Building Safety Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 29th March 2022 Lords Chamber

There are lots of other amendments in this group but, for me, at the heart of it is the principle. I hope we will now hear from the noble Lord, Lord Marks—if the noble Lord, Lord Blencathra, will permit that—so that he can explain why we think that Amendments 155 or 156 are permissible according to the ECHR.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, it is a great pleasure, especially after that introduction, to follow my noble friend Lady Pinnock. I should say that I have not spoken before on this Bill, and I apologise for coming in only at this stage. I want to contribute on just one aspect of the amendments in this group: the legal advice that the Government have apparently found persuasive, referred to by the noble Lord, Lord Young of Cookham, and by my noble friend Lady Pinnock.

Noble Lords have heard that Amendments 155 and 156—and, to a lesser extent, 158 and 159—would significantly limit the permitted maximum payable by leaseholders under paragraphs 5 and 6 of Schedule 9 below the caps contended for by the Government, so that leaseholders would pay nothing, or only a small amount, towards remediation costs. The Government have asserted that, if those amendments were passed, the legislation would probably breach a freeholder’s right to the peaceful enjoyment of their property under Article 1 of Protocol 1 of the ECHR. I also understand that the Government are therefore concerned that that would mean the Minister could not make a statement of compatibility in conformity with Section 19 of the Human Rights Act.

I do not accept that analysis, and I will say briefly why—and I hope I will be forgiven for quoting the relevant part. It is right that the article provides, in paragraph 1:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”


But paragraph 2 goes on to say:

“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”


I am relatively confident that this is not a straightforward deprivation case in the first paragraph, because there is no expropriation of the freeholder’s property, in fact or in law. My understanding is that the Government agree with this, although they say that the Strasbourg case law is not clear on the point. On that, I disagree. My reading of the cases on this issue is that they are indeed relatively clear, and that any argument that this is a full deprivation case is unsustainable. But much more difficult is the question of whether this is a case of the Government controlling the freeholder’s use of their property, in such a way as to amount to a breach of the article by imposing effectively the entire remediation costs on those freeholders.

On the initial point as to whether or not this would be a control of use, I think the Government’s advice would be right, but that is not the end of the story. Once control of use is established, then the test is whether the conditions for its lawfulness in paragraph 2 of the article are met by the state. The test for a court, domestically or in Strasbourg, would be threefold. First, does the control of use serve the public interest? Secondly, does it comply with the conditions prescribed by law? Thirdly, does it pass what is sometimes called the fair balance test—that is, does is strike a fair balance between competing interests, and/or is it a proportionate response?

Generally, the European Court of Human Rights will interfere only if the state’s control of use has been arbitrary or manifestly unreasonable. In my view, freeholders would face a difficult uphill battle to persuade a court that a requirement that they meet full remediation costs, pursuant to primary legislation for a clearly public-interest aim—that the fire safety of buildings should be paid for by the freeholder, not my blameless leaseholders—conflicted with the principle of lawfulness or failed to meet the legitimate aim requirement.

Significantly in this context, the protection of the environment—which is, I suggest, analogous to the safety of residential property—has been clearly marked out in cases as a legitimate public interest, as have housing regulations involving rent control and protected tenancies.

The freeholders would have to rely on what is essentially a backstop argument: that these provisions, as amended—if they are—fail to strike a fair balance between their interests in their enjoyment of their property and the interests of the state in achieving a legitimate public policy aim. To rebut such an argument the state would have to show only that the law, as enacted, avoids arbitrariness, that it is foreseeable in its application, and that it strikes a balance between the public interest in protecting blameless leaseholders from heavy charges and the private right of commercial freeholders to enjoy their property. It would be difficult to argue that this legislation, even with any of the proposed amendments, failed to meet the fair balance test.

Nor is it, in my view, central to this argument that there should be a contribution of a particular amount or of a capped amount. For my part, I doubt that the European Court of Human Rights would find that the argument turned on the amount of any contribution by leaseholders. In this I disagree with the Government’s assessment. Indeed, it could be argued that the Government would be more, rather than less, vulnerable to an accusation of arbitrariness if they picked on a particular figure as a defensible cap, rather than legislated for nil contributions from leaseholders.

I am greatly fortified in my overall view by the fact that the margin of appreciation, as it is known, for states in the application of the fair balance test is very wide. I will omit the references that it makes to a number of decided cases, but the European Court of Human Right’s guide on this article, at paragraph 134, I think, says that

“the margin of appreciation available to the legislature in implementing social and economic policies will be a wide one and the Court will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment be manifestly without reasonable foundation … Furthermore, the notion of ‘public interest’ is necessarily extensive … The Court normally shows deference to the Contracting States’ arguments that interference under its examination was in the public interest and the intensity of its review”


—the court’s review—

“in this regard is low.”

It follows that I do not believe that a Minister could not properly and conscientiously make a statement under Section 19 of the Human Rights Act that, to use the words of Section 19,

“in his view the provisions of the Bill are compatible with the Convention rights”.

The Minister does not have to be certain; a 51% chance of success in resisting a challenge is sufficient. In my view, that standard is met.