[2025] EWHC 2751 (Admin)

The principle of lawfulness in A1P1 requires that the three measures are sufficiently accessible, precise and foreseeable in their application (Hutten-Czapska at [163]). This is also referred to as the principle of legal certainty.

In James the applicants complained that the LRA 1967 was indiscriminate. They pointed to evident differences between tenants of modest housing in South Wales and better-off tenants in Belgravia who could not be classified as needy or deserving of protection. They pointed to the large and wholly underserved gains which had been made by tenants who had enfranchised and then resold. The legislation produced effects which went far beyond its purpose ([29] and [68]-[69]). The applicants submitted that the legislation should have provided for independent consideration in individual cases of either the justification for enfranchisement or the basis for assessing compensation. The response of the ECtHR at [68] was:

“Such a system may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation. However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid the uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned.”

At [69] the court added:

“The view taken by Parliament as to the tenant's 'moral entitlement' to ownership of the house, which the Court has found to be within the State's margin of appreciation, is one that applies equally to the applicants' properties in Belgravia. An inevitable consequence of the legislation giving effect to that view is that any tenant who sells the unencumbered freehold of the property (comprising house and land) after enfranchising is bound to make an apparent gain, since the price of enfranchisement, at least on the 1967 basis of valuation, did not include the house and the tenant has benefited from the so-called merger value. In addition, the broad sweep and scale of the redistribution of interests achieved by the reform mean that some anomalies, such as the making of 'windfall profits' by tenants who purchased end-of-term leases at the right time, are unavoidable. Parliament decided that landlords affected by the legislation should be deprived of the enrichment, considered unjust, that would otherwise come to them on reversion of the property, at the risk of a number of 'undeserving' tenants being able to make 'windfall profits'. That was a policy decision by Parliament, which the Court cannot find to be so unreasonable as to be outside the State's margin of appreciation. Neither does the operation of the legislation in practice, notably as illustrated by the 80 transactions concerning the applicants, show the scale of anomalies to be such as to render the legislation unacceptable under Article 1. Furthermore, in all the specific transactions complained of, even those where 'windfall profits' were made by tenants in onward sales, the applicants received the prescribed compensation for what Parliament considered to be their entitlement in equity as landlords. Any hardship as a result of the making of a 'windfall profit' was suffered not by the applicants, whose loss and compensation were unaffected, but rather by the predecessor(s) in title of the enfranchising tenant.”

As Lord Bingham pointed out in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] 1 AC 1312, legislation cannot be framed so as to address particular cases; it must lay down general rules. A general rule means that a line must be drawn, it being a matter for Parliament to decide where. The drawing of such a line inevitably means that hard cases will arise falling on the wrong side of it. But such a rule is not invalid if, judged in the round, it is beneficial [33].

In re JR 123 [2025] UKSC 8; [2025] 2 WLR 435 the Supreme Court endorsed the aim of a regime for the rehabilitation of offenders that the scheme should operate in as clear, simple and practical a manner as possible. It used a category-based approach in the interests of legal certainty to avoid the inconsistency inherent in a case-by-case approach to assessment.

By contrast, a lack of legal certainty in the operation of a rule may be taken into account in assessing whether a State has struck a fair balance for the purposes of A1P1 (see the Grand Chamber in Hutten-Czapska at [167]-[168]).