The European Convention on Human Rights, to which the UK has been a signatory since 1953, contains admirable aims and concepts. It enshrines notions of justice, fairness and tolerance subscribed to by all democratic states.

So what is it that gives judges difficulty in applying the provisions of the Human Rights Act 1998 (HRA), which incorporates the provisions of the Convention into our domestic law? The answer is the problem of its harmonisation with our existing concepts, which have evolved by a separate and long-standing route and with which lawyers are familiar.

The Convention states its objectives and requirements in very broad terms. Their application has to be set alongside the detailed body of domestic law and has therefore caused judges to come to conflicting views in certain areas.

Background

The HRA, for all relevant purposes, became operative on 2 October 2000.

Section 3 of the HRA provides that:

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights.

(2) This section:

(a) applies to primary and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

How should this section be operated?

The House of Lords gave due consideration to the principles involved in the decision in Ghaidan v Godin-Mendoza [2004], a case where the rights in law of a surviving spouse were extended to include the survivor of unmarried homosexual couples.

It was held in operating the provisions of s3 of the HRA that:

• There is a strong rebuttable presumption in favour of Convention rights.
• The statute must be given a meaning that, however unnatural or unreasonable, is intellectually defensible and that can stretch it almost, but not quite, to breaking point.
• There must be no judicial vandalism, but that must be gauged by reference to the change in the substance of the obligation imposed by the provision, not by reference to any mere matter of linguistic form.
• The interpretation under s3 must be compatible with the underlying thrust of the legislation being construed. Any implication of words must go with the grain of the legislation; the insertion of words in the process, which contradict the essential principles and scope of the legislation being interpreted, is impermissible.
• The court should not embark on considering matters that call for legislative deliberation.

Comment

So, statutory provisions can be stretched, shrunk or reinterpreted to make them compatible with Convention requirements so long as the fundamental, substantive, principle for which the domestic legislation is provided is not breached. This can involve interpolations or omissions of the language of a statute, or changing the express requirements of the statute, unless the relevant Convention principle would infringe the underlying general intention of the legislation.

Ghaidan is a good example of this and the difficulty that the courts have in applying the Convention. It was held that the rights of the surviving spouse to succeed to a protected tenancy of a dwellinghouse under the Rent Acts were to be interpreted as extending to the survivor of homosexual couples so as to be compatible with the Convention right, now enacted in Article 8, Schedule 1, Part 1 of the HRA, that everyone has the right to respect for their private and family life, their home and their correspondence, and Article 14, that the enjoyment of Convention rights should be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with national minority, property, birth or other status. This involved ‘stretching’ the meaning of ‘spouse’ not only to unmarried status but also to homosexual relationships.

The difficulties put before judges are demonstrated by the fact that four Law Lords were in agreement but one, Lord Millett, dissented. He did so on the basis that the functions of the court were deliberative and not legislative; the extension that the majority decided on as within the bounds of interpretation ‘so far as it is possible to do so’ was in his opinion a fundamental change incompatible with the domestic legislation. Even though he agreed that the treatment of the Rent Acts was discriminatory against homosexual couples and unacceptable and unjustifiable in modern democratic society, he believed that the court should issue a certificate of incompatibility in these circumstances under s4 of the HRA. No wonder this had to go to the House of Lords for determination and that even there unanimity of the interpretation was not achieved!

Section 6 of the HRA provides that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’. The definition of ‘public authority’ includes a court or tribunal. The effect of this is to make it mandatory for decisions to be rendered compatible with Convention rights apart from where s3 HRA provides exceptions, as discussed above. This clearly affects the application of precedent.

The process of applying the HRA

It follows that the process of applying the provisions of the HRA involves two stages. The first is to determine whether an Article of the Convention is ‘engaged’. In the vast majority of court actions, this issue will not arise. The second stage is to determine whether the provisions of the domestic law are compatible or, in the case of legislation, require, so far as it is possible, to be interpreted in a manner compatible with Convention rights.

Adverse possession of land

The underlying HRA problem

It has long been the position in English law that adverse possession for 12 years or more bars the right of the paper owner and extinguishes its title. The trespasser in effect acquires the land and pays no compensation for it. The justification for this is that owners should do the very little necessary to preserve their ownership entitlement, which is easily done, and that the law should not allow stale claims to be made.

In JA Pye (Oxford) Ltd v Graham [2003] the House of Lords, in restoring the judgment of Neuberger J in the High Court, endorsed his opinion that the law of squatters acquiring title to land on which they trespassed, in cases where the paper owner had no present requirements for use of the property (ie land held for future use or development), was unfair and its effect disproportionate. Just because the paper owner had taken no steps to evict a squatter for 12 years from land that it did not presently use, should the law allow the squatter the windfall of acquiring the land without the payment of compensation? Clearly, that was draconian.

The House of Lords agreed; the decision against the paper owner was affirmed, but, like Neuberger J, ‘with no enthusiasm’.

Commencement of the HRA

The HRA did not become law or operative before the rights of Graham had accrued and proceedings commenced, so the human rights issues that would have arisen under it were not dealt with by Neuberger J. Although the Act had become operative at the time of appeal proceedings, Pye conceded before the House of Lords that it had no rights under the HRA. (Pye has applied to the European Court of Human Rights claiming against the UK on the basis that the ruling, depriving it of its ownership of the land, infringes without compensation its human rights, thus infringing the Convention to which the UK is a signatory. The case will shortly be heard.)

Section 96 and Schedule 6 to the Land Registration Act 2002 (LRA 2002)

Since that time, the law in relation to registered land has been radically changed by the LRA 2002, which came into effect on 13 October 2003. It is no longer possible for a squatter to acquire title to registered land merely by inaction or inadvertence on the part of the paper owner.

After ten years of adverse possession, the squatter making a claim to ownership of the land may apply to the registrar to be registered as the proprietor of the registered estate. The registrar must give notification of the application to the registered proprietor. In effect, the registered proprietor has two years to reclaim possession of the land from the trespasser, who is not generally entitled in the meantime, except in boundary disputes, to be registered as proprietor.

The unfair effects of the preceding regime are therefore eliminated; the registered proprietor has ample opportunity at this late stage to assert its title against the trespasser. It will have been sufficiently forewarned of the consequences of failing to do so.

Unregistered land

The vulnerability of the paper owner of land with unregistered title remains, unless it is to be protected by the operation of the HRA, which applies in appropriate circumstances between litigants with effect from 2 October 2000, the commencement date of the relevant provisions of the HRA. The courts must not act in a way that is incompatible with a Convention right (see s6 of the HRA). The position on registered land where adverse possession rights accrued after 2 October 2000 but before the LRA 2002 came into operation arose in Beaulane Properties Ltd v Palmer.

Beaulane Properties Ltd v Palmer

The facts

The facts of this case are identical in principle to those in Pye. Since 1992, Beaulane had been the registered owner of a field in Harlington, near London Airport, for which it has so far been unsuccessful in obtaining planning permission for residential or industrial development. Palmer had intermittently for some years, and in the last 12 years exclusively, been in possession and control of the field on which he originally grazed cattle and horses, and latterly horses belonging to others, for which he made a charge. For the period of 12 years ending in June 2003, he had exclusive possession as against Beaulane, the paper owner. The only difference in substance with the situation in Pye was that the right of action to claim title by adverse possession accrued after the HRA came into operation. Could Beaulane, therefore, gain protection where Pye had failed? (The LRA 2002 had not commenced at the time, so the rights of Palmer, such as they were under s75 of the Land Registration Act 1925 (LRA 1925), had accrued.)

Relevant provisions of the HRA

The relevant Article applicable to this litigation is Article 1 of the First Protcol that is reproduced in Schedule 1, Part II of the HRA. It provides as follows:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions [this is referred to as the ‘first rule’]. 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 [this is referred to as the ‘second rule’].

The rationale of the decision

The deputy judge, Mr N Strauss QC, held that the effect of domestic law before the application of relevant provisions of the HRA amounted to a deprivation of Beaulane’s interest in the property; the substantive effect of the domestic law had that result.

The first rule of Article 1 was therefore engaged, unless the second rule operated in the circumstances of the case justifying the deprivation. For the purposes of the second rule, was there any public interest in this dispute or was it merely a private matter between litigants? The deputy judge held that the Limitation Acts (which were imported by reference in s75 LRA 1925) are enacted for public purposes so as to provide certainty and prevent the court having to adjudicate on stale claims, not merely to regulate the private interests of the paper owner and the trespasser in individual cases. The provisions would be potentially justifiable if they were appropriate to policy objectives and proportionate in their operation to the circumstances of the case.

The second rule was therefore relevant and the issue was whether its application in these circumstances would be disproportionate. Did the legislation strike a fair balance between competing public and private interests? The paper owner would be deprived of its property interest by the application of the domestic law without compensation. In this case there was not in any real sense a public or general interest; the paper owner had done nothing to protect its property interest but had not been guilty of any social evil. The second rule would not therefore be applied, as to do so would have disproportionate effects in these circumstances, arbitrarily depriving the paper owner of its property without compensation and allowing the trespasser a considerable windfall benefit for his unlawful trespass.

The machinery of the decision

Beaulane’s loss of land in accordance with that section was therefore incompatible with Article 1. The relevant statutory provision, s75 of the LRA 1925, should be interpreted, so far as it was possible to do so, to render it compatible with Beaulane’s Convention right.

Section 75 provided that:

… the Limitation Acts should apply to registered land in the same manner and to the same extent as those Acts apply to land that is not registered… any person claiming to have acquired a title under the Limitation Acts to a registered estate in land may apply to be registered as proprietor thereof.

The deputy judge ordered that s75 of the LRA 1925 should be construed only as applying in the case of a trespasser that could establish adverse possession in circumstances where its use conflicted with the intentions of the paper owner for the present or future use of the land (ie but not where the present possession of the trespasser was not in conflict with the intentions of the paper owner). The claim of Palmer to ownership of the land by adverse possession therefore failed.

Comment

Although this decision may seem spectacularly to override the principles that were recently confirmed by the House of Lords in Pye, in reality, it covers a very limited field of possibility in relation to cases of adverse possession that accrued in the period between 2 October 2000 and 13 October 2003 (as noted, these were the respective dates on which the HRA and the LRA 2002 came into operation). Having regard to the operation of the HRA in relation to unregistered title to land, and the new provisions in Schedule 6 to the LRA 2002 as to registered land, one imagines that there are very few cases in the pipeline of the nature of Beaulane.

That said, the case is masterly in its consideration of the history of the law of adverse possession and the impact of the HRA on it and on issues generally arising under that Act. The judgment has since been referred to by Neuberger LJ in another matter relating to adverse possession as ‘impressive’.

Beaulane Properties Ltd v Palmer [2005] EWHC 817

Ghaidan v Godin-Mendoza [2004] 3 WLR 113

JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419

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