Judgments - Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents) Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants)

(back to preceding text)

    18.  In its judgment on the Leeds appeal ([2005] 1 WLR 1825), the Court of Appeal again summarised the ratio of the majority in Qazi (para 13 of the judgment):

    "Thus all three of the majority held that, under the Strasbourg jurisprudence, the exercise of an absolute proprietary right to possession could not infringe article 8. Implicit in this conclusion was the premise that the English domestic law which conferred the absolute right to possession was, itself, compatible with Convention rights."

The court then reviewed the compatibility of the majority reasoning in Qazi with the decision of the European Court in Connors and concluded (para 26):

    "The decision in Connors's case 40 EHRR 189 is unquestionably incompatible with the proposition that the exercise by a public authority of an unqualified proprietary right under domestic law to repossess its land will never constitute an interference with the occupier's right to respect for his home, or will always be justified under article 8(2). To that extent Connors's case is incompatible with Qazi's case [2004] 1 AC 983."

The court considered (paras 27-28) the earlier judgment of the court in the Lambeth appeal, but did not consider (para 29) that the reasoning of the European Court in Connors could be confined to the treatment of gipsies and accordingly accepted (para 30) the appellants' submission that Connors was incompatible with Qazi.

The Strasbourg jurisprudence

    19.  In their opinions in Qazi the members of the House analysed what were then the leading Strasbourg authorities pertaining to the right to respect for the home, although the majority and the minority drew different inferences from them: contrast the opinions of Lord Hope (para 78), Lord Millett (paras 103-104) and Lord Scott (paras 125, 146 and 149) with those of myself (paras 20,23) and Lord Steyn (para 30). S v United Kingdom (1986) 47 DR 274, to which my noble and learned friend Lord Hope attaches much significance, was an early admissibility decision of the Commission on which the Court has never, to my knowledge, relied in any later case. It would, in my opinion, serve no useful purpose to repeat this analysis, since if matters rested where they did when Qazi was decided the majority interpretation of the Strasbourg jurisprudence would be bound to prevail, whatever reservations there may have been in the minds of some, at the time, about its correctness. It is, however, argued by the appellants, with strong support by the First Secretary of State as intervener, that matters do not rest where they did when Qazi was decided, since two cases have since been decided by the European Court which are inconsistent with the ratio of the majority in Qazi and support the approach of the minority. Those decisions are Connors v United Kingdom (2004) 40 EHRR 189 and Blecic v Croatia (2004) 41 EHRR 185.

    20.  The facts of these two cases were quite different. Mr Connors and his family had lived as licensees on a local authority gipsy site for most of the preceding sixteen years when, in January 2000, they were given notice to quit. This notice was prompted by complaints about the behaviour on the site of some members of the applicant's family or their guests, which was said to be a breach of the licence conditions. The applicant did not leave, and proceedings were brought for possession. He sought to challenge the authority's decision to initiate proceedings by judicial review, but permission was refused. The authority's complaints of misbehaviour were strongly denied by the applicant, and so the authority dropped these complaints and relied instead on its right to terminate the applicant's licence on notice, which had been given. There was no answer to this claim under English domestic property law. A possession order was accordingly made, and some weeks later the applicant and his family and their caravans and possessions were forcibly removed from the site.

    21.  In Blecic the applicant had for nearly forty years before 1992 been a specially-protected tenant of a publicly-owned flat in Zadar. Under the domestic property law of Croatia a specially-protected tenancy might be terminated if the tenant ceased to occupy the flat for a continuous period of six months, but termination might not be effected on that ground if the tenant's failure to use the flat was attributable to medical treatment, military service or "other justified reasons". The applicant left Zadar in July 1991 to visit her daughter in Rome. War then intervened, conditions in Zadar were bad, and the applicant did not return until May 1992, by which time another occupant had, without permission, moved into the flat. In February 1992 the local authority had already initiated proceedings to terminate the tenancy. The applicant claimed that she had had justified reasons for not using the flat, and this argument was accepted by an intermediate court, but it was rejected at first instance and, finally, by the Supreme Court. Thus, without justified reasons, the applicant had no grounds for resisting the termination of her tenancy.

    22.  It was agreed in Connors (para 68 of the Court's judgment in that case) and held in Blecic (para 52 of the Court's judgment in that case) that the premises in question were, for purposes of article 8, the applicant's home. It was agreed in Connors (para 68) and held in Blecic (para 54) that the facts disclosed an interference with the applicant's right to respect for his and her home. Under the domestic property law of the two jurisdictions there was no arguable defence to either claim (in the Blecic case, once she had been found to have no justified reasons). But in each case the Court went on to consider, at some length, the excepting conditions in article 8. In Connors (para 69) it was agreed, and in Blecic (paras 57-58) it was held, that the interference had a legitimate aim. In each case the crux was whether the interference was necessary in a democratic society, namely whether the interference answered a pressing social need and was proportionate to the legitimate aim pursued (Connors, para 81; Blecic, para 59). These are matters which would not have fallen for consideration at all if a clear answer given by domestic property law were decisive. As it was, the Court devoted fourteen paragraphs of its judgment in Connors to this aspect and eleven paragraphs of its judgment in Blecic. It reached differing conclusions in the two cases. In ruling against the United Kingdom in Connors the court took account of the nature of the rights involved in the case (para 82), the procedural safeguards available to the individual (para 83), the vulnerable position of gipsies as a minority whose way of life member states are positively obliged to facilitate (para 84) and the disadvantageous position of gipsies on local authority as opposed to privately-owned sites (paras 43-46, 87-90). It concluded that judicial review was not an adequate safeguard (para 92) and that (para 95)

    "the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a 'pressing social need' or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Art. 8 of the Convention."

Reaching a different conclusion in Blecic, the Court respected the margin of appreciation accorded to national authorities (paras 64-65) and found (paras 68-70) that the applicant had had a fair opportunity to put forward her views and resist the claim made against her.

    23.  The decision of the House in Qazi was not cited in Connors, perhaps because the majority reasoning was inconsistent with the basis on which the United Kingdom's case was put (and had been put on earlier occasions such as Howard v United Kingdom (1985) 9 EHRR 117, P v United Kingdom (Appn No 14751/89), 12 December 1990, unreported, and Chapman v United Kingdom (2001) 33 EHRR 399 and, domestically, in Southwark London Borough Council v St Brice [2001] EWCA Civ 1138, [2002] 1 WLR 1537). The respondents, however, place considerable reliance on the fact that when Mr Qazi sought to apply to Strasbourg to complain of a violation of his article 8 right his application was declared inadmissible. From the very brief reasons given, the respondents infer approval of the majority's reasoning. The Court of Appeal in the Leeds case discounted the significance of this finding in paragraph 15 of its judgment, and the House itself has been at pains over the years to make plain that the refusal of leave does not necessarily import approval of the reasoning of the judgment which it is sought to challenge. It may have been thought, as the Qazi minority certainly thought, that Mr Qazi was most unlikely to win even if his case were remitted to the county court, and his case may have had more in common with earlier cases held inadmissible because the justification was obvious than cases such as Connors and Blecic. I do not, in any event, think that any reliable inference can be drawn from the finding of inadmissibility made against Mr Qazi's application.

    24.  The respondents sought in argument to explain Connors, as the Court of Appeal did in its Lambeth judgment, as a case turning on the special position of gipsies. This is, in my opinion, partly right and partly wrong. It is right inasmuch as the position of Mr Connors and his family as members of a vulnerable minority, to whom the state owed a positive obligation, and who had inadequate means of protecting their rights in domestic law, founded the Court's finding in their favour on the issue of necessity in a democratic society (i.e. pressing social need and proportionality). It is wrong insofar as it is relied on to support the majority reasoning in Qazi: for on that reasoning the applicants' lack of any proprietary interest whatever under domestic property law would have effectively concluded the case against them, without any need to explore questions of necessity, pressing social need and proportionality. The Court of Appeal in paragraph 29 of its Leeds judgment was in my opinion correct to hold that the reasoning in Connors could not be confined to the treatment of gipsies.

    25.  The appellants point out that in Connors both the applicability of article 8 and an act of interference by a public authority were conceded by the United Kingdom. This is correct, as noted in para 22 above. But the Court of Appeal in its Leeds judgment (para 25) rejected the suggestion that the decision was founded on the concession, and thought it clear that the Court considered the concession to have been rightly made. I agree. It is also clear that if either of the two cases now before the House were to reach Strasbourg the same concessions would be made (subject, in the Leeds case, to the prior contention that the premises were not the appellants' home: see para 48 below).

    26.  The Court of Appeal in its Leeds judgment (para 26) was in my view right to hold that the decision in Connors is "unquestionably incompatible" with the majority ratio of Qazi. It does not appear that Blecic was cited to the Court of Appeal: had it been, it could only have fortified the court in the correctness of its conclusion.

The application of the Strasbourg jurisprudence

    27.  The appellants contended, with strong support from the First Secretary of State, that

    (1)  the majority ratio in Qazi should be modified to take account of the later Strasbourg jurisprudence, particularly Connors and Blecic;

    (2)  defendants to possession proceedings brought by public authorities should be permitted in principle to raise an article 8 defence in those proceedings;

    (3)  defendants should be permitted to raise such defences in the county court in the possession proceedings and should not be required to raise such defences in separate proceedings for judicial review, and

    (4)  such a procedure would not in practice impose an excessive or unsustainable burden on the administration of justice in the county courts.

Each of these contentions was challenged by the respondents, and each of them is important.

    28.  The mandatory duty imposed on domestic courts by section 2 of the 1998 Act is to take into account any judgment of the Strasbourg Court and any opinion of the Commission. Thus they are not strictly required to follow Strasbourg rulings, as they are bound by section 3(1) of the European Communities Act 1972 and as they are bound by the rulings of superior courts in the domestic curial hierarchy. But by section 6 of the 1998 Act it is unlawful for domestic courts, as public authorities, to act in a way which is incompatible with a Convention right such as a right arising under article 8. There are isolated occasions (of which R v Spear [2002] UKHL 31, [2003] 1 AC 734, paras 12 and 92, is an example) when a domestic court may challenge the application by the Strasbourg Court of the principles it has expounded to the detailed facts of a particular class of case peculiarly within the knowledge of national authorities. The 1998 Act gives it scope to do so. But it is ordinarily the clear duty of our domestic courts, save where and so far as constrained by primary domestic legislation, to give practical recognition to the principles laid down by the Strasbourg Court as governing the Convention rights specified in section 1(1) of the 1998 Act. That Court is the highest judicial authority on the interpretation of those rights, and the effectiveness of the Convention as an international instrument depends on the loyal acceptance by member states of the principles it lays down. In the present instance the governing principle is now clear, and gives fair effect to the right to respect for his home which everyone is entitled to enjoy under article 8(1). That provision does not, as has been repeatedly and rightly held, guarantee a right to a home or the right to have one's housing problems solved by the authorities: Chapman v United Kingdom (2001) 33 EHRR 399, para 99; Marzari v Italy (1999) 28 EHRR CD 175, 179; O'Rourke v United Kingdom (Application No 39022/97), unreported, 26 June 2001. But it does guarantee a right to respect for the place where a person lives if his links with that place are close enough and continuous enough (Buckley v United Kingdom (1996) 23 EHRR 101, 115, para 63; Mabey v United Kingdom (1996) 22 EHRR CD 123, 124; O'Rourke v United Kingdom above) to make it proper to regard that place as his home. To evict or seek to evict a person from such a place is to interfere with his exercise of his article 8(1) right, as the House held in reliance on Strasbourg and other authority in Qazi. Article 8(2) forbids such interference by a public authority unless the excepting conditions are satisfied. Compliance with domestic property law is a necessary excepting condition but not a sufficient one, since the other conditions must also be met, notably that the interference must answer a pressing social need and be proportionate to the legitimate aim which it is sought to achieve. This must now be recognised as the correct principle. In stating it, I enter the same important reservation as in Qazi, para 23: nothing in this opinion should be understood as applying to any landlord or owner which is not a public authority. Competing submissions were made on this point. It does not arise for decision in these appeals. It is best left for resolution in a case where it arises.

    29.  It necessarily follows, in my judgment, that where a public authority seeks to evict a person from premises (which may be land where a traveller has pitched his caravan) which he occupies as his home, that person must be given a fair opportunity to contend that the excepting conditions in article 8(2) have not been met on the facts of his case. I do not accept, as the appellants argued, that the public authority must from the outset plead and prove that the possession order sought is justified. That would, in the overwhelming majority of cases, be burdensome and futile. It is enough for the public authority to assert its claim in accordance with domestic property law. If the occupier wishes to raise an article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so. In the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile.

    30.  The respondents submitted that if, on article 8 grounds, an occupier wishes to resist a claim for possession valid under domestic property law, the proper medium for such a challenge is an application for judicial review and the proper venue the Administrative Court and not the county court. That is the proper forum in which a challenge to an exercise of public power by a public authority should be resolved. If this were a correct submission it would have to be accepted, but it would have very unfortunate procedural consequences. It would lead to the adjournment of the county court proceedings while application was made for permission to apply for judicial review. Even if permission were refused, as would almost always be the case, there would be additional expense and delay, preventing summary disposal of the matter in the county court. The occupier would be restricted to a procedure not well-adapted or routinely used for the resolution of sensitive factual questions and to a court traditionally and rightly reluctant to explore the merits of an apparently lawful decision, as it proved to be in Connors' case. But in my opinion it is not a correct submission. Effect must be given to section 7(1)(b) of the 1998 Act, which provides:

    "(1)  a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. in a way which is incompatible with a Convention right] may …

    (b)  rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."

This is express authority entitling the occupier to raise his article 8 challenge to the possession order sought against him in those proceedings. It is consistent with authorities such as Wandsworth London Borough Council v Winder [1985] AC 461 and Boddington v British Transport Police [1999] 2 AC 143, and respects the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review: see, for example, R v Huntingdon District Council, Ex p Cowan [1984] 1 WLR 501, 507. Where a party seeks relief, on conventional judicial review grounds, which only the Administrative Court can grant, there will, of course, be no alternative to an application for judicial review, but that will very rarely, if ever, be the case where an occupier seeks to resist a possession order in reliance on article 8.

    31.  The respondents contended that if the approach indicated above were given practical effect the result would be to dislocate the conduct of housing claims in the county court, distort local authority housing policies and budgets, and upset the important compromises inherent in our property law and housing legislation. The appellants, supported by the First Secretary of State, strongly challenged this prediction, while accepting that the threshold for relying successfully on article 8 in response to an otherwise well-founded possession claim should be very high and that the number of successful defendants would be minimal. This is an important aspect of these appeals, and one that has caused the House much concern.

    32.  The respondents insisted on the relevance of three principles which are very familiar but are, indeed, fundamental. The first is that the Strasbourg authorities routinely accord a wide margin of appreciation to the national authorities of member states, not least in the context of both article 8 and article 1 of the First Protocol. While in some situations (such as that in Connors) the margin is treated as narrower than in some other situations, and the Court reserves to itself the power of final review, this principle is undoubtedly correct. So is the closely-allied second principle, that the Strasbourg authorities generally respect, subject to similar qualifications, decisions made by democratically - elected assemblies following public debate. So too is the third principle, that inherent in the whole of the Convention is a search for balance between the rights of the individual and the wider rights of the society to which he belongs, neither enjoying any absolute right to prevail over the other. It is unnecessary to cite authority for propositions so well established and understood.

    33.  The third of these principles has obvious relevance in a context such as that giving rise to these appeals. For the general property law of England and Wales has developed over the centuries reconciling the rights and interests, sometimes in harmony, sometimes conflicting, of owners, landlords and licensors on one hand and occupiers, tenants and licensees on the other. Over the last century or so, this general property law has been overlaid by a mass of very detailed, very specific housing legislation. Giving the House the benefit of their great expertise, the respondents' counsel drew attention to, among other examples, secure tenancies, introductory tenancies, demoted tenancies, assured tenancies, assured shorthold tenancies and demoted assured shorthold tenancies, all of them created or to a greater or lesser extent regulated by statute. Most of these statutes (and further examples could readily be given) were no doubt prompted by recognition that housing (in which expression I include pitches on which travellers may lawfully pitch their caravans) is a scarce and in the short term finite commodity. The demand for housing at a reasonable price is greater than the supply. This of course means that security of tenure for A means a denial of accommodation for B, recognition of a right for C to succeed to a tenancy means there is no tenancy for D, an extension of time granted to E defers the date when F can find somewhere to live. Our housing legislation strikes a balance between the competing claims to which scarcity gives rise, taking account, no doubt imperfectly but as well as may be, of the human, social and economic considerations involved. And it is, of course, to housing authorities such as the respondents that Parliament has entrusted the power of managing and allocating the local authority housing stock and the pitches on local authority gipsy sites.

    34.  Under some statutory regimes, as where discretionary grounds are relied on to terminate a secure tenancy under the Housing Act 1985, the court may make an order for possession only where, other conditions for making such an order being met, the court thinks it reasonable to do so. This enables the court to take account of all circumstances which it judges to be relevant. If, in any case covered by such a regime, the statutory conditions are satisfied and the court does, on consideration of all the circumstances, think it reasonable to make a possession order, the court will in effect have undertaken the very assessment which article 8(2) requires. In such a situation article 8(2) adds nothing of substance to the protection which the occupier already enjoys.

    35.  Under some statutory regimes the court may be required to make an order for possession if certain prescribed conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order. The statutory scheme is nonetheless likely to satisfy the article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, [2002] QB 48, the Court of Appeal found no breach of article 8(2) in the use of section 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, the Court of Appeal found no breach of article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under section 127(2) of the Housing Act 1996, since (para 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being (it was held) adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] HLR 639, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. See also Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, paras 63, 78. Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8.

    36.  There are of course some cases (of which the present cases are examples) in which the relationship between public authority owner or landlord and individual tenant or occupier is not governed by any statutory scheme. But possession may be sought on expiry of the period for which the right to occupy was granted, or because the notice required by domestic property law to bring that term to an end has been given, or because one or more of the conditions on which the right to occupy was granted has been broken. It cannot be said that the relationship between the parties in such cases is the subject of a balance struck by Parliament, but it is not unrealistic to regard the general law as striking such a balance. The public authority owner or landlord has, broadly speaking, a right to manage and control its property within bounds set by statute. The occupier acquires a right, but only a limited right, to occupy. On due determination of that interest, a claim for possession must ordinarily succeed, since any indulgence to the occupier necessarily derogates from the property right of the public authority, whose rights are also entitled to respect. It is not therefore surprising that in P v United Kingdom (Application No 14751/89), 12 December 1990, and Ure v United Kingdom (Application No 28027/95), unreported, 27 November 1996, the occupiers' complaints were held to be inadmissible because the public authority's interference or assumed interference was held to be clearly justified. It would, again, require highly exceptional circumstances before article 8 would avail the occupiers. The peculiar facts and circumstances of Connors could fairly be regarded as crossing that high threshold, given the positive obligation to which reference is made in paragraph 24 above.

continue previous