(Human rights – don’t knock ’em; they could be our only hope …)
The Human Rights Act 1998 came into force in October 2000. It incorporated into UK law most – but crucially not all – of the rights set out in the European Convention on Human Rights. It is binding upon all governmental institutions which, by extension, should include the courts. This means that the courts should be cognisant of Human Rights even when deliberating upon proceedings between private litigants. Note that this particular application of Human Rights is still evolving and is not yet a certainty. Be that as it may:
Normally in eviction proceedings, Convention Rights 6 and 8, where appropriate, could be invoked, along with Protocol 1, Article 1. These were incorporated into the UK Human Rights Act. However, the only Human Right available to almshouse licensees is under Article 13 – the very right that was specifically excluded from the Act on the erroneous assumption that a combination of common law and statute law protects all citizens. In our case it does not. This means we would have to apply direct to the European Court of Human Rights for a fair hearing because the jurisdiction in which we languish provides none. The European Court is the only place where we can get true ‘equality of arms’ with trustees in accordance with Article 6. Naturally we deplore the omission of Article 13 from the UK Human Rights Act.
In this connection it should be noted that your local MEP cannot raise issues with the European Court. The Convention is supposedly incorporated into UK law, so any challenge must start in the UK legal system. Stymied again!
Relevant Human Rights:
Some almshouse residents should still be able to invoke Human Rights under two heads, viz.:
1. If the charity in dispute categorises as a ‘hybrid authority’ then it is bound by the Human Rights Act. A hybrid authority is one that has public functions that are indivisible from its charitable objects. Most small almshouse charities would not fall into this category.
2. If the charity in dispute is a Registered Social Landlord then it is bound by the Human Rights Act. You can do an internet search of the RSL register to find out if your particular charity is member.
The law under these heads is still evolving. For instance, the Charity Commissioners declare an inability to determine whether a particular charity is a hybrid authority or not. Presumably it’s an issue that will only be decided by way of a test case coming before the courts. Be that as it may:
The full list of rights which could become engaged in housing disputes would typically be rights to:
1 a fair trial (Article 6)
2 respect for private and family life (Article Eight)
3 freedom of expression (Article 10)
4 freedom of thought, conscience and religion (Article 9)
5 freedom of assembly and association (Article 11)
6 the peaceful enjoyment of property (Protocol 1, Article 1)
7 access to an effective remedy (Article 13)
8 freedom from discrimination apropos inter alia property (Article 14)
Article 14 is subordinate to some other (substantive) right; that is to say, it can only be invoked via that right. For almshouse licensees it might be argued that Article 14 prohibits discrimination in access to courts throughout the whole judicial system.
Article 6 is paramount. If this hurdle could be jumped then Article 8 would become engaged. The others may become engaged depending upon the circumstances of a case:-
Protocol 1, Article 1, property, is broadly interpreted and could be interpreted as including the benefits enjoyed by an occupant of another’s property, be that as tenant or as licensee. This seems to parallel the equitable right that we have postulated above. Given the wide interpretation of this Protocol, the prospect of the enduring occupancy of an almshouse as an ‘object of charity’ should – absent incapacitance or manifest delinquency – be a defensible right versus ‘the general interest’.
As already stated, Article 13 has not been included in the UK Human Right Act. Along with the denial of Article 6 it is this omission that uniquely outlaws almshouse licensees in the Human Rights context. Otherwise, interference with these rights is permissible only if what is done (a) has its basis in law, and (b) is necessary in a democratic society, which latter means it must
o fulfil a pressing social need
o pursue a legitimate aim
o be proportionate to the aims being pursued
As to having its basis in law: as expounded above, we perceive a conflict between a judgement (Gray v Taylor) in the appeal court on the one hand and parliamentary purpose and intent (statute, inter alia Housing Act 1985, Schedule 2 Part II Ground 11) on the other. Statute should prevail over presumptive judgements, the more so where the judgement in question is flawed.
As to fulfilling a pressing social need and pursuing a legitimate aim, the rendering homeless of elderly and vulnerable persons on inter alia unproven allegations does neither of those things.
As to being proportionate: the test of proportionality is paramount in possession proceedings. As we have seen, this is not offered to almshouse licensees by domestic law, but under the heading of Human Rights we may, in one or both of the two sets of circumstances stated above (hybridity and RSL) be able to challenge the proportionality of grounds for possession in the county court. Note that at this time of writing these are untried and untested routes to remedy. This law is still evolving and expert legal assistance would be essential in prosecuting your case.
We feel it necessary to address Article 8 in some detail, in the context of the landmark case of Orliċ v Croatia (Application no. 48833/07) Strasbourg 21 June 2011. (The later judgment in the case of BJEDOV v. CROATIA (Application no. 42150/09) 29 May 2012 also has relevance to this issue in that it addresses the matter of an occupant’s challenge at the warrant stage of eviction proceedings.)
In Orliċ the applicant complained that, by ordering and enforcing his eviction, a domestic court had violated his right to respect for his home guaranteed under Article 8 of the Convention, the relevant part of which reads as follows:
1. Everyone has the right to respect for … his home…
2. There shall be no interference by a public authority with the exercise of this right except such as is 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.
Abstracts from the judgement read as follows:
54. The Convention organs’ case-law is clear on the point that the concept of “home” within the meaning of Article 8 is not limited to those premises which are lawfully occupied or which have been lawfully established. “Home” is an autonomous concept which does not depend on classification under domestic law.
We interpret this definition as including domiciliary benefits accruing to almshouse licensees; which would seem to parallel our postulated equitable interest accruing under domestic law.
63. ….The Court set out the relevant principles in assessing the necessity of an interference with the right to “home” in the case of Connors v. the United Kingdom, (no. 66746/01, §§ 81–84, 27 May 2004) which concerned summary possession proceedings.
Absent Human Rights, almshouse possession proceedings would similarly be summary.
64. ….the guarantees of the Convention require that the interference with an applicant’s right to respect for his home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case.
Here the essential element of proportionality has been introduced.
65. In this connection the Court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he or she has no right to occupy a flat (see, mutatis mutandis, McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008).
Here it has been asserted that proportionality under Human Rights will interdict any adverse domestic legal nexus.
Consequently, the European Court disposed of this case by referring it back to the domestic court with a direction that the issue of proportionality be considered. Thus far this disposal is favourable to UK almshouse residents. The ultimate goal would be to have it translated to disputes between private citizens (and, where applicable, to bodies corporate). The nearest we have got so far is London Borough of Hounslow v Powell UKSC 8in which the defendant, like ourselves, was a licensee, albeit of a public body. An antecedent Supreme Court case is Manchester City Council v Pinnock  upon which we quote abstracts from a professional discourse. As ever, the unindented comments are ours:
“…a court, which is asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any factual disputes between the parties.”
“…it was possible to read and give effect to section 143D (2) [Housing Act 1996]* in a way that would permit the court to review the proportionality of a landlord’s decision to seek possession and, if necessary, to make its own assessment of facts in dispute.”
*Under domestic equitable law, from which, as we know, we are shut out, there is a remedy known as the Wednesbury test. Succinctly, it can be argued that a purporting cause of action is so unreasonable that no responsible body would pursue it. It readily translates to proportionality and could well be argued in parallel with Human Rights issues.
This discourse went on to make some further pertinent points, viz.:
“Generally, the issue of proportionality of possession will only need to be considered if it is raised by an occupier. Whilst a possession order may be valid under domestic law, consideration of Article 8 may justify suspending a possession order, extending the period for possession or refusing an order completely. Article 8 proportionality is likely to be more relevant when dealing with vulnerable occupiers with mental and/or physical disabilities. The Court categorically confirmed that this decision effected local authorities, housing associations exercising their housing management function but not private landlords.”
Note that most almshouse residents would categorise as ‘vulnerable occupiers’ by reason of age, infirmity or impecuniosity. The discourse continues:
“The words of the Supreme Court indicate that this legal development only applies to ‘public body’ landlords, which can include housing associations when exercising their housing management functions. … Private landlords are currently unaffected by this judgment, but this may change should a similar issue arise involving a private tenant.”
As we have intimated, the law in this connection is still evolving. We might optimistically paraphrase that last sentence as: Almshouse charities are currently unaffected by this judgment, but this may change should a similar issue arise involving a licensee thereof.
Almost there! One last push… Petition your MP right now.
MARCH 31st 2012 – check out the NEWS PAGE!
A recent case in the Strasbourg court (Reynolds v United Kingdom  ECHR 437, March 2012) may well have opened a window of opportunity for aggrieved almshouse residents. We address this more fully on the News page.
We consider this website now provides plenty of spanners for the resolute ‘licensee’ to throw in the works but here’s a bloody great Stillson wrench that could wreck the whole shebang. It’s called Factortame. Seeing as it’s Spanish we should pronounce it ‘fac-tor-tar-may’.
Par excellence the citation is R v Secretary of State for Transport ex Parte Factortame  ECR 1-4586 and its entail. Factortame was a Spanish firm of fishing vessel operators. The chronology of the case goes something like this:
The presence of Spanish fishing vessels in UK waters was tolerated because it favoured Britain under the quota system then prevailing, notwithstanding the catches were not landed in the UK.
Then came the EU Common Fishing Policy and the extension of UK waters out to 200 nautical miles. Spain not at the time being a member of the EU, Spanish vessels became excluded from British waters.
Factortame sought to circumvent this exclusion by registering its vessels under the UK flag using the rather lax regulations set out in the Merchant Shipping Act 1894.
HMG retaliated by drafting more stringent registration criteria in a new Merchant Shipping Act 1988.
Factortame retaliated by petitioning for judicial review of this new Merchant Shipping Act in the English Divisional Court. Spain now having been inducted as a member of the EU, Factortame could plead inconsistency with EU law and discrimination by reason of domicile and nationality. The case now impinged upon human rights.
Sensing impending controversy the Divisional Court felt obliged to refer the case to the European Court of Justice (note: this is not the European Court of Human Rights) for a preliminary ruling under the Treaty of Rome 1957, meanwhile granting the petitioners relief via an interim injunction.
HMG took recourse to the Court of Appeal which obligingly reversed the injunction stating that a court could not strike down local legislation in mere anticipation of an ECJ ruling.
Factortame appealed but the House of Lords concurred with the appeal court finding.
The European Court eventually gave its ruling. The ruling effected that, by reason of the European Community Act 1972 having mandated that EU law be incorporated into domestic law, EU law (including basic human rights) prevailed over the Merchant Shipping Act 1988. The Crown found itself hoist with its own petard.
Thus did the EC trump the Crown – and by way of the Crown’s own courts moreover. The only way it could circumvent this predicament would be to repeal the 1972 Act – which it has not (yet!)* had the temerity to do.
It follows that, by induction, UK courts are now bound to disapply any part of any Act of parliament that conflicts with EU law.
It must follow that, by deduction, the UK Human Rights Act, which conflicts with EU law by reason of its exclusion of Article 13 (right to an effective remedy) stands to be disapplied in that particular.
Furthermore, by reason that the iniquitous ‘declaration of incompatibility’ get-out derives from the Human Rights Act itself, to reach for incompatibility in the circumstances would be the legalistic equivalent of disappearing up one’s own fundament.
Factortame effectively repatriates a route to remedy despite the unavailability of Article 13. In other words, no need to take recourse to the European Court of Human Rights. However, whoever is first off the blocks should not expect their case to be resolved in the usual court of first instance, that is, their local county court.
We would speculate that the prospect of a hypothetical R v Secretary of State for Justice ex parte (an almshouse occupant/evictee) – or more immediately, an application for injunctive relief, citing Factortame – would conspire to stay the hand of the most hubristic of almshouse trustees.
The House of Lords subsequently ruled that a cause of action for damages could lie against HMG for incompatible legislative acts and omissions. This means that, given a meritorious case, an almshouse occupant/evictee could sue the government for damages. It clearly has no defence and obviously has more money than the most prosperous of almshouse trusts. Notwithstanding the aberrant trustees would not be in that particular frame, their anticipation of the resultant glare of publicity exacerbating their discomfiture might well cause them to capitulate well short of the courtroom door.
So where does all this leave Gray v Taylor? You might well ask…
*As we know, the Conservative Party is proposing that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts that English common law and statute fulfils the UK’s international human rights obligations. As we almshouse outlaws well know, it does not.
It is pointed out that other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. Quite so; but we hope that whoever is tasked with drafting any subsequent UK Bill of Rights will make a better fist of it than the blinkered optimists who drafted the Human Rights Act.
As for the historical birthright of British fishermen, this was traded in by the Heath administration as a quid pro quo for membership of the (then) common market. As Harold Wilson ruefully observed at the time – “not on these terms”.
December 2016: now we have to contend with Ashtead United Charity v Janet Watts CA December 2016. Janet Watts apparently contested a possession order at Guildford County Court in May sought by Ashtead United Charity on grounds of her anti-social behaviour.
This was presumably a ‘test case’, otherwise, why could it not expeditiously have been disposed of in the lower court? Given the accumulated evidence of the appellant’s palpable delinquency, her counsel was attempting to defend the indefensible! The resulting judgement is merely a re-run of Gray v Taylor with the latter-day issue of human rights thrown in apparently for determination. Do we detect legalistic legerdemain? Round up the usual suspects …
March 2017. We’ve added a new page on this case, to which you are referred.
Go now to Known Disputes