‘Yeah but, no but’ – Pinnock and Powell in the Supreme Court
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00889.x |
| Author | Dave Cowan,Caroline Hunter |
| Published date | 01 January 2012 |
| Date | 01 January 2012 |
CASES
‘Yeah but, no but’ – Pinnock and Powell in the
Supreme Court
Dave Cowan*and Caroline Hunter**
This note considers the Supreme Court decisions in Manchester CC vPinnock and Hounslow
LBC vPowell. It is argued that there are a number of remaining outstanding questions around
proportionality,including: deference; section 89, Housing Act 1980; procedural issues; ‘publicness’;
and the future landscape.
INTRODUCTION
In Manchester City Council vPinnock1(Pinnock) and Hounslow LBC vPowell2
(Powell), a nine and seven person Supreme Court bench handed down what
perhaps have the potential to be the most significant judgments in housing law
since Street vMountford.3They introduced and refined the propor tionality
defence to mandatory possession proceedings,4which the European Court of
Human Rights (ECtHR) had maintained in successive decisions (although not
the subject of a decision in the Grand Chamber) as a result of the impact of
Article 8 of the European Convention on Human Rights and Freedoms.5
Whether Pinnock and Powell deserve that moniker of significance is the subject of
this case note. It is our general position that, while Pinnock was framed in positive
terms, introducing the defence of propor tionality, Powell, by contrast, is framed
negatively, essentially narrowing down the defence to an uncer tain, but con-
*University of Bristol.
**University of York.
4 Mandatory possession proceedings occur where the court has no discretion and must grant an
(Introductory and demoted tenancies); HousingAct 1996, Part 7 (duties to homeless). 72 per cent
of new lettings by local authorities in England are introductory: H. Pawson et al,Rent Arrears
Management Practices in the Housing Association Sector (London:TSA, 2010).The Localism Bill 2011,
Part 6, creates a further such tenancy, the ‘flexible tenancy’.
5 Article 8(1) provides that ‘ever yone has the r ight to respect for his private and family life, his home
and his correspondence’.The r ight is, however, a qualified one,which may not be interfered with
by a public authority ‘except as 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.’We do not deal here with the preliminary question of whether a
property is a person’s home for the purposes of Article 8, because it is generally accepted that,unless
the occupation is extremely slight, the test is readily met: Powell at [33],Lord Hope.
© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(1) MLR 78–121
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
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