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,
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
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.
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.
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
See Annex B to the Home Secretary's letter, p 35 Back
See e.g. López Ostra v. Spain (1994) 20 EHRR 277, Eur.
Ct. HR Back