to his home. The European Court of Human Rights, not particularly attracted by that proposition, decided the point on another ground. But as you will hear from Nuala, in the recent case the House of Lords were very cool on the idea that a travelling family could establish a sufficient factual link with a particular plot of land after having resided on it for only a day or two. Something more is required to link an individual to a particular property before that can be said to be their home.
My second point, equally straightforward, is to remind you that Article 8 does not contain a right to a home for a person or persons who do not have a home. Although that is often cited as a proposition derived from the case of Chapman v UK, that proposition requires some reading in context. You will recall that Chapman v UK is a majority decision of the Strasbourg Court and even the majority say that Article 8 does not, “in terms” say that there is a right to a home. I think it must follow that the correct way of understanding the European jurisprudence is that a person may have a right to a home from the State under Article 8, particularly where one treats Article 8(1) in its omnibus fashion; where the person can only really have privacy, a family life, a private life and a home if the State provides one. That was almost the situation in Marzari v Italy where the individual was very severely disabled and had very, very particular housing needs. We might find ourselves in the situation of a case which is so exceptional that, really, we could say that the positive obligation on the State, under Article 8, required the provision of a home. We are a little way off that yet but I do remind you about the powerful dissents in Chapman v UK which are useful to take us in that direction.
Of course, if one does have a home then we get into Article 8(1) territory when the State, through a public authority, seeks to take away a home that a person has. In Leeds CC v Price and Lambeth LBC v Kay the House of Lords were unanimously agreed that taking away someone’s home necessarily engaged Article 8(1) of the Convention and that eviction was, prima facie, an interference with the Convention right. So the question in all possession cases is the extent or reach of Article 8(2) of the Convention. What does it require of the court trying the possession case or of the owner who is seeking possession? That is the issue with which their Lordships deal directly and which Nuala will review.