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08/08/2010

“Responding to Human Rights Judgments”, or then again, not.

The latest Government response to the Joint Committee on Human Rights report 2009/10 has been released. The PDF of the response is available here. This is the response of the current Government and they make clear that it is to a report prepared under the previous government. But in terms of the actual response, I suspect this makes little difference, save perhaps on Connors.

Of interest to housing lawyers are the JCHR findings and the Government response on McCann and Kay v UK, Connors and implementation of s.318 Housing and Regeneration Act 2008, and Schedule 15 Housing and Regeneration Act 2008 in relation to the incompatibility in Morris v Westminster CC [2005] EWCA Civ 1184.

Summary Possession (McCann etc.)
The JCHR says

…[W]ithout action by the Government, domestic courts remain bound by the decisions of the House of Lords in McCann and Doherty, that express consideration of the proportionality of any interference with the right to respect for home in Article 8 ECHR is not required. We think it is predictable that this position will not find favour with the European Court of Human Rights. We consider that the Minister should be required to explain why the costs of resisting further litigation in the case of Kay v United Kingdom on this repeat issue are justified…

We are concerned that the issue of respect for people’s homes in summary possession cases remains unresolved, despite numerous decisions of the House of Lords and the European Court of Human Rights. We welcome the Government’s acknowledgment that should the European Court of Human Rights decide again, in the pending case of Kay v United Kingdom, that domestic law is incompatible with Article 8 ECHR, it will have to revisit the question of whether a remedial order or legislation is necessary to remove the breach identified by the Court. Unless the European Court of Human Rights departs entirely from its reasoning in the case of McCann, we consider that the Government will inevitably need to revisit the breach identified in that case. We question whether it would not have been more cost effective to reform the summary possession process rather than to pursue further domestic and European litigation. It would be prudent for the Government in the meantime to consider how the process might be reformed to give effect to the decision in McCann in the event that the decision in Kay goes against it, in order to avoid any further delay following the forthcoming decision in Kay v UK.

This seems entirely plausible. And the Government’s response? This is not a straightforward matter. There have been three House of Lords cases so far and the Supreme Court has heard Pinnock. It isn’t at all clear how much McCann turned on its own facts and how far proportionality is a ‘necessity’ criterion for Art 8.2. Plus Kay does not turn on personal circumstances where McCann does. So the Government will await the Courts’ decisions in Kay v UK and Pinnock and see.

Equal treatment of those on caravan sites
The JCHR says:

In view of this apparent yet further delay in remedying the incompatibility in this case, we have written to the Minister to ask whether the Government intends to introduce the statutory instrument necessary to bring section 318 into force before the end of this Parliament; if not why not; and to ask for full explanation of why a statutory instrument which would bring into force a piece of legislation which prevents future breaches of the Convention is not regarded as a priority claim on parliamentary time by the Government.

The Govt.’s response?

A decision on section 318 will be made shortly, in the context of a wider strategy being developed in relation to Gypsies and Travellers, and an announcement will be made in due course.

So, we are going to do something, but we’re not going to tell you what yet.

And finally, on the Morris incompatibility issue
THis is the issue of ineligible children or pregnant spouses for homeless priority – the JCHR was not wholly satisfied that the implementation of Schedule 15 Housing and Regeneration Act 2008, in force from 1 March 2009, was sufficient. Lest we forget, this provides that housing assistance by the way of a private sector tenancy will be sufficient for those who are only eligible by way of a previously ineligible child or pregnant spouse. The JCHR view on Schedule 15 is:

We have previously reported our view that although this measure may remove the direct cause of the incompatibility identified in these cases, the solution in Schedule 15 of the 2008 Act gives rise to a similar risk of incompatibility. Schedule 15 continues to make a distinction between those entitled to the full range of housing assistance in relation to priority need, and a lesser set of obligations which will be open to those whose priority need is based upon their relationship with a dependant who is subject to certain immigration controls. We note that a similar kind of distinction, albeit based on facts which arose prior to the enactment of Schedule 15, is currently being challenged at the European Court of Human Rights.

The Government disagrees, on the basis that Schedule 15 is wholly sufficient to address the incompatibility established in Morris. So nothing else will be done about it.

Overall then, and respectively: wait and see; we’ll do something but we’re not saying what; and not a problem.

I suspect that several strands of ongoing higher court litigation are mapped out right there. We will, of course, follow them up.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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