The Charter vs tenants (again)

More bad news from the UK for those who want to use the Charter to ease the legal squeeze on tenants. The England & Wales Court of Appeal in Truro Diocesan Board of Finance Ltd v Foley [2008] EWCA Civ 1162 considered the effect of a provision in the UK’s Housing Act 1988:

34(1) A tenancy which is entered into on or after the commencement of this Act cannot be a protected tenancy, unless—  . . . (b) it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was a protected or statutory tenant and is so granted by the person who at that time was the landlord (or one of the joint landlords) under the protected or statutory tenancy…

This is a transitional provision, designed to preserve an earlier law that prevented landlords from evicting tenants without cause. Desmond Foley leased a church property called ‘The School House’ and fell within a similar protection offered by the predecessor to s34. But, in the late 1980s, he and the church had a falling out and the church tried to evict him. That action was settled, but under an agreement where Foley had to vacate the premises completely and then take up possession again 24 hours later. It’s obvious that the purpose of this agreement was to strip Foley of his statutory protection.

Inevitably, the church tried to evict him and Foley claimed that he hadn’t lost his protection. Most of his arguments were to do with complex statutory interpretation issues involving agreements and the like, but, as a fallback, he relied on the UK’s interpretation mandate and its right to privacy:

Section 3(1) of the Human Rights Act 1998 requires the court, so far as it is possible to do so, to read and give effect to primary and subordinate legislation in a way that is compatible with Convention rights. Mr. Watkinson submitted that eviction from one’s home involves an interference with the right contained in article 8(1) of the Convention and that accordingly the court should read and give effect to the expression “immediately before the tenancy was granted” in section 34(1)(b) as covering the present case in which the new tenancy took effect a little over 24 hours after the expiry of a previous protected tenancy.

But the Court of Appeal unanimously knocked back the human rights argument, citing two grounds.

First, Foley:

was quite unable either to articulate the way in which section 34(1)(b) is to be read in order to give effect to his argument or to identify the principle that would govern the way in which it should be applied. In effect, his argument consisted of little more than the proposition that it should be applied so as to include the present case. I think that would require one to read the words “immediately before” as if they were “a reasonable time before”, but in my view that is not possible because it would fundamentally alter the nature of the subsection.

Personally, I wouldn’t have thought that it was such a stretch to read ‘immediately before’ as including ’24 hours before’. But the Court of Appeal’s objection here is that a new rights compatible reading needs to be based on a broadly expressed principle. It’s not enough to just ask the courts to stretch the words to fit the case at hand. Why not read the words to include a week before, or a year before?

This is an interesting take on what it means to ‘read and give effect to’ or, in Victoria, to ‘interpret’ legislation. It’s not just stretching, you actually need to come up with a new definition that has a rational basis. Arguably, something sort of similar is achieved by Victoria’s gloss, which refers to the need to be consistent with the purpose of the legislation. And, it seems, the EW CofA regards the Ghaidan ‘fundamental features’ test as requiring the same.

Second:

the right to respect for one’s home is qualified by the recognition in article 8(2) of the need to provide for other competing interests, including the economic well-being of the country and the protection of the rights and freedoms of others. The balance between the rights of landlords and the protection of tenants touches on both of these and is essentially one for determination by Parliament.

This is a reference to the limiting language in the ECHR. In Victoria, the language is differently expressed as barring ‘arbitrary or unlawful’ interferences. Victorian courts would also have to take account of both the general limitation provision in Charter s. 7(2) and the purpose limitation to the interpretation mandate.

As I see it, this decision shows that there are potential errors in the main Charter tenancy case to date as well as some reported practice going on without court review. If you ask me, although there’s undoubtedly some work for the interpretation mandate to do in tenancy cases, the real action is going to be based on the conduct mandate. Alas, that is limited to cases where the landlord is a public authority.

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