The Queen’s Speech announced the government’s intention to consult on repealing the Human Rights Act and replace it with a British Bill of Rights. But implementing this manifesto commitment has proved trickier than ministers imagined.
“If Article 8 is to be abolished some tenants will have lost valuable protection.”
The fundamental problem with their plan is that no one knows which of the rights in the Human Rights Act – derived from the European Convention on Human Rights – would be lost. Would a British Bill of Rights not contain protection of a person’s right to life? Would Britain no longer prohibit torture, or inhuman or degrading treatment? Do we want to repeal the prohibition of slavery or forced Labour? And so on.
Inside Housing readers will want to know what impact abolition of the Human Rights Act might have on social housing tenants. It is, of course, difficult to answer that question without knowing what such a bill might contain.
However, we know some social housing tenants have gained some additional protection as a result of Article 8 of the European Convention on Human Rights. It requires any public authority – government, local authority and generally housing associations – to have regard to a person’s right to respect for his or her home, private and family life.
What does that mean in practical terms? It does not mean that someone has a right to a home. It means that where someone is facing eviction, both the public sector landlord and the courts should consider whether the eviction would be proportionate, for a legitimate aim, lawful and necessary.
For secure (council) and most assured (housing association) tenants, then any possession proceedings brought against them require their landlords to prove that there is a factual ground for possession (usually rent arrears or anti-social behaviour) and that it is reasonable to make an order for possession. The courts only need to consider whether or not it is reasonable means.
However, where social housing tenants face eviction based on mandatory grounds for possession, where there is no provision in any of the housing acts for the courts to consider a tenant’s personal circumstances, Article 8 can make a difference. Those mandatory grounds for possession are used against non-secure tenants (usually homelesshouseholds housed under homelessness duties), introductory tenants, demoted tenants, the new category of flexible tenants, or, against assured tenants if there are eight weeks’ rent arrears. They are also used against people who lived with council or housing association tenants, but were not entitled to succeed to the tenancy after the tenant had died.
In a landmark case called Pinnock v Manchester City Council, the Supreme Court decided that, in exceptional cases, Article 8 could allow a social housing tenant or occupier facing eviction to raise his or her personal circumstances in court, where otherwise, those circumstances could not be considered. The Supreme Court did not define what exceptional cases might be, and most of the cases in the higher courts have found that Article 8 did not prevent a social housing landlord from obtaining possession. But each case rests on its own facts.
Article 8 is a useful long-stop where there are compelling personal circumstances why someone should not be evicted and would not otherwise be entitled to have his or her circumstances considered by the court. If – which is not at all clear – Article 8 is to be abolished some social housing tenants or occupiers will have lost valuable protection.
Liz Davies is a barrister at Garden Court Chambers specialising in housing and homelessness law