Rushed Legislation: Scrutiny and Human Rights

Although thought of as primarily a public law issue, human rights law has a considerable, but often hidden, impact on private law. As Weston notes, the ‘Executive and Parliament – the democratically accountable branches of government – have a significant role in the protection of human rights’ particularly through the ‘requirement for ministerial statements of compatibility, introduced by section 19’ of the Human Rights Act (HRA).  Indeed, Maxwell concludes in the forthcoming book The Human Right to Property, the greatest impact of Article 1 Protocol 1 to the European Convention on Human Rights (A1P1, the right to peaceful enjoyment of possessions), is in this work that takes place in the shadows: the ‘perception of what A1P1 entails, and the accompanying fear that a decision could result in a breach, has had a strong (and constraining) impact on public policy administrative and legislative decision making’. This post illustrates this shadow effect this by showing how human rights concerns are shaping both the reform of the enfranchisement process, and the Building Safety Bill (BSB).

Human rights, that is, rights set out in the European Convention on Human Rights and its protocols, are protected insofar as it is unlawful for a public authority to act incompatibly with a Convention right (HRA s 6). This does not apply to Parliament (s 6(3)), but in the legislative context, HRA s 19 requires a Ministerial statement before the Second Reading of a Bill to the effect that in the Minister’s view the Bill is compatible with Convention rights or, even if not compatible, the government nevertheless wishes Parliament to proceed with the Bill.  The Cabinet Office’s Guide to Making Legislation explains how the impact on Convention rights must be considered when preparing policy initiatives, and notes the important role of both legal advisers and the Joint Committee on Human Rights. The tenor is that this should be a robust and frank process, ‘not a last-minute compliance exercise’, and internal documents need to address weaknesses as well as strengths (para 11.11).  Statements of incompatibility are extremely rare; one was made in relation to the Communications Act 2003, as discussed in the House of Lords decision in the Animal Defenders case.

Once enacted, courts must, so far as possible, read legislation in a way that makes it compatible (HRA s 3). Where it is incompatible a senior court may make a declaration of incompatibility (HRA s 4).  A declaration of incompatibility has no effect on the validity and operation of the legislation but it does act as ‘a powerful signal to Parliament that …legislation …should be reconsidered’ (Weston). In response, the legislation will be repealed or amended (albeit often slowly, Jeff King, ch 8 in Parliament and Human Rights (2015)). Although in theory Parliament may instead do nothing at all, in fact that is never the case (see para 122 of the Government’s Independent Review of the Human Rights Act (2021))

Both leasehold reform and the BSB impact on existing rights held by freeholders, landlords, and leaseholders; some corporate, some natural persons.  Some commentators dislike the idea that ‘mere creatures of the law, not of flesh and blood’ may claim human rights protection, particularly as human rights ‘are intended to protect the weak against the powerful and not vice versa’ (see Kulick). But A1P1 specifically extends the right to property to both natural and legal persons.

Moulding property legislation around human rights

The Law Commission’s 2020 report (Law Com No 392) recommending reform of leasehold enfranchisement shows how carefully human rights concerns have been fed into its proposals in relation to calculation of the premium payable by leaseholders on enfranchisement. The Terms of Reference, agreed with government, required the Law Commission to examine options to reduce the price paid by leaseholders, but concerns about compliance with A1P1 led them to reject two schemes considered in their consultation paper; and the policy choices put to the government involve a premium that acknowledges the value of the landlord’s current and future interests (see para 7.24). Counsel’s advice to the Law Commission, published here, was tentative pending, in part, clarification of the ‘aims and objectives of the eventual scheme’ [paras 59 and 60]. She noted that there may be a distinction according to whether the primary aim was to remedy perceived leaseholder injustice, or to make enfranchisement more simple, quick and cost-effective. In relation to whether there could be differential pricing, with different types of leaseholder paying more or less, this again would depend on the social policy being pursued [74]. If the primary aim of the reforms is to benefit ordinary homeowners then to treat leaseholders who are not owner-occupiers the same is ‘likely to be disproportionate’ and not rationally connected to the objective. If streamlining is the objective, then one pricing mechanism would be rational [76].

Similar tensions may be seen in the BSB, but here the rush of the Parliamentary process makes scrutiny extremely difficult. The Bill was introduced in the House of Commons on 5 July 2021 when Robert Jenrick was Secretary of State for Housing, Communities and Local Government, and in the House of Lords on 20 January 2022 by Lord Greenhalgh (Minister for Building Safety and Fire). The Explanatory Notes to each simply stated that that the ‘provisions of the Bill are compatible with the Convention rights’. However, since the Bill was introduced there have been substantial and numerous amendments, many of which may engage human rights issues. In part, these reflect the  dramatic shift in tone since Michael Gove, now Secretary of State for Levelling Up, Housing and Communities, issued a statement on 10 January 2022  warning developers that they will have to pay to fix the cladding crisis, and that there would be new measures to protect leaseholders. Since then, there have been more than 20 notices of Bill amendments, and further amendments are expected when the Bill returns to the Commons on 20 April 2022. These amendments to the Bill are not just matters of fine tuning but reflect major shifts in policy, with human rights implications.

One change is the further extension of the limitation period under the Defective Premises Act 1972. Bright and Maxwell considered  that the proposed extension to 15 years, as in the initial draft of the Bill, was unlikely to breach A1P1. Although the same arguments are likely to hold true for the longer extension to 30 years now being proposed, the impact on companies referred to in the earlier piece is inevitably more substantial.

A major shift in policy in recent months has been the introduction of extremely complex and nuanced leaseholder cost protections. Under most leases, the landlord can recover a service charge which may include remediation costs. The Bill, however, now protects certain classes of leaseholders from paying anything towards remediation; others only have to pay towards non-cladding costs, and other leaseholders remain liable for their full share of costs. There are distinctions according to whether the flat is the leaseholder’s home, how many other flats the leaseholder owns, the value of the flat, whether the landlord was also the developer, and the financial standing of the freeholder. An outline of the bill as at 14 February 2022 is provided by Liam Spender here, and various Twitter threads by him explain some of the later changes (e.g. here, here, and here). Both developers  and property investment funds are claiming that the new approach infringes their human rights.

Private Law legislation and Human Rights

This post focusses on process, not compliance of the BSB current drafting with A1P1. As with the enfranchisement proposals, the shadow of human rights has shaped the legislation. Baroness Pinnock comments that the fact that the leaseholder protections under the government proposals still mean many leaseholders have to pay something (even if capped)  was explained by civil servants as reflecting human rights advice, in particular to ensure that there is a fair balance ‘between the property rights of freeholders, … and the leaseholders …’. Not everyone agrees. Prior to the House of Lords voting to reduce the cap to zero, both Lords Marks and Hope expressed considered views that a zero cap would survive a human rights challenge.  In 2004, Professor Feldman noted that during its passage in October 2002, the Nationality, Immigration and Asylum Bill was heavily amended, with some ‘particularly controversial’ amendments, and that clauses were stream-rollered through. This limited the opportunity for careful scrutiny. As then, so now in relation to the BSB. Echoing Feldman’s comments, the Bill's passage may degenerate into an undignified and more or less disorganized scramble as the Bill bounces back and forth between the two Houses. This is not a satisfactory way to make law; it is, using a phrase from Feldman, a ‘chaotic joke of legislative process’, producing a ‘level of activity reminiscent of headless chickens’.  Careful scrutiny is impossible. Nor does it enable evaluation for human rights compliance. As with enfranchisement, compatibility will depend on the primary aims of the scheme: is it to facilitate speedy remediation, or to protect leaseholders, or both?

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How to cite this blogpost (Harvard style):

Bright, S. (2022) Rushed Legislation: Scrutiny and Human Rights. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2022/04/rushed-legislation-scrutiny-and-human-rights (Accessed [date])