DEFEND MY CASTLE: IS THE UK IN VIOLATION OF ARTICLE 8 OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS?

Abstract

Since the 1990s approximately 700 000 properties have been repossessed in the UK by mortgagees. While encouraging its citizens to access mortgage finance, the UK government has failed to provide corresponding legal protection and an effective regulatory framework to curtail unscrupulous lenders. What, if any, is the UK government’s responsibility in protecting its mortgagors from losing their homes? By utilising the relatively newfound doctrine of positive obligations, this article elaborates on the extent to which the UK may be held accountable under Art 8 of the European Convention of Human Rights. By rebutting the relevance of the private and contractual nature of the mortgage relationship, arguing for the ability to enforce socio-economic rights and upgrading the concept of home in legal discourse, this article contends that the UK is in breach of Art 8 of the ECHR. This contention is a crucial step towards reformulating states’ role and responsibility under the ECHR and, if elaborated on by the judiciary, will potentially prompt political action to reform the law of mortgages in the UK.