Uninterrupted Morris Dancing rights beaten by an A1P1 claim?

7 December 2011 by David Hart KC

Leeds Group v. Leeds City Council et al [2011] EWCA Civ 1447

Retrospective legislation often gives rise to claims under Article 1 Protocol 1 of the Convention – you  may have some legal advantage (whether it be property or a legal claim) which you then find yourselves losing as a result of the change of law. I have posted on some of these, the ban of the pub fag machine, or the change in the law that meant insurers had to pay compensation for pleural plaques caused by asbestos. These A1P1 cases are not easy to win, not least because the courts are wary in thwarting legislative changes via one of the less fundamental and most qualified rights in the Convention locker.

The Leeds Group case is a good example of this. The Countryside and Rights of Way Act 2000 (CROW) changed the basis on which town and village greens could be registered. Put very shortly, you can register some land as a green if people had “indulged” in “lawful sports and pastimes” on the land for not less than 20 years, in the rather quaint and de haut en bas language of the drafter. The changes under CROW were quite subtle. You now have to show a “significant number” so indulging, but these people can come from “any neighbourhood within a locality”, rather than from a “locality” – a term on which previously masses of ink has been split and by which otherwise meritorious claims for greens disallowed. And the sports and pastimes now had to continue to the date of registration – you and your fellow Morris dancers could not just stop dancing or whatever once you had done your 20 years, if you wanted to register the greens.

Where then did the A1P1 claim come in? The affected landowner appealed primarily on the basis that the new rules meant that you had to do 20 years of your sports etc after coming into force of CROW. Otherwise, it was said that the status of land would be affected by sports-playing etc before the coming into force of CROW, and you would have retrospective effect. The Court of Appeal thought that this reading of CROW was absurd; para.12. The landowner’s fallback answer, raising the A1P1 point, was more interesting. Though rejected by the CA in the end, it evidently gave at least of one of the judges, Arden LJ, rather more pause for thought. The Act was not simply retrospective. It allowed a 2 month window between its coming into force and the start of the new registration regime. Thus a quickwitted, if curmudgmeonly, landowner, realising what the new law meant, could have stopped all the games playing on his land temporarily, and thus he would have broken the continuity of any 20 year period which was currently running. But 2 months is not long for landowners to get their tackle in order; compare the 17 month period allowed in an earlier piece of legislation about rights of way.

Arden LJ stated some helpful general propositions and tied HR law into EU law in a neat way:

34….The fact that legislation is not retrospective according to domestic standards does not mean that it is not capable of violating A1P1. Likewise…the fact that legislation is retrospective (if that be the case) does not necessarily mean that it violates A1P1: see MA v Finland(Application No 27793/95).

35. The sole question to be answered under A1P1 in this case is: has a fair balance been struck by the relevant measure between the rights of the individual owner of land and the state?

36, At the hearing of the main appeal, I referred to the decision of the Court of Justice of the European Union in Case C-62/00 Marks & Spencer v IRC. In that decision, the Court of Justice held that, where national legislation is passed reducing the period within which a person may bring proceedings to recover sums collected in breach of European Union law, that legislation must contain transitional arrangements allowing for an adequate period after the enactment of the new legislation for lodging claims for repayment permitted under the earlier law.

37. I considered then, as I do now, that that line of authority lends general support to the submissions of Mr Laurence QC. As emerged from his submissions…, another way of putting his challenge on this ground is to say that Parliament failed to create appropriate transitional arrangements and that, by parity of reasoning with the Marks & Spencer case, a fair balance is not struck by legislation adversely affecting the rights of a landowner, when the landowner is not given a last opportunity to take steps previously open to him to prevent that diminution in his rights.

38. There is a cross-fertilisation of ideas about human rights between the Court of Justice and Strasbourg: the Court of Justice seeks to apply fundamental rights and, in doing so, it has regard to the principles established by the Strasbourg court; and in turn the Strasbourg court does not hold there has been a violation of Convention rights where an act has been done under European Union law and European Union law has provided safeguards which are equivalent to those guaranteed by the Convention.

39. Accordingly, I would not necessarily accept in the present context the submission on behalf of the Secretary of State that Parliament could have introduced neighbourhood-based claims without allowing any transitional period at all.

40 To recap, the exercise to be performed for the purposes of this ground of appeal is to consider whether or not a fair balance has been struck by sections 98 and 103 of the Countryside and Rights of Way Act 2000 (“CROW”). The burden of showing that these sections violate A1P1 is on the appellant. It has in effect to show that, although it was open to Parliament to introduce neighbourhood-based claims, it has done so in a way that is unfair as between the state and a landowner.

She then looked at the countervailing factors, including the “strikingly short” transitional period, and

52. Having considered the various factors on each side of the scale, I am satisfied that, in the particular circumstances of this case, which were regarded by Parliament as urgently requiring a legislative solution, the period of two months was sufficient to enable a fair balance to be struck.

No luck on the facts of this case, but the Court has given a helpful structure by which the strength or otherwise of these A1P1 challenges can be assessed.

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