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Opinion: Frankie McCarthy

18 January 16

Even private lets must comply with article 8 of the ECHR. The Private Housing Tenancies (Scotland) Bill should take this into account to avoid a challenge to the competence of the enacted legislation

by Frankie McCarthy

Is the proposed new legislation on the private rented sector compliant with the European Convention on Human Rights? Although the provisions of the Private Housing Tenancies (Scotland) Bill – currently undergoing the scrutiny of Holyrood’s Infrastructure & Capital Investment Committee – have given rise to much debate, a key issue in its legislative competence appears to have been overlooked.

Section 41 of the bill provides that the First-tier Tribunal is obliged to issue an eviction order on application by the landlord if one of the sched 3 grounds is met, provided the relevant procedural formalities have been fulfilled. In my written evidence to the committee, I gave my view that the obligation on the FTT to issue an eviction order without the opportunity to consider the circumstances of the individual case is likely to be a disproportionate interference with the tenant’s rights under ECHR article 8. Without amendment, legislation will run the risk of a human rights challenge to its validity.

Article 8 provides the right to respect for private and family life, home and correspondence. The right is held by individuals against the state. In the situation where an individual person is a tenant of a body which represents the state, such as a local authority or housing association landlord, eviction from their rented home is an obvious interference with the right to respect for home. However, the right is not absolute. It can be compromised where necessary for the reasons listed in article 8(2), which include the economic wellbeing of the country or the protection of the rights and freedoms of others. Amongst other requirements, any such compromise of the right must be proportionate, meaning that it must not impose an individual and excessive burden on the holder of the right.

Proportionality is central to the human rights compliance of an eviction. If a social tenant is evicted without the court having had the opportunity to consider the circumstances of the individual case, that cannot be a proportionate interference with article 8 rights. So found a nine-judge bench of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, followed shortly afterwards by the Inner House in South Lanarkshire Council v McKenna [2012] CSIH 78.

As far as social tenants are concerned, then, the position is clear. But what the drafters of the bill do not seem to have picked up is that the same rule may also apply to private tenants.

Private leases fall within the ambit of human rights when the court, itself a public body representing the state, becomes involved in enforcing lease terms. Public bodies must not act in a manner incompatible with Convention rights. Accordingly, the court must not enforce a lease in a manner which breaches the human rights of a landlord or tenant.

The ECtHR seems satisfied that human rights apply where a court enforces a private tenancy agreement (see, most recently Lemo v Croatia (App No 3925/10, 10 July 2014). The English Court of Appeal has so far found the ECtHR case law insufficiently certain to determine its application here (McDonald v McDonald [2014] EWCA Civ 1049). However, remarks by Lord Neuberger in a speech to the Supreme Court of Victoria (www.supremecourt.uk/docs/speech-140808.pdf) show that the UK Supreme Court is alive to the article 8 issue in relation to private tenancies in this situation. It seems only a matter of time until a domestic case emerges in which an explicit ruling is made, and it is hard to see how this could justifiably differ from the findings in Strasbourg.

If article 8 is applicable to litigation between a private landlord and tenant, then legislation that does not allow for account to be taken of the proportionality of an application for a possession order must itself be in breach of human rights. Section 41 of the bill falls into this category. A court may be able to “read” a proportionality jurisdiction into legislation – in other words, to imply a power to consider the circumstances of each individual case despite no such explicit provision appearing in the statute – as it did in McKenna. For the sake of legislative clarity, however, it would be preferable to include a proportionality requirement in the text of the bill itself.

A simple amendment now could save lengthy and expensive litigation once the legislation is in force. I hope the stage 1 report on the bill, due in January, will take this into account.

Dr Frankie McCarthy is a Senior Lecturer in Private Law at the University of Glasgow, specialising in property law, family law and the human rights implications of both. She tweets @drfmccarthy

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