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)
37. Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end, with the environmental hazards it is likely to entail. Rules 55.5(2) and 55.6 of the Civil Procedure Rules provide for the summary removal of squatters. The rule in McPhail v Persons, Names Unknown  Ch 447 must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite.
38. I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind. They are well used to exercising their judgment under existing statutory schemes and will recognise a highly exceptional case when they see it. I do not, however, consider that problems and afflictions of a personal nature should avail the occupier where there are public services available to address and alleviate those problems, and if under the relevant social legislation the occupier is specifically disentitled from eligibility for relief it will be necessary to consider the democratic judgment reflected in that provision. Nor can article 8 avail a tenant, otherwise perhaps than for a very brief period, if he can be appropriately accommodated elsewhere (whether publicly or privately). Where, as notably in the case of gipsies, scarcity of land adversely affects many members of the class, an article 8(2) defence could only, I think, succeed if advanced by a member of the class who had grounds for complaint substantially stronger than members of the class in general.
39. The practical position, in future, in possession proceedings can be briefly summarised as follows. (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. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 the judge should consider whether it may be appropriate to refer the proceedings to the High Court.Precedent
40. Reference has already been made to the duty imposed on United Kingdom courts to take Strasbourg judgments and opinions into account and to the unlawfulness of courts, as public authorities, acting incompatibly with Convention rights. The questions accordingly arise whether our domestic rules of precedent are, or should be modified; whether a court which would ordinarily be bound to follow the decision of another court higher in the domestic curial hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the Court in Strasbourg. The Court of Appeal concluded, in paragraph 33 of its judgment on the Leeds appeal, that the only permissible course was to follow the decision of the House in Qazi, despite finding that it was incompatible with Connors, but to give permission, if sought and not successfully opposed, to appeal to the House, and in that way to take the decision in Connors into account.
41. The House has had the benefit of carefully considered submissions on this issue. In a written case submitted on behalf of JUSTICE and LIBERTY as interveners it is contended that the lower court is free to follow, and barring some special circumstances should follow, the later Strasbourg ruling where four conditions are met, namely (1) the Strasbourg ruling has been given since the domestic ruling on the point at issue, (2) the Strasbourg ruling has established a clear and authoritative interpretation of Convention rights based (where applicable) on an accurate understanding of United Kingdom law, (3) the Strasbourg ruling is necessarily inconsistent with the earlier domestic judicial decision, and (4) the inconsistent domestic decision was or is not dictated by the terms of primary legislation, so as to fall within section 6(2) of the 1998 Act. The appellants' formulation was to very much the same effect, although they did not suggest that the domestic court should follow the Strasbourg ruling, only that it might; they emphasised that the inconsistency between the otherwise binding domestic decision and the later Strasbourg ruling should be very clear; and they elaborated somewhat the conditions pertaining to primary domestic legislation. The First Secretary of State, after a judicious review of the arguments for and against the Court of Appeal's approach, favoured a (strictly circumscribed) relaxation of the doctrine of precedent in the circumstances of the Leeds appeal. He proposed that a lower court should be entitled to depart from an otherwise binding domestic decision where there is a clearly inconsistent subsequent decision of the Strasbourg Court on the same point. But the inconsistency must be clear. A mere tension or possible inconsistency would not entitle a lower court to depart from binding domestic precedent. The respondent gave a guarded answer. A lower court may decline to follow binding domestic authority in the limited circumstances where it decides that the higher courts are bound to resile from that authority in the light of subsequent Strasbourg jurisprudence.
42. While adherence to precedent has been derided by some, at any rate since the time of Bentham, as a recipe for the perpetuation of error, it has been a cornerstone of our legal system. Even when, in 1966, the House modified, in relation to its own practice, the rule laid down in London Street Tramways Company Limited v London County Council  AC 375, it described the use of precedent as
The House made plain that this modification was not intended to affect the use of precedent elsewhere than in the House, and the infrequency with which the House has exercised its freedom to depart from its own decisions testifies to the importance its attaches to the principle. The strictures of Lord Hailsham of St Marylebone LC in Broome v Cassell & Co Limited  AC 1027, 1053-1055, are too well known to call for repetition. They remain highly pertinent.
43. The present appeals illustrate the potential pitfalls of a rule based on a finding of clear inconsistency. The appellants, the First Secretary of State and the Court of Appeal in the Leeds case find a clear inconsistency between Qazi and Connors. The respondents and the Court of Appeal in the Lambeth case find no inconsistency. Some members of the House take one view, some the other. The prospect arises of different county court and High Court judges, and even different divisions of the Court of Appeal, taking differing views of the same issue. As Lord Hailsham observed (ibid, p 1054), "in legal matters, some degree of certainty is at least as valuable a part of justice as perfection." That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.
44. There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.
45. To this rule I would make one partial exception. In its judgment on the Leeds appeal, paragraph 33, the Court of Appeal said:
When that case reached the House, no criticism of the Court of Appeal's bold course was expressed, the House agreed that the policy considerations which had founded its decision in X v Bedfordshire had been very largely eroded and it was accepted that that decision was no longer good law:  UKHL 23,  2 AC 373 paras 21, 30-36, 82, 119, 124-125. The contrary was not suggested. But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in paragraph 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course is not permissible save where the facts are of that extreme character.
The Lambeth appeal
46. It follows from the foregoing paragraphs of this opinion that the courts below should have held the premises in question to be the homes of the respective appellants and should have held their eviction or proposed eviction to be an interference with their exercise of their right to respect for their homes within the meaning of article 8(2). Their defences should not have been struck out save on the basis that nothing sufficient was pleaded to support them.
47. The question then arises whether these cases should, even after this lapse of time, be remitted to the county court for consideration whether eviction is necessary in a democratic society, as that expression has been defined in the Strasbourg jurisprudence. I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary. But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made. I would accordingly, although for reasons differing from those of the Court of Appeal, dismiss these appeals.
The Leeds appeal
48. It seems to me all but unarguable that the recreation ground at Spinkwell Lane on which the appellants parked their caravans was ever their home within the meaning of article 8(1). On the agreed facts, they had been on the site for two days, without any authority whatever, when the Council issued proceedings for possession. There is nothing to suggest that they could show such continuous links with the land as would be necessary if it were to be regarded as their home. If, however, the land was their home, it is plain that their eviction was in accordance with domestic property law, which had the legitimate end of enabling public authorities to evict unlawful squatters from public land and restore it to public (in this case recreational) use. I can see no ground on which such action could be stigmatised as disproportionate, despite the personal afflictions to which these appellants were unfortunately subject. The facts are far removed from those of Connors where the family had been lawful occupiers of the authority's gipsy site, with one relatively brief intermission, for many years. I am satisfied that these appellants could not succeed if the case were remitted to the county court. In any event, they left the site over a year ago. I would accordingly, dismiss this appeal also.
49. I would, in each case, invite written submissions on costs within 14 days.
LORD NICHOLLS OF BIRKENHEAD
50. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I fully agree, I too would dismiss both appeals. I also agree with his observations on the judicial precedent point. On the 'Bruton tenancy' issue in the Lambeth appeal, I agree with the conclusions and reasoning of my noble and learned friend Lord Scott of Foscote whose speech I have had the advantage of reading in draft. I add some short observations only on the procedural aspects of the main issue. I must first set them in their context.
51. These appeals concern a subject matter of great importance to many people: the right of a local authority to repossess a property occupied by a defendant as his home. The two sets of proceedings exemplify two typical circumstances where repossession claims are made by a local authority. One is where the defendant was lawfully in possession of property, his rights of occupation were duly terminated, and a possession order was then sought. The other is where the defendant entered upon the local authority's property unlawfully and the local authority then took steps to obtain a possession order.
52. The problems before the House arise from the impact of the Human Rights Act 1998 in these cases. In both sets of proceedings the defendants contend that eviction would violate their Convention right to respect for their home. The House is concerned to give guidance on what should be the general approach to such contentions and, where seriously arguable issues arise, in which court the issues should be decided.
53. The starting point is clear enough. A possession order made by a court in respect of a defendant's home will be, at least ordinarily, an interference with the defendant's right to respect for his home within the meaning of article 8. Equally clearly, in almost all cases of the two types mentioned above that interference will be justified as 'necessary in a democratic society' on one or more of the grounds set out in article 8(2). The interference will be justified because in one case the defendants never had any right to be on the property at all. In the other case the defendants had only the limited rights afforded by the housing legislation. This complex, ever-changing law is testimony to the elaborate steps taken by Parliament to strike an appropriate balance between the competing interests of all those who are in need of homes. The country's housing stock is finite, and for many years the legislature has striven repeatedly to achieve the best and fairest use of the available housing. Parliament's decisions on this extremely difficult and intricate social problem are to be respected.
54. I said 'in almost all cases' because inevitably there may be the exceedingly rare case where the legislative code or, indeed, the common law is impeachable on human rights grounds. Connors v United Kingdom (2004) 40 EHRR 189, regarding the lack of protection for gypsies, is an example. It is this possibility, rare and exceptional though it may be, which gives rise to a hugely important practical problem. 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.
55. 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.
56. This assumption is of course rebuttable. It is for a defendant to place before the court material necessary to displace this assumption, and he must have a fair opportunity to do so. Like Lord Bingham of Cornhill, I am in no doubt that judges will quickly be able to recognise the highly exceptional case where there is a seriously arguable issue based on the requirements of article 8 or article 1 of the first protocol.
57. So far I have referred in quite general terms to the compatibility of domestic law with the requirements of the Convention. I must now delve just a little more deeply into the particular types of challenge which may be made, because that has a bearing on which court should decide the issue. At this point it is necessary to recall the two routes by which the Human Rights Act has incorporated Convention rights into this country's law. These are set out in section 3 and section 6 of the Act. These sections provide the protection afforded to Convention rights in United Kingdom law.
58. Against this background take first a case where the defendant's challenge is to the Convention-compatibility of primary or secondary legislation. In such cases a judge in the county court, like every judge in every court, is bound to give effect, should occasion arise, to the interpretive obligation set out in section 3. That is within his jurisdiction. But in the scheme of the Act the section 3 interpretive obligation may lead on to a declaration of incompatibility under section 4, which is a matter not within the jurisdiction of a county court. So, in the rare case where seriously arguable questions of this nature arise in the county court, it will be for the judge to consider whether the more appropriate course is for these questions to be resolved in the High Court.
59. The human rights challenge may take a different form. A local authority is obliged by section 6 to act compatibly with Convention rights. The defendant's contention may be that the local authority's exercise of its power to seek a possession order is, in the circumstances, an unlawful act within the meaning of section 6. As with a challenge to the Convention-compatibility of housing legislation, so here it will be a rare case indeed where this allegation can be made good. This is because in the ordinary course a public authority in seeking possession will be doing no more than relying on its ownership of land coupled with the limits on the defendant's rights of occupation as determined by Parliament or, where the defendant has never had any rights of occupation, coupled with his absence of any rights to be present on the land at all. However, if a Convention-compatibility issue under section 6 is raised in county court possession proceedings, that court is the appropriate forum for deciding the issue. It is the appropriate forum because in such a case the defendant is entitled to rely upon this allegation as a defence in the possession proceedings: section 7(1)(b) of the Human Rights Act. If the allegation is made good, the court may grant relief as provided in section 8 of the Act. The relief would include dismissing the possession proceedings or staying a possession order for such a period and on such terms as the court considers just and appropriate. I agree therefore with the summary of the practical position set out in paragraph 39 of the speech of Lord Bingham of Cornhill.
60. For completeness I mention a third possibility which has nothing to do with the Human Rights Act. A defendant may seek to challenge the lawfulness of the local authority's decision to pursue possession proceedings as an improper exercise of its powers quite apart from its obligations under section 6. Here again, this issue can be treated as a defence in the proceedings, in accordance with the principle enunciated in the well known decision of Wandsworth London Borough Council v Winder  AC 461.
61. These brief observations on section 6 are directed solely at local authorities and other landlords which are public authorities within the meaning of section 6. I say nothing about private landlords. They are not public authorities and they are outside the scope of section 6. The court of course is itself a public authority. Courts are bound to conduct their affairs in a way which is compatible with Convention rights. The court's own practice and procedures must be Convention-compliant. Whether, and in what circumstances, the court's section 6 obligation extends more widely than this, and affects the substantive law to be applied by the court when adjudicating upon disputes between private parties, still awaits authoritative decision. This point does not call for a decision in the present appeals, nor was the point argued.
LORD HOPE OF CRAIGHEAD
62. I have had the advantage of reading in draft the speeches of all my noble and learned friends. I agree with Lord Scott of Foscote, for all the reasons he gives, that the appellants in the Lambeth appeal had no right under ordinary domestic law to retain possession of their respective properties after the termination of the 1995 lease and had become trespassers with no right to remain. I agree with everything that Lord Bingham of Cornhill has said on the issue of precedent. I also agree, for substantially the same reasons as those given by all my noble and learned friends, that both appeals should be dismissed.
63. Although the essential point on the main issue has been put much more simply and much more attractively by Lord Nicholls of Birkenhead and Lord Brown of Eaton-under-Heywood, I must deal more fully with the detail of the appellants' argument. It was directed to two main questions. The first was how the right to respect for a person's home under article 8(1) of the European Convention on Human Rights is to be given effect to by the court where a public authority landowner seeks an order for possession of the premises to which it is undoubtedly entitled under domestic property law. The second was whether the decision of the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189 is, as the Court of Appeal put it in its Leeds judgment  1 WLR 1825, para 26, "unquestionably incompatible" with the ratio of the majority in Harrow London Borough Council v Qazi  1 AC 983.
64. These are important questions, as the answers to them will affect all cases in which the owner of land seeks to recover possession from someone who has no right under domestic law to remain there. I agree with Lord Bingham and Lord Nicholls that the position as it affects private landlords does not call for decision in this case, as the respondents to these appeals are both public authorities. But I do not think that it can be left out of account as we explore the wider implications of the argument. As Mr Sales for the First Secretary of State explained, the article 8(1) right to respect for the home does not distinguish between public authorities and private landlords and landowners. Private landlords and landowners too must obtain an order from the court, and the court itself is a public authority (see para 104 below). For the purposes of section 6(1) of the Human Rights Act 1998 the words "public authority" embrace a wide and indeterminate variety of bodies, in addition to those that are "core" public authorities, which perform functions of a public nature: see Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  UKHL 37,  1 AC 546, paras 6-12, 41, 163. But in my opinion a correct understanding of the basis of the majority decision in Qazi and of the Strasbourg jurisprudence both before and after Qazi should lead to the conclusion that it is not unquestionably incompatible with Connors, although I accept that in one respect the reasoning in Qazi needs to be modified. I agree with Lord Scott that such differences as there may be between Qazi and the Strasbourg court as to article 8 defences in possession cases are of no relevance to the issue which the House had to decide in Qazi.