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|Judgments - Doherty (Fc) and Others V Birmingham City Council
HOUSE OF LORDS
 UKHL 57
on appeal from: EWCA Civ 1739
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents)
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Jan Luba QC
(Instructed by Community Law Partnership)
Ashley Underwood QC
(Instructed by Birmingham City Council)
Intervener (Secretary of State for Communities and Local Government)
Philip Sales QC
(Instructed by Treasury Solicitors)
12 MARCH 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents)
 UKHL 57
LORD HOPE OF CRAIGHEAD
1. The question in this case is whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers caravan site. His licence to occupy the site has come to an end. He has no enforceable right to remain there under English property law. But he claims that his removal would violate his rights under article 8 of the European Convention on Human Rights.
2. The local authority, the respondent, is the freeholder of the site which is known as the Travellers Site, Tameside Drive, Castle Vale, Birmingham. The site comprises 16 concrete stands for caravans and four ablution blocks. The appellant was granted a licence by the respondent to station a caravan on plot 12 in September 1987. His licence was extended to include plot 14 in November 1998. He and his family had been resident on the site for about 17 years when on 4 March 2004 the respondent served a notice to quit. Section 2 of the Caravan Sites Act 1968 provides that such a notice shall be of no effect unless it was given not less than four weeks before the date on which it is to take effect. The period of notice that was given expired on 10 May 2004.
3. The respondent commenced these proceedings in the Birmingham County Court on 27 May 2004. On the same day the European Court of Human Rights gave judgment in Connors v United Kingdom (2005) 40 EHRR 9. It held that the eviction of a family of gipsies from a gipsy site by a local authority was a violation of their rights under article 8 of the Convention. As in this case, the local authority had served a notice to quit which had brought to an end the familys licence to occupy. The family no longer had an enforceable right to remain on the site under English property law. But the court found that, while a legitimate aim was being pursued by the local authority, the eviction of the applicant and his family could not be regarded as necessary in pursuit of that aim as it was not attended by procedural safeguards that would enable the applicant to challenge the factual basis on which the local authority decided to serve the notice. They had been evicted on the ground that they were troublemakers, and it was asserted that they had breached the licence agreement. The applicant disputed these allegations, but he was not given the opportunity to challenge them in court.
4. The respondent in this case asserted in its particulars of claim that it required vacant possession of the site to carry out essential improvement works. Once the works were complete the site was to be managed as temporary accommodation for travellers. Genuine travellers, it was said, were currently deterred from going on the site because of the presence there of the appellant and his family. As a result the site was underutilised. This had led to unauthorised encampments elsewhere in the area. It should be noted that the claim was not based on any allegation of misconduct on the part of the appellant or any members of his family, nor was it alleged that the licence agreement had been breached. It was based on the respondents judgment as to the appropriate use of the site for travellers. The appellant maintained in his defence that the respondent was only entitled to an order for possession if it was proportionate in all the circumstances of the case, and that in the circumstances of his case this test was not satisfied. He relied, among other Convention rights, on his right to respect for his home under article 8 and on the respondents duty not to act in a way which is incompatible with a Convention right under section 6(1) of the Human Rights Act 1998.
5. By the time the case came before HHJ McKenna on 21 October 2004 it had been transferred to the Birmingham District Registry of the High Court. He was asked to consider to what extent, if at all, it was open to a defendant to rely on article 8 in answer to an otherwise unchallengeable claim to possession by a local authority landowner. This was not a novel question. The judge was referred to the decision of this House in Harrow London Borough Council v Qazi  UKHL 43,  1 AC 983. In that judgment, which was given on 31 July 2003, it was held by the majority that the contractual and proprietary rights to possession of a public authority landowner could not be defeated by a defence based on article 8: see para 84. The judge noted the respondents argument that its decision to take proceedings to recover possession was an administrative one which could be challenged by judicial review, and that a positive obligation to facilitate the gipsy way of life might be relevant to a review of the reasonableness of that decision.
6. Applying that decision, the judge gave summary judgment in favour of the respondent on 20 December 2004. He did not form any view about the merits of the justification that the respondent had given for seeking possession. He held that the appellant could not rely on the provisions of the Human Rights Act 1998 or on article 8 of the Convention. But he did not think that there were factual disputes between the parties such as to make judicial review inappropriate. So he granted a stay of execution of the order for possession for 14 days to enable the appellant to apply to the administrative court for judicial review, although he was already out of time by about five months. The appellant did not avail himself of that opportunity, no doubt because his counsel advised him that the decision of the Strasbourg court in Connors had raised questions about the soundness of the decision in Qazi. The judge later gave permission to appeal, certified the case as suitable for an appeal direct to the House of Lords and suspended execution of his judgment until the conclusion of the appeal proceedings.
7. In the meantime, having regard to the opinions which were issued by the Court of Appeal in Kay v Lambeth London Borough Council  EWCA Civ 926,  QB 352 and Leeds City Council v Price  EWCA Civ 289,  1 WLR 1825, your Lordships decided that the decision in Qazi should be reconsidered in the light of the Strasbourg courts judgment in Connors. On 22 June 2005 an Appeal Committee held that there was no need for the appellants case to come to this House as well, as it was thought that the issue that it raised would be decided in the cases of Kay and Price. It was thought that the Court of Appeal would be able to give effect to that decision without difficulty in due course. The Committees confidence in this outcome appears to have been misplaced, however. The appellant submits that, despite its best efforts, the Court of Appeal in dismissing his appeal failed to appreciate the guidance that was offered in Kay and Price and how that guidance should be applied in this case.
Qazi as modified by Kay
8. In Kay and others v Lambeth London Borough Council  UKHL 10,  2 AC 465 (which I shall refer to from now on as Kay) it was held by the majority, affirming Qazi, that the county courts, when faced with a defence to a claim to possession by a public authority landlord which is based on article 8, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupiers Convention rights. But it was recognised that there might be cases of a special and unusual kind, of which Connors was an example, where it would be incompatible with article 8 for the occupier not to be permitted to challenge the factual allegations that were made against him which were the basis for the claim for a possession order. If the legal framework denied him that opportunity it would fall to be regarded as incompatible with the Convention right: see paras 108, 168 and 184-185.
9. In Kay, para 110, I said that 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 of the public authority landlord 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  AC 461.
I added that, as the common law as explained in Wandsworth Borough Council v Winder was compatible with article 8, it provided an additional safeguard. Lord Scott of Foscote (para 174), Baroness Hale of Richmond (para 192) and Lord Brown of Eaton-under-Heywood (para 212) agreed with what I said in that paragraph.
10. The Court of Appeal (Tuckey, Carnwath and Neuberger LJJ) subjected the decision in Kay to careful analysis:  EWCA Civ 1739. The court recognised that para 110 of my speech embodied the conclusion of the majority on the scope of the exception to the Qazi principle. It appreciated that two routes were provided by this paragraph to a solution of the problem that had been revealed by Connors. It referred to them as gateway (a) and gateway (b). I shall do the same, but I would caution against reading too much into this terminology. The description of the two routes as gateways tends to suggest that they are mutually exclusive. This is not necessarily so. There may be cases - and I shall suggest later that this is one - where they march hand in hand with each other.
11. The principal area of dispute in the Court of Appeal was as to the application to this case of gateway (a). The basis of the decision in Connors was identified. It was that, in the view of the Strasbourg court, the authority had misused its privileged position under the statute which enabled it to bypass the ordinary procedures for alleging and proving breach of licence conditions: para 43. But the Court of Appeal held there was no arguable basis on which the respondents decision in this case could have been challenged as contrary to article 8 under gateway (a). This was because that decision was in accordance with a statutory scheme which, whether compatible or not, had to be applied by the county court: para 53. The present case was distinguishable on its facts from Connors because the authoritys decision depended not on a factual allegation of nuisance or misconduct, but on an administrative judgment about the appropriate use of land in the public interest. As for gateway (b), the court understood it as enabling the decision to be challenged on conventional judicial review grounds but not on the ground that it was contrary to article 8. It held that the respondents overall assessment of the various factors in play was well within the margin of appreciation allowed by the Strasbourg jurisprudence in the exercise of an administrative discretion. No purpose would be served in remitting the matter to the judge for him to re-determine that issue: para 61. He was right to make an order for possession, and the result was consistent with both domestic and Convention law.
12. In the hearing before your Lordships Mr Luba submitted that the appellants case was indistinguishable from Connors and that it fell within what the Court of Appeal had termed gateway (a). He said that the case should be remitted to the county court for a merits review of the respondents grounds for possession under that heading. Alternatively your Lordships should make a declaration of incompatibility, and the case should be remitted to the county court to enable the appellant to present a defence under gateway (b). The argument which he had presented at the outset of his written case was a broader and more fundamental one. It was that the decisions of the majority in both Qazi and Kay were wrong and that the approach which had been taken in those cases should be departed from. He appreciated that this was not an argument that could be entertained by this committee, so he did not attempt to develop this part of his case in oral argument. But he wished it to be understood that he had not abandoned it.
13. Mr Sales QC for the Secretary of State for Communities and Local Government, intervening, supported Mr Lubas argument that this case fell within gateway (a). He did not join with him in submitting that the decisions in Qazi and Kay were wrong. He submitted that there was no basis in the decisions of the Strasbourg court for a wholesale reappraisal of the law as established in Kay. The present case was exceptional because of the presence of all of the factors which had led to a finding that there had been a violation of article 8 in Connors. The critical feature, as the Court of Appeal in Smith v Buckland  EWCA Civ 1318 had appreciated, was the absence of procedural safeguards to which, in view of their vulnerable position, gipsies were entitled. There was no need to go beyond what had been decided by the Strasbourg court in that case.
14. Mr Underwood QC for the respondent submitted that a legislative choice had been made to exclude gipsies from statutory protection. That choice should be given effect to. It was not open to the court to examine the respondents reasons for seeking possession in this case to see if they were soundly based. The only remedy that could be provided, if the result was incompatible with the appellants right under article 8, was a declaration of incompatibility. A defence by way of judicial review in the conventional sense that the decision to recover possession was wholly unreasonable would be unarguable.
McCann v United Kingdom
15. On 13 May 2008, after the hearing in this appeal, the Strasbourg court delivered its judgment in McCann v United Kingdom, application no 19009/04. In that case the applicant and his wife were joint tenants of a house owned by a local authority. They were also secure tenants under section 82 of the Housing Act 1985. Their marriage broke down, and the applicants wife moved out of the house with the two children of the marriage. She went back to live there after obtaining a court order which required the applicant to leave the house, which he did. But he returned to the house a few days later and, it was alleged, assaulted his wife. She then applied to the local authority to be re-housed on grounds of domestic violence. She was allocated another house in accordance with the local authoritys domestic violence policy. The applicant returned to the house and renovated it, but he found that it was too big for him to live in on his own. So he applied for an exchange of accommodation with another tenant of the local authority. His wife supported his application, but the local authority asked her to terminate the joint tenancy by signing a notice to quit. She was not told before she did this that the effect of her doing so would be to extinguish the applicants right to live in the house or exchange it for another local authority property.
16. About a week later the applicants wife sought to withdraw the notice, but it remained effective in law to terminate the joint tenancy. Its effect was to deprive the applicant of the protection which he had enjoyed under the statute and expose him to the common law. In the result he had no defence to the notice to vacate which was served on him by the local authority. He sought to defend the possession proceedings on article 8 grounds. On 15 April 2003 the county court judge dismissed the claim for possession and the local authority appealed. The appeal was adjourned pending the outcome of the appeal to this House in Qazi. Following that decision the Court of Appeal allowed the appeal. The applicant then applied to the court in Strasbourg. The Chamber decided that no hearing on the merits was required and invited the parties to reply in writing to each others observations. In the meantime the House issued its decision in Kay.
17. The Strasbourg court was satisfied that the interference with the applicants article 8 right was in accordance with the law and that it pursued a legitimate aim. The central question was whether it was proportionate to the aim pursued and thus necessary in a democratic society: para 49. It rejected the governments argument that the reasoning in Connors was to be confined only to cases involving the eviction of gipsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case: para 50. It noted that the local authority had chosen to bypass the statutory scheme by requesting the applicants wife to sign a common law notice to quit, and that it did not appear that in doing so it had given any consideration to the applicants right to respect for his home. It held that, as in Connors, the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review: para 53. It added this comment in para 54:
The court does not accept that the grant of the right to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed , it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings.
18. At the appellants request the parties were invited by the Committee to make further written submissions on the effect of this judgment before it reported its opinions to the House. All three parties then did so. Mr Luba submitted that the Strasbourg court had endorsed the reasoning of the minority in Kay and that the Committee should now take the opportunity to depart from the reasoning of the majority. For the Secretary of State Mr Sales too submitted that the approach to possession claims set out by the minority in Kay should now be followed. Mr Underwood, on the other hand, drew attention to the impact on domestic law that would result if that approach were now to be adopted. He submitted that the decision in McCann could and should be read more narrowly in the light of its own facts. I have taken account of these submissions in the preparation of this opinion.
19. I would resist the invitation by both Mr Luba and Mr Sales that your Lordships should now abandon the reasoning of the majority in Kay in favour of the reasoning of the minority. First, for the reasons that were discussed in R v Kansal (No 2)  2 AC 69, it is well settled that the power to overrule a recent decision of this House which your Lordships undoubtedly have ought not to be exercised unless there is some very good reason for doing so: R v Knuller (Publishing, Printing and Promotions) Ltd  AC 435, 455, per Lord Reid. The only way this could properly be done in this case would be to require the appeal to be re-argued before a panel of nine Law Lords. That would be a very large step to take, would further delay a decision in this case and in my opinion, for the resolution of the case, it is unnecessary. Of course we must, as Lord Bingham said in Kay, para 28, take into account any judgment of the Strasbourg court and give practical recognition to the principles that it lays down. But that can be done in this case by applying, and to some extent developing, the reasoning of the majority: see further paras 36 and 55. The solution which I shall be proposing at the end of this opinion is as consistent as domestic law allows us to be with what in both Connors and McCann the court held was required to avoid a violation of article 8 of the Convention.
20. Secondly, I am not convinced that the Strasbourg court - which did not hear oral argument in McCann - has fully appreciated the very real problems that are likely to be caused if we were to depart from the majority view in Kay in favour of that of the minority. The proposition that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which the Strasbourg court adopted in para 54 of its judgment appears to set a high standard, one that will be hard to achieve. But it suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not. 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 was to reduce the risks to the operation of the domestic system by laying down objective standards on which the courts can rely. I do not think that the decision in McCann has answered this problem. Until the Strasbourg court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises.
21. My third reason is based on the way domestic law requires us to deal with issues of incompatibility. I remain of the view which I expressed about this in para 114 of my opinion in Kay. Primary legislation which cannot be read or given effect in way which is compatible with the Convention right must nevertheless still be enforced, unless the decision of the public authority to seek eviction can be said, when judicially reviewed, to be arbitrary, unreasonable or disproportionate. That is the effect of section 6(2)(b) of the Human Rights Act 1998. The question is whether, having decided to do what it is doing, the public authority landlord is doing what it has been authorised to do by the primary legislation: R v Kansal (No 2), para 88. If it is, giving effect to it cannot be held to be unlawful within the meaning of section 6(1) of that Act: see further paras 43, 44. That is the system which applies in domestic law, which preserves the sovereignty of Parliament. Incompatible primary legislation remains fully effective unless and until it has been repealed or modified. The solutions that are available to the domestic court in response to decisions of the court in Strasbourg are limited by this fundamental principle. As I indicated in Kay, it reinforces the proposition that a defence under article 8 must be struck out unless the legislation can be read and given effect in a way that is compatible with the Convention right. Nothing that was said by the Strasbourg court in McCann can alter, or has altered, the way acts authorised by primary legislation must be dealt with under section 6(2) of the 1998 Act.
The basic law