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- Summary of key points arising from the High Court judgement in the case R v Bracknell Forest District Council ex parte Johns and ex parte Mclellan
Summary of key points arising from the High Court judgement in the case R v Bracknell Forest District Council ex parte Johns and ex parte Mclellan
Note : This summary is not a substitute for the full transcript of the judgement which can be purchased from Smith Bernal, 190 Fleet Street, London EC4 Telephone No. 020 7421 4036.
In a nutshell
This judicial review case, which was heard by a single judge (Mr Justice Longmore presiding) of the Administrative Court (High Court), concerned the compatibility of the Introductory Tenancies (IT) regime in Part V of the Housing Act 1996 with Articles 6, 8, 14 and Article 1 of the First Protocol of the European Convention on Human Rights (ECHR).
The case was brought against Bracknell Forest District Council by two of its tenants DETR was joined as an interested party.
The judge ruled that the IT regime is not incompatible with Articles 6, 8, 14 or Article 1 of the First Protocol of the ECHR. Accordingly he dismissed the claimants application and there was no case for making a declaration of incompatibility under s.4 of the Human Rights Act 1998.
Key points from the judgement
Article 6 - the right to a fair trial
- Operating an IT regime involves a determination of tenants civil rights and therefore engages Article 6 of the ECHR.
- However the IT regime is not incompatible with Article 6 because :
- while the internal review process in the IT regime is not a review by an independent and impartial tribunal, the fact that a decision made at such a review is amenable to judicial review is (taken together with the internal review itself) sufficient to render the IT regime Article 6 compliant;
- were an IT decision to terminate a tenancy quashed by a judicial review and remitted to the authority, a fresh review could be conducted by a different officer. Such officer would be a reviewing officer not a policy maker. This was distinguishable from the recent case of Alconbury where the role of the Secretary of State as both policy maker and decision maker under planning legislation was found to be incompatible with Article 6.
- the fact that in nuisance cases an authority can rely on evidence without disclosing its source cannot be a ground for making a declaration of incompatibility. This is because :
the statute does not require any material relied on by a reviewing officer to be handled in a way which is inherently objectionable;
in a particular case, an authority is obliged to act compatibly with Article 6 and will be amenable to judicial review if it acts unlawfully;
an authority may have good reason to withhold a source of information.
Article 8 - the right to respect for private and family life
- There is nothing in the IT regime legislation inherently incompatible with Article 8. While operating an IT regime does interfere with tenants rights under Article 8, the interference is in accordance with the law.
- There is no reason to suppose that in a given case a Council would not have regard to the principles of necessity and proportionality.
- Parliament saw the need for an optional scheme. Bracknell Forest DC had shown why they had adopted the scheme. Under the circumstances the interference was for relevant and sufficient reasons and corresponded to a pressing social need.
- Such interference is also proportionate to the legitimate aim pursued. It is limited by procedural safeguards and after one year the tenant becomes a secure tenant.
Article 1 of the First Protocol - protection of property
- For the same reasons, the IT regime is not incompatible with Article 1 of the First Protocol (it was not necessary for the court to hear separate argument on the alleged incompatibility with property rights).
Article 14 - prohibition of discrimination
- There is no discrimination on the grounds of the status of an introductory tenant. All tenants of the authority are introductory tenants and become secure tenants after one year (except where an introductory tenancy is terminated).
- For the purposes of Article 14 it is not correct to compare introductory tenants to tenants who have a different status.
Originally published: 16 February 2001
