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A Human Property Right?

A Human Property Right?. Article 8 and Home Repossession. Article 8 & n. Article 8 (1) Everyone has the right to respect for his private and family life, his home and his correspondence

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A Human Property Right?

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  1. A Human Property Right? Article 8 and Home Repossession

  2. Article 8 & n Article 8 (1) Everyone has the right to respect for his private and family life, his home and his correspondence (2)There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals or the protection of the rights and freedoms of others.

  3. The Pinnock & Powell Message Lord Neuberger in Pinnock at [45] “Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of proportionality of the measure and have it determined by an independent tribunal in the light of article 8, even if his right of occupation has come to an end.”

  4. More Questions than Answers! • The AMBIT challenges: • Who has a right to respect for their home under Article 8? • Who is subject to a duty to act proportionally? • The PROPORTIONALITY challenges when is the exercise of a lawful right to possession: • In pursuit of a legitimate aim – macro compatibility? • Proportionate in pursuit of a pressing social need – micro compatibility? • The PROCESS challenges how to determined proportionality?

  5. Who has an Article 8 Right? • Home is not defined by property rights but by ‘sufficient and continuing’ links which appear relatively easy to forge: • even if his right of occupation has come to an end. • Other occupier’s eg children. • Squatters.

  6. Who is subject to a duty to act proportionately? • The domestic doctrinal questions: • S 6 duties and who is a public authority & how the s6(2) defences operate? • The court and indirect horizontal effect between private parties: • Interpretation of legislation s3; • To act compatibly in the adjudication of disputes s6; • To take account of Strasbourg s2. • The challenging web of statute & common law.

  7. Who is subject to a duty to act proportionately? • A changing attitude in Strasbourg: • from Di Palma v UK to Mustafa v Sweden? ...the Court ... cannot remain passive where a national court’s interpretation of a legal act , be it ... a private contract ... a statutory provision ... appears unreasonable, arbitrary, discriminatory or more broadly inconsistent with the principles under lying the Convention. • State’s Positive Duties – growing examples procedural safeguards, vulnerability egZehentner v Austria, control of pollution, nuisance, anti social behaviour. • Why should respect for your home depend on tenure or whom you landlord/creditor is?

  8. Looking at Repossession Differently? • A claim to possession is NOT cast as a positive vindication of property rights BUT as a severe, if not the most severe, interference with respect for the home under Art 8(1). • Thus must be justified coz: • Lawful + not arbitrary; • In pursuit of a legitimate aim eg economic well-being, rights of others see Art 8(2) – the margin and deference. • Are property rights enough? • Not discriminatory – Art 14.

  9. Proportionality • Shift from principled application of objective rules to subjectively orientated enquiry of the impact of those rules upon the personal circumstances of the occupier. • Overall & relatively proportionality. • The presumption of proportionality. • Its tough – the exceptional/rare outcome! • Personal circumstances – vulnerability & out of the ordinary. • Relevance – Corby & Haycroft • Other factors – timing, alternative accommodation.

  10. The Process Challenges • The clear Strasbourg message – there must be an adequate process to assess proportionality. • Before an independent tribunal - what about regulatory safeguards? • The need for discretion - an end to mandatory grounds or circumscribed discretion? • Substantive proceedings. • Judicial Review as an alternative process.

  11. A Human Property Right? • Is there a human property right? • Not a traditional property right BUT a home based protection; • Which demands that an infringement of an occupier’s links with their home is justified and proportionate ; • Imposes a “duty” upon State, State bodies (including the courts) to translate into domestic law; • A flexible duty dependent on compatibility of the law attended by procedural safeguards to assess the proportionality of the impact upon the particular occupier.

  12. A Rights/Duty Based Protection • Nevertheless it is a shallow reservoir of protection of the home given: • the narrow margin/deference to the legislature; • the narrow compass of proportionality. • BUT the demands of due process to assess proportionality are fundamental to the nature of the remedial rights/duties of the parties. • The balance between HR of both parties must be maintained.

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