Judgments - Doherty (Fc) and Others V Birmingham City Council

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22.   So I must make it clear at the outset that nothing that I may say in this opinion is to be understood as detracting in any way from the basic law as laid down by the majority in Qazi and re-affirmed by the majority in Kay. The effect of those decisions was summarised by Baroness Hale in Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, para 36:

“… there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council [2006] 2 AC 465.”

The basic rule is that such interference with the right to respect for the home as may flow from the application of the law which enables a public authority to exercise its unqualified right to possession does not violate the essence of the Convention right. Unless the legislation itself can be attacked, this is a conclusion which can be applied to all cases of this type generally. It is not open to the court, once it has decided in any individual case that the effect of the legislation is that the public authority’s right to possession is unqualified, to hold that the exercise of that right should be denied because of the occupier’s personal circumstances.

23.  As I pointed out in Qazi, paras 37-38, the background to the issue which the House was asked to consider in that case was set out in the Law Commission’s Consultation Paper Renting Homes 1: Status and Security (Consultation Paper No 162), Part V, The Impact of Human Rights Law. As the author explained in para 5.76 of the Consultation Paper, the implication of a conclusion that article 8(1) was always engaged by an eviction was that a procedure which enabled the court to consider the issue of proportionality would become a necessity in respect of any use by a public authority landlord of a procedure under which, by the operation of law, it would previously have been entitled to recover possession automatically. If so, this result would affect housing associations and other registered social landlords as well as local housing authorities. The point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants whose lease has by the operation of law been terminated. A procedure which gave a discretion to the court by requiring it to consider whether having regard to article 8(2) the making of the order would be proportionate would be inimical to that purpose. Lord Bingham of Cornhill was careful to point out in Qazi, para 23, and again in Kay, para 28, that nothing in his opinions in those cases was to be understood as applying to any landowner or owner who was not a public authority. But, as I said in Kay, para 64, the effect of such a procedure on private landlords cannot be left out of account. I described the conundrum that, as I saw it, the minority view in Kay gave rise to and which the majority in Qazi were seeking to solve in para 65 of my opinion in that case.

24.  Therein lies the importance of the decision in Qazi in domestic law. But it was soon to become apparent that it was in need of some modification if it was to be compatible with the reasoning of the European Court in Strasbourg in three cases which were decided after the decision of this House in Qazi: Connors v United Kingdom (2005) 40 EHRR 189, Blecic v Croatia (2004) 41 EHRR 185 and Stankova v Slovakia, application no 7205/02. The decision in McCann fits in to this pattern. The applicant in that case had been entitled under the statutory scheme to the protection of an independent determination by the court of the reasonableness of a claim for possession: see Ground 2A in Schedule 2 to the Housing Act 1985. The local authority deprived him of that protection by inviting his wife to sign a notice to quit. This was something that it was enabled to do by the common law as, in the absence of any term in the tenancy agreement to the contrary, the tenancy was terminable by a notice to quit given by one joint tenant without the concurrence of the other: Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478. As in Connors, he was evicted from his home without the proportionality of the local authority’s decision to recover possession being determined by an independent tribunal.

The exceptional position of gipsies

25.  The Strasbourg court was presented in Connors with a substantial amount of evidence about the way in which gipsies were dealt with under the relevant domestic law and practice: see paras 36 and following. Although the focus of its discussion was on the right to respect for the home under article 8, it had also been alleged that there had been a violation of the applicant’s rights under article 14 because gipsies as a group were discriminated against. As the court found that there had been a violation of article 8 it found it unnecessary to consider the complaint under article 14 further: para 97. But the key to a proper understanding of its decision is that the applicant wished to challenge, on the facts, the allegations of anti-social behaviour which were being made against him. To deny him that opportunity because he was excluded from protection under the statutes was discriminatory. This lies behind the court’s observations in para 84, where it stated:

“The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of article 8 to facilitate the gypsy way of life.”

The regulatory framework referred to in that paragraph was discussed in paras 43-46. The effect of the statutes which apply to sites for caravans and other mobile homes was to deny gipsies the security of tenure that is available to others who occupy such sites. Their effect was to enable the court to apply the common law, which gave the local authority the right to recover possession on the expiry of the period of notice referred to in section 2 of the 1968 Act.

26.  Section 24 of the Caravan Sites and Control of Development Act 1960 gives power to local authorities to provide sites for caravans. Section 24(1) provides:

“A local authority shall have power within their area to provide sites where caravans may be brought, whether for holidays or other temporary purposes or for use as permanent residences, and to manage the sites or lease them to some other person.”

Subsection (2) of that section provides that a local authority shall have power to do anything appearing to them desirable in connection with the provision of such sites.

27.  Part I of the Caravan Sites Act 1968 provides limited security of tenure to occupiers of caravans on caravan sites. Where a person is entitled under any licence or contract to station a caravan on a protected site such as those established for the purpose by a local authority, a minimum period of notice is required to determine his right to occupy: section 2. He is also protected from harassment: section 3. Section 4 adds to these protective measures a power to suspend the execution of eviction orders. If the court makes an order for enforcing any right to exclude the occupier from the site or any caravan on the site which he was entitled to occupy, or to remove or exclude from the protected site any caravan, it has power to suspend the enforcement of the order for a period not exceeding twelve months. This period may be extended, reduced or terminated from time to time by the court on the application of either party.

28.  The Mobile Homes Act 1983 applies to any agreement under which a person is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence: section 1(1). The occupier must be given a written statement by the owner of the protected site setting out, among other things, the terms of the agreement: section 1(2). There are to be implied into it, notwithstanding any provision to the contrary, the terms set out in Part I of Schedule 1 to the Act: section 2(1). Among them are provisions that regulate the right of the owner of the protected site to terminate the agreement: paras 4-6. In each case they are subject to the supervision of the court, which must be satisfied on the application of an owner who seeks termination because the occupier has breached a term of the agreement that the breach has been established and that it is reasonable for the agreement to be terminated.

29.  The protection which section 4 of the 1968 Act gives to the occupiers of caravan sites was not available to the applicant in Connors because section 4(6)(a) of that Act, as originally enacted, excluded the court’s power to suspend the enforcement of a possession order under that section in the case of possession proceedings brought by local authorities. The effect of that provision was to leave the local authorities’ statutory power to manage its caravan sites unqualified. That subsection has now been amended by section 211(1) of the Housing Act 2004. Section 4(6)(a), as originally enacted, has been deleted. The result is that the power to suspend is now generally available in such cases. That amendment came into force on 18 January 2005. But it was not retrospective. So it does not assist the appellant in this case, as the proceedings were brought against him on 27 May 2004.

30.  The protection which the 1983 Act gives to mobile home owners is excluded in the case of gipsies occupying local authority sites by section 5(1) of that Act. It provides that the expression “protected site” does not include any land occupied by a local authority as a caravan site providing accommodation for gipsies. The effect of that provision was to leave the local authority’s statutory power to manage sites for gipsies unqualified. Provisions to remove that exclusion were contained in the Housing and Regeneration Bill which received the Royal Assent on 22 July 2008: see section 318 and Schedule 16. Here again the provisions are not retrospective, so they will not assist the appellant in this case either.

31.  For completeness, it should be noted that Part IV of the Housing Act 1985 confers security of tenure on occupiers of accommodation let or licensed to them by local authorities. But these rights are confined to tenancies or licences for occupation of “dwelling houses": see sections 79(1) and 112 of that Act. The nomadic lifestyle of gipsies excludes them from the kind of home that will attract that protection. A recent paper on the position of gipsies in Scotland has drawn attention to the fact that they still need appropriate accommodation that is compatible with their culture of nomadism: Ian Taggart, One Scotland Many Cultures? SCOLAG Legal Journal, March 2008, p 66. As he explains, the difficulty that gipsies experience in finding suitable accommodation inevitably leads to an increase in unauthorised encampments. This is turn leads to a substantial increase in inter-community tension that frequently manifests itself in the form of racial abuse and racially motivated attacks against the gipsy/traveller community.

32.  The Strasbourg court said in Connors, para 94, that it was not persuaded that the necessity for a “statutory scheme” which permitted the summary eviction of the applicant and his family had been sufficiently demonstrated. The same scheme applies to the appellant’s case, as the respondent commenced proceedings against him before the coming into effect of the changes that have been and are about to be made to it. In para 92 the court set out its conclusions on the point that it had made in para 84 that some special consideration should be given to the needs of gipsies and their different lifestyle in reaching decisions in particular cases. The government had relied on the possibility of applying for judicial review to obtain scrutiny of the lawfulness and reasonableness of decisions taken by the local authority. But the court did not consider that this could be regarded as assisting gipsies in circumstances where the local authority terminates licences in accordance with the applicable law. It summarised its conclusions as to the effect of the legal framework in para 95:

“In conclusion, the court finds that 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 article 8 of the Convention.”

33.  The procedural safeguard that was lacking in Connors was an ability to challenge in court, by way of a defence, the allegations of misconduct that were the basis for the authority’s decision to seek the possession order against him. Applied to this case, special consideration to the needs of gipsies and their different lifestyle requires that the appellant must be able to insist, by way of a defence to the claim, that it be shown there is a proper justification for the decision to seek a possession order. It must be shown that the respondent’s decision to evict him and his family from the site was justified by a pressing social need and was proportionate. If that cannot be done, there is a risk that the appellant’s rights under article 8 will have been violated.

Connors as seen in Kay

34.  The issue in Kay was whether, and if so to what extent, the decision in Qazi required modification in the light of the subsequent decisions in Strasbourg. All of their Lordships were agreed that the facts in Connors and Blecic were entirely different from those in Qazi and that Connors in particular was an exceptional case. In para 54 Lord Nicholls of Birkenhead said that there might be the exceedingly rare case where the legislative code or the common law was impeachable on human rights grounds. He said that Connors was an example of this possibility, rare and exceptional though it might be. Lord Walker of Gestingthorpe, who was also in the minority, described the circumstances in which domestic law might fail to show the respect for the home required by article 8, as in Connors, as highly exceptional: para 176. Lord Scott described the context for the judgment in Connors as unusual and discriminatory: para 161. Baroness Hale said in para 179 that, if the ratio decidendi of the majority in Qazi was that the enforcement of a right to possession in accordance with the domestic law of property could never be incompatible with article 8, it had now to be modified in the light of the decision in Connors: para 179. But she described the cases in which a claim that the balance struck by the general law did not comply with the Convention would have a real prospect of success as rare.

35.  Lord Brown of Eaton-under-Heywood agreed in para 200 that Connors required a modest qualification to be made to the Qazi principle. So the contention that our domestic law was incompatible with the occupier’s article 8 rights was theoretically available to him. But it would nevertheless not be open to the judge to decide the case other than in accordance with the domestic law. In para 203 he said that where no statutory protection was afforded to occupiers that should be assumed to be Parliament’s will - the result of a deliberate decision by Parliament to leave the owner’s right to recover possession in these cases unqualified. In para 206 he said that he saw Connors as explicable by reference to unjustifiably discriminatory legislation rather than because of a want of a sufficient discretion under domestic law to take account of exceptional circumstances. In para 108 of my speech, on the other hand, I said that the lesson to be drawn from Connors was that there will be some cases of a special and unusual kind where the interference with the right to respect for the home which results from the making of a possession order will require to be justified by a decision-making process that requires some special consideration to be given to the interests safeguarded by article 8 and that, if the law was defective in this respect, it would need to be amended to provide the necessary safeguards.

36.  The decision of the majority, as summarised in para 110 of my speech, went as far as it was necessary to go to provide answers to the two cases that were before the House in Kay. But the facts in those two cases were very different from those in the present case and from those in McCann. The appellants in Kay v Lambeth London Borough Council never had any rights of occupation granted to them by the landowner. The appellants in Leeds City Council v Price were gipsies, but they had been present on the recreation ground for only two days when proceedings were taken against them for the making of a possession order. In both cases it was held the appellants’ interests were sufficiently protected by requiring proof by the local authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. Neither of them was close on its facts, as this case is, to Connors. For reasons that I shall seek to show, I believe that the answer to the article 8 issue in this case can be found in the formula that is set out in para 110. But I would be the first to acknowledge that the way that the formula works in a case of this kind requires further explanation. To some extent too it needs to be modified.

The gateways

37.  In many respects the background to this case is the same as in Connors. Here too a local authority has an unqualified right to possession in terms of the statutes. Here too the occupier against whom the order is sought is a gipsy together with members of his family, all of whom are gipsies. Here too the plot of which the appellant is the occupier is on a gipsy and travellers’ caravan site. The appellant and his family have been in occupation of the site for many years. The period was about 16 years in Connors. In this case the period is about 17 years. The legal framework on the date when the possession order was made, both under statute and at common law, is the same. As in Connors, that framework was designed by Parliament. No statutory protection is available, with the result that the landowner’s right to recover possession is unqualified. The respondent’s decision to exercise that right could not have been held to have been unlawful within the meaning of section 6(1) of the Human Rights Act 1998 as it was acting so as to give effect to the provisions of the statute: see section 6(2)(b) of that Act. To hold otherwise would conflict with the intention of Parliament.

38.  Mr Luba and Mr Sales submitted that section 6(2)(b) of the 1998 Act did not apply to this case. This was because the effect of the statutes was that the protections that were available to others did not extend to sites on local authority land that were occupied by gipsies. So the court was simply applying the common law when it made the possession order. I would reject that argument. What we have here is a scheme for the management of caravan sites belonging to local authorities that has been laid down by statute. The effect of that scheme, when read as a whole, is to provide protection in some cases which in other cases is not available. Where cases are found to be outside that protection, as they are in the case of gipsies, this is because Parliament has decided that in those cases the protection should not be available. It is, of course, true that where the protections are not available the effect is that the contractual method of recovering possession that the common law provides is unqualified. But that is the result not of the common law but because Parliament has decided to make it so.

39.  The cases in which the effect of section 6(2)(b) of the 1998 Act has been considered so far demonstrate that three distinct situations may arise. The first is where a decision to exercise or not to exercise a power that is given by primary legislation would inevitably give rise to an incompatibility. That was the situation in R v Kansal (No 2) [2002] 2 AC 69, as Moses J observed in R (Wilkinson) v Inland Revenue Commissioners [2002] STC 347, para 41. The prosecutor’s decision to adduce evidence of the answers which had been obtained under compulsion pursuant to section 433 of the Insolvency Act 1986 was bound to result in a breach of article 6 of the Convention. The second, which lies at the opposite end of the spectrum, is where the act or omission of the public authority which is incompatible with a Convention right is not touched by one or more provisions of primary legislation in any way at all. As the matter is not to any extent the product of primary legislation, the sovereignty of Parliament is not engaged. The act or omission will be unlawful under section 6(1) because section 6(2)(b) does not apply to it. The third situation lies in the middle. This is where the act or omission takes place within the context of a scheme which primary legislation has laid down that gives general powers, such as powers of management, to a public authority. That is the situation in this case. The answer to the question whether or not section 6(2)(b) applies will depend on the extent to which the act or omission can be said to be giving effect to any of the provisions of the scheme that is to be found in the statutes.

40.  Guidance as to how the third situation is to be approached was given in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681, with which the House’s decision in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30; [2005] 1 WLR 1718 should also be read. My noble and learned friend Lord Walker of Gestingthorpe has very helpfully quoted the relevant passages from Hooper, so I do not need to repeat them. The important point, as Lord Hoffmann explained in paras 48 and 49, is that section 6(2)(b) assumes that the public authority could have acted differently but excludes liability if it was giving effect to a statutory provision which could not be read in a way that was compatible with the Convention rights. It protects a decision to exercise or not to exercise a discretion that is available to it under the statute. It seems to me, looking at the statutory scheme as a whole that applies to this case, that this is indeed what the respondent was doing when it decided to apply for a possession order. It was exercising its powers of management under section 24 of the 1960 Act when it decided to terminate the appellant’s contract. It is true that it was making use of the method which the common law provides for doing this, but this was because the statutory scheme permitted it to do so. Public authorities which make use of the common law in the exercise of their statutory powers of management are in no less favourable a position under that section 6(2)(b) than they would have been had their powers been derived entirely from statute: see my own opinion in Hooper, para 83.

41.  In one key respect the two cases are different. Here, unlike Connors, there are no factual allegations of anti-social behaviour or of misconduct in any other respect on the part of the appellant or members of his family. Had there been allegations of that kind it would have been clear that, unless some special consideration were given to his case to enable him to challenge them, there would be a violation of article 8 of the Convention. There would be a strong argument that this would also result in a violation of article 14 in conjunction with article 8 because the appellant was being discriminated against by the legal framework that existed when these proceedings were brought. But the absence of factual allegations of that kind does not mean that there may not be a violation in this case. On the contrary, the discrimination against gipsies that is inherent in the legal framework applies generally irrespective of the grounds on which possession is being sought.

42.  The question is whether it is possible for this violation of the appellant’s Convention rights to be avoided, given that the basic principle that was established by Qazi is that the law itself strikes a fair balance between the rights of the individual and the interests of the community. As I said in para 109 of my opinion in Kay, and again at the outset of para 110, a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out. The personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law. That is the basic law that was established in Qazi and it is the point on which the majority in Kay differed from the minority: see ground (3)(b) in para 39 of Lord Bingham’s opinion. This however is an exceptional case, and it is the law itself that is at fault. The legal framework that applies to the appellant’s case is defective because the statute excludes the gipsy community from its procedural safeguards. The modification that was made to Qazi to accommodate the decision in Connors applies to this case.

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