The Charter vs tenants

I’ve previously blogged about a secondary account of PILCH’s use of the Charter to (successfully) prevent the eviction of tenants by Victorian public authorities (or, at least, arguable public authorities.) The PILCH Homeless Person Legal Clinic relied primarily on this right:

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

While not doubting the HPLC’s good motivations, I was dubious about its legal arguments and a new House of Lords case underlines those doubts, as well as giving some long-overdue attention to a crucial operational provision of non-entrenched human rights statutes.

The recent UK House of Lords judgment, Doherty  v Birmingham City Council [2008] UKHL 57, is the UK top court’s third go at trying to sort out the tricky relationship between tenancy law and human rights law.  The issue, in Victoria and the UK, is eviction without cause, permitted in Victoria by s. 263(1) of the Residential Tenancies Act 1997 (albeit only with 120 days notice.) In the UK, many public tenants are protected from eviction without cause , but that protection does not extend to caravan sites, where a lesser protection regime only covers privately owned cites. This situation is hard on gypsies, who are often long-term residents of publicly owned sites and, indeed, were singled out for exclusion from a second protective scheme for mobile home tenants.Responding to a 2004 ECtHR case that criticised the exemption of gypsies, the UK Parliament has since repealed both limitations on protections for tenants of caravan stites, but that came too late for the litigants in Doherty, who face eviction by a local authority that regarded the long-term presence of a gypsy family as an impediment to its planned redevelopment of its caravan site.

As I’ve previously blogged, Bob Carr has been bandying about hearsay claims that UK landlords are now too scared to evict gypsy ‘trespassers’, a tale that not only panders to racists but ignores the limitation of the UK’s legal debate to publicly owned land and to lawful (indeed long-term) tenants. Even within these limitations, UK law still protects landlords, not tenants. Initially, the House of Lords rejected the idea that eviction raised any human rights issues at all; public authorities, they held, like private landlords, were allowed to evict tenants at the end of their lease. Rebuffed by the ECtHR in the case of the gypsies, the House of Lords set out two avenues for tenants to complain to courts: by seeking common law judicial review of the decision of public authorities; and by attacking the eviction statute using either the interpretation mandate or a declaration of incompatibility (the latter course at least giving the tenants a temporary respite from eviction.)

I’m not sure whether public housing authorities in Victoria are amenable to ordinary adminstrative law, but the HPLC certainly tried to rely on the interpretation mandate to protect tenants from eviction into homelessness:

[F]ollowing the entry into force of the Charter, landlords are now obliged to interpret their rights under the RTA in a way which is compatible with the Charter (s 32(1)). In this case, the landlord had not provided any reasons for the eviction nor provided the tenant with an opportunity to address its concerns. Relying on Ghaidan v Godin-Mendoza, the HPLC submitted that VCAT read in to s 263 the italicised words: ‘A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice, if reasonable to do so in the circumstances and if to do so is compatible with the Charter.’

I’ve previously argued that Ghaidan may be a poor authority for Victoria’s Charter, even putting aside the express limitation on Charter s. 32 to interpretations consistent with the purpose of a statutory provision. Doherty suggests that even a UK-style mandate would not achieve the result asserted by PILCH:

Section 3(1) HRA provides that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights. But the exclusions from protection that are to be found in these statutes are not susceptible to interpretation in a way that would remove the incompatibility. Giving effect to them is unavoidable… As has often been said, section 3(1) provides the court with a powerful tool to enable it to interpret legislation and give effect to it. But it does not enable the court to change the substance of a provision from one where it says one thing into one that says the opposite.

While Lord Hope was willing to issue a declaration of incompatibility about the UK statutes, the remaining lords declined, citing both the repeal of the laws and doubts about whether or not blame could be sheeted to those particular statutes, rather than the wider legal system of English law when it comes to tenancy.

That leaves the conduct mandate, which is notably missing from the protection scheme grudgingly announced by the House of Lords following the rebuff over gypsies. HPLC relied on the Charter’s conduct mandate too:

[A]s a functional public authority, the HPLC submitted that in deciding whether to issue the notice, the landlord is obliged to consider the tenant’s and her children’s rights and the consequences of and alternatives to eviction (ss 38 and 7(2)). Pursuant to s 32(2), the HPLC relied on international decisions of the European Court of Human Rights in Connors v UK, McCann v UK and Stanková v Slovakia and judgment of the High Court of South Africa in City of Johannesburg. In these cases, evictions into homelessness, under statutory powers, were found to be impermissible limitations on the rights to privacy and family as they could not be justified in a free and democratic society.

Unlike the interpretation argument, this one is limited to public authorities (and I’m not entirely clear on whether or not all public housing landlords in Victoria fit that description.) But Doherty shows that the bigger problem with the HPLC’s argument is that it completely ignores Charter s. 38(2):

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right

I’ve long complained that everyone is ignoring this section.

The UKHRA’s equivalent is s. 6(2)(b) – an inauspicious section number indeed – and reads as follows:

6 Subsection (1) [the UKHRA conduct mandate] does not apply to an act if-… (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

This text notably matches the example in Charter s. 38(2). Amazingly, after a decade of the UKHRA, the UK’s senior barristers are still ignoring this section, as Lord Mance complained:

S.6(2)(b) raises difficult and important issues, which were not fully or adequately addressed either in the parties’ written cases or in oral argument and on which I would have wished to hear further argument had it been critical to the outcome to decide them. S.6(2) was mentioned only briefly and very generally in the parties’ written cases, and it was only after Mr Ashley Underwood QC for the respondents had indicated the nature of the respondents’ reliance on s.6(2) during the morning of the second and last hearing day that Mr Luba QC and Mr Sales QC asked the House after the midday adjournment for permission for Mr Sales to make further submissions specifically directed to it. Mr Sales’s submissions, made with the benefit of the midday adjournment, were well focused but in the circumstances brief. They included a submission that s.6(2)(b) of the 1998 Act should be narrowly interpreted (particularly having regard to s.3 of that Act) and that otherwise the protection intended by the 1998 Act would be radically cut down….  In these circumstances, the ambit of s.6(2)(b) must, I think, await further examination and determination in a case where this arises squarely for determination and is fully argued.

Nevertheless, the section was discussed by the Lords and seems crucial to the outcome of the case.

Lord Hope’s analysis is bound to be widely quoted:

The cases in which the effect of section 6(2)(b) of the 1998 Act has been considered so far demonstrate that three distinct situations may arise. The first is where a decision to exercise or not to exercise a power that is given by primary legislation would inevitably give rise to an incompatibility…. The second, which lies at the opposite end of the spectrum, is where the act or omission of the public authority which is incompatible with a Convention right is not touched by one or more provisions of primary legislation in any way at all. As the matter is not to any extent the product of primary legislation, the sovereignty of Parliament is not engaged. The act or omission will be unlawful under section 6(1) because section 6(2)(b) does not apply to it. The third situation lies in the middle. This is where the act or omission takes place within the context of a scheme which primary legislation has laid down that gives general powers, such as powers of management, to a public authority. That is the situation in this case.

The answer to the question whether or not section 6(2)(b) applies will depend on the extent to which the act or omission can be said to be giving effect to any of the provisions of the scheme that is to be found in the statutes…. The important point… is that section 6(2)(b) assumes that the public authority could have acted differently but excludes liability if it was giving effect to a statutory provision which could not be read in a way that was compatible with the Convention rights. It protects a decision to exercise or not to exercise a discretion that is available to it under the statute. It seems to me, looking at the statutory scheme as a whole that applies to this case, that this is indeed what the respondent was doing when it decided to apply for a possession order.

This reasoning would seem to destroy HPLC’s argument altogether, on the ground that the combination of Charter s. 38(2) and s. 263(1) of the Residential Tenancies Act exempts all public authorities from having to obey the conduct mandate when deciding whether or not to evict someone.

Lord Walker, while accepting Lord Hope’s analysis, was less thrilled about it:

It is understandable that housing authorities, faced with long waiting lists and limited human and financial resources to deal with possession cases, should seek the simplest and cheapest way of obtaining possession from tenants or former tenants. Why embark on proceedings which may involve a day or more’s oral evidence (possibly involving witnesses liable to be intimidated) if there appears to be a route under which the defendant will not be able to resist summary judgment? Does not the authority’s duty to its council tax payers, and in particular to those on the waiting list, compel the choice of the simpler, cheaper remedy? The decisions of the Strasbourg Court in Connors and McCann show that housing authorities may find that, in the long run, that course will not be simpler and cheaper. Their housing policies ought to take account of the article 8 rights of tenants or ex-tenants, even if they are protected by section 6(2)(b) from direct challenge in the courts. To adopt a Convention-compliant policy could not possibly be described as subverting the will of Parliament… Even if section 6(2)(b) of HRA gives a housing authority immunity, the decision-making process leading up to the commencement of proceedings ought to be Convention-compliant.

But Victoria has no ECtHR overseeing it and I’m not sure that the prospect of a complaint to the United Nations Human Rights Committee carries quite the same economic sting!

There’s much more comfort for Victorian tenants in Lord Mance’s judgment:

It is possible to read and give effect to the statutory scheme of both the Caravan Sites Act 1968 and the Mobile Homes Act 1983 in a way which entitles (and under s.6(1) of the Human Rights Act 1998 requires) a local authority, when deciding whether or not to give any (and if so what length of) notice to a caravan site occupied by travellers terminating their right to occupy, to take into account the Convention rights, including the length of time for which the site has been the occupiers’ home. Whether and to what extent this will be relevant will depend on the circumstances. Accordingly, a local authority which fails to take into account Convention values when deciding whether or not to give any and if so what length of notice to quit cannot, in my opinion, be said to be “acting so as to give effect to or enforce” statutory provisions which are incompatible with the Convention rights.

This is much closer to the HPLC’s argument, but a couple of caveats should be noted. First, Lord Mance expressly applied the UK’s interpretation mandate to construe the statutes so as to narrow the applicability of the defence to the conduct mandate; as I’ve previously argued, Victoria’s mandate may not be so flexible. Second, Mance, like the HPLC, only referred to the lesser part of the conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

I think that there’s a good argument that, except in rare cases, Charter s. 38(2) won’t get in the way of the lesser ‘proper consideration’ mandate, whereas it will often get in the way of the stronger ‘conduct’ mandate. But it’s worth noting that the ‘proper consideration’ mandate doesn’t prevent a public authority from nevertheless going on to evict someone once that consideration has been given. While admin lawyers doubtless find the proper consideration mandate exciting, I find it much less exciting. (That being said, Mance was at pains to point out that – contrary to my reading of the case – the House of Lords decision in R v G does not preclude the application of that mandate to prosecutorial decisions, which, if true, could be an interesting inroad into the otherwise virtual immunity of prosecutorial decision-making in Victoria from legal rules.) Third, Victorians have Charter s. 39(1) to contend with.

Doherty doesn’t resolve the role of Charter s. 38(2), even in tenancy cases. But it does suggest that there’s a lot more legal analysis to the issue than is being addressed in the HPLC’s dealings with landlords:

Assisted by Richard Wilson of Counsel, the HPLC filed substantial submissions and sought an urgent injunction preventing the eviction. Following filing, the landlord withdrew the notice and a more open dialogue between the parties was achieved. VCAT granted consent orders that the landlord withdraw the notice and that the parties attend a compulsory conference to discuss their relationship and future conduct.

This case is a great example of how the Charter can be used to ensure that legislation and powers are interpreted and applied compatibly with rights so as to address disadvantage, ensure accountability and promote human dignity. This case also demonstrates how the Charter can be used to strengthen other arguments, seek to call parties to account and address a broader range of concerns than may have been previously available.

A nice result, for sure. But one that does not seem to pay close attention to the Charter’s operational provisions.

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