Chapter 7 What aspects of Occupancy can give rise to issues under HRA?
Consider which aspects of the Convention can give rise to issues under domestic housing law. Potentially Art 6, 8 and Protocol 1.
Examine the issues that could give rise in outline. Examine the issues of the right to a home and how this has applicability in outline. Do the tenancies or indeed Freehold always give rise to this. Look at issues of the right to a fair hearing especially delay in proceedings (especially applicable to the Italian European Court jurisprudence). Are the powers given to the Judiciary too narrow to deal with the issues that are raised? Consider potential areas such as homelessness internal reviews, applications for orders where the judiciary have no real effective discretion. Issues that relate to Travellers.
Chapter 8 Article 6: Right to a Fair Hearing
Critically consider Article 6 and look at the same from a perspective of its effectiveness remember the right to strike a fair balance namely that any interference with property Rights must strike a ‘fair balance’ between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights.
Consider the problems with introductory and demoted tenancies. The difficulty that Local Authorities entrusted to be the adjudicators of final facts as to whether in effect the Occupier will be evicted or not and whether the person received a fair hearing. Consider in this area in depth the jurisprudence in this area and also consider most recent developments and how this has affected the position if at all. Consider the specific right to a fair hearing and whether there has been a determination by an impartial tribunal and case law. . Examine the most recent developments and the manner in which the Domestic Courts have revisited aspects.
It is necessary to approach from the perspective of forced eviction in the context of this Article to consider how it can apply to consider such matters as what amount to a civil right or obligation what id a determination whether there is really a right of access to a court with legal aid given the changing scope of the CLS and CDS. To consider the requirements for a fair hearing and what amounts to an independent and impartial tribunal. On this latter aspect there are conflicts and it will be necessary to analyse the approach of the Domestic Courts and how Article 6 has been applied or not by the European Court.
Essentially the following will have to be considered:
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What are Civil Rights and obligations? Draw analogies in other areas that can critically be considered.
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What is a determination? This has to be analysed from the perspective of the Conventions and the decided jurisprudence in all relevant legal areas but look at this as it applies to forced evictions. However it does not mean that there has to be a final determination in all cases as this would undermine the rule of law and would encourage vexatious litigants so there has to be an arguable case
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Consider crucially the right of access to a Court. However this is a qualified right; Legal Aid aspects are relevant. It will be necessary to analyse fully the case law on this. There are for example instances of LA having to be available if the case is highly complex but from a housing perspective note the position in relation to housing issues before the Court of Appeal where this right was not considered to have been violated.
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Right to a Fair Hearing by an Independent and Impartial Tribunal. On this aspect of course it is not simply a matter of looking at the body making the decision but whether that decision can be subject to an appeal or open to judicial review in the particular circumstances of the case even whether that is limited to issues of law such as appeals against homelessness decisions . If it is there will generally be no violation as the case law stands but this does have high application to forced evictions. There is often an overlap with welfare benefits especially housing benefit and clearly prior to the legislative changes the system was not Article 6 compliant.
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Requirement for a Public Hearing or Judgment. However this is qualified and there are circumstances I which hearings can take place in private. This aspect of the article has to be considered in context of forced evictions and consideration of the judgments of the Court.
Effective and quick adjudication which basically is the ethos that cases should be determined within a reasonable period of time. A number of the Italian cases have been found lacking in this regard generally. Further research will be required on the cases to provide a systematic consideration of this.
Chapter 9 Article 8: Right to respect for private and family life
This again is an area which requires extensive study to the debate of the applicability of Article 8 to Forced Evictions. This is an area where there can be individuals without a home at all. However the issue as to whether it gives rise to a home has to be the starting point. Generally if a person is without a home then there can be no violation. However in a case concerning travellers. There are many aspects which do not get over this hurdle which must be examined in depth. A case for example where a person is evicted from temporary homeless accommodation but offered accommodation albeit unsatisfactory did not violate Article 8.
There are many cases that have to be considered by considering in formulating fully the ethos and underlying policy of the Courts
The research will address fully the issue of what a home is, whether there are and formal requirement in terms of the individual occupier and whether the ‘occupier’ is not present whether that will have a effect. This issue has to be considered whether the home that is occupied is the normal traditional type i.e. a fixed home but then one has to consider whether it extends to movable structures or indeed where such a structure is placed on land for which there is no permission such as Travellers or Caravan dwellers.
Article 8 concerns Private and Family life and this will systematically be addressed applying domestic and European Court jurisprudence. There are very specific areas as far as Housing Law is concerned especially in relation to those individuals who live in non permanent accommodation such as Travellers or Gypsies
Having considered what is a home in detail from the perspective of occupancy the research will then will consider what interference is permitted given the nature of the right under Article 8.
This can typically take a number of forms being where the individual's right to occupy has been removed completely such as where they are deprived of occupation physically or by possession order being granted. There are numerous examples which will be addressed in the research. There are other forms such as a nuisance to the home specifically legislation a good example being CPO.
Justification will be addressed in the research. This has to be established by the Government who it is alleged has violated the article by showing that the interference is necessary and pursues a legitimate aim. Article 8 is justification can be looked at from the perspective such matters as public safety economic well being and other related areas. However the justification must be such that it is necessary in a democratic society taking account of appreciation and proportionality. Again full research of the European jurisprudence is necessary to draw appropriate conclusion and inferences from the forced evictions perspective.
Chapter 10 Article 1 of the First Protocol: Protection of property
The Chapter will address this Protocol. It will first address the question what according to the Convention is a possession. Possession for this purpose is somewhat wider than the traditional or dictionary meaning. So it depends what this means and account has to be taken of the case law and seems to cover all forms of property be that personal or real land and rights in contract which arguably would therefore extend to choses in action. There have been cases where this concept has been extended to include rights that in effect appear to exist In essence this relates to matters of legitimate and reasonable expectation of the possessory concept. that expectation is similar to the well established doctrine in Administrative Law.
This however has to be distinguished from a right to acquire possessions so in effect if the right to the possession is a future right then that would amount to this and would not fall within the Protocol.
The chapter will examine whether in fact there is a tendency to rely upon the Protocol. There are in effect three aspects which have to be applied as set out. If the first limb fails then the other considerations will not become relevant.
The second aspect relates to the interference with the possession. In effect this refers to either a control of the use of the possession or it being deprived to be used. There are many examples of this which will be considered in the detailed research but good examples in relation to Forced Evictions are CPOs and issues relating to Leasehold Enfranchisement which caused the owner to lose the property. There are a number of routes to this which will be examined in detail.
The third aspect is similar to Article 8 so frequently from an Enforced Eviction perspective there will be an overlap but in terms of this Protocol there has to be a justification and the European Court has adopted a common approach and justification appears relatively straightforward to show in terms of a fine balance between the aggrieved individual and the Government. Again like Article 8 it is always a matter of proportionality.
There clearly many areas where this applies and research will be undertaken in relation to this and then it will be considered whether the Protocol applies and can be objectively justified.
Chapter 11 Article 14 - ECHR.
This Chapter will consider Article 14. This Article is not a free standing right and it can only relied upon if one of the other Articles are claimed to have been violated. From a UK perspective this is curious given the Disability Discrimination Acts the Race Relation Acts etc. It is curious in that having enacted so many anti discrimination laws the UK had seen fit not to ratify Protocol 12. Indeed there are a number of protocols not ratified.
As like any form of decimation there is a requirement for a differential approach in the treatment of the individual aggrieved. However the general trend shows very few cases succeed on Article 14. This seems to be due to the fact if there is a violation of the primary Articles of the convention there appears no reason to make a determination under Article 14. The research proposed to be undertaken is such that it will be necessary to consider this aspect of the Convention and specifically its application to Forced Eviction. There will be a need to drawn analogies between domestic discrimination law and the European jurisprudence.
Chapter 14 Enforcement under the Human Rights Act.
This chapter will simply consider the enforcement under both the HRA and the convention. There will be a detailed analysis in relation to declarations of incompatibility and what the government does. It will address whether this should be changed. At this stage it is impossible to draw conclusion until all the research is undertaken but there should clearly be mechanisms in place to ensure that Human Rights Law is really enforceable. For example should the human rights committee itself be empowered under the Act to bring Legislation forward to amend and implement an issue relating to the violation? This will be addressed in the research.
Chapter 15 – Human Rights Law and Enforced Eviction
This chapter will consider following the systematic consideration of the HRA and the ECHR what impact the law has had on Enforced Eviction. This will be a very detailed analysis and research of all the areas. It is envisaged that the following issues will be analysed and researched in detail by the application of the case law and other materials. Specific areas will be covered which it is envisaged will raise the scholarly debate and so ultimately reduce the number of Enforced Evictions This will cover the applicability of the substantive ad case law too all aspects of the private sector be this in relation to either parties position. This will cover owner occupiers, private tenants of whatever type of lease or tenancy they may have. The CPO and other forms of eviction which would include fully considering licences to occupy.
The next part will consider all the Social Landlord tenancies and occupancies and will cover the enforced eviction on various grounds the main type being based on rent arrears or anti-social behaviour although eviction from homelessness accommodation and accommodation that has been made subject to a CPO will be relevant. This will also consider where a possession order has been made and that a post possession order procedures such as a warrant the implications and relevance of Human Rights Law to this situation.
Finally the non secure home will have to be considered from a human Rights law perspective that is unprotected tenants or licences, trespassers and squatters together with caravan occupiers, travellers and gypsies.
The final issues in this section are to examine in details the Law Commissioners proposal on Type 1 and 2 Tenancies and consider the impact of the Act on the proposal as they presently stand.
Chapter 16 Changing Constitutional Position?
In this chapter the position is considered in more detail as to the constitutional effect brought about by the HRA. Traditional jurists take the view that Parliament is supreme and therefore the law cannot be changed other than by Parliament. The HRA has not changed this fundamental doctrine only to the extent that where a declaration of incompatibility is made the steps required under Section 10 have to be taken. It will be necessary in light of the research to make recommendation on this.
The HRA has been subject to much political debate and it has been suggested by Government Ministers that it should be amended or repealed even thought it was the Labour Government who caused it to be enacted. On the other side David Cameron the Conservative Leader has proposed a Bill of Rights but that could actual lead to Parliament not being supreme and it is not clear as to how an individual right still to complain to the ECHR can be reconciled unless there is an attempt to restrict completely the individual's right to apply to ECHR This seems unlikely in view of its impact..
This constitutional aspect of the HRA and whether the law should be changed and how will be discussed.
Chapter 17 Human Rights Uncertainty
This chapter will look at the uncertainties in Human Rights Law. Experience shows that the UK Courts are reluctant find violations when it relates to forced evictions. There is also a reluctance to find violations by the ECHR but it will be shown that at least in a few cases they are prepared to do so. This problem in the context of housing Law generally and Forced Evictions specifically creates uncertainty. The chapter will examine that uncertainly drawing experience from others who have researched this area and drawing on the various judgments of the Courts.
Chapter 18 The New Housing Human Rights Model?
This will be the model that is proposed taking account of all the research and conclusions. Possible issues to be addressed are the effectiveness of the current Human Rights structure, whether there is a case for a specific Human Rights Court similar to that proposed by Liberty some years ago. Whether in fact the Courts are really adapted to dealing with housing issues and whether there should be a housing court or tribunal who would deal with these matters. A possible model that could be developed is that of the RPTS being extended given that its jurisdiction was extended by the Housing Act 2004.
Chapter 19 Descriptive, analytical & arguments
This chapter will cover an analysis of the research that will have been undertaken and consider the arguments and provide arguments for change or not.
Chapter 20 Conclusion
This will draw conclusion from the research that has been undertaken which clearly will bring in all aspects from the chapters above.
The term "forced eviction" refers to the removal of people from their homes or lands against their will, directly or indirectly attributable to the State. This is the working definition adopted by The Centre On Housing Rights And Evictions: see
Declaration was a steps before UN Established; See
UN and Court came into force on 24th October 1945: see
Adopted at Rome on that date: see
This will be referred to as the European Court for convenience and to avoid confusion.
Such as the European Commission for Human Rights
Forced Evictions – Violation of Human Rights 2006 Survey – COHRE : see
Liberty –Eviction from unauthorised encampments: See
Compulsory Purchase Orders
Fair Play for Housing Rights: Mega-Events, Olympic Games and Housing Rights" (2007):see This is already affecting London: see :
European Convention on Human Rights
Part 55 Civil Procedure Rules
Trusts of Land and Appointment of Trustees Act 1996; Part 73.10 Civil Procedure Rules
Trusts of Land and Appointment of Trustees Act 1996
Rent Act 1977 (as amended)
Section 1 and Section 20 of the Housing Act 1988 (as amended)
For residential licences generally see Street V Mount ford 1975
Introduced by Housing Act 1996
Introduced by the Anti-Social Behaviour Act 2003
See in particular the exclusions set out in Section 3A of the Protection from Eviction Act 1977 (as amended)
Responding to Human Rights Judgments Government Response to the Joint Committee on Human Rights’ Thirty-first Report of Session 2007-08 – CM 7542 - The Government noted that since the Human Rights Act 1998 came into force on 2 October 2000, 26 declarations of incompatibility have been made. Of these 17 have become final (in whole or in part) and are not subject to further appeal!
Non Governmental Organisations
R (McLellan) v Bracknell Forest DC [2002]
Tsfayo v UK - which was in relation to where Housing Benefit Review Board did not provide independent determination of factual dispute and omission not made good by judicial Review
Community Legal Service – Civil Funding (Legal Aid) By the Legal Services Commission
Criminal Defence Service – Criminal Funding (Legal Aid) By the Legal Services Commission
See Tsfayo V UK 2007 but contrast with Begum V Tower Hamlets 1999, Bryan v United Kingdom [1995] and R (McLellan) v Bracknell Forest DC [2002]
Powell and Rayner V UK 1990
See K V Finland 1994; Smith V UK 1999
with Begum V Tower Hamlets 1999 ibid
See X V Federal Republic of Germany 1956; No obligation to give a decent home; reaffirmed in Chapman V UK 2001
See Rudzinska V Poland 1999
See Times 27th June 2006:
Residential Property Tribunal Service
This relates to appeals against Statutory Notices issued by a Local Authority