Chapter 1 Updates to the Law

Introduction
chen-wishart

Chapter 1: Introduction

1.7.3 Human rights law

p. 38 on the courts being slow to undermine modern regulation of contract

After sentence starting ‘The case relates to section 127(3)…’

Similarly, the Supreme Court in McDonald v McDonald (2016) rejected the argument that a tenant of a private sector landlord could contend that Article 8 ECHR could ‘justify different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants’ [40].

McDonald (by her litigation friend Duncan J McDonald) v McDonald and others [2016] UKSC 28
The appellant had psychiatric and behavioural problems, had been unable to hold down employment and lost two public sector tenancies due to her behaviour. Her parents purchased a property for her to occupy with the assistance of a loan on the basis that rent would be covered by housing benefit. Owing to financial difficulties the appellant’s parent failed to make all payments as they fell due and receivers were appointed who sought a possession order. The issue was whether the judge should have taken into account the proportionality of making an order in light of Article 8 ECHR (a right to respect for one's "private and family life, his home and his correspondence). 
Lord Neuberger and Lady Hale (with whom Lord Kerr, Reid and Carnwarth agreed) held:

  1. The tenant could not contend that ‘article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants’ [40].
  2. The relevant statutory provisions reflect the state’s assessment of where to ‘strike the balance’ between Article 8 and A1P1 rights in respect of private sector landlords and tenants [40].
  3. To hold otherwise would allow ECHR rights to be directly enforceable between private citizens and could interfere with the Article 1, Protocol 1 property rights of the landlord without compensation [41].
  4. It would draw an arbitrary distinction between landlords enforcing via the court and via self-help methods [42].
  5. The State should be able to lay down rules of general application to ensure consistency/certainty (cf. proportionality assessment in every case) [43].
  6. Courts make orders and represent the public authority for purpose of the Human Rights Act 1998 but here the court is ‘merely the forum for the determination of the civil right in dispute’; once it concludes that the landlord is entitled, no further examination is required [44].
  7. The tenant could argue that the provisions not properly protect Art 8 rights of assured shorthold tenants but no such argument advanced [45].
  8. Draws a distinction between contractual rights between two private parties in respect of which the legislature has prescribed how ECHR rights are to be respected and tortious/quasi-tortious cases where the legislature has expressly/impliedly left balancing to the courts [46]
  9. On the facts, the legislation could not be read in a way compatible with the ECHR