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Housing and Regeneration Bill

moved Amendment No. 176: 176: After Clause 297, insert the following new Clause— ““Possession orders and The European Convention on Human Rights A possession order may not be made by any court in respect of any dwelling-house occupied by any person as their home unless the court is satisfied that to make the order would be compatible with Article 8 of the European Convention and, in particular, that it would be proportionate for an order to be made.”” The noble Baroness said: My Lords, this is another amendment that has been suggested to me by the Housing Law Practitioners Association; I said in Committee that I have always found its amendments very apposite. It is prompted by a judgment which just preceded the Committee stage, and therefore it was just too late to table the amendment at that stage. In the case of McCann, the European Court of Human Rights ruled in favour of a former tenant that his summary eviction following termination of his tenancy by his wife’s notice to quit was contrary to Article 8 of the European convention, and he was awarded damages. I appreciate that by tabling this amendment I am seeking to do the Government’s business, but perhaps they can read it as a prompting amendment to enable us to hear what they will do about the judgment. The court held that: "““The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the convention, notwithstanding that, under domestic law, his right of occupation has come to an end””." Unless we have legislation, the issue of proportionality to which the court referred is to be considered by the courts when making a possession order in cases where the occupiers would otherwise have no defence in domestic law. It has been held that there are only two means, or gateways, as they are termed. First, if a seriously arguable point is raised that the law is incompatible with Article 8, the county court should deal with the argument by giving effect to the law by interpreting the law to make it compatible or by adjourning proceedings to enable the compatibility issue to be dealt with by the High Court. The difficulty with that is that domestic law excludes consideration of proportionality in such cases and interpretations may differ. Even then, the incompatible domestic law continues to bind the parties until Parliament has remedied the matter. The second gateway is essentially judicial review, which is not well adapted to this situation. In the McCann case, the court said that it is not well adapted to the resolution of sensitive factual questions better left to the county court ordering possession. In addition, it does not provide an opportunity for an independent tribunal to examine the proportionality issue. Until we have a change or the House of Lords rules differently, the lower courts are stuck. The only certain way of ensuring that the case I quoted is followed in domestic law is by legislation. I therefore look forward to hearing from the Minister what the Government have in mind to deal with the problem. I beg to move.