Human Rights Act 1998: any effect on property management?

Citation

Cooling, P. (2001), "Human Rights Act 1998: any effect on property management?", Property Management, Vol. 19 No. 2. https://doi.org/10.1108/pm.2001.11319baa.001

Human Rights Act 1998: any effect on property management?

Human Rights Act 1998: any effect on property management?

The introduction of the Human Rights Act 1998 on the 2nd October 2000, threatens (according to media opinion) to have a huge impact on daily life. On an initial reading of the Act, this would, in fact, seem to be an unlikely outcome.

First, it must be remembered that the Act was designed to incorporate into UK domestic law the various propositions from the European Convention on Human Rights. That Convention was signed in 1950 by many of the Governments of Europe to establish the fundamental rights of the people of Europe. This, of course, followed from the horrifying human rights abuses which were discovered after the Second World War period. As a result, much of the Act is already a recognised part of UK law. Obvious examples would be the prohibition of slavery; the prohibition of torture and the right to freedom of thought, conscience and religion.

Second, the new elements of the Act only confer rights of action by a victim against a public body. The Act does not, for example, provide an opportunity for an individual to commence proceedings against his neighbour for holding noisy parties. Not even if the latter justifiably constitute a breach of the right "to respect for private and family life" (Article 8 of the Convention). Furthermore, most articles of the Convention do have to be read in context. Article 5 gives a right to liberty, but this does not preclude lawful arrest and detention on suspicion that an offence has been committed if it is reasonable; nor does it prevent the detention of persons of unsound mind, alcoholics and drug addicts.

Those readers familiar with the development of legislation will know that it takes months or sometimes years before a new Act is tested and interpreted by the courts. In the meantime it is up to the lawyers to interpret and apply and use it as best they can, in the light of previous experience and other legislation. What makes the Human Rights Act somewhat different is that the courts must now interpret all domestic legislation (after 2 October 2000) in a way which is compatible with the Act and, thus, the Convention. In addition, previous decisions of the European Court of Human Rights must also be considered. This is irrespective of any precedent already established by our domestic courts and which may have become an accepted part of our law. On the face of it, as much of the Convention has been taken into consideration within the UK since the 1950s, it seems unlikely that these changes would have much of an effect on our judges' decisions. However, criminal lawyers have pointed out that some of our current procedures are called into question. For example, a defendant does not have to be present in the Crown Court while a bail application is made on his behalf (although he would be in the Magistrates' Court). Article 5 has been interpreted by the European Court of Human Rights as requiring the presence of the defendant at such a hearing. The UK practise on this point may well need to be changed.

Property and property rights do not appear to be adversely affected by the Act. Practitioners in property-related spheres may not, therefore, immediately consider the Human Rights Act as having much potential impact. However, we know that some areas of property and environment law are under scrutiny. The Article of the Convention most likely to lead to property-related breaches is Article 8, which states:

1. 1.

   Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 2.

   There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The following fields have already come up for discussion:

• •

  Distress – the continuing practise of levying distress has previously been criticised by the Law Commission and would now appear to fall foul of Articles 6 and 8 which give a right to a fair trial and a right to respect for family life and property, respectively. The former includes a right to access to the courts and the latter applies to office premises when occupied by an individual for business purposes.

• •

  Private nuisance – any action can currently only be brought by a home owner or tenant. Article 8 could lead to an extension of this principle to all those affected by the nuisance. Local authorities, being a public body clearly targeted by the Act, are bound to face new claims on this and other related topics.

• •

  Squatters – a claim for adverse possession can be brought after 12 years, effectively taking property away from the rightful owner, without compensation. This too may lead to a breach of the Act.

• •

  Environmental pollution – the argument has been made that this may interfere with the right to respect for private life and the home, particularly in the area of noise pollution from, for example, large jet traffic.

• •

  Planning and other similar appeals – it has been thought for some time that the planning appeal system could breach the Convention. It has been argued that it does not give an appellant an opportunity for a fair hearing as planning inspectors are not "independent" as defined in the Act. This view was confirmed by the High Court in December 2000, when it decided that the Secretary of State for the Environment Transport and the Regions could not decide planning appeals. As he is the Minister responsible for the planning system as a whole, he is effectively acting as a judge in his own cause and could not be impartial, as required by the Act. The outcome of the appeal against this decision is eagerly awaited as it has thrown the planning system into disarray. In addition, all other forms of appeal which follow a similar route, must be affected.

• •

  Planning and third parties – third-party objectors have no right to appeal against a decision of a local authority except through the use of judicial review. This could be deemed to be unfair.

For the time being, the impact of the Act on property practitioners and others, and its wider influence on our legislation, can only be a matter of speculation.

It may well be that the Human Rights Act 1998 will have a noticeable impact, but it is worth remembering the words of Swinton Thomas LJ in the case of R v. Perry (The Times, 28 April 2000). Admittedly this was prior to the introduction of the Act, but his opinion is still pertinent when he said, while dismissing a claim based on breaches of Articles 5, 6 and 8 of the Convention:

The Convention had been promulgated following the horrors of the Second World War and had been intended to protect citizens from true abuses of human rights, but it now appeared that lawyers were jumping on the bandwagon. In that context it was possible not only that the appeals of others might be unjustly delayed, but also that the Convention itself and the 1998 Act might be brought into disrepute.

Penny Cooling