Supreme Court decision in McDonald v McDonald [2016] UKSC 28
In dismissing the appeal, the Court has held that section 6 of the Human Rights Act 1988 and article 8 of the European Convention on Human Rights do not require the courts to consider the proportionality of evicting an occupier when entertaining a claim for possession that has been brought by a private sector owner – at least where there are legislative provisions which Parliament has decided properly balance the competing interests of private sector landlords and tenants, such as section 21 of the Housing Act 1988, upon which the Respondents relied in this case.
In reaching this conclusion, the Court reasoned from first principles before turning to consider whether the Strasbourg jurisprudence dictated a contrary conclusion.
The Court acknowledged that the courts were “public authorities” for the purposes of the 1998 Act and that a court order would be what deprives the tenant of her home in this case and in others. However, it held that the court was “merely the forum for the determination of the civil rights in dispute between the parties” and “once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate” (approving Lord’s Millet’s remarks in Harrow London Borough Council v Qazi [2004] 1 AC 983).
While the courts are sometimes required to balance the conflicting Convention rights of two or more people, such disputes arise from the parties’ tortious or quasi-tortious, where the legislature has expressly or impliedly or through inaction left it to the courts to carry out the balancing exercise.
Such cases stand in sharp contrast to those where the parties are in a contractual relationship, where the legislature has prescribed how their respective Convention rights are to be respected. In the latter case, the tenant is not entitled to require the court to consider the proportionality of the order for possession which she has agreed should be made, subject to what the legislature considers appropriate (though she may, of course, challenge the underlying legislation on the grounds that it fails to properly protect her Convention rights, which would involve arguing that the legislature had failed to carry out its own obligations under the Convention).
In the Supreme Court’s view: “To hold otherwise would involve the Convention effectively being directly enforceable as between private citizen so as to alter their contractual rights and obligations, whereas the purpose of the Convention is…to protect citizens from having their rights infringed by the state.”
Having reached this conclusion, as a matter of principle, the Court went on to consider the Strasbourg jurisprudence, which it held provided no support for the contrary view. In particular, the many decisions concerning public sector landlords were of little relevance given the fundamental difference between public and private sector landlords.
Having dismissed the appeal on the above grounds, the Court was not required to consider whether the particular legislation in issue could be read down so as to render it compatible with article 8 so understood; nor was it required to consider whether a possession order would be proportionate in this case, supposing a balancing exercise were required.
However, the Court went on to consider both questions in view of their importance.
It held that section 21 of the Housing Act 1988 could not be read in such a way as to allow for a proportionality assessment (supposing that were required). Reading in such an obligation would not “go with the grain of the legislation” but would positively contradict it. Accordingly, had the Court been persuaded that such an assessment were necessary, the only remedy would have been a declaration of incompatibility under section 4 of the Human Rights Act 1988 (which had not been sought in this case).
The Court concluded by considering what the proper outcome of such a balancing exercise ought to have been in a case like this. It held that the most that the Appellant could have hoped for would have been an order for possession in six weeks –notwithstanding the exceptional facts of the case. In so doing, the Court has re-emphasised the high threshold that needs to be crossed and has further underlined how few and far between are the cases in which it would be justifiable to refuse, as opposed to postpone a possession order even when taken as a proportion of those rare cases where proportionality can be successfully invoked.
The Court of Appeal’s judgment was subject to widespread criticism. It remains to be seen what the critics will make of the Supreme Court’s own judgment. But the law of England and Wales is now settled. Stephen Jourdan QC and Ciara Fairley appeared for the successful Respondents
The judgment can be found below
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