Agricultural holdings — Arbitration — Agricultural Holdings Act 1986 — Notice to remedy breaches — Legislation distinguishing between repair and non-repair breaches — Legislative discrimination in favour of repair notices over other breach notices — Human Rights Act 1998 — Article 14 of European Convention on Human Rights — Whether unjustifiable discrimination under Article 14 — Whether grounds for declaration of incompatibility — Whether appellant entitled to apply for declaration of incompatibility — Whether 1998 Act discriminating on grounds of property or status — Whether any discrimination objectively justified — Whether 1986 Act compatible with ECHR
The appellant tenant held an agricultural tenancy. In 1994, the first respondent landlords served the appellant with notices to remedy breaches of the user clause in the tenancy agreement. Based upon those notices, they served Case D notices to quit, one of which was upheld following an award by an arbitrator who had been appointed under the Agricultural Holdings Act 1986. The appellant unsuccessfully challenged the arbitrator’s award, and the first respondents issued proceedings claiming possession of the holding based upon the valid notice to quit. The appellant’s defence and counterclaim to those proceedings raised issues as to the compatibility of the 1986 Act, and its subordinate legislation, with the European Convention on Human Rights.
The appellant contended that the 1986 Act distinguished between notices to remedy that required work to be done and other notices to remedy, such as the notice upon which the notice to quit was based. A notice requiring work to be done could be arbitrated, and a notice to quit based upon such a notice could be further arbitrated or made subject to the approval of the Agricultural Land Tribunal (the tribunal) on certain grounds. A notice to remedy other breaches could not be arbitrated, and although a notice to quit based upon such a notice could be arbitrated, it could not be made subject to the tribunal’s approval procedure. The legislation was therefore discriminatory and was in breach of the Convention. That defence was rejected by the court below. On the appellant’s appeal, the principal issues were whether: (1) he was entitled to a declaration of incompatibility on a ground from which he could not benefit because the first respondents were entitled to an order for possession; and (2) if such a declaration were made, the first respondents would be acting unlawfully were a possession order to be enforced.
Held: The appeal was dismissed. The violation complained of by the appellant did not entitle him to seek a declaration of incompatibility; he was not a victim for the purposes of section 7 of the Human Rights Act 1998. Even if the legislation did discriminate against him, there was no realistic possibility that if a declaration of incompatibility were granted, any remedial action that could be taken would benefit him. In any event, the different protection given by the 1986 Act, in respect of the different types of notices to remedy, did not come within Article 14 of the Convention. However, if the distinction made by the 1986 Act did come within Article 14, the legislation showed that it would have been objectively justified. The 1986 Act was compatible with the Convention.
The following cases are referred to in this report.
C (A Child) v Secretary of State for the Home Department [2004] EWCA Civ 234; [2004] UKHRR 813
Evans v Amicus Healthcare Ltd; Hadley v Midland Fertility Services Ltd [2004] EWCA Civ 727; [2004] 3 WLR 681; [2004] 3 All ER 1025
Farrell v Alexander [1977] AC 59; [1976] 3 WLR 145; [1976] 2 All ER 721; (1976) 32 P&CR 292; [1976] 2 EGLR 69; 240 EG 707, HL
Kjeldsen v Denmark A/23; Busk Madsen v Denmark; Pedersen v Denmark (1980) 1 EHRR 711, ECHR
Lancashire County Council v Taylor [2004] EWHC 776 (QB); [2005] 1 P&CR 2
Parrish v Kinsey [1983] 2 EGLR 13; (1983) 268 EG 1113, CA
Pepper (Inspector of Taxes) v Hart [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42, HL
R (on the application of Rusbridger) v Attorney General [2003] UKHL 38; [2004] 1 AC 357; [2003] 3 WLR 232; [2003] 3 All ER 784
R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire [2004] UKHL 39; [2004] 1 WLR 2196; [2004] 4 All ER 193
R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1
Wilson v First County Trust Ltd (No 2); sub nom Wilson v Secretary of State for Trade and Industry [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97
This was an appeal by the appellant, Joseph Taylor, against a decision of Stanley Burnton J dismissing the appellant’s appeal from a decision of Judge Gee, in Lancashire County Court, dismissing his defence and counterclaim and granting an order of possession under a claim by the first respondents, Lancashire County Council. In the Court of Appeal, the Secretary of State for the Environment, Food and Rural Affairs was joined as intervenor.
Joanne Moss and Hugh Mercer (instructed by Napthens, of Preston) appeared for the appellant; Paul Morgan QC and Jane Mulcahy (instructed by the legal department of Lancashire Country Council) appeared for the first respondents; Philip Sales and Paul Harris (instructed by the legal department of the Department for Environment, Food and Rural Affairs) represented the intervenor.
Giving the judgment of the court, Woolf LCJ said:
[1] This is an appeal by Mr Joseph Taylor, a tenant, against an order for possession made in respect of an agricultural holding, Pollards Farm, near to Preston in Lancashire. The order was made by Stanley Burnton J on 7 April 2004 ([2004] EWHC 776 (QB)*. |page:18|
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* Editor’s note: Reported at [2005] 1 P&CR 2
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[2] The first respondents in the proceedings are Lancashire County Council, the landlords and owners of Pollards Farm, a parcel of land consisting of a house and buildings situated in 72 acres.
[3] The claim for possession was started by the issue and service on 21 January 2000 of particulars of claim following a notice to quit dated 16 January 1996. In his defence and counterclaim, Mr Taylor raised issues as to the compatibility of the Agricultural Holdings Act 1986 (the 1986 Act), and subordinate legislation under it, with the European Convention on Human Rights (the Convention) and the Human Rights Act 1998 (HRA). For this reason, the Secretary of State for Environment, Food and Rural Affairs intervened in the proceedings. We shall refer to the parties throughout as the county council, Mr Taylor and the Secretary of State.
[4] The factual background is as follows. Mr Taylor and his wife live in the house at Pollards Farm, and have occupied the holding since 1962, pursuant to a written tenancy agreement dated 19 October 1962. The agreement granted Mr Taylor a tenancy from year to year. The area of land has altered from time to time, the alterations being the subject of two further written agreements.
[5] By clauses 4(13), 4(20) and 4(21) of the agreement, Mr Taylor agreed to use the holding primarily as a dairy and mixed holding, and agreed not to engage in any trade or business other than agriculture and not to use the holding otherwise than for agriculture.
[6] Mr Taylor’s tenancy was (or on his case is) an agricultural holding within the meaning provided by the agricultural holdings legislation. Since 1986, agricultural holdings have been governed by the 1986 Act. In February 1990, the county council discovered that Mr Taylor was carrying on the business of processing, cartoning/bottling and distributing milk and fruit juices that had not been produced on the holding. On 4 May 1990, the county council served on Mr Taylor the first of a number of notices to remedy alleged breaches of the tenancy based upon that use of the land. Subsequently, notices to quit were served, pursuant to Case D of Part I of Schedule 3 of the 1986 Act. In May 1990, Mr Taylor was advised by a solicitor instructed by a land agent acting for him that the activities carried on by him were not breaches of the tenancy agreement. The solicitor further advised Mr Taylor to apply to the court for a declaration that he was not in breach of the tenancy agreement. In the event, at that stage, Mr Taylor took no action.
[7] In 1994, three further notices to remedy breaches of the tenancy agreement were served on Mr Taylor by the county council. Based upon each of those notices, the county council served three notices to quit, the last of which was dated 16 January 1996, to take effect on 2 February 1997. Mr Taylor, as was his right, applied for statutory arbitration under the 1986 Act in relation to each of the notices to quit. An arbitrator was appointed, who, by his award dated 10 March 1998, determined that the last notice to quit was valid and effective.
[8] The award was challenged by Mr Taylor in the county court. His claims were dismissed by Judge Gee on 10 September 1999. So far, all the events occurred prior to the HRA coming into force on 2 October 2000. Mr Taylor appealed, but his appeal was dismissed by the Court of Appeal on 9 February 2001. On 25 July 2001, the House of Lords dismissed Mr Taylor’s petition for leave to appeal the decision of the Court of Appeal.
[9] In the meantime, the county council issued the proceedings that are the subject of this appeal, seeking an order for possession. It is common ground that if the human rights issues are resolved against Mr Taylor there is no defence to the county council’s claim for possession, and the order of the judge must stand.
Agricultural holdings legislation
[10] The human rights issues in this appeal are founded upon what are said, on behalf of Mr Taylor, to be discriminatory provisions contained in the 1986 Act. The judge, in his judgment, dealt with the relevant statutory provisions of the 1986 Act. His summary of the legislation and its effect are not in dispute. Therefore, it is unnecessary for us to deal with it in as much detail as did the judge.
[11] The agricultural holdings legislation applies, in general, only to tenancies beginning prior to 1 September 1995. Tenancies beginning on or after 1 September 1995 are subject to a completely different statutory regime created by the Agricultural Tenancies Act 1995.
[12] The 1986 Act was a consolidating Act. It provided that termination of a tenancy by the landlord could take place only by the service of a notice to quit. It further provided a distinction between two different kinds of notice to quit. The first kind is a notice to quit served pursuant to section 26(1). Such a notice permits a tenant (within a certain time limit) to serve a counternotice that the notice to quit will not have effect unless, on an application by the landlord, the Agricultural Land Tribunal (the tribunal) consents to its operation. The tribunal may only consent to the operation of the notice to quit if it is satisfied that one or more of the justifications for terminating the tenancies specified in section 27(3) is made out. Even where the tribunal is satisfied as to one or more of the justifications, it is required to withhold its consent if it appears to it that a “fair and reasonable landlord would not insist on possession”: see section 27(2).
[13] Section 26(2) excludes from the above statutory provisions notices to quit based upon “cases” set out in Part I of Schedule 3. Case D in Part I of Schedule 3 is the case relied upon by the county council in respect of the notice to quit served on Mr Taylor.
[14] A tenant given a notice to quit based upon any of the eight cases in Schedule 3 can challenge the notice by applying for the issue of its validity to be determined by arbitration. Arbitration under the 1986 Act is dealt with by sections 83 and 84 and subordinate legislation made under section 29. The relevant regulations made under section 29 are the Agricultural Holdings (Arbitration on Notices) Order 1987 (the Arbitration Order).
[15] On its face, Case D deals with notices to quit served on the basis of a failure by a tenant to comply with a notice to pay rent (para (a)), and failure to comply with a notice to remedy a breach of a term of the tenancy (para (b)). Section 28 makes a further distinction in respect of notices to quit served under para (b) of Case D “by reason of the tenant’s failure to do work”: see section 28(1)(b). A notice to do work is defined as a notice “requiring the doing of any work of repair, maintenance or replacement”: see section 28(6).
[16] The Agricultural Holdings (Forms of Notice to Pay Rent or to Remedy) Regulations 1987 provide for prescribed forms in respect of notices to do work and notices to remedy a breach of any other kind. The former must be in form 2, the latter in form 3. Form 1 deals with non-payment of rent.
[17] The regime in respect of notices to quit based upon form 2 is different from the regime for notices to quit based upon form 3. A tenant served with a form 3 notice to quit might apply to have the issue of the validity of the notice to quit determined by arbitration in accordance with the Arbitration Order. If it does so within the time limit, the notice to quit will be suspended until the termination of the arbitration. Under the articles of the Arbitration Order, the arbitrator has limited power, if he finds the notice to quit valid, to extend the time period for remedying the breach, and to postpone the termination of the tenancy. Once time has expired for remedying the breach, the notice to quit will be effective to terminate the tenancy in due course.
[18] A tenant served with a form 2 notice to do work may apply for arbitration before the notice to quit has been served: see article 3 of the Arbitration Order. Thus, a tenant served with a form 2 notice might have its liability to do work of repair, maintenance or replacement determined before it is given a notice to quit. Article 6 extends the time for doing the work, the subject of the arbitration, until the termination of the arbitration, and gives the arbitrator power to further extend the time to do any work that he finds the tenant liable to do.
[19] In addition to the differences between the arbitration procedures and the powers of the arbitrator for form 2 tenants and those for form 3 tenants, a tenant served with a notice to quit based upon a failure to comply with a form 2 notice is entitled to serve a counternotice under section 28(2). The service of a counternotice will cause the notice to be ineffective “unless, on an application by the landlord, the Tribunal consent to its operation”. |page:19|
[20] At the same time, the tenant’s right to arbitration to determine the validity of the notice to quit is preserved (section 28(4)) and it can still serve a counternotice under section 28(2) up to one month from the delivery on it of the arbitrator’s award.
[21] Section 28(5) provides:
The Tribunal shall consent under subsection (2) above to the operation of the notice to quit unless it appears to them, having regard –
(a) to the extent to which the tenant has failed to comply with the notice to do work,
(b) to the consequences of his failure to comply with it in any respect, and
(c) to the circumstances surrounding any such failure,
that a fair and reasonable landlord would not insist on possession
[22] It follows that, by section 28, a form 2 tenant is brought back into a regime similar to the one for tenants served with a notice to quit under section 26(1).
[23] The effect of these differences was described by Stanley Burnton J, in a passage in his judgment accepted by all parties to be accurate, in the following terms:
40. It can be seen that the position of a tenant who is served with a notice to remedy requiring him to do work is very different, and far stronger, than that of a tenant who is served with a non-work notice to remedy. The latter cannot refer any dispute to statutory arbitration until he has been served with a notice to quit. He cannot before he is served with a notice to quit determine by arbitration whether the landlord’s contentions are well founded. If he takes the view that they are not, and the arbitrator appointed after service of a notice to quit finds against him, the notice to quit takes effect and the landlord may recover possession. On the other hand, the tenant farmer who receives a notice in Form 2 may have the extent of his obligation to do work determined by arbitration as soon as a notice to remedy is served, and the time for doing work is extended until the termination of the arbitration. The arbitrator has power to modify the notice to remedy and to extend time for compliance, so that if the tenant has failed in the arbitration, he may have a further opportunity to comply with the notice to remedy. Lastly, the tenant may object to the landlord obtaining possession before the Tribunal, on the ground that a fair and reasonable landlord would not insist on retaking possession.
41. Thus, a tenant who is served with a notice in Form 3 which he considers unfounded and with which he does not comply is said on behalf of Mr Taylor to have to “gamble” with his tenancy, taking a chance that an arbitrator appointed after service of a notice to quit will uphold his case
42. A tenant who is served with a Form 2 “notice to do work” may avoid that gamble by referring his notice to remedy to arbitration before carrying out any of the work required by the landlord. If, after the arbitrator’s award a notice to quit is served, the tenant may again go to arbitration. Moreover, as set out above, recipients of a notice to quit by reason of non-compliance with a Form 2 “notice to do work” have the right to require the landlord to seek the consent of the Tribunal to the operation of the notice to quit in any event.
[24] To this summary, we add a further fact. The distinction between notices to do work of repairs and to remedy other breaches has been part of the legislation since the Agriculture (Miscellaneous Provisions) Act 1963. It is consistent with other and earlier landlord and tenant legislation giving greater protection to tenants alleged to be in breach of covenants to repair.
Issues
[25] It is now accepted by Mr Hugh Mercer, counsel for Mr Taylor, that he cannot demonstrate a breach of any substantive Convention right. His case is that Mr Taylor suffered discriminatory treatment in breach of Article 14 by reason of the statutory scheme, and that we ought therefore to declare the material statutory provision incompatible with the Convention, pursuant to section 4(2) of the HRA.
[26] This raises two associated issues of some importance.
[27] One is whether a litigant can obtain a declaration of incompatibility on a ground from which it cannot benefit. This question has arisen because Mr Mercer has founded his case upon the contrast between an agricultural tenant facing eviction for failure to maintain the holding and one facing eviction for failure to improve it, in each case in breach of covenant. Mr Taylor is in neither class: he faces eviction for breach of a user covenant. But his case, as developed by Mr Mercer, is that since failure to carry out improvements is excluded, along with prohibited user, from the right to prior arbitration, unjustified discrimination in relation to the former makes the entire scheme incompatible with the Convention. If so, a declaration of incompatibility will protect Mr Taylor too, and he is accordingly entitled to apply for it.
[28] Mr Philip Sales, for the Secretary of State, submitted that this is impermissible. If the issue had arisen otherwise than under primary legislation, Mr Taylor would not have ranked as being a victim under section 7(1) of the HRA and could not therefore advance any such claim under the Convention. The same, he said, must be true under section 4 of the HRA. A claim for a declaration of incompatibility is not an action popularis: it can be made only in aid of an otherwise tenable claim or defence here, a defence to an action for possession.
[29] The first question for this court is thus whether, in relation to primary legislation, a declaration of incompatibility can be sought or, if sought, obtained by a party that could not benefit (save possibly through an over-large legislative response) by rectification of the incompatibility. Since it is capable of being dispositive of this appeal, this question is examined below.
[30] The second ancillary issue is whether, if this court were to declare the legislation incompatible with the Convention, the county council, as a public authority, would be acting unlawfully if they went ahead with the eviction of Mr Taylor. Although the relief that he seeks is confined to a declaration of incompatibility, Mr Mercer submitted that the very making of the declaration will mean that the entire process so far has been contrary to the Convention, so that to take any further step in it will put the county council in breach of section 6(1) of the HRA, which makes it unlawful for a public authority to act in a way that is incompatible with a Convention right.
[31] To this, at first sight, compelling submission, Mr Paul Morgan QC, for the county council, responded by pointing to section 6(2)(b), which disapplies section 6(1) where a public authority have acted “so as to give effect to or enforce” provisions that have turned out to be incompatible with the Convention. We do not need to decide whether this is a complete answer unless we decide to make a declaration of incompatibility.
[32] A further potential issue, which has not in the event been canvassed, is retrospectivity. As has been seen, by the time that the HRA came into force on 2 October 2000, the notice to quit had been served and these possession proceedings had been initiated. Section 22(4) of the HRA extends the entitlement given by section 7(1)(b) of the HRA, for a victim to rely upon its Convention rights in any legal proceedings, to proceedings brought by a public authority “whenever the act in question took place”. As we will explain, we do not accept that Mr Taylor is in any event a victim of the assumed breach, and we propose to express no view on the question of retrospectivity.
[33] In addition to the availability of a declaration of incompatibility, the live issues that have been debated before us are whether: (a) the treatment of Mr Taylor comes within the ambit of one or more of Articles 6, 8 and 1 of the First Protocol (Article 1P1); and (b) if it does, the legislation unjustifiably discriminates against him on a ground proscribed by Article 14.
[34] In relation to the second of these questions, the court has been invited to read a substantial body of material annexed to a witness statement made by a senior executive officer in the Department for Environment, Food and Rural Affairs, which, on behalf of the Crown, resists the making of a declaration of incompatibility. Although no formal objection has been taken to its admission, we consider that the tendering of it raises a question of both practical and constitutional significance, and we propose, having invited submissions on the issue, to say something about it at the end of this judgment.
[35] For the rest, it seems to us that it is not necessary to embark upon the difficult question posed under head (a) above as to what acts, although not in breach of a Convention right, come sufficiently within its ambit to attract the operation of Article 14. We propose to assume, for the purposes of this judgment, that the procedure deployed against Mr Taylor comes within the ambit either of Article 6 (fair trial) or |page:20| Article 8 (respect for private life) or Article 1P1 (protection of property). We note, in fact, that the county council’s reply admitted that the case fell within the ambit of Article 6.
[36] The questions then arising under head (b) are, first, whether the differential treatment of Mr Taylor, or of others equally excluded from arbitration in which alone a “fair and reasonable” test is applied, is based upon property or status, and, second, whether, if it is so based, it is objectively and rationally justifiable.
Can a declaration of incompatibility be made on grounds that do not apply to the party seeking it?
[37] The primary objective of the Convention is to secure for individuals the rights and freedoms set out in the Convention. Sometimes, the rights are expressed in positive terms. Articles 6 and 8 are examples. Other rights are created that prohibit particular conduct. Here, examples are provided by Article 3, which prohibits torture, and Article 14, which prohibits discrimination. The HRA and the Convention also play an educative role by promoting the observance of human rights and, thus, the Convention. One way in which this objective is achieved is by requiring a minister to make a statement of compatibility in regard to any new legislation in accordance with section 19 of the HRA.
[38] It is not, however, the intention of the HRA or of the Convention that members of the public should use these provisions, if they are not adversely affected by them, to change legislation because they consider that the legislation is incompatible with the Convention. This is made clear by the language of section 7(1) of the HRA. Section 7(1) is in the following terms:
A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
[39] Section 7(7) is also relevant because it makes it clear that a person is not a victim if he would not be a victim for the purposes of Article 34 of the ECHR. In para 2.7.2 of Human Rights Law and Practice, Lester and Pannick (2nd ed), 2004, there are nine principles set out that, it is stated, indicate the jurisprudence of the European Court as to who is a victim. Among those principles are the following:
(a)… the procedural provisions are part of a Convention designed “to protect the individual”, and so they must “be applied in a manner which serves to make the system of individual applications efficacious”.
…
(c) To establish that they are “victims”, individual complainants do not need to show that their rights have been violated by “an individual measure of implementation”. It suffices that they “run the risk of being directly affected by” the measure of which complaint is made.
None of the authorities relied upon suggests that, in the circumstances here, Mr Taylor could be regarded as a victim.
[40] Although Mr Taylor did not initiate the proceedings, he is counterclaiming and relying, in his counterclaim, upon the alleged incompatibility of the 1986 Act. If he had been a tenant who had covenanted to make an improvement to his holding, and possession had been sought on the ground that he had failed to make the improvement, arguably he could reasonably have contended that he was a victim for the purposes of section 7. However, the breach of covenant he is alleged to have committed has nothing to do with the alleged discrimination upon which he relies.
[41] Furthermore, even if he could suggest that the 1986 Act discriminates against him, there is no realistic possibility that if, in consequence, a declaration of incompatibility were granted, any remedial action that could be taken would benefit him in any way. The express power to take remedial action contained in the HRA is confined to taking such action as the “Minister of the Crown… considers necessary to remove the incompatibility”: see section 10(2), and in the case of the subordinate legislation, section 10(4).
[42] In addition, the grant of a declaration of incompatibility, which is the remedy that Mr Taylor seeks, is discretionary: see section 4(3). As Lord Slynn in R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 stated, at p68, “a declaration of incompatibility is a measure of last resort which must be avoided unless it is plainly impossible to do so”. It is doubtful in the extreme that a court would exercise its discretion in favour of Mr Taylor if he could not be affected by the breach of the Convention upon which he was attempting to rely.
[43] Mr Sales submitted correctly in argument that section 7 of the HRA is a provision that primarily goes to standing. Although in the field of human rights, as in public law generally, the courts are not attracted to arguments based upon a lack of standing if there is merit in the argument that is being advanced, here it is hard to see how Mr Taylor’s argument can be categorised as being other than purely hypothetical. As Lord Hutton, Lord Roger of Earlsferry and Lord Walker of Gestingthorpe pointed out in R (on the application of Rusbridger) v Attorney General [2003] UKHL 38; [2004] 1 AC 357, in [36], [58] and [61], said: “it is not the function of the courts to keep the statute book up to date. That important responsibility lies with Parliament and the Executive.”
[44] We are conscious that in the very different circumstances that were being considered in Rusbridger, Lord Steyn stated, in [21]:
The starting point must be that the relief claimed may, as a matter of jurisdiction be granted. “The Guardian” do not have to demonstrate that they are “victims” under section 7 of the Human Rights Act 1998. That much is conceded and, in any event, obvious on [a] proper view of the place of section 3 in the scheme of the Human Rights Act 1998. It is, however, worth noting the broad approach which the European Court of Human Rights adopts to the concept of victim.
This desirably flexible approach to the grant of declarations cannot appropriately be applied in the circumstances that exist here where Mr Taylor has not been and could not be personally adversely affected by the repealed legislation upon which he seeks to rely. To allow him to do so would be to ignore section 7 of the HRA. On this ground alone, we could dispose of his appeal. However, in view of the other issues that have been fully argued before us, we do not consider that it would be right to confine our decision to this point alone.
Does the 1986 Act discriminate on grounds of property or status?
[45] The 1986 Act, as has been seen, affords a more generous regime to tenant farmers who are alleged to be in breach of covenants to repair, maintain or replace than to those alleged to be in breach of other covenants. Neither can be evicted at will, but farmers in the former class are able to go to arbitration before they receive a notice to quit and to fend off possession if a fair and reasonable lessor would not be seeking it. Those in the latter class can go to arbitration on their liability to eviction once they have received notice to quit, but without any fallback upon fairness or reasonableness once an entitlement to possession has been established. The latter class includes not only farmers like Mr Taylor, who are said to be making unauthorised use of the holding, but also farmers who are said to be in breach of a covenant to improve it.
[46] In our judgment, neither class of farmer is so treated by the 1986 Act on the ground of his property or of his status. The differential treatment depends solely upon the content of the covenant that is alleged to have been breached, or upon the nature of the breach of covenant alleged – it does not matter which way it is put.
[47] Article 14 provides:
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
[48] The object of Article 14 is to ensure that the benefit of the Convention is accorded to everyone: men and women, black and white, rich and poor. Hence, the specification of sex, colour and property |page:21| among the proscribed grounds of discrimination. The only sense in which it has been possible for Mr Mercer to suggest that property is engaged in the present case is a consequential sense: eviction affects property. But this is to put Article 14 into reverse. It is Article 1P1 that seeks, in limited circumstances, to protect property and so looks to consequences. Article 14, by contrast, looks to the source of a difference in enforcement of, or access to, this and other rights. In a case like the present, it is impossible to say that the material distinction, whether it is one of process or of substance, in any sense derives from, or is based upon, Mr Taylor’s property rights or interests. The amenability of all agricultural tenancies to arbitral or legal process is, of course, property-based, but that involves no discrimination. By contrast, the legislative distinction between the routes open to some agricultural tenants and not to others does not depend in any sense upon what property they possess: it depends solely upon what covenant they are said not to have observed.
[49] Is there then discrimination against tenants like Mr Taylor on the ground of their status? Status here means a distinguishing personal characteristic: see R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire [2004] UKHL 39*, in [48] to [49], per Lord Steyn, citing Kjeldsen v Denmark A/23 (1980) 1 EHRR 711, in para 56. Put another way, it “has to do with who people are, not with what their problem is”: see C (A Child) v Secretary of State for the Home Department [2004] EWCA Civ 234†, in [36]. So approached, there is nothing in Mr Taylor’s identity that singles him out for differential treatment. The differential treatment arises, as we have said, out of the character of the material covenant and the breach of it.
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* Editor’s note: Reported at [2004] 1 WLR 2196
† Editor’s note: Reported at [2004] UKHRR 813
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[50] This would be enough to sustain the decision of Stanley Burnton J that there was no defence to the possession action, even assuming that incompatibility, if established, could prevent eviction under the extant domestic legislation. But since justification has not only been argued but has thrown up a further problem, we propose to deal with it.
If the 1986 Act discriminates on a proscribed ground, is the distinction objectively justified?
[51] In our view, there is sufficient, on the face of the legislation, to demonstrate a rational objective justification for the discrete routes available to agricultural tenants facing allegations of breach of covenant, depending upon the breach alleged. We include in the legislation the antecedents of the consolidating Act of 1986 because this is not an exercise in statutory construction constrained by the limits set out in Farrell v Alexander [1977] AC 59‡. As was made clear in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40§, an inquiry into the justification for a discriminatory rule of law is a different exercise. We also include the cases decided on the earlier versions of the Agricultural Holdings Act, which are usefully summarised in the judgment of May LJ in Parrish v Kinsey (1983) 268 EG 1113¶ and which show a clear balance of hardship on tenants who may have expended large sums of money on the upkeep of their holdings and yet have found themselves faced with a notice to quit on account of a failure to do further, and quite possibly excessive, work. Although there was more than one feasible solution to the problem, it is entirely intelligible that parliament chose to draw a line, on one side of which were to be farmers who were at risk of inflated notices to repair, maintain or replace and for whom an early arbitration to sift the proper from the improper was desirable, and on the other side of which there remained tenant farmers facing other alleged breaches of covenant. (Of course, a good many farmers find themselves in both situations.)
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‡ Editor’s note: Also reported at [1976] 2 EGLR 96
§ Editor’s note: Reported at [2004] 1 AC 816
¶ Editor’s note: Also reported at [1983] 2 EGLR 13
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[52] What in Mr Mercer’s contention is not intelligible, and therefore not justifiable, is leaving out of the early arbitration group farmers who are alleged to be in breach of a covenant to improve the holding. Leaving aside, for the moment, the fact that this was not Mr Taylor’s situation, we do not think that this is either arbitrary or unfair. All holdings decay with time and need repair and maintenance, and the eventual burden on the tenant is rarely predictable and frequently heavy. It is not hard to see how the covenant to maintain can become an engine of oppression. By contrast, a tenant who undertakes an affirmative covenant to improve the holding will be able to quantify the obligation in advance in terms of prospective cost and discounted rent. The obligation is more nearly akin to the obligation to pay rent or to use the holding in one way and not in another; or at least is not on all fours with the covenant to maintain. Breaches of such obligations are capable of being identified, specified, contested, if non-existent, and remedied, if remediable. Although there will inevitably be exceptions, the process does not carry the same risk of oppression as the covenant to maintain. Parliament might, without doubt, have chosen to draw the line elsewhere, but that does not make this allocation of protection unjustified or unreasonable.
Use of parliamentary materials in relation to justification
[53] What then of the evidence submitted on behalf of the Secretary of State? The material that, as the judge noted, was adduced without objection and was therefore cited by him at large, consisted of a witness statement summarising the history of legislative reform and exhibiting substantial extracts from the reports of the parliamentary debates upon what became the predecessor Acts of 1963 and 1976; a cutting from the Farmers’ Weekly of 7 November 1975; extracts from the drafter’s notes on clauses on the 1976 Bill; correspondence dating from 1951 between the National Farmers’ Union and the Ministry of Agriculture and Fisheries; and some extracts from the Agriculture Act 1947. The witness statement itself goes on to comment upon and provides a gloss upon the Hansard extracts. It includes an account of current government policy that has no apparent bearing at all upon the issue before the court. It puts the case for the distinction that is under attack.
[54] In so far as the foregoing represents argument, its proper source is counsel, not a witness. In so far as it recounts history that cannot be extracted from the successive Acts, it is relevant and helpful. Such history may properly include issues that had come to the attention of the department of state sponsoring the material legislation, for example, through correspondence with a representative body. (It is not immediately obvious, even so, that a news clipping from the trade press comes into this class.)
[55] The use of the drafter’s notes on clauses is problematic in this context. Although they are now commonly made public, those exhibited in the present case will not reach the Public Record Office until next year. Like Hansard (see Pepper (Inspector of Taxes) v Hart [1993] AC 593), they may well help to elucidate the intended meaning of an ambiguous provision, and one can also see that they might, by setting out the reasons for a draft provision, help to show whether it was justified. The difficulty, and the reason why caution is needed, is that these notes on clauses will not have been available to members of either House. To the extent that ministers used them in debate, they will feature in Hansard. It is therefore to Hansard that one needs principally to turn.
[56] In Evans v Amicus Healthcare Ltd; Hadley v Midland Fertility Services Ltd [2004] EWCA Civ 727*, Thorpe and Sedley LJJ, in a joint judgment, drew attention, in [42] to [56], to the problem presented to the court by similarly expansive departmental evidence, in that instance concerning the Human Fertilisation and Embryology Act 1990. The principal concern was the use of these materials to show what the departmental policy was at the time the Act was framed. It was pointed out (in [56]) that the use of departmental policy as an aid to the construction of a statute had implications for the separation of powers.
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* Editor’s note: Reported at [2004] 3 WLR 681
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[57] A similar concern arises if departmental, that is, ministerial or governmental policy, is relied upon to explain and justify a discriminatory legislative provision. As Lord Nicholls pointed out in Wilson, in [61], the underlying social purpose of legislation will |page:22| frequently, albeit not always, be self-evident. In the minority of cases where it is not, their lordships accepted that additional background information might be relevant and therefore admissible. But in a passage that was less material in Evans (where it was not cited) than it is here, Lord Nicholls went on to say:
66. I expect that occasions when resort to Hansard is necessary as part of the statutory “compatibility” exercise will seldom arise. The present case is not such an occasion. Should such an occasion arise the courts must be careful not to treat the ministerial or other statement as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the minister’s reasoning or his conclusions.
67. Beyond this use of Hansard as a source of background information, the content of parliamentary debates has no direct relevance to the issues the court is called upon to decide in compatibility cases and, hence, these debates are not a proper matter for investigation or consideration by the courts. In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore in response to questions, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which “counts against” the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill of Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute.
[58] It seems to us, in the light of this passage and of passages to similar effect in the speeches of other members of the Appellate Committee, that where departments of state exercise the Crown’s entitlement under section 5 of the HRA to be joined in proceedings where a declaration of incompatibility is sought, care must be taken not simply to produce anything from the files that helps to show why the impugned legislation took the form it did, but to approach the matter rather more rigorously. The first question is whether the policy justification for the distinction that is in issue is apparent from the legislation, whether read by itself or with its antecedents and the cases decided on the provisions. Only if the policy is not apparent from these materials should it become necessary to look wider. In that event, great care needs to be exercised to avoid the adduction of passages from parliamentary debates that, by being open to more than one construction, invite the court to transgress article IX of the Bill of Rights. What has to be kept in mind throughout is that, as with the process of statutory construction, the inquiry is into parliament’s intention, and that in relation to both the primary source is the text that parliament has adopted.
[59] For these reasons, had we found it necessary to go beyond the text and the legislative and judicial history of the 1986 Act itself, we would have admitted little, if any, of the parliamentary material set out over several pages by Stanley Burnton J. We would not have admitted the contributions of members to the debates, nor would we have admitted ministerial statements that say no more than can be readily seen from the legislation itself. What might have been of relevance, because it went to the distinction of which complaint is made in these proceedings, is the statement of the parliamentary secretary to the ministry, Mr Gavin Strang, to the Commons standing committee on 10 February 1976, explaining why it was proposed to treat non-work notices differently from notices to do work. The explanation is, in fact, less complete than the one that we have derived earlier in this judgment from the legislation alone: it describes notices to do work as “of a different order” from notices to remedy breaches such as non-payment of rent or failure to live in the farmhouse, but does not touch on notices to make improvements. So even this, in the end, seems to us not to add materially to the sum of the court’s knowledge.
[60] Departments of state need also to bear in mind that they have an advantage in this field. They have access to materials to which other parties have no access or which it would be difficult and expensive for them to search out. But, axiomatically, an exercise of this kind, if it is to be carried out at all, must disclose the unwelcome along with the helpful. If, for example, there had been internal documents acknowledging an inconsistency in the protection to be given to tenant farmers and advancing no good reason for it, they would have been added to the exhibits. The fact that there were evidently no such documents in the present case does not dilute the cautionary reminder that if research of this kind is to be placed before the court, it cannot be selective in what it tends to show.
Conclusion
[61] We conclude that:
(i) The violation of which Mr Taylor complains does not entitle him to seek a declaration of incompatibility on the ground of a different violation.
In any event:
(ii) The differential protection given by the 1986 Act does not come within Article 14 of the Convention.
(iii) If the distinction made by the 1986 Act did come within Article 14, the legislation shows that it would be objectively justified.
(iv) The 1986 Act is therefore compatible with the Convention.
[62] The appeal is therefore dismissed.
Appeal dismissed.
