Keeping a sense of proportion - Human Rights and Property Rights after McDonald v McDonald

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Summary: The Supreme Court has ruled unanimously that the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights (“the Convention”) do not require a court to consider whether it is proportionate to evict a residential occupier in a possession claim pursuant to section 21 of the Housing Act 1988 brought by a private residential landlord.

In this case the appellant occupier argued that in considering whether to make the possession order against her the judge should have taken into account the proportionality of making the order bearing in mind Article 8 of the Convention which provides that:

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

The Article 8 right is protected from interference by public authorities with a number of exceptions including where necessary “for the protection of the rights and freedoms of others.”  

Section 6(1) of the Human Rights Act 1998 provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right.”

The Supreme Court had to consider case law from the Strasbourg court as well as the issue as a matter of principle. In doing so it acknowledged that a court is a “public authority” and that it would be the making of a court order in this possession claim which would deprive the appellant of her home.

The Court held that if a court were to make a different order from that which is the outcome of the contractual relationship between the parties it would be in danger of interfering with a landlord’s rights under Article 1 of the Convention which provides that :

Every natural or legal person is entitled to the peaceful enjoyment of his possessions.

As the Court said :

To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state.

The effect of this judgment at least in relation to private residential tenancies is that it is now not possible for a residential occupier who is being faced with an order for possession in a UK court to invoke Article 8 of the Convention. As the Court said in relation to private residential possession proceedings:

Once it [a court] concludes that the landlord is entitled to an order for possession, there is nothing further to investigate.

This decision is to be welcomed as it now means that a tenant can no longer exploit the uncertainty created by the earlier decision of Manchester City Council-v-Pinnock [2011] 2 AC 104.

If you have a question and would like to learn more, please just get in touch. Email me at wendy.miller@blplaw.com

Case: McDonald v McDonald [2016] UKSC 28

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