Private: Keep out

20 Dec 2011

Since the cases of Manchester CC v Pinnock [2010] UKSC 45 and LB Hounslow v Powell [2011] UKSC 8 it is clear that the County Court must have, and does have, the power to assess in every case whether the making of a possession order in respect of a person’s “home” is “proportionate” for the purposes of art.8 of the European Convention on Human Rights. However, this is in the context of a local authority land owner seeking an order for possession.

But what if the landowner in question is not a local authority but a private landowner? What then is the position? Can the occupier even begin to assert an art.8 defence against the private landowner? The starting point has to be the terms of the Human Rights Act 1998 itself.

As originally conceived, the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 (“the Convention”) was designed to protect the fundamental rights and freedoms of individuals from interference by a state government. The UK was one of the first signatories to the Convention, but it was not until nearly half a century later that a UK Government was prepared to bring the Convention into domestic law by enacting the Human Rights Act 1998.

Up to that point the Convention was regarded simply as an international treaty not enforceable directly by individual litigants in the domestic Courts. There was no domestic obligation on public bodies, let alone private individuals, to act in a manner which was compatible with the Convention.

This approach was exemplified in the case of Di Palma v UK (11949/86) in which a tenant of a long lease who was evicted after forfeiture of her lease for rent arrears. She complained to that her Convention rights had been infringed. The ECtHR held that the dispute was essentially one of a private nature. It found that it was not the State, through the Courts, which deprived her of the lease, but the landlord. The Court was there simply to enforce the terms of the tenant’s private law arrangement with the landlord. There was no breach of Convention rights.

However, the coming into force of the Human Rights Act 1998 in 2000 seems radically to have changed this landscape. The Act purports to give “further effect” to Convention rights. The way it does this can be summarised as follows:

  1. By obliging the Court to interpret existing and future legislation in accordance with the Convention, where possible (s.3)
  2. By requiring Courts to “take account” of Strasbourg Case law
  3. By obliging all public authorities (including Courts and tribunals) to act in accordance with the Convention (s.6(1)).
  4. By giving a cause of action and/or defence to litigants in the domestic Courts who feel their Convention rights have been, or may be, interfered with by a public body (s.7).

Quite deliberately it seems Parliament has, under s.6(1) of the Act, required that only a “public authority” need act in accordance with the Convention. Moreover, private individuals are given new defences and causes of action as against public authorities (s.7), but these do not “bite” against other private individuals. Private individuals it seems therefore are off the hook. However, the Court itself is a “public authority” for the purpose of the Act, so if it is called upon to adjudicate in a dispute between private individuals it seems that it can only do so in accordance with the Convention rights of those individuals as the Court itself is bound to act in accordance with those rights.

The Di Palma case above can be contrasted sharply with the more recent case of Khurshid Mustafa v Sweden (23883/06). In this case Iraqi tenants had been evicted from their flat in a Swedish town because they had erected a satellite dish on the outside of their flat, in direct contravention of their lease. The (private) landlord sought and obtained possession on the basis of the breach. The tenants took their case to the ECtHR and argued that they required the dish to receive programmes relevant to their culture which were not otherwise available through the domestic Swedish TV network. The tenants argued that their art.10 rights had been interfered with.

The ECtHR acknowledged that this was essentially a private dispute, but went on to hold that the Court would not stand by where the application of domestic law was “inconsistent with the principles underlying the Convention..”[33]. The eviction, it held, was in effect a result of the Court’s ruling and that therefore the responsibility of the state was engaged. (see also Belichkova v Russia (2408/06))

Closer to home, the Courts have for some time been considering Convention rights in cases where a private individual was seeking to prevent publication of private details by the press (another private individual). In Campbell v MGN [2004] 2 AC 457 Lord Nicholls said in terms: “The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority” [17]. (see also Venables v News Group Newspapers Ltd and others [2001] Fam 430).

Whilst the Supreme Court in Pinnock deliberately left open the issue of the applicability of Convention rights as between private individuals in possession claims, it also made it quite clear that a closer harmonization of UK domestic jurisprudence with that of Strasbourg was desirable. Given that the ECtHR clearly takes the view that our domestic Courts should be applying convention principles even in cases between private individuals, and that our domestic courts are already doing so in, for example, privacy versus press cases, then it seems that it is only a matter of time before the role of the Convention is recognised in possession claims between private individuals.

But even if this is soon to the case, how exactly will the Convention be applied? Do the principles set out in Pinnock and Powell still apply? Or does the fact that both parties before the Court have rights under the Convention mean that a different approach will be needed? These are questions which will addressed in the second part of this article (early in 2012).


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