The role of Article 8 of the European Convention on Human Rights in public and private sector possession proceedings

Ramshaw, Adam (2016) The role of Article 8 of the European Convention on Human Rights in public and private sector possession proceedings. Doctoral thesis, Northumbria University.

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Abstract

This thesis is concerned with the legal shortcomings flowing from Manchester City Council v Pinnock.1 Following Pinnock tenants of local authorities may have the proportionality of a possession order considered by the court in light of art.8 of the European Convention on Human Rights and the Human Rights Act 1998. However, there are questions outstanding from Pinnock. Firstly, there has been a failure within the courts to appreciate the importance of the home to the individual, their family, and society in general. Secondly, domestic courts have not provided adequate reasons for limiting art.8 to proceedings involving a local authority. Thirdly, the nature of proportionality within possession proceedings has been poorly conceived thereby marginalising art.8’s effects.
This thesis draws support from philosophical and sociological literature to illustrate the deep connection a person feels towards their home. These connections exist irrespective of ownership yet it is these non-legal interests which are often overlooked by the courts. It is argued here that art.8 may protect these non-legal interests.
Further, this thesis questions why art.8’s protection ought to be limited to proceedings involving a public sector landlord. The thesis provides an overview of the competing theories concerning horizontal effect and their related shortcomings. The work of Alexy is used to argue that horizontal effect is a singular phenomenon thereby making art.8 applicable in private proceedings. The public/private divide is then critiqued to demonstrate the theoretical viability of horizontal effect where a person’s home is at risk.
The final strand of this thesis is concerned with how the competing interests of landlords and tenants may be adjudged. To this end a structured proportionality model is developed to replace the general proportionality exercise utilised by the courts following Pinnock. This proportionality model is then applied to existing case law to demonstrate its viability and context sensitivity.

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