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In a keynote address delivered to the Social Housing Law Association Annual Conference 2009, the Master of the Rolls, Lord Neuberger gave a judge’s perspective on “The Current Legal Challenges Facing Social Landlords”.  This lecture – Lord Neuberger’s seventh since taking on his new job at the beginning of the legal term – deals with two areas which we have previously discussed on this blog.  

The first is the status of registered social landlords (or rather “non-profit registered providers” or NRPs) as public authorities under the Human Rights Act 1998.  This was, of course, the issue considered by the Court of Appeal in R (Weaver) v London and Quadrant Housing Association [2009] EWCA Civ 587 and the Supreme Court have recently refused permission to appeal. He surmises that this was perhaps because of the “artificial nature of the appeal” and the procedural device employed to produce an advisory opinion (para 12).  He goes on to discuss the unsatisfactory distinction between public functions and acts concluding that it was perhaps over-complicated and that, at least in many cases, why bother with the function question at all? (para 22).  However, as  points out, for the present Weaver leaves us with the position that RSLs are likely to be open to HRA challenges when they terminate tenancies.

The second area which Lord Neuberger addresses is the extent to which Article 8 must be taken into account when orders for possession are made: an area of the law which he says, quoting Collins J, is “frankly in something of a mess”.   He points out that the decision of the Court of Human Rights in Cosic v Croatia appears to be inconsistent with the most recent House of Lords authority, Doherty v Birmingham City Council [2008] UKHL 57 and seems to have put the onus back on the English courts to ensure that Article 8 is properly taken into account in possession proceedings.  In this regard, he refers to the recent interesting article on the subject by HHJ (Nic) Madge – “Article 8 – la lutta continua”. 

The final part of the keynote address deals with The House of Lords and Public House Policy – where he suggests that the House has shown a “practical and realistic as well as principled, approach to the Housing legislation” (para 36).

Another interesting lecture from Lord Neuberger and one which deals with issues which are, we think, likely to come before the Supreme Court before very long.  Although permission was refused in the case of Central Bedfordshire v Taylor [2009] EWCA Civ 613 (see our post here) there is still a pending application for permission in the case of Manchester CC v Pinnock [2009] EWCA Civ 852 (see the Nearly Legal case note, here) – this was lodged on 7 October 2009 so appears likely to be dealt with this term.

Meanwhile, we see that Lord Neuberger is due to give another lecture tonight – to the British Friends of the Hebrew University Young Legal Group on the interesting topic of  “The Supreme Court: Is the House of Lords “losing part of itself”?  We hope to have a report on this tomorrow.