Letter from the Chair of the Committee
to Rt Hon John Healey MP, Minister for Housing, Department for
Communities and Local Government, dated 9 June 2009
MCCANN
V UNITED
KINGDOM (APP
NO 19009/04, 13 MAY
2008)
The Joint Committee on Human Rights is continuing
its practice of reviewing the implementation of judgments of the
European Court of Human Rights (ECtHR) finding the UK to be in
breach of the European Convention on Human Rights (ECHR).
On 13 May 2008, the European Court of Human
Rights gave judgment in the case of McCann v UK. It held
that the lack of adequate procedural safeguards in possession
proceedings violated the right to respect for home (Article 8 ECHR).
The Court held:
The loss of one's home is a most extreme form
of interference with the right to respect for the home. Any person
at risk of an interference of this magnitude should in principle
be able to have the proportionality of the measure determined
by an independent tribunal in the light of the relevant principles
under Article 8 of the Convention, notwithstanding that,
under domestic law, his right of occupation has come to an end.[8]
Shortly after the decision, the Housing and
Regeneration Bill was considered by the House of Lords. Baroness
Hamwee tabled an amendment which sought to give effect to the
McCann judgment. Baroness Andrews opposed the amendment
on three grounds. First, domestic courts were already required
to take ECHR jurisprudence into account (Section 2(1) Human Rights
Act 1998). Secondly, the Strasbourg Court accepted that the proportionality
defence would only be successful in exceptional cases and, according
to the Government, the proposed amendment would complicate and
delay the vast majority of cases. Thirdly, judgment was pending
from the House of Lords in the related case of Doherty.[9]
The amendment was withdrawn.
On 30 July 2008, the House of Lords gave
judgment in Doherty v Birmingham City Council [2008] UKHL
57. The Secretary of State intervened arguing, in the light of
the ECtHR's decision in McCann, that the House of Lords
should follow the approach of the minority in Kay v London
Borough of Lambeth [2006] UKHL 10 (that is, that in exceptional
cases, the occupier could be permitted to argue that his individual
personal circumstances made the application of the law disproportionate
in his case in breach of Article 8 ECHR).[10]
The House of Lords however disagreed with this argument and with
the approach of the ECtHR in McCann.
In the light of the ECtHR judgment and its consideration
by Parliament and the House of Lords, we would be grateful for
your response to the following questions:
1. What steps, if any, does the Government intend
to take to give effect to the ECtHR's decision in McCann?
2. Does it propose to use primary legislation
to give effect to the ECtHR's judgment? If not, why not?
3. Why has the Government chosen not to remedy
the breach identified in McCann by remedial order?
4. On what evidence does the Government base
its conclusion (given during the debates on the Housing and Regeneration
Bill) that legislative amendment in the light of McCann would
complicate and delay the vast majority of cases?
5. Given the House of Lords' decision in Doherty,
does the Government remain satisfied that domestic courts can
take the decision in McCann into account? Please explain
how in practice they are able to do so.
In addition, please provide us with copies of
the Government's submissions to the Committee of Ministers, including
its submission of 14 October 2008, and ensure that we continue
to be updated as further information is provided.
9 June 2009
8 Para 50. Back
9
HL, 9 July 2008, Cols 808-810. Back
10
The House of Lords also unanimously held that where there was
inconsistency between rulings of the domestic courts and the ECtHR,
the domestic courts should follow the binding precedent of higher
domestic courts. Back
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