Right to Rent in Breach of the Human Rights Act

Landlords and agents will be seeing the news this morning saying that the Right to Rent has been held by the High Court to be in breach of the Human Rights Act. The RLA (of which I am the policy director) intervened in this important case to protect the interests of landlords and instructed Giles Peaker of Anthony Gold. We were represented in court by Justin Bates and Brooke Lynn of 4-5 Grays Inn Chambers.

However, the more pressing question today for many will be, what does this mean? Do landlords and agents no longer have to do checks? The short answer is that nothing changes for the moment.

The ruling by a High Court judge is that the Right to Rent scheme, in its entirety, is in breach of the Human Rights Act because its inevitable consequence is to lead landlords to discriminate. However, the Human Rights Act does not permit courts to strike down primary legislation, so that legislation will remain in place for the moment and checks still need to be done.

At this stage the Secretary of State has two options. Firstly, they can appeal. Initially to the Court of Appeal and then on to the Supreme Court. Permission to appeal to the Court of Appeal has already been granted and so that appeal is quite likely. If the Secretary of State were to win that appeal then the position would be reset and be as if the High Court decision had never happened.

The second option is to take the matter back to Parliament which is what the Secretary of State should do if he is not going to appeal or he will have to do if an appeal is lost. In fact an Immigration Bill is coming before Parliament as one is required to resolve immigration issues arising from the impending departure of the UK from the European Union. That Bill could either remove the Right to Rent from the statute book altogether or make considerable amendments to it. There is the possibility here of a running fight with the government tweaking the Right to Rent a bit and then another Court ruling that it is still unlawful. This has happened before in relation to terrorism control orders.

However, until one of these things occurs then things proceed as normal. That said it would be a challenge for the Secretary of State to levy a penalty or commence a prosecution against a landlord or agent who had got their checks wrong at the moment as they would be doing so based on a piece of legislation which has been held to be without foundation.

About the author:

David Smith is a partner at Anthony Gold Solicitors and a recognised expert in landlord and tenant law.

He can be reached by telephone on 020 7940 4060 or by email on [email protected]

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