What a whirlwind, but it’s not all over: The Human Rights Act 1998 and Landowners

14 October, 2016
by: Cripps Pemberton Greenish

At the Conservative Party Conference, Theresa May confirmed that Article 50 will be triggered by March 2017.  Although this will mark the beginning of the end for our membership of the European Union, the full impact upon our relationship with Europe remains to be seen.

The European Convention of Human Rights (“the ECHR”) is incorporated into UK law by the Human Rights Act 1998 (“the HRA”),  and leaving the European Union will not in itself affect our Convention commitments.

One of the central provisions of the HRA is that it is unlawful for a public authority to act in a way that is incompatible with the rights set out in the ECHR.  Over the years, this has been interpreted widely by the courts, and the application of convention rights has also been considered in disputes between private parties.

Just this summer, in McDonald v McDonald and others [2016] UKSC 28, the Supreme Court was asked whether a private sector landlord could infringe upon a tenant’s rights under the HRA when trying to recover possession of land.  It is already well established that, where a landlord is a public body, it is capable of infringing upon a tenant’s rights when recovering possession of land.  It is therefore important that they carefully consider the balance between their rights as landowners and their duties under the HRA.

However, in McDonald, the Supreme Court undertook a review of legislation governing this area.  They felt that private landlords did not have to consider this balance in the same way that public authority landlords did because parliament had already taken this into account when creating the legislation.  Therefore, when recovering possession of land, a private sector landlord is not in danger of infringing upon a tenant’s rights under the HRA.

Concerns in relation to the ECHR for private property owners may not end here however.  It has been established that the ECHR can be engaged where private landowners seek possession from trespassers who are using their land for the reason of a protest.  The provisions engaged by trespassers under the ECHR are the rights to freedom of expression and the right to freedom of peaceful assembly.  The most prominent cases where this argument has been used by protestors relate to protests against fracking, and protests against the proposals to expand Heathrow Airport.

It will be some time before the full implications of Brexit are known but both public authorities and those in the private sector should  be aware of their rights as landowners and their duties under the HRA.