|Judgments - Doherty (Fc) and Others V Birmingham City Council
43. As the law that applies to the appellants case is defective, the first place to go to find a solution to the problem in para 110 is that part of it that was referred to by the Court of Appeal, para 28, as gateway (a). It was designed expressly for cases such as Connors, where the law under which the possession order is sought is incompatible with article 8. That, as Mr Luba has explained, is the position in this case. The question is whether the incompatibility which the legal framework is said to have created can be removed through the exercise by the court of its powers under the Human Rights Act 1998.
44. The other part of para 110, referred to by the Court of Appeal as gateway (b), was designed to leave open the possibility of a challenge on public law grounds that the public authoritys decision to bring the claim was so unreasonable as to be unlawful. Its purpose was also to make it clear that this objection could be advanced as a defence in the county court. Lord Brown mentioned this point in Kay, para 209; see also Lord Bingham of Cornhill, para 30, Lord Nicholls, para 60. In para 210 Lord Brown said that an argument could perhaps have been mounted successfully in Connors that, having regard to the great length of time that the family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That comment was made in the context of a discussion about review of the decision at common law. In this case, as the Court of Appeal pointed out in para 61, the respondents decision was based on an administrative judgment about the appropriate use of the site in the public interest. This is the kind of decision whose lawfulness is open to challenge by way of a defence to the proceedings as an improper exercise of the powers of the public authority, quite apart from its obligations under section 6 of the Human Rights Act 1998, as Lord Nicholls said in Kay, para 60.
45. The way through gateway (a) is, as I have said, to be found by making use of the Human Rights Act 1998 (HRA). The phrase the county court in the exercise of its jurisdiction under the Human Rights Act 1998 which is used in para 110 of my speech in Kay indicates that it is the provisions of the Act that must guide the court as it seeks to find a way through this gateway. As the words which precede this phrase make clear, the gateway is only available if a seriously arguable point is raised that the law itself which enables the court to make the possession order is incompatible with article 8. That precondition is satisfied in this case as, for the reasons already explained, the legal framework that applies to it is indistinguishable from that which applied in Connors.
46. Gateway (a) is divided into two parts. Part (i) envisages that it may be possible for the court to give effect to the law in a way that is compatible with the Convention right by making use of the interpretative obligation in section 3 HRA. But this may not be possible, and the court then comes face to face with the fact that it is a public authority: section 6(3)(a). It is unlawful for it to act in a way which is incompatible with the Convention right: section 6(1). Legislation which cannot be read or given effect in a way which is compatible with the Convention right must nevertheless be enforced, as Parliamentary sovereignty requires this. Giving effect to a decision to do what the legislation authorises will not be an unlawful act within the meaning of section 6(1): see section 6(2)(b) HRA. Part (ii) recognises that, if effect must be given to legislation which is incompatible with a Convention right, consideration should be given, in the public interest, to the making of a remedial order under section 10. A county court is not among the courts listed in section 4(5) which may make a declaration of incompatibility under section 4(2). So, unless gateway (b) provides a solution, the proper course for a county court judge in the situation that section 6(2)(b) refers to will be to adjourn the proceedings to enable the issue of incompatibility to be dealt with in the High Court which has that power. If part (ii) applies and no solution is available under gateway (b), the court will be unable to refrain from making a possession order. That is the effect of section 6(2)(b). But a declaration by a High Court judge under section 4 will enable the Minister to consider taking remedial action to avoid the incompatibility in future cases.
47. The first question in this case is whether a solution can be found in part (i) of gateway (a). To answer it a more precise examination of the source of the alleged incompatibility must be undertaken than was necessary in Kay. I agree with my noble and learned friend Lord Walker of Gestingthorpe that the boundary between statute and common law was not an issue in that case. Nevertheless the Court of Appeal rejected the argument for the appellant and the Secretary of State that the respondents claim for possession depended on its common law rights, not on any statutory entitlement, because they understood this to be contrary to what was indicated by the speeches of the majority: paras 47-53. In my opinion they were right to do so for the reasons given by Lord Walker, and I would reject the arguments that the appellant and the Secretary of State renewed in this House to the contrary.
48. The Strasbourg court used the expression the legal framework in the last sentence of para 85 of its judgment in Connors to describe the circumstances in which the applicant in that case was provided with insufficient procedural protection of his rights under article 8. In the first sentence of para 94 it referred to the statutory scheme which permitted the summary eviction of the applicant and his family. That there was a statutory scheme is clear. Gipsies who occupied sites under a licence granted by a local authority were excluded from the protection from eviction from caravan sites which section 4 of the Caravan Sites Act 1968 gives to occupiers of caravans by section 4(6) of that Act. Moreover gipsies are still excluded from the protection that section 2 of and Schedule 1 to the Mobile Homes Act 1983 give to the occupiers of mobile homes on protected sites, because that expression does not include any land occupied by a local authority as a caravan site providing accommodation for gipsies: see section 5(1). The unqualified right to recover possession immediately is the product of the common law. But it is part of the regulatory framework which was created by Parliament. The incompatibility that results from this is a creature of statute, not of the common law.
49. Section 3(1) HRA provides that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights. But the exclusions from protection that are to be found in these statutes are not susceptible to interpretation in a way that would remove the incompatibility. Giving effect to them is unavoidable. The court cannot make an order postponing the operation or suspending the execution of an eviction order, because that would be contrary to section 4(6) of the 1968 Act as it stood at the date when the respondent commenced these proceedings. There is no agreement of the kind that paragraphs 4 to 6 of Schedule 1 to the 1983 Act refers to, as the appellant was excluded from the protection of that Act. As has often been said, section 3(1) provides the court with a powerful tool to enable it to interpret legislation and give effect to it. But it does not enable the court to change the substance of a provision from one where it says one thing into one that says the opposite.
50. I would hold therefore that it is not possible for a solution to this case to be found in part (i) of gateway (a) by making use of the interpretative obligation in section 3(1) HRA. This raises the question whether your Lordships should make a declaration of incompatibility under part (ii). The incompatibility with the appellants article 8 rights that was to be found in section 4(6)(a) of the 1968 Act has been removed by section 211(1) of the Housing Act 2004. As already noted, a clause was included in the Housing and Regeneration Bill to remove the exclusion of local authority sites which provide accommodation for gipsies from the protection of the 1983 Act. Nevertheless, prior to its receiving the Royal Assent (which it now has: see para 30), Lord Walker favoured the making of a declaration of incompatibility in relation to section 5(1) of the 1983 Act.
51. I was at first inclined to doubt whether a declaration was necessary. The power to make a declaration under section 4 HRA is, after all, a discretionary one. But on reflection I agreed that it would be appropriate to make such a declaration in this case. Indeed I considered that the decision of the Strasbourg court in Connors left the House with no alternative but to do this. That was a judgment which was pronounced in a case against the United Kingdom. Its decision is as plain an indication as there could be that there was an incompatibility in our legislation that ought to be addressed by the United Kingdom Parliament or, if there are compelling reasons for the exercise of the power under section 10 HRA, by the Minister. In such circumstances the decision as to whether the incompatibility should remain was not for the court to take. It had to be left to the government and to Parliament, and it could not be taken for granted that the amending legislation would be passed. In the events that have happened, however, the making of a declaration has become unnecessary. Sections 325(3) and (4) of the Housing and Regeneration Act 2008 leave the choice of the commencement date for the relevant provisions to the Secretary of State. But there is no longer any need for the 1983 Act to be amended under the power that section 10(2) HRA gives to the Minister.
52. As I said earlier, the speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review. In para 60, for example, Lord Nicholls indicated that he had in mind a challenge in accordance with Wandsworth Borough Council v Winder  AC 461 on grounds which, he said, had nothing to do with the Human Rights Act 1998. In para 208 Lord Brown too acknowledged that this was a quite different basis from that which the Act provides upon which a public authoritys claim for possession could be challenged. In para 110 of my own speech I described this as a challenge that would be made at common law, on the ground that the decision was one that no reasonable person would consider justifiable. In para 114 I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary, unreasonable or disproportionate.
53. Gateway (b) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available. The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondents powers. In this respect the two routes, or gateways", may be said to work together to address the incompatibility due to the lack of a procedural safeguard, which is the fundamental point that is at issue in this case. Gateway (a) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article 8. If it cannot do this, it will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondents decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable. This route offers a procedural protection under the common law. If taken, it will enable the grounds on which the respondent based its decision to be scrutinised. It might, on the facts of this case, provide the appellant with an effective defence to the making of the possession order. The fact that it is available as a defence seems to me to strengthen the argument, should it be needed, that it also provides him with the protection which he seeks against an infringement of his Convention right.
54. The Court of Appeal said in para 61 that it could see no purpose in remitting the case to the judge. I disagree, with respect, with this assessment. In para 43 of his judgment the judge said that it seemed to him that in this case judicial review would be able to check the fairness and legality of the respondents decision. Now that it is clear that arguments of that kind may be presented by way of a defence to the proceedings under gateway (b), I think that he should be given the opportunity to carry out that exercise. Any factual disputes that may exist between the parties as to the facts on the basis of which the decision was taken will be capable of being resolved by him too. Lord Browns observations in para 210 of his opinion in Kay add a further point that is relevant to this issue. The site had been occupied as their home by the appellant and his family for about 17 years when the notice to quit was served. So it could be argued that it was unfair for the respondent to be able to claim possession without being required to make good the reasons that it gave in its own statement of claim for doing so.
55. I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondents decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable. The further point to which Lord Brown referred will have a part to play in that assessment.
56. County Court judges should continue to follow the guidance that was given in Kay, para 110, as more fully explained in paras 45-55 of this opinion. As for this case, the Court of Appeal was right to hold that there was no arguable basis for asserting that the incompatibility of the respondents decision could be dealt with under gateway (a). But it was wrong to hold that no purpose would be served by remitting the case to the judge so that he could examine the appellants defence under gateway (b).
57. I would allow the appeal. I would remit the case to the judge in the High Court so that he can review the reasons that the respondent has given for serving a notice to quit to obtain vacant possession of the plots that the appellant and his family occupy. It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellants licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable. If he is satisfied that this requirement has been met he must make a possession order. There will be no answer to the respondents unqualified right to recover possession. If he is not satisfied he must decline to make the order unless or until a justification that meets that test has been made out.
LORD SCOTT OF FOSCOTE
58. The answer to the issue, or issues, arising in this case must be derived, as the Court of Appeal recognised, from the guidance given by this House first in Harrow LBC v Qazi  1 AC 983 and later, and more importantly, in Kay v Lambeth LBC and Leeds City Council v Price  2 AC 465. In Qazi the House held, by a majority, that contractual and proprietary rights to possession of property occupied as his or her home by a defendant to a possession claim brought by the owner of the property could not be defeated by a defence based on article 8 of the European Convention on Human Rights.
59. The authority of the Qazi decision was then said to have been undermined by the decision of the Strasbourg court in Connors v United Kingdom (2005) 40 EHRR 9. It was so argued in the Kay and Price case by Mr Luba QC, who had been the unsuccessful counsel in Qazi. Accordingly, since the House was to be invited to depart from its very recent decision in Qazi, an Appellate Committee of seven sat on the Kay and Price appeal. The House, by a majority of four to three, declined Mr Lubas invitation to hold that Qazi had been wrongly decided and confirmed that, in general, where a claim to possession of property was made by an owner of the property against an occupier to whom the ordinary domestic law gave no contractual or proprietary right to remain in possession, the occupier could not resist the possession claim by praying in aid his rights under article 8. In a case where the property in question was the occupiers home for article 8 purposes, the requirements of article 8(2) were met by the ordinary domestic law. The House held also, however, that the Strasbourg courts decision in Connors showed that in a certain type of case where the owner was a public authority it might be possible for an article 8 challenge to be successfully made. The scope for this possibility was formulated by Lord Hope of Craighead in paragraph 110 of his opinion, a paragraph concurred in by the other three members of the majority. I must return to paragraph 110 which is critical to the result of this appeal.
60. In the present appeal Mr Luba is once again seeking to rely on article 8 in order to resist a possession claim brought by a local authority owner of property against an occupier who has had his home on the property. In his printed case Mr Luba argued, as in Kay and Price he had done in relation to Qazi, that the Houses decision in Kay and Price regarding the scope of article 8 as a defence to possession proceedings should be reconsidered and departed from. At the outset of the hearing of this appeal, however, Mr Luba accepted that he was obliged to accept the authority of Kay and Price and indicated that he would confine himself to submissions that pursuant to Lord Hopes paragraph 110 formulation the appellant, on the facts of this case, could properly rely on an article 8 defence. Nonetheless I am bound to say that the thrust of Mr Lubas oral submissions appeared to me to constitute a revival of his submission in Kay and Price that where a local authority was seeking possession of property that constituted the defendants home for article 8 purposes, it was open to the defendant to resist the making of a possession order by contending, in reliance on article 8, that the making of the order was not necessary and proportionate in all the circumstances.
61. My Lords I respectfully suggest that your Lordships must reject this attempt to undermine Kay and Price. It is, of course, legitimate for Mr Luba to seek to frank his appeal and the legitimacy of an article 8 defence by reliance on Lord Hopes paragraph 110, a paragraph that formed part of the ratio of the majority. But that, in my opinion, is all that is open to him. Your Lordships function on this appeal is to consider whether the circumstances of this case do enable the appellant to rely on paragraph 110. Anything more would involve the unacceptable spectacle of a committee of five presuming to revise the considered opinion of a committee of seven.
Paragraph 110 of Lord Hopes opinion in Kay and Price
62. Paragraph 110, in the view of the majority of whom I was one, was necessary for the purpose of aligning our domestic case-law with Strasbourg case-law, and in particular with the Strasbourg courts decisions in Connors and in Blecic v Croatia (2004) 41 EHRR 185, decisions which were said to be (but in the view of the majority were not) inconsistent with Qazi. In each of these cases the Strasbourg court had reviewed the domestic law and procedures under which the home-occupier had lost his right to remain in his home and had questioned their compatibility with the occupiers article 8 rights.
63. In Blecic the domestic law and procedures were found to be adequate. The court concluded that (para.70)
[Mrs Blecic] was involved in the decision making process to a degree sufficient to provide her with the requisite protection of her interests.
64. In Connors, on the other hand, the domestic law and procedures were found to be inadequate. The applicant had sought permission to apply for judicial review of the local authoritys decision to terminate his licence to remain on the caravan site where for some seventeen years he had had his home, but permission had been refused. It appeared that that decision had been reached because the local authority had thought that Mr Connors and his family had been making a nuisance of themselves on the site. It was said that they were a magnet for trouble". Mr Connors had denied that that was so but had had no procedural opportunity to satisfy an independent tribunal that his version of what had been happening on the site was the correct one. So the factual basis of the local authoritys decision to evict him was never judicially tested. As the Strasbourg court said (para.92)
the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties
It was the power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal (para.94) that the Strasbourg court was unable to accept (see also para.95).
65. As to the domestic law, there was in Connors a discrimination point. The security of tenure given by the Mobile Homes Act 1983 to travellers licensed to station their caravans on privately owned caravan sites did not apply to local authority owned sites. The court was not persuaded by the governments attempt to justify this discrimination. A similar discrimination point had arisen in Larkos v Cyprus (1999) 30 EHRR 597 where, too, the Strasbourg court had not been persuaded of the justification for the discrimination.
66. No comparable issue about domestic law nor about procedures enabling the home occupier to challenge the local authoritys reasons for seeking possession had been raised in Qazi, or in Kay and Price. Both issues, however, had been raised in Connors; and in Kay and Price a definitive statement from the House regarding the type of case in which an article 8 defence might successfully be raised in answer to a possession claim was needed in order to take into account the possibility that these issues might arise in future cases. Lord Hopes paragraph 110 dealt with that possibility. Lord Hope said this:
Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it 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. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard.
67. As to (a), Lord Hope was dealing with the possibility that an article 8 defence, perhaps allied, as in Connors, with an article 14 discrimination complaint, might be based on some alleged inadequacy of the domestic law, under which the property owners right to possession arose, to cater for the defendants article 8 rights. The question was raised in the course of the hearing of the present appeal as to whether Lord Hopes reference to the law should be read as a reference to statutory law or to common law or to both. It should clearly, in my opinion, be read as a reference to the domestic law, whether statutory law, common law, or, as is very often the case where property law is concerned, a combination. Thus, in Connors the law was the law that enabled the local authority to recover possession of the caravan site without the statutory hindrances imposed by the Mobile Homes Act 1983, hindrances that did not apply to local authority owned sites. As to (b), Lord Hope was referring to challenges to the lawfulness of decisions taken by local authorities to recover possession, decisions, that is to say, that would have been open to challenge by judicial review. Wandsworth LBC v Winder was a case in which it was held permissible for such a challenge to be raised as a defence to proceedings brought by the local authority to implement the decision. The decision in question in Winder was a decision to raise the rents payable by council tenants. The Council had power under the tenancies in question to raise the rents but if the decision to raise them had been so unreasonable as to be an unlawful exercise of power then, it was held, the unlawfulness could be relied on as a defence to a claim for payment of the new rent. Lord Hope contemplated under (b) that if a local authoritys decision to recover possession could be shown to be so unreasonable as to constitute an unlawful exercise of power, the notice terminating the occupiers tenancy or licence would be invalid, the tenancy or licence would not have been lawfully terminated and that that unlawfulness could be relied on as a defence to the possession proceedings. Hence his citation of Wandsworth LBC v Winder.