A jurisprudential debate

Matt Hutchings discusses human rights, legislative history, and the meaning of words

The recent cases of R(CN and ZH) v Lewisham LBC and Newham LBC [2014] UKSC 62 and Sims v Dacorum BC [2014] UKSC 63 raised the question of whether human rights make any difference to domestic property law.

In the sphere of social housing, human rights have made significant inroads. In 2010, in Manchester City Council v Pinnock, the Supreme Court held that, even when a public sector landlord has an absolute right to possession in domestic law, under article 8 of the European Convention for the Protection of Human Rights the occupier has a right to require the court to assess whether the proposed eviction is proportionate.

The appellants in CN and ZH and in Sims sought to achieve similar revolutions. Two Convention rights were in play: the right to respect for the home under article 8 and the right to peaceful enjoyment of possessions under article 1 protocol 1. In the former cases, the argument was that article 8 prohibits eviction by a landlord using self-help, such as changing the locks. In the latter case, the argument was that article 8 and/or article 1 protocol 1 prohibited one joint tenant from determining a joint tenancy by notice, without the concurrence of the other.

Subject to abstention by Lady Hale, the panel of seven Justices of the Supreme Court rejected the human rights challenges. Observers who hoped Pinnock would herald a liberal expansion of the rights of people occupying their homes (beyond what they already enjoy under common law and statute) will be disappointed. However, the jurisprudential landscape of these appeals was far removed from that in Pinnock.

In that case, the Supreme Court faced a stream of cases from Strasbourg asserting the principle of a right to a proportionality assessment by a court. It would have been hard to resist this current without undermining the primary aim of the Human Rights Act 1998, to bring human rights home. There was little choice but to align the domestic courts with Strasbourg principles. By contrast, there are no cases in Strasbourg which clearly establish that eviction by self-help is prohibited, nor that a joint tenancy must outlive the will of one joint tenant to bring it to an end.

Protecting occupation

Mr and Mr Sims were local authority tenants whose marriage broke down. Mrs Sims served a notice to quit. For Mr Sims, the principle established in Pinnock, and applied by the deputy district judge in the County Court, was his undoing. The judge applied the proportionality assessment required by article 8 before making a possession order against him.

The essence of article 8 in this context is to protect occupation of a home. After termination of the tenancy, Mr Sims's occupation was protected by the Protection from Eviction Act 1977 unless and until the court made a possession order. Logically, his challenge had to be based on article 1 protocol 1. What he had lost before any proportionality assessment was his tenancy - the peaceful enjoyment of his property rights. But the tenancy agreement stated that it could be determined by a notice served by Mrs Sims alone. It was difficult to regard him as having lost anything that he was promised to start with. As Lord Neuberger put it: "Given that Mr Sims was deprived of his property in circumstances, and in a way, which was specifically provided for in the agreement which created it, his A1 P1 claim is plainly very hard to sustain."

In CN and ZH only article 8 was relied on. The appellants were children of homeless families housed by local authorities in interim accommodation pending a decision on their applications. Court of Appeal case law established that licences of interim accommodation were outside the shield of the Protection from Eviction Act 1977. Therefore the landlords did not have to go to court to enforce possession, once the homeless applications had been rejected. The appellants' complaint was that they were thereby deprived of judicial supervision of their eviction, and the proportionality assessment seemingly enshrined in Pinnock. They asserted the right to their day in court before any eviction took place.

It might be said that the Supreme Court's solution involved fancy footwork. It was held that the applicants had a right to a proportionality assessment as part of any appeal in the County Court under the Housing Act 1996 against the local authorities' decisions, alternatively by judicial review. This involved reinterpretation of section 204 of the Housing Act 1996, which allows for an appeal 'on a point of law'.

The courts are required to achieve an interpretation compatible with human rights under section 3 of the Human Rights Act 1998 "so far as it is possible to do so", and the Supreme Court perceived no difficulty here. The alternative proposed by the appellants would have involved every unsuccessful homelessness applicant in interim accommodation being taken to the County Court, regardless of whether any human rights proportionality argument was raised, at considerable expense to local authorities.

Statutory construction

CN and ZH raised a distinct issue of statutory construction - whether accommodation temporarily let or licensed was "let [or licensed] as a dwelling". Here the Supreme Court was divided 5-2 in favour of the local authorities.

Section 3 of the Protection from Eviction Act 1977 requires landlords and licensors of dwellings to recover possession through court proceedings after the tenancy or licence has been brought to an end. This is subject to exceptions in section 3A. Interim accommodation was provided to the appellants under section 188(1) of the Housing Act 1996. There is no exception in section 3A of the 1977 Act for such interim accommodation.

Nevertheless, the local authorities argued that it fell outside statutory protection. They did this not only by relying on what they argued was the ordinary meaning of the word "dwelling", importing stable or settled occupation, but also by relying on Court of Appeal decisions in relation to the phrase "let as a dwelling" under Rent Act and Housing legislation stretching back to 1915.

None of the decisions relied on was binding on the Supreme Court. However, the local authorities appealed to the meaning established by case law, either on the basis that it had been implicitly adopted by parliament or that it was settled law which should not be departed from, in the interests of legal certainty. The dissenting judges, Lord Neuberger and Lady Hale, were unimpressed. They were of the opinion that "dwelling" carries its ordinary meaning and that "a temporary dwelling" is a natural use of language. The statutory purpose of the Protection from Eviction Act 1977, preventing people from being summarily evicted or locked out from where they had been lawfully living, favoured a wide interpretation.

It was in relation to the impact of previous case law that the majority judgments in favour of the local authorities and those of the minority divided most sharply. Lord Neuberger's strongest criticism of the approach favoured by the majority was made by reference to a citation of Lord Simon of Glaisdale, in Farrell v Alexander, where he deprecated attempts to pre-empt a court from performing independently its own constitutional duty of examining the validity of a previous interpretation. Lord Neuberger stated: "Like Lord Simon, I am similarly concerned about the constitutional propriety of this court simply invoking what it regards as a judicial misreading of an earlier statute to justify a decision that a current statute means something other than it thinks it means."

On the other hand, Lord Hodge for the majority was content to state: "There is no reason to think that parliament intended the word 'dwelling' to have a different meaning in sections on protection from eviction from its meaning in provisions relating to rent restriction and security of tenure."

Conflicting aims

The jurisprudential debate illustrated by CN and ZH encapsulates a tension between conflicting judicial aims: on the one hand, to get the law right by following the only sure guide to what parliament meant, the words it used; and on the other, to promote legal certainty by adopting a more historical approach.

The latter approach is also rooted in an assumed dialogue between the higher courts and parliament. In particular, parliament may be assumed to legislate in the knowledge of judicial decisions. It is not unreasonable to start from a presumption of attributing to it an intention that a particular phrase in a defined legislative context will bear the same meaning as that given to it by previous decisions of the higher courts.

Matt Hutchings is a barrister practising from Cornerstone Barristers. He acted as lead counsel for the local authorities in CN and ZH

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