The Tate Modern case: are human rights relevant to property law cases between private parties?

This raises the question: can the same be said of human rights arguments raised in property law cases between private parties, more generally?

The application of Convention Rights

The Human Rights Act 1998 (the “HRA 1998”) gives effect to certain rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and in the Protocols to it (the “Convention Rights”). Of particular relevance to property law cases are:

• Article 8, the right to respect for private and family life
• Article 1 of the First Protocol (A1P1), the protection of property, which gives a person entitlement to the peaceful enjoyment of their ‘possessions’ (which has a wide meaning)
•  Article 6, the right to a fair trial

These are ‘qualified rights’, as they can be restricted where it can be shown that a restriction is prescribed by law, legitimate, necessary and proportionate and not discriminatory.  

The Convention Rights are, therefore, part of the law of the UK. Under the terms of the HRA 1998:

• Courts must take into account decisions and opinions of the European Court of Human Rights (“ECHR”)
• Courts must interpret and give effect to primary and subordinate legislation in a way which is compatible with Convention Rights
• Courts may, if necessary (and usually as a last resort), declare primary legislation is incompatible with a Convention Right
• There is an overriding obligation on public authorities, under section 6 of the HRA 1998, not to act in a way which is incompatible with a Convention Right, save where, as a result of primary legislation, they could not have acted differently, or where primary legislation cannot be read compatibly

The last point means that individuals involved in actions where one of the parties is a public authority can seek to invoke human rights arguments. There are many examples of cases between local authorities and private individuals where human rights have been invoked to try to limit a local authority’s actions. Public authorities include any body whose functions are of a public nature; and the courts have had to consider whether bodies such as care homes, church councils, and registered providers have constituted public bodies.

However, it is important to note that courts are also public authorities, within the meaning of the HRA 1998, and are, therefore, also required not to act in ways which are incompatible with the Convention Rights. This brings about the possibility of the so-called “horizontal effect” (though not terminology used by Judges in the English courts), which permits Convention rights to be invoked before a national court in cases involving two private parties. But how willing are the courts to apply Convention rights in property law cases between private parties?

The McDonald case 

The McDonald v McDonald [2016] case demonstrates the courts are not willing to apply Convention Rights where the legislative position is clear. This was a mortgage repossession case which followed on from a line of case law in which the ECHR found that a person at risk of being dispossessed of their home by a public authority should have the right to question the proportionality of this interference under Article 8. However, this left open the question of whether the tenant of a private landlord enjoys a similar right. 

The Supreme Court in the McDonald case rejected this position. The Court found that Convention Rights do not require the courts to consider the proportionality of the eviction of an occupier by a private sector landlord, where there are legislative provisions which Parliament has decided properly balance the competing interests of private sector landlords and tenants (such as section 21 of the Housing Act 1988). Whilst the Court acknowledged that the courts were “public authorities” for the purposes of the HRA 1998, and that a court order would be what deprives the tenant of their home, courts were “merely the forum for the determination of the civil rights in dispute between the parties” and “once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate”. Convention Rights cannot be used between private parties to alter their contractual relationship. While the courts are sometimes required to balance the conflicting Convention rights of two or more people, this is where the legislature has expressly or impliedly, or through inaction, left it to the courts to carry out the balancing exercise. The judgment in this case was later affirmed on appeal to the ECHR.

This left open the question of whether the courts could apply Convention rights between private parties in areas of property law which are governed largely by common law (the body of law created by the courts and tribunals by virtue of being stated in written opinions) - such an area is the law of private nuisance, which was considered in the Tate Modern case.

The Tate Modern case

The case involved a viewing platform at the Tate Modern, which afforded visitors panoramic views of central London, but also overlooked residential apartments in a nearby block of flats – apartment owners said they felt like being on “display in a zoo”.

The apartment owners claimed that the gallery was a ‘public authority’, within the meaning of the HRA 1998, and its actions in constructing the platform amounted to a breach of the HRA 1998, as it infringed their right to respect for private and family life contained in Article 8. This argument was dismissed at the High Court, on the basis that the Tate Modern was not exercising functions of a public nature; and was not appealed. 

However, Article 8 was still invoked by the apartment owners in the appeal courts, relying on the Court’s obligations as a public body to apply the Convention Rights. This was because there was doubt over whether the law of private nuisance was capable of extending to acts of overlooking, and Article 8 was therefore used to try and bridge the gap.

In fact, the apartment owners were successful on the basis that the viewing platform was an exceptional use of the gallery's land - it attracted thousands of visitors each week, many of whom peered into, and took photographs of, the interior of the flats. That was seen as amounting to a substantial interference with the ordinary use and enjoyment of the apartments and, therefore, a private nuisance, quite aside from any Article 8 concerns. However, both the Court of Appeal and the Supreme Court addressed the Article 8 argument and made some important (albeit, not legally binding) comments.

The appeal courts effectively said that Article 8 has little role to play in cases of private nuisance such as this. The Court of Appeal said the case for private nuisance needs to be considered separately to whether there had been an infringement of Article 8 and went on to note “there has never been a Strasbourg case in which it has been held that mere overlooking by a neighbour or a neighbour’s invitees is a breach of Article 8”. It added that even if there was an infringement of Article 8, Member States have a wide “margin of appreciation” to remedy any gaps in law relating to private life and respect of home life (the concept of the “margin of appreciation” originates from ECHR case law and acknowledges that national authorities are better placed to evaluate local needs and conditions than an international court and, therefore, it is often for the State to decide how its own law strikes a balance between the rights of the individual and the needs of society). The Court then went on to list a number of common law principles and statutes which touch upon privacy, but do not extend protections to overlooking. This led to it conclude that it was best left to the legislature to fill the gap.

The Supreme Court agreed with the Court of Appeal’s comments and said it was by no means clear that Article 8 imposes a positive obligation on a state to intervene in some way in a dispute between private parties of the kind in the Tate Modern case. It too suggested that in well developed areas of law, such as private nuisance and the laws around privacy, it was for the State to decide how to fill any gaps. 

Conclusion

In light of the Tate Modern case, it may be safe to say that human rights are not relevant in private nuisance cases where no public authority is involved, particularly those involving mere overlooking. It also suggests that there will be significant hurdles in invoking human rights in actions between private parties, particularly where domestic law is well developed. However, given the courts remain public authorities which are required not to act in a way which is incompatible with Convention Rights, human rights arguments between private parties will remain relevant in some areas of property law and should not be overlooked.