Housing and Regeneration Bill

My Lords, I appreciate why the noble Baroness has raised this issue, and I shall do my best to address the concerns raised by the ECHR case McCann v UK in which judgment was handed down in May. I do not want to go into great detail about the background to the McCann case, except to say that it involved a complex and unusual family situation. That said, the judgment seemed to raise a point of more general application; namely, whether a public authority tenant can raise an Article 8 defence—the right to privacy—to a possession claim brought against him by his local authority landlord. In order for the possession procedure to be Article 8 compliant, any interference with Article 8 rights—and there will usually be interference with those rights in proceedings for possession of someone’s home—must be three things: lawful; in pursuit of a legitimate aim; and a proportionate means of achieving that aim. I should point out that while the amendment is very generally worded so it might be assumed that it would apply to all homes, only public authorities would have a duty to their tenants under the Human Rights Act. In McCann, the Strasbourg Court held that the interference with Mr McCann’s rights was lawful and pursued the legitimate aim of protecting the rights and freedoms of others. The problem it identified was that the interference was not proportionate to the aim pursued, as the noble Baroness said. The court held that, contrary to the view that had previously been taken by UK courts, a public authority tenant who faces possession proceedings should be able to raise an Article 8 defence to those proceedings and that, where the circumstances were exceptional, he or she should be able to require the court to examine the issue. It is worth observing that the European Court in McCann observed that, "““it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue””." Section 2(1) of the Human Rights Act 1998 provides that any domestic court determining a question connected with a convention right must take into account any relevant judgment of the Strasbourg Court. The McCann judgment itself therefore seems to make this amendment extraneous because domestic courts are obliged to take what Strasbourg said into account. That means that they must already consider whether possession action is the proportionate response. The amendment proposes that we should go further than that by providing that the court should have to allow a full hearing of any Article 8 defence raised, no matter whether the circumstances of the defendant were exceptional. That is disproportionate because it is likely to complicate and delay the vast majority of cases whereas, as the Strasbourg hearing affirmed, only an exceptional few are likely to hold reasonable grounds. On those grounds, we do not consider that that position could be easily justified. The noble Baroness will know that this issue and the impact of McCann on domestic possession proceedings are currently before the House of Lords in the case of Doherty v Liverpool City Council and that while that is happening I cannot comment on it. Therefore, this is work in progress to an extent.