Fair Rents (Scotland) Bill or Artificial state manipulation of free market rent?10:34 AM, 6th November 2020
About 4 weeks ago 36
Regular readers of the Daily mail will no doubt have a healthy disregard for “human rights” or “yuman rites” as dubbed by their esteemed columnist Richard Littlejohn.
As a regular reader of the Property 118 blogs, I notice that there have been two recent columns relating to the impact of “human rights” on evictions of tenants in the private rented sector.
Mary Latham produced an excellent blog raising a genuine concern about the impact of the Human Rights Act upon private sector landlords. Mark Reynolds then replied, setting out his view that there should be no significant impact on private rented sector evictions.
The question of the impact of a tenant’s “human rights” on evictions in the private sector seems to be exercising many minds at present. As indicated in Mark’s reply, the Human Rights Act was and is designed to ensure that public authorities act towards individual citizens in a manner which is compliant with the rights set out in the European Convention on Human Rights. The Convention dates back to 1950 and the United Kingdom has been a signatory since that date. “Human Rights” were not invented by the Labour Government in 1998!!
As Mark also points out, the phrase “public authority” is defined in the Act. It does go further than what might be considered as obvious public authorities (e.g. local councils). It is clear from the Act that any organisation which is exercising “functions of a public nature” will be deemed to be a public authority and will require to act in a manner which is compliant with convention rights. This definition clearly means that housing associations for example will have certain duties towards tenants when they are pursuing eviction actions or deciding on allocations.
The initial idea, when the Human Rights Act was enacted, was that the duties would apply in a “vertical” fashion. In other words, the State would owe duties to individuals. Generally speaking it was not thought that the Act would work in a “horizontal” fashion. In other words, if no public authority was involved the courts would not apply the principles of the Human Rights Act in dealings between private individuals.
It has to be remembered, however, that the courts themselves are public authorities and they must act in a way which complies with convention rights. Accordingly, in any action for eviction, the court would be entitled to have regard to the tenant’s rights under article 8 of the Convention, namely their right to respect for their private and family life and their home.
As a lawyer who specialises in the field of evictions, I have not yet seen any decision in any court in which a tenant has been able to successfully defend an eviction action in the private sector based simply on “human rights”.
I have recently seen an attempt in Glasgow Sheriff Court by a tenant’s solicitor to argue that the mandatory ground which exists in Scotland for eviction based on rent arrears was not “human rights compliant” and thus should be struck out. This was done by attempting to raise what is called “a devolution issue”.
When the Scottish Parliament was set up in 1999, the relevant law which set it up indicated that all laws passed by the Scottish Parliament must comply with the Human Rights legislation. In Scotland, if we think that any law passed by the Scottish Parliament fails that test we can raise a challenge to it by means of “devolution issues”. The lower court would then pass the challenge to a higher court to enable it to determine whether the law passed by the Scottish Parliament was “Human Rights Act compliant”.
In this particular case, the challenge was to an Act made by the UK parliament ten years before the passing of the Human Rights Act and ten years before the passing of the Scotland Act. The sheriff quite correctly took the view that the raising of a devolution issue to challenge the competency of a prior UK Act was entirely outwith the scope of the idea of devolution issues. Accordingly he rejected the challenge. The mandatory ground remained open to the landlord subject to the court’s over-riding duty to acknowledge the concept of human rights.
I share the view expressed by Mark Reynolds that the recent Supreme Court cases have taken a pragmatic view of the interpretation of human rights and have not led to any decision being made that evictions are always a breach of human rights.
I would certainly be telling any private sector landlord that they should not be significantly worried about any challenges under the Human Rights Act when they raise eviction actions. Assuming that they have followed the relevant procedures laid down in the various Acts, and that they have a relevant proven ground for eviction, then it will always be open to the court to grant the appropriate decree for eviction.
In conclusion, we should bear in mind the words written in large friendly letters on the front cover of the Hitchhikers Guide to the Galaxy . . . “Don’t panic”.
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