Human Rights and the Law of Leases

Date01 May 2013
DOI10.3366/elr.2013.0154
Publication Date01 May 2013
Pages184-209
AuthorFrankie McCarthy
<p>In a word association game with the term “human rights”, predictable responses might include torture, terrorism, asylum seekers and freedom of speech. “Landlord and tenant” would be expected to appear close to the end of the list, if it appeared at all. The law of leases does not generally inspire the type of robust political debate surrounding hot button civil rights topics like phone hacking and immigration. And yet, quotidian questions about enforcement of tenancy agreements have formed the basis for several of the most significant human rights decisions handed down by the UK<xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p><italic>Kay v Lambeth LBC</italic> <a href="https://vlex.co.uk/vid/kay-v-london-borough-818720557">[2006] UKHL 10</a>, <a href="https://vlex.co.uk/vid/kay-v-london-borough-818720557">[2006] 2 AC 465</a>; <italic>Doherty v Birmingham City Council</italic> <a href="https://vlex.co.uk/vid/doherty-v-birmingham-city-818828849">[2008] UKHL 57</a>, <a href="https://vlex.co.uk/vid/doherty-v-birmingham-city-818828849">[2009] 1 AC 367</a>; <italic>R (on the application of Weaver) v London & Quadrant Housing Trust</italic> <a href="https://vlex.co.uk/vid/r-weaver-v-london-793869521">[2009] EWCA Civ 587</a>, <a href="https://vlex.co.uk/vid/r-weaver-v-london-793869521">[2010] 1 WLR 363</a>; <italic>Manchester City Council v Pinnock</italic> <a href="https://vlex.co.uk/vid/manchester-v-pinnock-818719293">[2010] UKSC 45</a>, <a href="https://vlex.co.uk/vid/manchester-v-pinnock-818719293">[2010] 3 WLR 1441</a>; <italic>Salvesen v Riddell</italic> <a href="https://vlex.co.uk/vid/salvesen-v-riddell-802039685">[2012] CSIH 26</a>; 2012 SLT 633; all discussed further below.</p></fn> and Strasbourg<xref ref-type="fn" rid="fn2"><sup>2</sup></xref><fn id="fn2"><label>2</label><p><italic>McCann v United Kingdom</italic> (2008) 47 EHRR 40; <italic>Kay v United Kingdom</italic> (2012) 54 EHRR 30, discussed further below.</p></fn> courts in recent years.</p> <p>In fact, the law of landlord and tenant provides highly fertile ground for analysis of the practical impact of the Convention to date. The variety in different types of lease – residential, commercial, involving natural persons, legal persons and public bodies – gives rise to challenges under a range of Convention rights, with issues falling on both sides of the traditional divide between public and private law. The inherent difficulty for Strasbourg in ensuring a minimum standard of human rights protection whilst affording states a margin of appreciation sufficiently broad to avoid encroachment on the powers of democratically-elected governments<xref ref-type="fn" rid="fn3"><sup>3</sup></xref><fn id="fn3"><label>3</label><p>The literature on the challenge presented by the margin of appreciation doctrine is extensive, but see generally R St J MacDonald, “The margin of appreciation”, in R St J MacDonald, F Matscher and H Petzold (eds), <italic>The European System for the Protection of Human Rights</italic> (1993) 83; C Yourow, <italic>The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence</italic> (1996); N Lavender, “The problem of the margin of appreciation” [1997] EHRLR 380; Y Arai-Takahashi, <italic>The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the <a href="https://international.vlex.com/vid/convenio-europeo-libertades-fundamentales-67895138">ECHR</a></italic> (2002); G Letsas, “Two concepts of the margin of appreciation” (2006) 26 OJLS 705; J Kratochvil, “The inflation of the margin of appreciation by the European Court of Human Rights” (2011) 29 NQHR 324.</p></fn> is vividly illustrated in the politically and economically complex housing sphere.<xref ref-type="fn" rid="fn4"><sup>4</sup></xref><fn id="fn4"><label>4</label><p>Acknowledged, for example, in <italic>Mellacher v Austria</italic> (1990) 12 EHRR 391 at para 44. See also <italic>James v United Kingdom</italic> (1986) 8 EHRR 123.</p></fn> Against that background, it should have been little surprise that one of the first successful challenges to the competence of Holyrood legislation on Convention grounds arose from a landlord and tenant dispute.<xref ref-type="fn" rid="fn5"><sup>5</sup></xref><fn id="fn5"><label>5</label><p><italic>Salvesen v Riddell</italic> <a href="https://vlex.co.uk/vid/salvesen-v-riddell-802039685">[2012] CSIH 26</a>; 2012 SLT 633, discussed further below.</p></fn> Examining the operation of rights in this specific context is beneficial not only for the huge number of landlords and tenants in Scotland, but can also enhance understanding of Convention principles in a wider sense. An exploration of this area of the law offers much of relevance across the legal spectrum.</p> <p>This article provides an overview of the interaction of human rights with the law of landlord and tenant in Scotland. It begins with a summary of the mechanisms by which human rights touch upon leases, with discussion of how key Convention concepts have been interpreted and applied in this context. A detailed account is then given of the practical application of human rights in respect of the creation, enforcement and termination of leases in Scotland. The conclusion evaluates the success with which Convention rights have been integrated into this area of the law. Although Scots law is the focus of the article, reference is made to English and European authority where relevant to illuminate the meaning or effect of human rights in this jurisdiction. The research offers a thorough account of the impact of the Convention on the law of leases, whilst illustrating some broader issues at the intersection between human rights and private law, such as the potential for horizontal application of Convention rights.</p> THE HUMAN RIGHTS FRAMEWORK IN DOMESTIC LAW Implementation

The European Convention on Human Rights and Fundamental Freedoms is the key instrument underpinning the protection of rights in Scots law. The Convention was signed in November 1950 and ratified by the United Kingdom in March 1951. Since 1966, the UK government has recognised the jurisdiction of the European Court of Human Rights in Strasbourg, allowing parties to petition the court directly in respect of contended rights violations. Convention rights became an integral part of domestic law following the introduction of the Human Rights Act 1998.6

A detailed account of the history and current place of Convention rights in Scots law can be found in R Reed and J Murdoch, A Guide to Human Rights in Scotland, 3rd edn (2011) chs 1 and 2.

The Act entrenches the Convention using various mechanisms, three of which are of particular relevance to the law of leases. First, it provides that primary and subordinate legislation must, if possible, be given effect in a way which is compatible with Convention rights.7

s 3(1).

Subordinate legislation includes Acts of the Scottish Parliament.8

s 21.

If no such interpretation is possible, a superior court (meaning the Court of Session or the High Court of Justiciary in Scotland)9

s 4(5)(d).

is empowered to make a declaration of incompatibility,10

s 4(2) and (4).

opening the door to a fast-track Parliamentary amendment procedure.11

s 10 and Sch 2.

The Scotland Act 1998 further provides that Acts of the Scottish Parliament which purport to contain provisions incompatible with Convention rights will be ultra vires.12

Scotland Act 1998 s 29(1). The constitutional and procedural implications of a finding that Scottish legislation is not Convention compliant are currently under discussion: see Cameron v Cottam [2012] HCJAC 19, 2012 SLT 173, the first case in which such a finding was made, shortly followed by Salvesen v Riddell [2012] CSIH 26, 2012 SLT 633, discussed further below.

Secondly, an act of a public authority which is not compatible with Convention rights will be unlawful,13

s 6(1).

unless the authority is itself bound by incompatible primary legislation.14

s 6(2).

“Act” is defined to include omission.15

s 6(6).

The meaning of “public authority”, beyond the limited guidance given in the statute,16

s 6(3) and (5).

is discussed in the context of landlord and tenant below. The Scotland Act goes on to provide that a member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, which would be incompatible with Convention rights.17

Scotland Act 1998 s 57(2).

As compliance with Convention rights is a pre-requisite for competence of acts of the Scottish Government in the form of legislation or otherwise, challenges must be raised as a devolution issue.18

The relevant procedure is set out in schedule 6 to the Scotland Act 1998.

Finally, the Human Rights Act sets out that a domestic court or tribunal faced with a Convention question must take into account the jurisprudence of the European Court of Human Rights wherever relevant.19

Human Rights Act 1998 s 2(1).

Notwithstanding the discretion implied by the obligation merely to “take account of” the Strasbourg position, there is House of Lords authority to the effect that a European precedent should be followed unless there is a strong reason to deviate from it.20

R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837. For more detail on the effect of the Human Rights Act 1998 and the Scotland Act 1998, see Reed and Murdoch, Human Rights in Scotland (n 6) chs 1 and 3.

Convention rights of particular relevance to leases

Although a variety of Convention rights have formed the bases of challenges in connection with the law of leases, two articles feature with such frequency that their terms bear repeating in full. Article 8 provides:

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

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.

Article 1 of the first protocol (henceforth P1-1) provides

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Article 6, which sets out the right to a fair trial in inter alia the determination of civil rights and obligations, is sometimes argued in conjunction with article 8 or P1-1, if the breach of these articles is the result of a lack of opportunity to appeal the rule or decision which results in the contended interference. Article 14, which prohibits discrimination on any relevant ground in the exercise of Convention rights, is also of some significance. Domestic equalities legislation, now largely codified in the Equality Act 2010, is too extensive to be treated
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