Neuberger laments lack of clarity on Humans Rights law and social landlords

The proper approach to possession claims and to defences to those claims based on human rights grounds is still unclear, The Master of the Rolls has acknowledged.

Speaking last month at the annual conference of the Social Housing Law Association, Lord Neuberger said: “The proper approach….is all can agree extremely important. It is important to landlords, whether private landlords, local councils or registered social landlords. It is important to tenants. Clarity in the law is always of fundamental importance. Here where both property rights and the right to respect for private and family life enter the equation, clarity is perhaps a particularly pressing issue.”

The judge pointed to the conflicting approaches taken by the European Court of Human Rights and the Supreme Court to the application of Article 8 of the European Convention on Human Rights (the right to respect for private and family life). The Strasbourg court has insisted that Article 8 considerations go wider than that available in traditional judicial review proceedings.

“I wonder if we can say that we have yet achieved such necessary clarity here,” the judge told delegates. “The continuing debate between Strasbourg and the, now, Supreme Court suggests not. The Weaver debate [R (Weaver) v London & Quadrant Housing Trust] suggests not.”

The Master of the Rolls said he hoped that the European Court of Human Rights “will not regard its role as being that of dictator to national courts”. Mutual respect and understanding, through the means of constructive dialogue, should be the order of the day, he suggested.

Lord Neuberger also acknowledged in his speech that “for the foreseeable future” the law on whether residential social landlords perform a public function and so are amenable to judicial review on public law grounds “remains uncertain in spite of [the] present, albeit contingent, finality” of the Court of Appeal’s ruling in Weaver.

In that case, the Supreme Court refused permission to appeal from the Court of Appeal’s decision, which found that the Trust was a hybrid public authority and when serving a notice to quit on a tenant, the trust was not performing a purely private act.

Explaining the reasons for its refusal, the Supreme Court argued that it was “not a suitable case on the facts”. However, it recognised that the issue was one it should consider and recommended leap-frogging a suitable case if one could be found.

The Master of the Rolls said that “unless and until the issues in Weaver are considered by the Supreme Court, RSLs are left in this position:
RSLs are going to have to consider on a case-by-case basis whether they are likely to be held to be hybrid authorities – a “fact-sensitive” question;
In assessing whether they are a hybrid authority, they will need to assess the function question – is allocation and management a public function?;

If the function question is such as it suggests that they are a hybrid authority, the act question – is the act in question, such as terminating a tenancy, a public or private act? – must be addressed; In assessing both the function and act questions context is everything. What would otherwise be a private act, depending on its context, could well be a public act.”

Lord Neuberger said the ongoing uncertainty meant that RSLs similar to London & Quadrant Housing Trust are likely to be open to HRA challenges where they terminate tenancies.

The attempt by the parties to the dispute in Weaver to bring finality has failed, he added. “Perhaps that is because this is an area where such all-embracing answers might not be possible. We must wait to see. And until we do it is likely that RSLs will find themselves subject to Article 8 defences to possession claims as well as judicial review proceedings as public authorities.”