Agricultural tenancy — Notice to quit for breach of tenancy — Possession proceedings — Whether scheme of Agricultural Holdings Act 1986 discriminatory and incompatible with Article 14 of European Convention on Human Rights — Whether Convention argument open to appellant in possession proceedings — Appeal dismissed
The appellant occupied a farm pursuant to a tenancy governed by the Agricultural Holdings Act 1986. The respondent landlords served a series of notices on the appellant, requiring him to remedy alleged breaches of the tenancy agreement, consisting of unauthorised use of the land. They later served notices to quit, based upon those notices, pursuant to Case D of Part I of Schedule 3 to the 1986 Act. In statutory arbitration under that Act, the arbitrator determined that the final notice to quit was valid and effective.
In the meantime, the respondents brought possession proceedings, at which the appellant’s sole defence was that the scheme of the 1986 Act was incompatible with the European Convention on Human Rights (the Convention). The judge granted the possession order.
On appeal, the appellant accepted that he could not demonstrate a breach of any substantive Convention right. However, he argued that he had suffered discriminatory treatment in breach of Article 14 by reason of the statutory scheme. That scheme afforded a more generous regime, in relation to arbitration and possession, to tenants alleged to be in breach of covenants to repair, maintain or replace, than to those alleged to be in breach of other covenants. The appellant submitted that the scheme thereby made an unfair distinction between farmers facing eviction for failure to maintain the holding and those facing eviction for failure to improve it. Although he himself was neither, he relied upon the fact that improvements cases and his own case of prohibited user both fell within the “other covenants” class, and argued that unjustified discrimination in respect of the former made the entire scheme incompatible with the Convention.
Held: The appeal was dismissed.
Neither the Human Rights Act 1998 (HRA) nor the Convention intended that members of the public who were not adversely affected should use those provisions to change legislation that they considered to be incompatible with the Convention. The appellant was not a “victim” for the purposes of section 7 of the HRA. The breach of covenant that he was alleged to have committed had nothing to do with the alleged discrimination upon which he relied. Furthermore, even if he could suggest that the 1986 Act discriminated against him, there was no realistic possibility that any remedial action taken in consequence of a declaration of incompatibility would benefit him in any way. The express power to take remedial action was confined to such action as the relevant minister considered necessary to eliminate the incompatibility: see section 10(2) and (4) of the HRA. In addition, the grant of a declaration of incompatibility was discretionary and was a measure of last resort; it was extremely doubtful whether a court would exercise its discretion in favour of the appellant if he could not be affected by the breach of covenant upon which he was attempting to rely: R v A (No 2) [2002] UKHL 25; [2002] 1 AC 45 applied; R (on the application of Rusbridger) v Attorney-General [2003] UKHL 38; [2004] 1 AC 357 (advocating a flexible approach to the grant of declarations) distinguished.
Moreover, the 1986 Act did not discriminate on grounds of property or status. The differential treatment between the two classes of farmer identified by the appellant was not on the ground of their property or status. It depended solely upon the content or nature of the covenant alleged to have been breached. Although property was engaged in a consequential sense, in that eviction affected property, Article 14 looked not to consequences but to the source of a difference. In any event, there was sufficient material, on the fact of the legislation, to demonstrate a rational and objective justification for the discrete routes available to agricultural tenants facing eviction.
Joanne Moss and Hugh Mercer (instructed by Napthens Solicitors, of Preston) appeared for the appellant; Paul Morgan QC and Jane Mulcahy (instructed by the solicitor to Lancashire County Council) appeared for the respondents; Philip Sales and Paul Harris (instructed by the solicitor to DEFRA) appeared for the intervenor, the Secretary of State for Environment, Food and Rural Affairs.
Sally Dobson, barrister
