Taylor v Lancashire County Council & Anor

A person cannot obtain a declaration that primary legislation is incompatible with the Convention by relying on an alleged violation which does not affect him and whose correction could not benefit him. The human-rights jurisdiction does not permit a purely hypothetical challenge to legislation.

For discrimination under article 14, the differential treatment must arise from a proscribed ground. A distinction based solely on the nature of a contractual covenant and its alleged breach is not based on property or personal status. In any event, differential statutory protection is objectively justified where the legislative scheme itself reveals a rational response to materially different risks faced by the affected groups.

The County Council obtained possession of an agricultural holding after an arbitrator upheld a notice to quit based on the tenant’s breach of a user covenant. Stanley Burnton J made the possession order on 7 April 2004. The tenant appealed, alleging that the differing protections afforded by the Agricultural Holdings Act 1986 were discriminatory and seeking a declaration of incompatibility under the Human Rights Act 1998.

Tenants required to perform repair, maintenance or replacement work could obtain arbitration before receiving a notice to quit and could invoke a fair-and-reasonable-landlord safeguard. Tenants accused of other breaches, including prohibited use or failure to improve, did not receive those protections. The appellant had breached a user covenant but based his principal discrimination argument on the position of tenants subject to covenants to improve.

The issues were whether he could seek a declaration on a ground which did not affect him, whether the statutory distinction rested on property or other status under article 14, and whether any differential treatment was objectively justified.

1. Appeal dismissed. The appellant could not seek a declaration of incompatibility by relying on a different alleged violation which neither affected him nor could realistically be remedied for his benefit. The Convention protects individuals, while section 7 of the Human Rights Act 1998 confines reliance on Convention rights to victims. The alleged discrimination concerning covenants to improve was unrelated to the appellant’s alleged breach of a user covenant. His challenge was therefore purely hypothetical. A declaration under section 4 was also discretionary and a remedy of last resort: paras 37–44.

2. The court assumed, without deciding, that the possession procedure fell within the ambit of article 6, article 8 or article 1 of the First Protocol. Article 14 nevertheless did not apply. The distinction drawn by the Agricultural Holdings Act 1986 depended on the content of the covenant and the nature of its breach, not on the tenant’s property or personal status. Property under article 14 concerns the source of differential treatment, rather than the fact that eviction affects property. Status denotes a distinguishing personal characteristic and concerns who a person is, not the nature of his problem: paras 35–50.

3. Even if article 14 applied, the distinction was objectively and rationally justified. Repair and maintenance covenants expose agricultural tenants to unpredictable and potentially oppressive demands for extensive work. Early arbitration and a fair-and-reasonable-landlord safeguard rationally address that risk. An affirmative covenant to improve can ordinarily be quantified in advance and is more closely comparable with obligations to pay rent or observe a user covenant. Parliament could rationally place it outside the enhanced regime: paras 51–52.

4. When compatibility or proportionality is challenged, the court should first identify the legislative policy from the statutory text, its antecedents and relevant judicial history. Wider departmental and parliamentary material is appropriate only if that policy is not apparent. Ministerial statements do not determine Parliament’s objective intention, and courts must avoid assessing the quality of parliamentary reasoning contrary to article 9 of the Bill of Rights 1689. Any departmental research placed before the court must disclose unhelpful as well as supportive material: paras 53–60.

5. The statutory scheme was compatible with the Convention. The possession order therefore stood: paras 61–62.

1. Court of Appeal (Civil Division): The appeal was dismissed and the possession order was affirmed: [2005] EWCA Civ 284.

2. High Court, Queen’s Bench Division: Stanley Burnton J made an order for possession on 7 April 2004 after rejecting the tenant’s human-rights defence. No citation is stated.

3. Earlier statutory proceedings: An arbitrator determined on 10 March 1998 that the final notice to quit was valid and effective. His Honour Judge Gee dismissed the challenge to the award on 10 September 1999. A prior Court of Appeal dismissed the resulting appeal on 9 February 2001, and the House of Lords refused leave to appeal on 25 July 2001. Those proceedings preceded the possession order now under appeal.