Article 8 in Housing Law: No Home for Human Rights Values
| Author | Oliver Saunders |
| Position | University of Southampton |
| Pages | 72-90 |
S.S.L.R Article 8 In Housing Law Vol.6!
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72!
Article 8 in Housing Law: No Home for Human Rights
Values
Oliver Saunders
University of Southampton
The English Courts have clashed with Strasbourg for over a decade on the meaning of
Article 8 of the Convention in the context of social housing repossession cases.
Although the case of Pinnock v Manchester City Council signified a re-examination of
the approach in English law, it amounted to little more than a fig leaf for the
continuing divergence between the courts’ opposing views. The crux of the dispute
hinges on the scope of proportionality review when a tenant is evicted. The English
judicial disposition, it will argued, has been towards managerial concerns, namely
protecting local authorities’ letting decisions and their scarce resources. A
consequence of this approach, however, has been to allow eviction in harsh and
disproportionate circumstances. The courts’ failure to engage with Human Rights
values has therefore left Article 8 as a missed opportunity to critically refine English
property law and remedy gaps in tenant protection.
Introduction
ith the draft British Bill of Rights due to be debated this year in
Parliament1 it is a pertinent time to review the area of Human Rights in
Housing Law. The European Convention on Human Rights (ECHR), as
made enforceable by the Human Rights Act 1998 (HRA 1998),2 contains a right to
the respect for the home under Article 8. The impact of this on public authorities
seeking to evict tenants has been controversial and, as argued in this paper, not
without some judicial apathy towards Human Rights values. It is true that, as far
back as 1765,3 the Englishman’s home was seen as inviolable by the state without
express authorisation of the law; yet as a 2012 Equality and Human Rights
Commission paper demonstrates, there are now an estimated 266 statutes that
enable the state to lawfully intrude in the home. 4 The issue is accentuated
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1 See: Parliament, ‘From the Human Rights Act to a Bill of Rights?: Key issues for the 2010
Parliament’ esearch/key-issues-for-the-new-
parliament/security-and-liberty/from-the-human-rights-act-to-a-bill-of-rights/> accessed 5 April
2016
2 HRA 1998, Schedule 1
3 Entick v Carrington [1765] EWHC KB J98
4 Equality and Human Rights Commission, ‘Human Rights Review 2012: Article 8’,
df>
Accessed 5 April 2015
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[2016] Southampton Student Law Review Vol.6!
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particularly in the cases where an occupant has a non-secure tenancy5 or licence, as
repossession in those cases cannot be forestalled by any merits review.
Lord Walker in the case of Doherty v Birmingham CC6 gave a sense of the difficulties
that judges must confront in ruling on a local authority’s order for possession. He
spoke of the authority’s “common law right” (to possession) as being “surrounded on
all sides by statutory infrastructure, like a patch of grass in the middle of a motorway
junction.”7 It is an area of law which, as Baroness Hale notes, is “much trampled over
by the legislature as it has tried to respond to shifting and conflicting social and
economic pressures.”8 As a result of the complex statutory framework that exists in
this area, the House of Lords and, latterly the Supreme Court, have shown a real
reluctance to engage in the Human Rights discussion that Article 8 engenders. The
courts are, it will be argued, unduly swayed by the practical concerns of local
authorities, at the expense of individual occupants’ home life. It will be concluded
that the English court’s interpretation of Article 8 has been a missed opportunity for
English law to refine the more unfair aspects of property law, to produce a legal
regime that entails the respect for individuals’ homes that the Convention requires
(as the gulf between the judgments of Strasbourg and the English courts illuminates).
Article 8: Scope of the Right
The open-eneded wording of this Article lends itself to very broad application.9 It is a
qualified right and, as such, has two clauses; Article 8.1 states that “Everyone has the
right to respect for his private and family life, his home10 and his correspondence.”11
Article 8.2., provides the basis on which this right can be interefered with:
‘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.’12
‘Home’ has an autonomous13 definition and will be a question of fact in each case; the
accepted test is whether the individual has “sufficient and continuous links”14 with
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5 See for example: Introductory tenancies (Housing Act 1996); Demoted tenancies (Housing Act
7 Ibid., at para. 100
8 Kay v Lambeth BC [2006] UKHL 10, at para. 185
9 E Wicks, B Rainey, C Ovey, Jacobs, White and Ovey: the European Convention on Human Rights
(Oxford University Press 2014), p. 334
10 Emphasis added.
11 ECHR, Article 8.1
12 ECHR, Article 8.2
13 Buckley v UK (1996) 23 EHRR 101, 115 [63]
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