Letter to the Chair from Ian Austin MP,
Parliamentary Under Secretary of State, Department for Communities
and Local Government, dated 5 July 2009
RE MCCANN
V UNITED
KINGDOM
Thank you for your letter of 9 June to
John Healey asking for information about the Government's position
on and response to the European Court of Human Rights' judgment,
in the above case, that the UK was in breach of the European Convention
on Human Rights. Your letter has been passed to me for a response.
I am conscious that you sought a reply by 23 June
and I apologise for not keeping to that date. Your letter, I'm
afraid, took longer than it should have done to reach me and relevant
officials and has required some careful consideration across several
Government Departments.
Since my substantive response is lengthy I've
numbered it and included it below this covering note. You will
see that it addresses each of the five questions raised in your
letter in turn. I've also enclosed, as requested, copies of the
Government's submissions to the Committee of Ministers in this
case. We will of course keep you updated if further information
is provided.
What steps, if any, does the Government intend
to take to give effect to the ECtHR's decision in McCann?
1. The Government has informed the Committee
of Ministers that it considers that the case of McCann
should now be closed. However, it has said that if the Committee
considers it would be preferable to await the judgment of the
European Court of Human Rights ("ECtHR") in Kay v
United Kingdom (application no 37341/06), the Government is
willing to do so, but will take no further steps regarding implementation
pending the Kay v United Kingdom judgment.
2. The decision in Doherty took fully
into account the decision of the ECtHR in McCann: see Lord
Hope at [15]-[21], Lord Scott at [82]-[88], Lord Walker at [115]-[121]
and Lord Mance at [140], [161]-[163].
3. In order to understand how their Lordships
developed and modified their judgment in Kay v London Borough
of Lambeth and Leeds City Council v Price [2006] UKHL 10 [2006]
2WLR 570 ("Kay") in the light of McCann
it is necessary to consider their decisions in Kay and
Doherty v Birmingham City Council [2008] UKHL 57 ("Doherty")
briefly.
4. The leading majority speech in Kay
was given by Lord Hope who explained at [para] 110;
"Subject to what I say below, I would
hold that a defence which does not challenge the law under which
the possession order is sought as being incompatible with article
8 but is based only on the occupier's personal circumstances
should be struck out … Where domestic law provides
for personal circumstances to be taken into account, as in a case
where the statutory test is whether it would be reasonable to
make a possession order, then a fair opportunity must be given
for the arguments in favour of the occupier to be presented. But
if the requirements of the law have been established and the right
to recover possession is unqualified, the only situations in which
it would be open to the court to refrain from proceeding to summary
judgment and making the possession order are these: (a) if a seriously
arguable point is raised that the law which enables the court
to make the possession order is incompatible with article 8, the
county court in the exercise of its jurisdiction under the Human
Rights Act 1998 should deal with the argument in one or other
of two ways: (i) by giving effect to the law, so far as it is
possible for it to do so under section 3, in a way that is compatible
with Article 8, or (ii) by adjourning the proceedings to enable
the compatibility issue to be dealt with in the High Court; (b)
if the defendant wishes to challenge the decision of a public
authority to recover possession as an improper exercise of its
powers at common law on the ground that it was a decision that
no reasonable person would consider justifiable, he should be
permitted to do this provided again that the point is seriously
arguable: Wandsworth London Borough Council v Winder [1985]
AC 461. The common law as explained in that case is, of course,
compatible with Article 8. It provides an additional safeguard."
5. In summary, the decision of the majority
in Kay in the House of Lords established that where a landlord
has an unqualified right to possession, an occupier may do one
of two things. He may argue that the law is incompatible with
Article 8 and seek a declaration of incompatibility ("gateway
(a)"). Or he may raise a public law defence by arguing that
the public authority landlord's decision to seek possession is
so unreasonable that no reasonable person would consider it justifiable,
and that possession should accordingly be refused on that ground
("gateway (b)").
6. Lord Bingham, giving the leading minority
judgment adopted the following formulation as to how the courts
the courts should approach Article 8 defences to possession
proceedings at para [39]:
"(1) It is not necessary for a local
authority to plead or prove in every case that domestic law complies
with Article 8. Courts should proceed on the assumption that domestic
law strikes a fair balance and is compatible with Article 8. (2)
If the court, following its usual procedures, is satisfied that
the domestic law requirements for making a possession order have
been met, the court should make a possession order unless the
occupier shows that, highly exceptionally, he has a seriously
arguable case on one of two grounds. (3) The two grounds are:
(a) that the law which requires the court to make a possession
order despite the occupier's personal circumstances is Convention-incompatible;
and (b) that, having regard to the occupier's personal circumstances,
the local authority's exercise of its power to seek a possession
order is an unlawful act within the meaning of section 6. (4)
Deciding whether the defendant has a seriously arguable case on
one or both of these grounds will not call for a full-blown trial.
This question should be decided summarily, on the basis of an
affidavit or of the defendant's defence, suitably particularised,
or in whatever other summary way the court considers appropriate.
The procedural aim of the court must be to decide this question
as expeditiously as is consistent with the defendant having a
fair opportunity to present his case on this question…"
7. Thus, whilst the minority considered
that there would be a heavy presumption that Article 8 would
not provide a defence to possession proceedings where the law
gave the landlord an unqualified right to possession, it accepted
that an argument could in principle be raised that, in the light
of the occupier's personal circumstances, it was a breach of the
local authority's duty under section 6(1) of the Human Rights
Act 1998 to seek a possession order.
8. The House of Lords' decision in Doherty
was preceded by the judgment of the ECtHR in McCann v United
Kingdom. In his leading judgment in Doherty, Lord Hope
at para [19] accepted that the House of Lords "must take
into account any judgment of the Strasbourg court and give practical
recognition to the principles that it lays down." Lord Hope
acknowledged at paragraph 36 that the way in which the formula
expressed by him in paragraph 110 of Kay worked in
cases of this kind required further development and to some extent
modification.
9. He went on to say that:
"in this situation it would be unduly
formalistic to confine the review strictly to traditional Wednesbury
grounds. The considerations that can be brought into account in
this case are much wider. An examination of the question whether
the respondent's decision was reasonable, having regard to the
aim it was pursuing and the length of time that the appellant
and his family have resided on the site, would be appropriate"
(paragraph 55).
10. The case was remitted to allow for a
gateway (b) challenge to be considered by the High Court.
11. The Court of Appeal considered the House
of Lords' decision in Doherty in the case of Doran v
Liverpool City Council [2009] EWCA CIV 146. Toulson LJ, with
whom the other members of the Court agreed, held in paras [48]-[52]
that in relation to gateway (b) the effect of Doherty was
two fold:
"First, there is no formulaic or formalistic
restriction of the factors which may be relied upon by the licensee
in support of an argument that the council's decision to serve
a notice to quit, and seek a possession order, was one which no
reasonable council would have taken. Such factors are not automatically
irrelevant simply because they may include the licensee's personal
circumstances, such as length of time of occupation. In Doherty,
where the family had been in occupation for a substantial time
without causing any trouble, but the council wanted to use the
site in a different way, it might also be thought relevant whether
the council had taken any steps to offer the family, or help them
to acquire, alternative accommodation.
Secondly, the question whether the council's
decision was one which no reasonable person would have made is
to be decided by applying public law principles as they have been
developed at common law, and not through the lens of the Convention.
There is no conflict between these two propositions,
which should be capable of being applied without additional complexity.
As Baroness Hale observed in Kay at para 190, in a passage cited
by Lord Walker in Doherty at para 108:
"it should not be forgotten that in an
appropriate case, the range of considerations which any public
authority should take into account in deciding whether to invoke
its powers can be very wide: see R v Lincolnshire County Council
ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley
Borough Council [2006] EWHC 301 (Admin). Having said that
the question whether the council's decision was unreasonable has
to be decided by applying public law principles as they have been
developed at common law, it is to be remembered that those principles
are not frozen. Even before the enactment of the [Human Rights
Act], our public law principles were being influenced by Convention
ways of thinking. Since its enactment, the process has gathered
momentum. It is now a well recognised fact that the Convention
is influencing the shape and development of our domestic public
law principles, whether one uses the metaphors of embedding, weaving
into the fabric, osmosis or alignment. (see the judgment of Lord
Walker in Doherty, at para 109.)"
12. The case of McGlynn v Welwyn Hatfield
District Council [2009] EWCA Civ 285 illustrates how
such principles may be applied in practice. The case was remitted
to the first instance court to determine the reasonableness of
the local authority's decision to serve the notice to quit.
13. In Doherty their Lordships held
that the scope for a gateway (b) challenge is wider than a traditional
collateral public law challenge in possession proceedings, such
as was raised in Wandsworth LBC v Winder [1985] AC 461.
In Central Bedfordshire Council v Taylor and others, [2009]
EWCA Civ 613 Lord Justice Waller, with whom the other members
of the court agreed, stated at para [22]:
"Even if in Kay Lord Hope intended gateway
(b) to be confined to what I might term a "rationality"
challenge, in his speech in Doherty Lord Hope intended to extend
to some extent the scope of judicial review beyond rationality
even if not as far as straightforward challenge by reference to
the Convention."
14. In summary, Lord Hope, who gave the
leading judgment in Doherty made it clear that the McCann
decision had been taken into account and the decision in Kay
had been modified and developed accordingly. The recent decisions
of the Court of Appeal have clarified some of the modifications
that were introduced in Doherty.
Does it propose to use primary legislation to
give effect to the ECtHR's judgment? If not why not?
15. The Government, as previously stated,
considers the case of McCann is ready to be closed. Accordingly,
it does not consider that legislation is required to give effect
to McCann. As noted above, the House of Lords considered
that they had taken McCann into account when deciding Doherty
and subsequent cases have developed a common law approach that,
by applying Doherty, takes account of the ECtHR judgment
in McCann.
16. The ECtHR is due to consider again the
extent of the protection afforded to an occupier by Article 8,
in Kay v UK. If the ECtHR conclude, contrary to their Lordships'
decision, that Doherty does not give effect to the decision
in McCann, we hope that will be clear from their judgment.
17. If the ECtHR conclude that the House
of Lords' decision in Doherty does not provide adequate
protection to certain categories of occupier, it is difficult
to predict with any certainty which alternative approach they
will favour. They may endorse that of the minority in the House
of Lords' decision in Kay (as they did in McCann),
or decide that even the minority in Kay did not go far
enough in protecting Article 8 rights.
18. Should the ECtHR find against the Government
in Kay v United Kingdom, we will of course consider the
implications of the judgment carefully in order to reach a decision
on the most appropriate measures to implement it. Our consideration
would include the possibility of legislation but we cannot speculate
in advance of any adverse judgment as to whether this would be
the approach adopted.
Why has the Government chosen not to remedy the
breach identified by McCann by remedial order?
19. The Government does not consider that
it is necessary to legislate to implement McCann for the
reasons set out above. If, following the decision in Kay v
United Kingdom, it becomes clear that fundamental changes
are required to be made to social housing legislation, the Government
will at that stage consider whether it is appropriate to bring
in such changes by remedial order, bearing in mind their potentially
far-reaching and controversial nature.
On what evidence does the Government base its
conclusion (given during the debates on the Housing and Regeneration
Bill) that legislative amendment in the light of McCann would
complicate and delay the vast majority of cases?
20. The Appellate Committee in Kay
were clear that firm objective criteria should be imposed by which
a judgment could be made on the cases in which an Article 8 defence
would be arguable. At para [20] in Doherty Lord Hope said:
"unless parameters or guidelines are
set down, the judgment in each case will be a subjective one.
Every solicitor who is asked to advise an occupier will have to
consider whether it is arguable that the decision to seek his
eviction was not proportionate. If he decides to raise this argument
the court will have to examine the issue. The whole point of the
reasoning of the majority [in Kay] was to reduce the risks to
the operation of the domestic system by laying down objective
standards on which the courts can rely."
21. In addition, Lord Nicholls, who was
in the minority in Kay, stated in Kay at paras [54-55]:
"Day in, day out, possession orders are
routinely made in county courts all over the country after comparatively
brief hearings. The hearings are mostly brief because the time
needed to dispose fairly of the formalities and also of questions
of reasonableness, where they arise, is usually short. This will
no longer be the position if, as has been contended, local authorities
must now plead and prove in every case that domestic law meets
the requirements of article 8.
I am unable to accept this remarkable contention.
The course proposed would be a recipe for a colossal waste of
time and money, in case after case, on futile challenges to the
Convention-compatibility of domestic law. On the contrary, despite
the possibility of a successful challenge under article 8, I see
no reason for the present practice to change. Courts should proceed
on the assumption that domestic law strikes a fair balance and
that it is compatible with the requirements of article 8 and
also article 1 of the first protocol.
This assumption is of course rebuttable…"
22. Further, it is clear from Lord Bingham's
analysis (which was approved by the ECtHR in McCann) that
he envisaged that the onus would be on the defendants to raise
(exceptionally) a seriously arguable Article 8 case before
the Court was obliged to consider it. By contrast, the proposed
amendment to the Housing and Regeneration Bill suggests that the
Court would be required to consider evidence relating to Article
8 in every case. 22.
23. The House of Lords' approach in Doherty
and Kay is based on an acknowledgment that Parliament has
taken a conscious decision to grant security of tenure only selectively.
In cases where it has not been granted, a deliberate decision
has been taken that summary possession should ordinarily be permitted.
Unless the law itself can be challenged as incompatible with the
Convention, or a public law challenge is available, the effect
of Doherty and Kay is that Parliament must have
been taken to have acted proportionately in limiting security
of tenure in the way that it has. The question of proportionality
is deemed to have been taken into account at the point which Parliament
formulates the general law.
24. The existing (intricate) statutory framework
has evolved over the years in part to ensure that public authority
landlords make objective decisions on the respective merits of
the competing claims of individuals with a need for social housing
and balance the interests of tenants, landlords and third parties.
To allow a merits review to take place in all cases would undermine
that system and amount to giving protection akin to security of
tenure to all occupiers of a property of a public authority landlord.
It seems inevitable that, if arguments were to be heard on Article
8 as a matter of course, the majority of cases would take
longer to be heard. Part of the rationale for the existing system,
is that by creating a clear right to repossess properties in certain
circumstances, housing authorities can efficiently and cost-effectively
carry out their functions in allocating housing to those most
in need. The House of Lords in Kay and Doherty were
of that view and, for that reason sought to impose parameters
and guidelines, to achieve a measure of legal certainty and to
prevent Article 8 arguments being raised in every possession
case.
Given the House of Lords' decision in Doherty,
does the Government remain satisfied that the domestic courts
can take the decision in McCann into account?
25. Lord Bingham, with whom the rest of
the Appellate Committee unanimously agreed, gave judgment in Kay
on the question of whether a court which would ordinarily be bound
to follow the decision of a higher domestic court is or should
be no longer bound to follow that decision if it appears to be
inconsistent with a later ruling of the court of Strasbourg. He
concluded that that certainty is best achieved by adhering, even
in the Convention context, to the domestic rules of precedent
(at para [43]). A more fundamental reason still for adhering to
the domestic law of precedent was, in his view, to ensure effective
implementation of the Convention by constructive collaboration
between the Strasbourg court and the national courts of member
states (para [44]).
26. The Government remains of the view that
Doherty fully took into account the decision in McCann.
If, on the other hand, a lower court were to consider domestic
case-law to be inconsistent with that of the ECtHR it would be
able to express that view and give leave to appeal to a higher
court.
5 July 2009
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