Permission to appeal granted

[Cosmic]

http://www.gcnchambers.co.uk/news/ca_to_rule_on_whether_canal_and_river_trust_entitled_to_have_same_approach_applied_to_article_8_defences_as_landlords_of_social_housing

 

I'm not familiar with this case but it sounds as if CRT have preiously successfully claimed that they should be given the rights of a social landlord. Given their (and BW's) insistence that they do not have the responsibilities of a social landlord, that strikes me as a tad unfair.

 

Or have I got that wrong? (I might well have...)

[NigelMoore]

Or have I got that wrong?

 

Is the question: have you got it wrong that CaRT should claim the rights of a social landlord while simultaneously denying the responsibilities of one? Hardly needs answering I would have thought. For what it is worth, I do not believe they have such responsibilities, neither should they enjoy the attendant 'immunity' from the impact of the HRA.

 

The important issue so far as I am concerned is the evasion of accountability through exemption from the standard court assumption that such bodies behave aright, so that issues of the proportionality of their actions should not be entertained when considering the Human Rights aspects. It is about time this was brought to the fore, and I am appreciative of Lewison LJ’s acknowledgement that it needs examining.

[Cosmic]

I suppose the question I was asking was whether CRT had actively requested the exemption or whether the judge had arrived at an interpretation by analogy with a social landlord.

[Ssscrudddy]

Whether you think CaRT should or should not have to behave like a social housing landlord, if they get those rights then they absolutely should have to take the responsibilites that go with it ie the person also gets those same rights that anyone in a house gets

Edited June 5, 2015 by Ssscrudddy

[Cosmic]

FWIW, my view is that when CRT was created, the government should have given somebody, and CRT would have been the obvious body, the responsibility to ensure that people living on boats could do so in decent conditions.

 

They should also have ensured that the funding was available to enable them to do that. But as it was a cost saving exercise from their point of view, that was never going to happen.

 

So it's not reasonable for the government to make no provision for the living conditions of thousands of people living on the water. But it's also not reasonable to expect CRT to do it for nothing

[NigelMoore]

I suppose the question I was asking was whether CRT had actively requested the exemption or whether the judge had arrived at an interpretation by analogy with a social landlord.

 

In which case I cannot answer. One would need a copy of the CCJ and/or transcript of proceedings. I am dubious that any special exemption was applied for; the presumption of probity is standard in the courts for all bodies [not just social housing] that exercise public functions.

 

It is a fact, however, that the major cases addressing the impact of the HRA on public bodies exercise of powers infringing those rights, concern housing authorities.

 

Nigel Johnson to 'The Merits of Statutory Instruments Committee' on 24 April 2012: -

 

"As the Minister has said, there is no change to the actual statutory powers. They will continue as they are. They are essentially the management powers of any operator of public-use infrastructure. For example, as we mentioned before, the National Trust, under its 1964 by-laws, has the power to remove boats unlawfully present on its waterways, just as British Waterways has at the moment and the Canal & River Trust will in future.

 

In terms of any change in human rights, it is a very complicated area. Indeed a Joint Committee of Parliament looked at the meaning of a “public authority” under the Human Rights Act back in 2004. Certainly, the Canal & River Trust has no intention of overriding people’s human rights. In particular, it looks to one of the conclusions in that report. Although there is some jurisprudential argument over all this, nevertheless, it concluded that: “a body is a functional public authority performing a public function … where it exercises a function that has its origin in governmental responsibilities … in such a way as to compel individuals to rely on that body for realisation of their Convention human rights”.

 

Our view is that, where we are exercising these statutory powers—arguably, coercive powers—given to us by statute, we will have to honour and pay proper regard to our users’ human rights. From all those aspects, we firmly believe that there is no change. There are areas of contention in terms of detailed interpretation of the existing legislation, which are subject to litigation at the moment. That is ongoing, and will be seen through in its normal event, and we await the outcome. To date, in all the enforcement cases that have gone to court, it has been found that our procedures and processes are in compliance with the Human Rights Act." [my bold]

 

That last was typical of his slippery mendacity - it is strictly true of the 'procedures and processes' of course, but those are not always followed. This glib assurance, which anyone could be forgiven for understanding that it meant that no s.8 case had been held to involve breach of the HRA, came barely 2 months after the High Court had specifically found that BW HAD breached the HRA in its application of s.8.

[Alan Saunders]

Forgive me if I am wrong but most those opposed to membership of the EU are primarily opposed to the bureaucratic, expensive, one law for all member states legislation. Fortunately, there are now moves to replace European 'red tape' with old-fashioned, sensible British Laws.

 

Others find the Human Rights Act, as enforced by the EU, to be excessively restrictive - if you lose your case in a British Court, take it to Brussels as a Human Rights case on some tenuous clause in the legislation, drag it on for years.

 

By definition, I believe, not even the most luxuriously appointed inland waterway boat would meet the standards required by a housing officer. If you choose to live on a boat you place yourself outside of EU and UK legislation. Meanwhile, many families live in inadequate land-based accommodation, far inferior to most boats.

 

The Law is an Ass,

 

Alan

[NigelMoore]

If you choose to live on a boat you place yourself outside of EU and UK legislation.

 

Can you elaborate on that please Alan? I am struggling to ascertain the point. It appears on the surface that you are saying because floating accommodation falls below a certain housing standard it is deprived of legal protection, whereas land-based accommodation below that standard retains legal protection. Further, that there should be no such protection anyway.

 

Application of the HRA has been predicated in UK courts upon the proportionality of otherwise legal coercion and/or deprivation of home or goods etc. It acts as a curb on authorised bodies who might otherwise violate the accepted rights of the citizenry when applying their relevant laws. The HRA accepts that circumstances can justify such violation, but it requires a demonstration of the equitable application of such powers, as tested by the need for maintaining the rights of society in general.

 

This test of proportionality is generally not applied to, for example, providers of social housing and other bodies exercising powers over the public – on the [entirely unwarranted] assumption that all such bodies must be assumed to act with the goal of the public good in mind. To my mind, that rather emasculates the HRA where it is most needed, but that is the stated position of the UK courts, most especially with regards to the adjudicatory function of the County Courts.

 

It would appear that the County Court judge in CaRT v Jones had specifically alluded to recent Supreme Court judgments respecting the over-riding objectives of Borough Councils, acting in their capacity as providers of social housing. The press release/article linked to in the OP suggests that the judge equated CaRT’s position to such housing providers. That does not necessarily mean that he considered them providers of social housing [he may have], merely that they were in a similar position of exercising extreme powers over their public, and that their over-riding objectives must be assumed to be applied whenever exercise of their powers conflicted with the HRA. The test of proportionality, in other words, was inapplicable, such that the HRA could not [in practical terms anyway] apply as a defence to s.8 action.

 

The Appeal in CaRT v Jones seems to concentrate on this one issue – whether the judge was correct to place CaRT in such a position of an authority over the public to the effect that the HRA defence could not be applied. Personally, I find these rules on HRA application utterly perplexing and contradictory of the law’s intent. Surely demanding that authoritarian bodies should exercise their powers in appropriate and proportionate ways with the good of society in general in mind, was the whole point of the HRA? Perhaps not.

 

It is one of the reasons why, in my belief, the Statute of Marlborough as the oldest statute extant, should take precedence over such modern Acts with their artificially contrived specificity. With the projected abolition both of the HRA AND the Statute of Marlborough, the governmental agenda in this regard starts to take on a sombre aspect.

[NigelMoore]

 

Application of the HRA has been predicated in UK courts upon the proportionality of otherwise legal coercion and/or deprivation of home or goods etc.

 

By way of balancing my previous comments: I accept the Supreme Court rulings in respect of local Council evictions as properly decided, and as equitable applications of the proportionality test.

 

If I can venture to encapsulate those judgments in extreme summary, it would be that where a body is required to provide housing to all that need it, but has limited resources, it is right that the available housing is most equitably allocated to law-abiding needful citizenry; that such members of the public should not be disadvantaged by favouring the scoff-laws.

 

This being, as I have said before, outside such expertise as I have, I can understand if the specialists within the Forum wish to put to me right on this.

Edited June 6, 2015 by NigelMoore

[adam1uk]

Others find the Human Rights Act, as enforced by the EU, to be excessively restrictive - if you lose your case in a British Court, take it to Brussels as a Human Rights case on some tenuous clause in the legislation, drag it on for years.

 

On a matter of fact, the Human Rights Act has nothing to do with the EU, and certainly isn't enforced by them. The Human Rights Act merely brings into British law the European Convention on Human Rights, which also has nothing to do with the EU. One of the things the HRA does is to make it possible to have human rights cases heard here, without having to go to the European Court of Human Rights (which, you guessed it, also has nothing to do with the EU).

[cotswoldsman]

 

On a matter of fact, the Human Rights Act has nothing to do with the EU, and certainly isn't enforced by them. The Human Rights Act merely brings into British law the European Convention on Human Rights, which also has nothing to do with the EU. One of the things the HRA does is to make it possible to have human rights cases heard here, without having to go to the European Court of Human Rights (which, you guessed it, also has nothing to do with the EU).

Don't allow the facts to get in the way of an anti EU Rant

[Phil.]

Don't allow the facts to get in the way of an anti EU Rant

Nothing wrong with ranting about the EU. Any opportunity will do.

Edited June 6, 2015 by Phil.

[Mike Todd]

Forgive me if I am wrong but most those opposed to membership of the EU are primarily opposed to the bureaucratic, expensive, one law for all member states legislation. Fortunately, there are now moves to replace European 'red tape' with old-fashioned, sensible British Laws.

 

Others find the Human Rights Act, as enforced by the EU, to be excessively restrictive - if you lose your case in a British Court, take it to Brussels as a Human Rights case on some tenuous clause in the legislation, drag it on for years.

 

By definition, I believe, not even the most luxuriously appointed inland waterway boat would meet the standards required by a housing officer. If you choose to live on a boat you place yourself outside of EU and UK legislation. Meanwhile, many families live in inadequate land-based accommodation, far inferior to most boats.

 

The Law is an Ass,

 

Alan

Please, please, please will folk stop confusing the European Court of Justice with the EU. They are very different things. Sadly, confusion about the roles leads to criticism of both that is wholly unwarranted and should be directed at the other. One of the things which this country should be proudest of is inventing Human Rights Treaty.

[bassplayer]

One of the things which this country should be proudest of is inventing Human Rights Treaty.

 

Let's hope the money worshipers in this country don't let it down then....

[John V]

I do love that term "scoff-laws" thank you Nigel

[NigelMoore]

One of the things which this country should be proudest of is inventing Human Rights Treaty.

 

Well said. And let us not forget that this was but a modern re-write of ancient code. Magna Carta began the traditional recognition that subjects [albeit the aristocracy] were not to be subject to arbitrary abuse of power, the first incorporation of a much later version becoming Statute in 1297. The relevant still extant clause being:

 

http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/XXIX

 

“NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

 

Prior to that of course, was the Statute of Marlborough in 1267, which was expressed to apply to ALL subjects “as well high as low”.

 

http://www.legislation.gov.uk/aep/Hen3cc1415/52/1/data.pdf

(I) Of wrongful Distresses, or Defiances of the King’s Courts. Punishment for unlawful Distresses.

 

Whereas at the time of a Commotion late stirred up within this Realm, and also sithence, many great Men, and divers other, refusing to be justified by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors,and also in his Time; but took great Revenges and Distresses of their Neighbours, and of other, until they had Amends and Fines at their own Pleasure; and further, some of them would not be justified by the King’s Officers, nor would suffer them tomake Delivery of such Distresses as they had taken of their own Authority; It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of our Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower.

And upon the foresaid Article It is Provided and granted, that if any from henceforth take such Revenges of his own Authority, without Award of the King’s Court as before is said, and be convict thereof, he shall be punished by Fine, and that according to theTrespass; and likewise if one Neighbour take a Distress of another without Award ofthe King’s Court, whereby he hath Damage, he shall be punished in the same wise, andthat after the Quantity of the Trespass; and nevertheless sufficient and full Amendsshall be made to them that have sustained Loss by such Distresses.

(IV) Distresses shall not be driven out of the County. Distresses shall be reasonable.

 

None from henceforth shall cause any Distress that he hath taken, to be driven out of the County where it was taken; and if one Neighbour do so to another of his own Authority, and without Judgment, he shall make Fine, as above is said, as for a Thing done against the Peace; nevertheless, if the Lord Presume so to do against his Tenant, he shall be grievously punished by Amerciament.

 

Moreover, Distresses shall be reasonable, and not too great; and he that taketh great and unreasonable Distresses, shall be grievously amerced for the Excess of such Distresses.

 

(XV) In what Places Distresses shall not be taken.

 

It shall be lawful for no Man from henceforth, for any manner of cause, to take Distresses out of his Fee, nor in the King’s Highway, nor in the common Street, but only to the King or his Officers, [having special authority to do the same.]"

 

It is the latter two that the Law Commission have recommended for abolition, on the grounds that modern legislation has made them redundant, and that modern mobility renders removal of seized goods out of the County of no importance.

 

I strongly disagree with this, especially the latter, which clause addresses the studied abuse of any power to seize goods as lien on debt by – in CaRT’s example – removing boats an entirely unnecessary distance by way of increasing the debt exponentially. That is, of course, supposing that s.8 applied as Distress in the first place [which I do not believe].

 

All the above stress that the exercise of power by authorities must in all cases be only by virtue of the laws governing the exercise of that power over persons and goods. Without the specific law and “special authority” to administer that, no abuse of persons or property was countenanced. This lies at the heart of the HRA which [as noted before], recognises the need in certain instances, for freedoms to be constrained where those impact adversely on society, but demands that this be only in accordance with the law, and commensurate with the reasonable social objectives.

 

This does, in fact, have its source even earlier, in the Doom of Alfred the Great [c. 893 AD], which commences with an appeal to Mosaic law, but which ostensibly tempers this with the principles of the New Testament. Cardinal amongst those principles [with especial reference to the Mosaic Law but with universal import] is the recognition that “where no law is, there is no transgression” [Romans 4:15]. This was the foundation of our Constitutional principles, so that [in the words of the Victorian constitutional scholar A.V. Dicey] “Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.”

I do love that term "scoff-laws" thank you Nigel

 

[NigelMoore]

One of the things which this country should be proudest of is inventing Human Rights Treaty.

 

There was an interview with one of the Lords last night [only caught the final bit so can't say who it was], who commented that it was British lawyers who were responsible for drafting the European Human Rights Convention, to which all EU members must sign - and that there was something deeply telling about the fact that of all the 77 signatories to that Convention, only one member has ever indicated a desire to withdraw - and that is the British originator!

 

http://www.gcnchambers.co.uk/news/ca_to_rule_on_whether_canal_and_river_trust_entitled_to_have_same_approach_applied_to_article_8_defences_as_landlords_of_social_housing

 

From a recent NBTA press release:

 

A spokesperson for Community Law Partnership said “Our argument is that the narrow approach to Article 8 contained in the cases of Manchester City Council v Pinnock and London Borough of Hounslow v Powell should not apply to cases such as this one because those cases involved the housing management and allocation functions of a local authority housing provider. This is a very important issue, of course”.

 

It is deeply ironic that CRT is claiming that it should be treated in the same way as a local housing authority for the purposes of Article 8 of the European Convention on Human Rights (the right to respect for one's home) when it has strenuously denied many times to boat dwellers that it is a housing authority.