Does a judge have to consider Article 8 in possession proceedings brought by a private landlord? – Millie Polimac
25 August 2016
No, said the Supreme Court in McDonald v McDonald  UKSC 28 – read judgment.
Fiona McDonald was a private sector tenant. The landlords were her parents who had purchased the property by obtaining a secured loan from a private company. They fell into arrears of the monthly payments, and the company sought possession pursuant to a s.21(4) Housing Act 1988 (‘HA 1988’) notice. The arrears were not substantial, but they had persisted for some time.
An Article 8 defence was raised as Fiona had mental health problems in the form of psychiatric and behavioural issues.
The Supreme Court rejected her defence for the following reasons.
No Article 8 assessment
The appellant argued that the court, as a public authority under s.6(1) of the Human Rights Act 1998 (‘HRA 1998’), was required to carry out an Article 8 assessment in such circumstances.
The Supreme Court thought that a private sector tenant was in a weaker position than a public sector one because the former had proprietary rights under Article 1, Protocol 1 of the Convention (‘A1P1’), which had to be balanced against the tenant’s Article 8 rights.
The Justices distinguished restraint of publishing cases where the courts frequently carried out a balancing exercise between Articles 8 and 10. Those arose from tortious or quasi-tortious relationships where the legislature had expressly, impliedly or through inaction left the courts to carry out the balancing exercise.
In contrast, the present dispute arose from a contractual relationship and the legislature had prescribed how the parties’ respective Convention rights were to be respected. According to the Court the balance was struck by: (i) the Protection of Eviction Act 1977 which precludes eviction without a court order; (ii) s.89 of the Housing Act 1980 which allows the court to postpone possession for up to a maximum period of 6 weeks in cases of exceptional hardship, and (iii) Chapters I and IV of the Housing Act 1988 which required a valid notice under s.7 or s.21 to be served and a court order to be made before the landlord could obtain possession, as well as damages for those who are unlawfully evicted or harassed.
The Court said that to hold otherwise would have a series of undesirable effects:
- It would mean that the Convention was in effect directly enforceable between private citizens so as to alter their contractual rights and obligations, which was contrary to the Convention’s purpose.
- The landlord’s A1P1 rights would be interfered with in an unpredictable way. It could also mean that the landlord would suffer financial loss without compensation, for example, if execution of the possession order was delayed significantly meaning the landlord could not sell his property with vacant possession.
The Court then carried out an assessment of the Strasbourg jurisprudence, but it concluded that there was no clear and authoritative guidance from Strasbourg to change its analysis.
First, the Justices considered 2 cases against the UK where the European Commission on Human Rights held that Article 8 was not engaged due to the exclusively private relationship between the parties. In Di Palma (1986) a court had granted possession to a private landlord who had forfeited a long lease. In Wood (1997) the same conclusion was reached in respect of a mortgagor who could not raise Article 8 against a private sector mortgagee where there was a failure to pay instalments due.
The Justices then considered subsequent case-law but distinguished the cases:
Zehentner v Austria (2009) was distinguished on the basis that the case concerned the enforcement of a debt (through an order for sale) and not the enforcement of a landlord’s right to possession. There were no procedural safeguards, and the applicant had not been afforded the opportunity to pay off the creditors.
- Zrilic v Croatia (2013) was distinguished since the court had powers to partition land and order its sale, which was different to a court which was merely enforcing contractual rights between private parties and was subject to specific legislative protective provisions while doing so.
- Brezec v Croatia (2014) was distinguished on the basis that the landlord had previously been a state-owned company, which the ECtHR thought was highly relevant.
- Mustafa v Sweden (2008) involved a finding of a breach of Article 10 in a case where a possession order was made against tenants who had installed a satellite dish and in so doing breached a covenant. The appellants in the present case argued that this showed that Article 10 could be invoked to vary the contractual rights between private parties. However, the Justices disagreed. They distinguished Mustafa on the basis that Sweden had failed to enact legislation to satisfy the protection of Article 10 rights and the court, therefore, had to be able to give effect to such rights despite the terms of the relevant contract.
The Court, therefore, concluded that, although the ECtHR jurisprudence showed some support for the notion that Article 8 may be engaged against a private landlord, there was no support for the proposition that the judge could be required to consider the proportionality of the order which he would make under the Housing Act 1988.
Not possible to read s.21(4) compatibly
The observations concerning the second question were obiter given the Court’s findings on Article 8. However, the court thought it was important to address the point as the question of whether to read legislation compatibly under s.3 HRA 1998 or to strike it down as incompatible under s.4 HRA 1998 was one that was relevant to many cases.
The main argument advanced by the appellant was that s.21(4) could be read compatibly, notwithstanding the mandatory language used because the court had managed to do so in Pinnock  UKSC 45 and Powell  UKSC 8 where the wording of the statutory provisions was also expressed in mandatory terms.
The Court held that it was not possible to apply the same approach to the present situation. First, there were differences between public and private tenancies since the public landlord was obliged to act compatibly with the Convention and comply with general principles of public law, whereas the private landlord was not. Second, unlike the mechanical process in s.21(4), the relevant legislative provisions in Pinnock were reasons-based processes as the notice required the landlord to give reasons for why it was serving the notice. Third, although there were constraints on the private landlord’s freedom of action, such as in the Equality Act 2010 provisions prohibiting discriminatory treatment, those were laid down in statute or statutory instruments. Finally, the Court held that to interpret the legislation in that way would be inconsistent with the scheme of the legislation which was to stimulate re-growth of the private rented sector and increase the supply of homes available to rent.
Not disproportionate to make a possession order
Finally, the Court addressed the first instance judge’s comments that, if Article 8 was relevant, he would have found this a case where he considered the balance should be struck in favour of the appellant. The Justices took the opportunity to highlight the exceptional nature of the Article 8 defence, and that the court had other options than to dismiss the claim, namely, exercising their discretion as to when the possession order would be made, subject to the six-week maximum.
McDonald is the latest authority on the interaction between proprietary and human rights and closes the questions left open after Pinnock. It shows the courts’ deference to the legislature in ECHR cases and the reluctance of the judiciary to get involved in carrying out any exercise which requires the balancing of rights, particularly when there is underlying legislation. It will take some authoritative Strasbourg jurisprudence to change it, or a challenge to the legislation itself as being incompatible with Article 8 in the way that it strikes the balance. The latter is not likely to bear fruit given Poplar Housing v Donoghue  EWCA Civ 595 which previously held that s.21 HA 1988 is compatible with Article 8.
There are undoubtedly some deserving cases in the private sector where the tenant’s Article 8 rights are under severe threat and the landlord’s A1P1 rights are not. To account for those cases the Court could have taken the same limited approach as in Pinnock and held that the court had the power to assess proportionality, albeit in “very highly exceptional cases”. Indeed, it seems that Shelter was arguing for such a limited power.
However, the Court appears to have stuck to the maxim that “hard cases make bad law” and chose certainty over allowing Article 8 to be used.
Perhaps there was no need to be so cautious, since statistics provided by Shelter showed that it was Article 8 defences against public authorities in possession proceedings hardly, if ever, succeeded, save in combination with some other public law factor. Those public law factors would not be utilised in possession claims against private landlords, and so it is likely that Article 8 defences would only be useful in a few deserving cases.
Yet the outcome is understandable in a housing crisis. The court supported its reasoning by citing the government policy in passing the Housing Act 1988, which was to improve the housing crisis by encouraging private landlords to let their properties.
Concerning the obiter comments that it was not possible to read s.21(4) compatibly, the Court’s reasoning seems to be again based on the distinction between public and private landlords. It is not clear why this is relevant to the question of whether reading the section compatibly amounts to “interpretation” or an “amendment” of the legislation. More convincing is the Court’s focus on the underlying scheme of the legislation, and a re-iteration of Lord Rodger’s comments in Ghaidan  UKHL 30, on when the court can imply words into legislation.
Millie Polimac is a barrister at Five Paper.