Effect of Human Rights Law on Homelessness - Research Paper Example

Land Law Module Module Number Academic Year Seminar Human rights law is of no assistance in dealing with homelessness: Discuss number Effect of Human Rights Law on Homelessness Homelessness is a serious welfare issue facing the United Kingdom and the world in general. Part of the problem can be attributed to trivialising the issue as having less to do with human rights. Regardless, opinion is split as to whether homelessness is in itself an important aspect of human rights, more so in a quest to curb the problem. On the one hand, homelessness is viewed as a welfare issue; one that is brought about by superfluous social problems and that the destitute are deviants in one way or another within the society. On the other hand, homelessness arguably constitutes a violation of important human rights of the parties including; the right to life; right to security; the right to freedom from cruel, callous or shameful treatment; the right to freedom from prejudice, the right to individual privacy, the right to free expression and association; the right to cast a vote, the right to health care, social security, and adequate housing. As to whether any destitute including outlaws are subject to these rights remains debatable. This is especially true, considering that not all homeless people should end up in the streets. This paper discusses whether human rights law is of no assistance in dealing with homelessness. Homelessness under International law In the United Kingdom, an individual meets the conditions of homelessness if he or she has insufficient access to secure shelter. The definition is in line with the definition of homelessness under international law. The United Nations Committee on Economic, Social and Cultural Rights (UN-CESCR’), for instance, defines a homeless individual as one who lacks adequate housing to support his right to live safely, freely, peacefully and with respect. As such, an individual might have a home, but still be considered homeless if the home does not meet the adequate standards. In light of this argument, boarders may be homeless because they are basically segregated from the rest of the community. As such, the definition of a standard home is a small house whether rented or owned, with primary facilities such as a bathroom, a bedroom and kitchen1. Sources of Human Rights Law in England and Wales United Kingdom’s duty to foster, safeguard and achieve human rights is based on the natural dignity of members of the community. This is captured in the Universal Declaration of Human Rights to which the UK is party. The treaty indicates that acknowledgement of the natural dignity and rights of all humanity are the basis of liberty, justice and peaceful coexistence. The country’s legal and moral duty to safeguard human rights are therefore based on various international treaties, customary international law and the domestic culture of equality before the law as a way to preserve human life and interests. International Covenant on Civil and Political Rights (ICCPR) The ICCPR captures several human and political rights that the UK officially assented to in 1976, but which have not been used to save the country’s population from homelessness. Article 2(2) of the ICCPR obligates the UK as a party to take reasonable steps, even if it takes adopting statutory laws or enforcing socioeconomic policies which capture all ICCPR provisions. Article 40(1) of the ICCPR, for instance, obligates UK to file regular reports with the UN Human Rights Committee (HRC) regarding its respect, safeguards and achievement of ICCPR rights. Under Clause 4, the HRC is then mandated to accept and assess these reports and make public its observations on the status of the country’s commitment to civil and political rights. The letter and spirit of the international body of law in protecting human rights is clear and forceful in the same way the European Commission on Human Rights law and the Human Rights Act 1998 are, but the impact is highly ineffective in handling the plight of homeless people in the UK. As such, the classification of homeless people under welfare programs could be the reason behind the insufficient protection of their human rights2. International Covenant on Economic, Social and Cultural Rights (ICESCR) ICESCR is another treaty obligating the UK to ensure it enforces economic, cultural, social and developmental policies, which guarantee the homeless their due rights. Article 2(1) of the Convention requires UK to act reasonably in realizing the total achievement human rights as spelt out under ICESCR, including the implementation of statutory and all other important but supplementary measures. However, unlike the more effective ICCPR, ICESCR is a human rights law that is less effective in resolving the plight of homeless individuals because it lacks a formal complaints structure3. Under the ICESCR’s Article 16(1), UK and other signatory states have a duty to file regular reports concerning its realization of ICESCR rights. In response, the United Nations Economic and Social Council upon receiving the reports should act on the reports by persuading improvements along that line. However, this is not possible for homeless people who have been perennially missing from such government reports or given slight mentions. In addition, even though Article 21 of ICESCR compels the Economic and Social Council to furnish the United Nations General Assembly (UNGA) with their observations for action, the general nature of such recommendations has seen the failure of the human rights law to safeguard fundamental interests of homeless people in the country. The end result has been the UK working hard to deliver on the human rights of other communities such as those with protected characteristics and inmates, while homeless people remain out of the focus of human rights institutions and structures4. Customary International Law The customary law operates the same way as ICCPR and ICESCR in prompting the UK to deliver on her international human rights obligations. The body of law is arguably functional through state policy practice and the determination which a state is expected to show when handling norms that legally bind it to international causes. Customary international law appears to factor in the human rights of homeless populations and thus it obligates the country to see to their plight. But the response of the UK has been fairly harsh in respect of treating members of the community as part of her international legal obligations. While the state observes their right to life, government agencies have not been performing fairly on their freedom and security. In addition, the state is not doing enough to protect them from discrimination and exploitation by the general public5. The Human Rights Act 1998 Since its enactment in 2000, the Human Rights Act 1998 (HRA) has been one of the most dynamic pieces of legislation ever passed by UK’s parliament to safeguard human rights including of homelessness. The law transforms the European Convention on Human Rights (ECHR) into a domestic law. As such, the HRA enables persons and institutions to pursue legal reliefs in local courts and or through other judicial mechanisms if they consider their fundamental rights provided for under the Convention have been breached by government. As such, the Convention focuses on civil and political freedoms as opposed to social rights such as housing rights, hence the growing problem of homelessness. However, a wider interpretation of various freedoms and rights it encompasses have a direct impact on individual right to a home. Legal opinions are in consensus, though, that the human rights law has limited effect on housing law and or the problem of homelessness. The courts have been very supporting of housing rights as a key aspect of human rights under the Convention, however6. Article 6 of the Convention Several provisions can be invoked in housing disputes and cases as a way of enforcing human rights along these lines to prevent or handle homelessness among litigants. The first provision is Article 6, safeguarding the interests of parties to swift legal redress in housing disputes. By compelling courts to determine civil rights and duties within a reasonable time, the law is basically effective in enforcing private rights which parties owe to other persons in respect to land and house ownership. As such, Article 6 aims to eradicate homelessness by ensuring fairness in giving reliefs on: title to property; right to use a real estate; family rights; compensatory rights, which enable individuals to seek adequate housing elsewhere; right to use rent out residential property, which leaves the relevant parties with some income for adequate housing; some employment issues, which also leaves individuals in dispute with some income access sufficient housing; control orders in respect of use of property; and anti-social conduct, which may send the aggrieved party to the streets7. Despite its effectiveness, the provision may practically create or aggravate the problem of homelessness by limiting reliefs to victims of non-civil rights violations. These areas may include entry or eviction of aliens and tax remission. Eviction of non-citizens, for instance, could create homelessness, especially if the government does not have a humane treatment plan. The confusion was, however, corrected by the Strasbourg Court in the case of A. and Others v. the United Kingdom [2009] ECHR. In dismissing the government’s move to detain 11 foreigners under Article 6 of the Convention, the Grand Chamber ruled that the UK government acted illegally by subjecting the accused to indefinite detention and in utter breach of their human right to freedom of illegal detention, free movement and detention. The judges ordered their compensation as required under Article 41 of the same law8. Article 8 of the Convention The Human Rights Act does not directly mention individual rights to a home as enforceable, hence the dragging of feet by the government in using the law to curb homelessness in the country. The Convention, under Article 8 allows for respect for current home. The court entered a tentative interpretation to this effect in the case of R(Begum) v Tower Hamlets London Borough Council [2003] 2 AC 430 on the grounds that a decision of a destitute did not constitute a “civil right.” The decision was eventually confirmed by the UK’s highest Court in Ali v Birmingham City Council [2010] 2 AC 39. In light of these examples of case law, it can be implied that the human rights law technically prevents individuals who are homeless from acquiring a satisfactory home9. In another case of Burton v UK [1996] 22 EHRR CD 135, the common law suggested that the Convention did not envisage a situation where the interpretation of Article 8 would be extended to accommodate a duty to offer alternative housing based on the claimant’s preferences. Conversely, when taken together, both interpretations of Article 8 arguably support the acquisition of the rightful share in a home by applicants and effectively eliminate attempts by underserving parties to acquire a home. In addition, the human rights law is basically providing an accurate interpretation of a home and thus, the rightful beneficiaries. There is no definition of home under the Human Rights Act, however, but according to common law it implies any property or shelter which an individual uses as a place of residence. In Buckley v UK [1996] 23 EHRR 101, the English court extended the meaning of a home to include a container, in a move basically aimed at dividing whatever meets the qualities of a satisfactory home between or among the legitimate individuals in order to fight the problem of homelessness10. In addition, the common law expanded the interpretation of a home in line with Article 8 to include similar properties which have been unlawfully acquired. In Mabey v UK [1996] 22 EHRR CD 123), the court ruled that even squatters may have rights to the places of residences they call home. The precedent set in Mabey was followed in Harrow LBC v Qazi [2003] UKHL 43, where the House of Lords was confronted with the issue of whether the idea of ‘home’ under Article 8 of the ECHR does not suffice in the handling of a piece of land and property which has been lawfully occupied. In their ruling, the Lords basically resolved the issue of homelessness by stating that the legality of possession of the home does not matter11. When the issue was appealed, the Appellate judges confirmed the earlier ruling and added that an individual who has been found to be illegally occupying a home does not cede the rights to own similar property in the future. These are examples of cases where UK courts are determined to assert human rights law to safeguard home owners from the possibility of facing homelessness through technicalities. Conversely, by legitimizing home ownership under fake title, English courts are technically preparing the grounds for many cases of homelessness. This is especially true for illegal owners of lands, such as squatters who usually face the risk of homelessness when the legitimate owners of the lands they occupy obtain a caveat and threaten them with valid evictions. In addition, even though the Human Rights Act is implicit enough on the right to a home, and the additional safeguards in the Housing Executive to oversee potential cases of homelessness, the law is practically insufficient. The construal and enforcement of the statutory obligation on the Housing Executive to vet the people who meet the definition of homelessness may be vulnerable to flaws under the Act. This is triggered by the uncertainty of sufficient investigations; the lack of clarity on the duration of conducting a probe and making of a verdict; failure to provide the grounds for their decision in writing; the possible insufficiency of the internal appeal mechanisms, and the lack of short-term accommodation options to satisfy the housing needs of gays. These weaknesses imply that the law technically creates a fertile ground for homelessness. Regardless, because written law cannot be absolutely exhaustive, the law arguably provides broader structures which when acted upon by a properly constituted Housing Executive, will resolve the issue of homelessness by giving adequate, and prompt judgments as well as relevant reports on the issue on a case by case basis12. Managing a home Allocations of housing premises integrate the enforcement of the Housing Selection Scheme and some provisions of the Human Rights Act, and thus affect the issue of homelessness in one way or another. The general limitations in age imposed on persons who are 16 and 17 years old, which hinder their use of the Selection Scheme services; the potential insufficiency of the appeal process and the magnitude of the accommodation provided versus the available room may have negative impacts on family respect. As such, it can be argued that provisions are flexible and reasonable enough to resolve the problem of homelessness. Conversely, in R v Swale BC ex parte Marchant [1998] CO/3442/97, two separated parents who shuffled their three children between them within intervals of a few weeks were technically denied housing rights. In its ruling, the court declined their prayers to be allowed the right to two adequate family homes, one for each of them on fairness grounds13. In a succession scenario triggered by death of a tenant who leaves a dependant resident in the house, disputes may come up in respect of the tenancy succession under the Human Rights Act. The Act provides a clear definition of a family member and thus protects them from losing the tenancy battle. However, the lack of a clear succession plan could render futile, any attempts by a ‘distant third party’ to reclaim the title to the tenancy. This is especially true where the living partner was in a same-sex union with the deceased and claims of discrimination do not arise. In Mendoza v Ghaidan [2003] EHRLR 501, for example, the claimant and his late spouse had been in a same-sex union, but had his tenancy reduced below his legitimate expectations his demise. In resolving the issue, the court cited Articles 8 and 14 of the Convention in restoring the appellant’s rights to the property. As such, the House of Lords preserved his vulnerability to homelessness in its ruling that Mr Mendoza’s belittling was an act of discrimination triggered by his sexual orientation14. Article 8 is also wide enough to clarify that proper housing and or the home with respect encompasses peaceful use of the facilities in it. This implies that individuals and tenants who are at risk of inhumane behaviours are entitled to intervention by public authority. The assistance of public authorities was confirmed in Kroon v Netherlands [1994] 19 EHRR 263, where the court ruled that Article 8 provides for relief from any form of hostilities. The duties of a public authority to the tenancy who is at risk of cruelty were also factored in Donnelly v Northern Ireland Housing Executive [2003] NICA, where the court observed that the Housing Executive did not act reasonably in response to anti-social conduct by offering the victim an alternative residence. The court further rejected the reasons given by the Housing Executive including issues about the individual health and security challenges faced by its staffs as too insufficient to rely upon. The court decision was arguably an attempt to enforce the full housing rights in favour of potential victims of homelessness. Alternatively, the ruling may be seen as an attempt to deny the victim the opportunity to use the facilities of the house in question peacefully, considering that the Executive had made an informed judgment that the acts of hostilities may not have ended even after its intervention15. In respect of housing refurbishment and or the habitable conditions of an ideal home, the Convention stipulates no clear standards. On the one hand, the leeway in the law technically opens many habitable homes and houses for occupation and thus limits homelessness in England and Wales. On the other hand, Article 8 gives adequate protection for the right conditions of a house by stating that an individual would be in violation of the law if he or she leaves another to reside in conditions that are unfavourable for human tenancy. As such, Lee v Leeds [2002] EWCA Civ 6, witnessed the court stating categorically that the landlord would be violating Article 8 of ECHR if he or she lets a housing facility that is in derelict or in condition that waters down respect among the inhabitants. Regardless, for a home to qualify as unfit there should be material damage to its amenities to the extent that a reasonable person would consider it inhabitable in order to meet the high benchmarks set in common law16. Eviction of a tenant An eviction overturns the rights of the tenant to occupy the home and thus would apparently be a violation of Article 8 of the Convention. The courts are more likely to reject an eviction against individuals with protected characteristics as it was evidenced in Mazari v Italy [1999] 28 EHRR CD 175. This case concerned a tenant with disability who was facing an eviction for defaulting rent. The court ruled the eviction was legal, but not justifiable or commensurate with the challenges facing the individual. Lambeth v Howard [2001] EWCA Civ 468 followed the precedent set in Mazari barely two years later in stating the repossession was legal, but unjust under Article 8(2) of the Convention17. The two cases demonstrate that courts basing their decision on Article 8(2) are more inclined to prevent the problem of homelessness under valid occupation, and consider actions of a public authority as not justified, especially where the victim is vulnerable in some way. Regardless, where the eviction is not justified but legal, courts have been inherently ill-equipped to reverse the events by having a say on the homelessness18. In managing introductory tenancies, the Housing Order 2003 enables social home owners in Northern Ireland to enforce an introductory tenancy system, which has been in effect since April 2004. The duration of the tenancy is twelve months within it is non-secure. The social landlord is mandated to acquire a possession order by adhering to the law. Under the arrangement courts have no authority to dictate the handling of a possession order. As such, the provision is arguably against the letter and spirit of Articles 6 and 8, which giving courts the discretion to adjudicate such issues. Nonetheless, mounting a successful challenge is technically impossible as it was evidenced in the case of R v Bracknell Forest DC ex parte Johns & McLellan [2001] CA where the Appellate judges legitimized introductory tenancies as legal under the international law19. London Olympics and homelessness The 2012 London Olympics provided a great opportunity for the resolution of homelessness in the sprawling city. The government-led campaign, dubbed “No One Left Out” was launched in November 2008 to end rough sleeping in London streets. Under the program, the government deployed multi-agency resources aimed at ridding the streets of homeless people through persuasion and in some cases, the use of force. The government initially focused on sending the first group of 205 hard core rough-sleepers, but at the end of the exercise almost three-quarters had left the streets. Owing to the direct impacts of global recession on the high number of homelessness in London, especially in the run-up to the Olympics, the government established some economic strategies to resolve the issue20. The primary method of ridding the streets of destitute people included personalized budgets; an integrated working approach involving medical staffs and social care specialists, the prison staffs, housing departments, and the wider outreach services. The government also disbursed grants, provided employment program and established competition among councils based on best practices. These strategies substantially contributed towards making London a great host of the world Olympic Games. Despite the effectiveness of the government strategies, critical opinion took issue with some antisocial interventions deployed to root-out legendary rough sleepers. Dispersal zones and other inhuman ways such as making the streets ‘inhabitable’ by watering them was arguably in breach of fundamental human rights of the victims21. Conclusion The human rights law of the United Kingdom is tight and arguably works to end the problem of homelessness in the country. However, there is some perception that the homeless community is practically left out of the legal human rights protections. The latter opinion asserts that the Human Rights Act 1998, for instance, has not triggered the much-needed positive impact on acquiring adequate homes. The Convention, however, remains a living document which, if given the widest interpretation, could go a long way in curbing the problem of homelessness in not just the United Kingdom, but in neighbouring states as well. Bibliography Books Dickson, Brice, (2013), Human Rights and the United Kingdom Supreme Court, Oxford University Press, Oxford, pp.56-112 Hohmann, Jessie, (2013), The Right to Housing: Law, Concepts, Possibilities, Bloomsbury Publishing, London, pp.67-103 Jones, Phillip, (2013), Public Law and Human Rights Statutes 2011-2012, Routledge, New York, pp.73-113 Leckie, Scott, (2003), National Perspectives on Housing Rights, Martinus Nijhoff Publishers, London, pp.113-119 McQuigg, Ronagh J.A., (2011), International Human Rights Law and Domestic Violence: The Effectiveness of International Human Rights Law, Taylor & Francis, London, pp. 121- 145 Provost René, and Sheppard, Colleen, (2012), Dialogues on Human Rights and Legal Pluralism, Springer Science & Business Media, New York, pp.54-112 Journal Articles Aleca, Carmina and Duminica, Ramona, (2012), ‘Jurisprudential issues concerning the interpretation of Article 8 of the European Convention on Human Rights,’ Current Issues of Business & Law, 7(1), pp.108-121 Arvan, Marcus, (2014), ‘A Better, Dual Theory of Human Rights,’ Philosophical Forum, 45(1), pp.17-47 Chakrabarti, Shami, (2012), ‘Human Rights or Citizens Privileges: The Great Bill of Rights Swindle,’ Political Quarterly, 83(3), pp.454-465 Costello, Cathryn, (2012), ‘Human Rights and the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law,’ Indiana Journal of Global Legal Studies, 19(1), pp.257-303 Cowan Dave, Hunter Caroline, and Pawson Hal, (2012), ‘Jurisdiction and Scale: Rent Arrears, Social Housing, and Human Rights,’ Journal of Law & Society, 39(2), pp.269-295 Davy, Benjamin and Pellissery, Sony, (2013), ‘The citizenship promise (un)fulfilled: The right to housing in informal settings,’ International Journal of Social Welfare, 22, pp.S68-S84 Dunning, Jeremy, (2010), 2012 games offer hope to homeless. Community Care, 1800, pp.26-27 Hoffman, Benjamin, and Vahlsing, Marissa, (2014), Collaborative lawyering in transnational human rights advocacy. Clinical Law Review, 21(1), pp.255-282 Quane, Helen, (2013), ‘Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?,’ Oxford Journal of Legal Studies, 33(4), pp.675-702 Sanders, Astrid, (2013), ‘Does Article 6 of the European Convention on Human Rights Apply to Disciplinary Procedures in the Workplace?’, Oxford Journal of Legal Studies, 33(4), pp.791-819 Wilde, Ralph, (2013), ‘Human Rights beyond Borders at the World Court: The Significance of the International Court of Justices Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties,’ hinese Journal of International Law, 12(4), pp.639-677 Wolman, Andrew, (2014), ‘Welcoming a New International Human Rights Actor? The Participation of Subnational Human Rights Institutions at the UN,’ Global Governance, 20(3), pp.437-457 Cases A. and Others v. the United Kingdom [2009] ECHR Ali v Birmingham City Council [2010] 2 AC 39 Buckley v UK [1996] 23 EHRR 101, Burton v UK [1996] 22 EHRR CD 135 Donnelly v Northern Ireland Housing Executive [2003] NICA Harrow LBC v Qazi [2003] UKHL 43 Kroon v Netherlands [1994] 19 EHRR 263, Lambeth v Howard [2001] EWCA Civ 468 Lee v Leeds [2002] EWCA Civ 6 Mabey v UK [1996] 22 EHRR CD 123 Mazari v Italy [1999] 28 EHRR CD 175 Mendoza v Ghaidan [2003] EHRLR 501 R v Bracknell Forest DC ex parte Johns & McLellan [2001] CA R v Swale BC ex parte Marchant [1998] CO/3442/97 R(Begum) v Tower Hamlets London Borough Council [2003] 2 AC 430 Read More