LSA: COVID-19 and the application of the Human Rights Act



Paul Brown and Ben Christman from the Legal Services Agency (LSA) discuss the impact of the current public health emergency on human rights.

Most relevant to the issue of housing is Article 8 of the European Convention on Human Rights, which provides that everyone has the right to respect for their private and family life, including their home. This is incorporated into UK law by way of the Human Rights Act 1998.

Courts and tribunals may apply the Coronavirus (Scotland) Act 2020, as any other, only insofar as it complies with the Human Rights Act 1998 and the Convention rights contained therein. If a tenant seeks to challenge an eviction on human rights grounds, courts and tribunals must decide whether the eviction is a ‘proportionate’ interference with their Article 8 rights. Critically, courts must consider proportionality only where it is raised by the tenant as a defence to an action. It is therefore vital that anyone at risk of eviction in the coming months take expert legal advice in relation to proportionality and other human rights-based defences which may be available to them.

Embedding rights

Whilst these changes are welcome, they fall far short of adequately protecting even the most vulnerable tenants. A tenant against whom an eviction order was granted in the past weeks might soon find themselves evicted from their home during a public health crisis like nothing we have seen before. Whilst the Scottish Federation of Housing Associations has committed to halting evictions until the crisis is over, they do not bind all social landlords, far less those in the private sector. There must be nothing short of an absolute ban on evictions whilst restrictions on movement are in place, in the interests of preserving public health and relieving pressure on public services.

There are few rights and needs more fundamental than a safe, secure, and affordable home. The right to adequate housing is enshrined in international law – in both the International Covenant on Economic, Social, and Cultural Rights and the Charter of Fundamental Rights of the European Union. The coronavirus crisis has shown that, when circumstances dictate, we can take decisive national action to bolster housing rights. We must continue this effort. The effects of the coronavirus pandemic will undoubtedly be with us long after 30 September 2020, and the most vulnerable members of our society will be disproportionately affected. We must reflect, and take this opportunity to embed the right to housing in domestic law.

  • Read all of our articles relating to COVID-19 here.


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