Joint Committee On Human Rights Thirteenth Report

Part 2 of the Bill: troublesome tenants in public sector accommodation

11. Part 2 deals with troublesome tenants. Local housing authorities, housing action trusts and registered social landlords would be required to prepare a policy and procedures in relation to anti-social behaviour (clause 12). Certain social landlords would be allowed to apply for injunctions restraining anti-social behaviour which affects the management of their housing stock (clause 13). Secure tenants of local housing authorities, housing action trusts and registered social landlords, if held to be responsible for trouble, could lose their security of tenure. They could be demoted to a 'demoted assured shorthold tenancy', which would become an assured tenancy after a year unless the landlord applies during the year for a possession order (clauses 14 to 16).

12. As the Government accepts,[10] these provisions engage the right to a fair hearing in the determination of civil rights and obligations (ECHR Article 6.1), the right to respect for the home and private life (Article 8), and the right to peaceful enjoyment of possessions (Protocol No. 1, Article 1). They do not seem to engage the right to a decent standard of accommodation under ICESC Article 11.1, because people would not be automatically removed from their homes, but would only lose their security of tenure, making it important for them to behave better in order to avoid being evicted.

13. The Government takes the view that the measures are a necessary and proportionate response to the anti-social behaviour of certain tenants, in the interests of public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others. They point to the fact that there are procedural safeguards. In relation to P1/1, they point out that injunctions under clause 13 restraining anti-social behaviour will not deprive people of property rights. Although demoting tenants from secure tenancies would deprive them of property rights, the Government argues that there are sufficient safeguards to ensure that this happens only when it is a proportionate response to the conduct involved and is necessary to protect the rights of others.[11]

14. We agree with this assessment. The procedural safeguards, including the need for a hearing in the county court, and the strict conditions to be fulfilled before orders may be made demoting a tenancy, should be sufficient to protect rights under ECHR Article 8 and P1/1, and would meet the standards of due process required by ECHR Article 6.1.

15. However, we have some concerns about compliance with the principle of legal certainty: orders can be made where there has been anti-social or immoral behaviour, and we have considered whether these terms were sufficiently certain to satisfy the principle. It has been pointed out to us that the term 'anti-social behaviour' is not defined for all purposes within the Bill. The Government observes that the requirement of legal certainty under ECHR Article 7 applies only in relation to criminal sanctions. Part 2 of the Bill creates no criminal sanctions.[12] On the other hand, Article 8.2 requires that any interference must be 'in accordance with the law'. The effect of this is that any rules interfering with rights to respect for private life or enjoyment of possession must be sufficiently certain and accessible to allow people to understand what is expected of them and when an interference will be justified.

16. In our view, the term 'anti-social behaviour' without any definition to limit its meaning is an unacceptably vague term to use when authorizing an interference with a Convention right. We do not think that people would be able to establish what it means by reference to any predictable, objective standards. We have a similar concern about the term 'immoral behaviour', although, in the housing context, it has traditionally been given a relatively restricted meaning, relating mainly to using premises for drug-dealing, prostitution and similar activities. We consider that the absence of objectivity and predictability in the interpretation and application of these terms is likely to make it difficult to justify an interference with Convention rights under the provisions of Part 2, either generally or in the context of particular cases. We recommend that objective definitions of these terms should be included in the Bill to avoid the risk of incompatibility with Convention rights, particularly that under ECHR Article 8.

17. The powers which this Part proposes for dealing with troublesome tenants are directed principally at troublemakers who occupy public sector housing. We asked the Government whether it had considered including provision for local housing authorities or some other body to take action against troublemakers living in private sector accommodation who disturb the lives of public sector tenants. For example, what powers would be available to a local housing authority to deal with the occupiers of a former council house which has been bought by its tenant and subsequently let to the troublemaker, if the landlord is not be willing to do so? If nothing could be done, it might leave a gap in the protection for the rights (including the right to respect for their private and family lives and homes, under ECHR Article 8) of public sector residents affected by the troublemaker. There are circumstances in which a local authority may have positive duties to assist tenants to protect their rights, even when the threat to those rights emanates from a private individual or body rather than from a public body.[13] We were interested to know how those duties could be discharged in this context.

18. The Government's reply made two main points. First, a social landlord would be able to apply for an injunction under clause 13 of the Bill to protect people residing in accommodation managed by the landlord, visitors to the accommodation, people otherwise engaged in lawful activity in or in the locality of the accommodation, and people employed by the social landlord wholly or partly in connection with his or her housing management functions. This power applies whether or not the troublemaker is living in accommodation managed by the social landlord. Secondly, where there is no link between the behaviour of the troublemaker and the social landlord's housing management functions, it would be open to the local authority or the police to pursue other remedies, including an injunction sought by the local authority for the benefit of the inhabitants of its area under section 222 of the Local Government Act 1972, or an Anti-Social Behaviour Order under section 1 of the Crime and Disorder Act 1998. However, we note that section 222 of the Local Government Act 1972 is very rarely used by local authorities, and Anti-social Behaviour Orders are not very common.

19. In addition, the Government referred to proposals in the draft Housing Bill, currently out for consultation, to allow local authorities with the approval of the Secretary of State to designate areas for selective licensing of private sector landlords in order to improve management standards in the private sector. This would allow local authorities to exercise some influence over the responsiveness of private sector landlords to troublemakers among their tenants. At the moment, however, this is purely aspirational. It will be some time before the consultation on the Draft Housing Bill is complete, a Bill is introduced to and passed by Parliament, and the Act is brought into force. In the meantime, people whose lives are affected by tenants of indifferent private sector landlords continue to enjoy only limited protection compared to those whose lives are affected by troublesome public sector tenants. We draw these concerns to the attention of each House.

10   EN paras. 177-179 Back

11   ibid Back

12   See Annex B to the Home Secretary's letter, p 35 Back

13   See e.g. López Ostra v. Spain (1994) 20 EHRR 277, Eur. Ct. HR Back

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