| Annex |
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| Possible Implications of Eu and Echr
Obligations for Land Reform |
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1 This annex draws attention to
how the formulation of proposals on land reform may be affected by:
- restrictions imposed by EU law;
- ECHR obligations.
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| Right of establishment under
Article 52 of the Treaty of Rome |
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| 2 The Treaty of Rome which was
signed in 1957 established the European Economic Community (EEC) and the European Atomic
Energy Community. Amongst other things, the creation of the EEC by the 6: France, Germany,
Italy, Belgium, Netherlands and Luxembourg abolished obstacles to freedom of movement for
persons, services and capital between member states. |
| 3 In short, the effect of
Article 52 and the related provisions of the Treaty of Rome, as they have been interpreted
and applied by the Court of Justice, is to prohibit any measures which would restrict in a
discriminatory way the right of individuals or companies from one member state, inter
alia, to acquire and use land and buildings situated in another member state. In such
matters, citizens of other member states must be treated in the same way as a member
state’s own citizens. |
| 4 Consequently it is possible to
impose general restrictions on land ownership and management so long as they apply equally
to the member state’s own citizens as to citizens of other member states. In terms of
Article 52, there could be an absolute restriction on the amount of land which could be
owned by a single individual, or a power to compulsorily purchase land which is owned by
someone who does not live on, or within a specified distance from, the holding. |
| 5 What would not be acceptable,
for example, would be a prohibition on foreign ownership of land which affected citizens
of other member states of the community (although there probably could be such a
restriction placed on ownership by citizens of third countries, or indeed by citizens of
England and Wales). |
| ECHR issues |
| 6 The Council of Europe was
founded in 1949 in the aftermath of the second world war. One of the main objectives was
to work for "the maintenance and further realisation of human rights and fundamental
freedoms". In furtherance of this aim the European Convention on Human Rights (ECHR)
was drafted. This was based on the Universal Declaration of Human Rights adopted by the
United Nations (UN) in 1948. Crucially, although the convention was less extensive in the
rights it sought to protect, it established a method of enforcement by securing
undertakings from member states to accept certain duties and to recognise that individuals
have rights under international law. The UN had not addressed this problem. This European
Convention on Human Rights was signed in 1950 and came into force in 1953. Since the
Convention was drawn up, new rights and obligations have been added in what are known as
protocols. The Human Rights Bill presently before Parliament will give further and more
direct effect in this country to the rights and freedoms guaranteed by the Convention.
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| 7 The provisions which seem most
likely to be relevant in this context are Articles 1 and 6 of the First Protocol to the
European Convention. Article 1 gives |
| a right to natural or legal
persons to the peaceful enjoyment of their possessions. |
| No-one is to be deprived of his
possessions except in the public interest and subject to the conditions provided for by
law and by the general principles of international law. It is made clear however that this
right in no way impairs the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest. Article 6 of the
Convention gives a right to a fair and public hearing by an independent and impartial
tribunal established by law for purposes of the determination of civil rights and
obligations. |
8 The most likely areas of
difficulty would therefore appear to relate to:
- any proposals which had the effect of requiring existing
landowners to dispose of their holdings or part of them;
- any proposals which substantially restricted their freedom
to use their holdings as they wished;
- any proposals for acceleration or simplification of
compulsory purchase procedures.
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| 9 Compulsory confiscation of
land without compensation would of course be a breach of the Protocol; but so, depending
on the circumstances, might be a requirement to dispose of all or part of one’s
holding, at least if it did not make sufficient provision for compensation for any loss
suffered by virtue of the compulsory disposal; and so also might abolition of particular
rights of a landowner, again unless satisfactory provision was made for compensation. It
might equally be necessary, in order to comply with Article 6, to ensure that there was a
mechanism by which disputes on any of these matters could be independently determined. It
is also in relation to Article 6 that problems might conceivably arise if there was an
intention, whether generally or in particular circumstances, to simplify compulsory
purchase procedures in a way which removed any of the protections and rights given to the
landowner. |
| 10 It must be emphasised that,
particularly in relation to ECHR issues, a great deal always depends on the facts of the
particular case as well as on the general circumstances, and it would be a mistake to feel
too constrained by fears of difficulties in these areas. It does however seem important
that they should at least be kept in mind. |
