Property and positive obligations under the ECHR

The European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) is a well known, sometimes misunderstood but crucially important international law instrument. It does many things, from its absolute prohibition on torture (no exceptions or wriggle room as far as article 3 is concerned) to its provisions on a fair trial, freedom of expression and a private life. It is difficult to write a snappy, readable introduction to the ECHR without somehow belittling just how crucial and important the document is. That crucial, core document has a number of additional protocols, such as the protocol on the abolition of the death penalty in all circumstances to the oldest such protocol on property rights.

Why was property buried in an additional protocol? Law, meet politics. A simplificiation, perhaps, but suffice it to say the post WWII governments like as Clement Attlee’s UK were not that willing to sign up to any constraints to plans that might involve nationalisation of assets and/or redistribution of assets. So an additional protocol was necessary to allow the less controversial and crucial (did I already mention that?) core to be agreed. Fast forward a few years and the 21st century UK is now bound by the property provision in Article 1 of Protocol 1 (“A1P1”), and must therefore abide by its terms.

A1P1 provides as follows:

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.

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 quoted A1P1 in full as there is a danger that paraphrasing can do damage to the words, but I shall offer the following distillation. A deprivation (i.e. an enforced confiscation) or a control (i.e. a limitation of an owner’s usual autonomy) of a possession (be that a physical thing or even a repayment right to a debt) can only take place where that is for the betterment of society. For those keen to dig a little deeper, key cases like James v UK explains the point in more detail than this blog will. For present purposes it can be noted that a state might be justified in, for example, levying taxes or buying property for a new transport project.

That is often where the discussion about the interface of property law and human rights ends. This is what a state cannot do. As long as it does not engage in unwarranted tinkering, it is ECHR compliant. The status quo prevails, or at least is allowed to flourish, wither or neither without active state interference.

Non-interference might seem ideal to some. To others, it might be unsatisfactory. If this surprises you, consider the same challenges that must be wrestled with when dealing with gender, race or disability issues in the workplace. It is perhaps not quite a situation of for evil to flourish, good men (yes, men) should do nothing, but the point ought to be clear. 

As an undergraduate, I engaged in some research into the position in South Africa and I recall stumbling across a quote to the effect that there was a certain irony that those who have property rights are able to hide behind a constitutional framework (in South Africa’s case) which protects contemporary propety rights without paying much heed to how those property rights came about. With the chequered history of that rainbow nation, it is easy to imagine that this could lead to a perpetuation of historic injustices. That is why the South African constitution’s property provision has an explicit statement that the public interest “includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources“. South Africa’s constitution truly is an inspirational document: the only thing that makes the preamble’s text more exciting is when Henry Rollins relentlessly hits you with it off pat in a spoken word show, which I was fortunate enough to see in Edinburgh one August. 

I digress. If only the ECHR, or indeed the UK, had something that so publicly nailed its colours to the mast. But it does. The ECHR carries certain positive obligations for signatory states, by which I mean duties that a state cannot shirk, when it comes to property rights. Conceptualisations of the right to property do not necessarily stop at the negative obligation on states not to interfere, rather there might be a positive obligation on a state to ensure individual welfare for all citizens, a point touched on in Reed and Murdoch’s central Scots law text on human rights. One example, taken from the domain of housing, is article 8 ECHR. This provides (subject to qualification) that ‘‘Everyone has the right to respect for his private and family life, his home and his correspondence’’, so a positive obligation might be a specific concern. As an example, in Codona v United Kingdom it was noted a positive obligation might arise, but only where the authorities had accommodation suitable for gypsies (that being the term used in the decision) at their disposal and were making a choice between offering such accommodation or accommodation which was not. As noted by Padraic Kenna, ‘‘Passive non-interference by states where people’s Convention rights are at stake is not sufficient to ensure that these rights are respected.’’(See ‘‘Housing rights: positive duties and enforceable rights at the European Court of Human Rights’’, E.H.R.L.R. 2008, 2, 193.)

Although this might not always be in point or persuasive enough to sway matters in any particular set of facts, future cases must bear this point in mind. Moving away from article 8 and back to A1P1, an apt analogy might be the recent case of Kotov v Russia  where the Grand Chamber held, by twelve votes to five, that the respondent state’s rather unsatisfactory framework for allowing the assertion of rights by one of its citizens in the context of a liquidation was in fact acceptable and therefore not a breach of A1P1.

What moved me to right about this now? Beyond the fact that I, as a property scholar, think it is of crucial importance anyway, the trigger in this instance was the Court of Session’s decision in Salvesen v Riddell, a case from March this year where Lord Justice Clerk Gill (as he then was) struck down a provision of the Agricultural Holdings (Scotland) Act 2003 as being outwith the legislative competence of the Scottish Parliament, owing to it being (in the now Lord President’s view, with two other judges concurring) an unjustified, arbitrary control of a landowner’s property when a certain type of heavily regulated agricultural tenancy was forced on that landowner. The human rights discussion in that case was very much of the “this is what a state must not do”, rather than “this is what a state must do”. That might have as much to do with the idiosyncratic facts than any particular oversight, but then again an active, explicit consideration of both positive and negative poles in future cases could help to evidence and ensure Scotland’s compliance with its ECHR obligations. If it also removes any misconception of the ECHR as a status quo preserver, that would be a welcome bonus.

Part of this blog is modelled on a forthcoming SLT contribution entitled “Human rights, limited competence and limited partnerships: Salvesen v Riddell“. I shall provide a reference when it is published.

If you are interested in the South African and Scottish comparison, I looked at this in an article a few years ago which I hope is not too dated: “Parts 2 and 3 of the Land Reform (Scotland) Act 2003: A Definitive Answer to the Scottish Land Question?”, 2006 Juridical Review 195.

About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
This entry was posted in Devolution, ECHR, Land Reform, Law, Property and tagged , , , , . Bookmark the permalink.

19 Responses to Property and positive obligations under the ECHR

  1. Following the idea of positive obligations in this way leads to some interesting implications.
    Take for example the Law Society of Scotland, which as a quasi-governmental body created by statute is directly covered by ECHR. It has duties to solicitors and to clients of solicitors. Therefore it requires to take positive steps to protect the property of clients in setting regulations for the control of clients assets held by solicitors. OTOH the duty to solicitors requires that any such regulations should be proportionate so not to require unneeded use of solicitors assets to comply with such regulations.
    But this goes further. To practice law as a Solicitor, membership of the LSS is compulsory, and a fee is charged to cover the costs of the LSS. But surely by implication under A1P1, these compulsory charges can only be for essential costs? So for example if LSS were to run an advertising campaign for the benefit of the whole profession, this would fall foul of their duty under A1P1 as the funds for this are drawn from members who may not in fact want to spend funds on such a campaign. If membership were voluntary, such expenditure from membership funds would be acceptable as members could “vote with their feet”.
    The same principle would also appear to apply to any case where government bodies charge a compulsory fee. Eg liquor licensing fees- it is obviously lawful for the authority to charge a fee to cover the costs of processing the application, but if the fee is intended to give the authority a profit this again appears to potentially fall foul of A1P1.
    All in all, raises various complexities.

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  4. andywightman says:

    As I understand it, s.72 of the Agricultural Holdings Act has not been struck down. Lord Gill intimated that he is minded to do so but has to inform the Lord Advocate and Advocate General under S.102 of the Scotland Act. They are both dragging their feet.

  5. basedrones says:

    Given the uncharted territory we are in, the Lord Justice Clerk (as he then was) intimated matters to the Advocate General whilst not remitting other matters to the Scottish Land Court to consider. I understand there was an appeal planned to the Supreme Court, but (as per another of my blogs) matters may have moved on. Feet-dragging makes a degree of sense when there is still a higher level of appeal to expunge.

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