UK: Possession and Proportionality - Rendering unto Strasbourg...

Last Updated: 12 April 2006
Article by Nicholas Dobson

In a decision which will come as a great relief to local authorities across the land, on 8 March 2006 the House of Lords in an Appellate Committee of seven, ruled that it wasn't necessary for authorities on each occasion to plead or prove Article 8 compliance in possession cases. Courts should consequently proceed on the assumption that domestic law struck a fair balance and was compatible with Article 8(2) of the European Convention on Human Rights (right to respect for private and family life). The Lords gave their decision in determining two conjoined appeals in Lambeth London Borough Council and another v Kay and others and Price and others v Leeds City

In the Lambeth case, the Council had (following previous other arrangements) leased properties to the London and Quadrant Housing Trust which had allowed the Appellants into occupation. When the Council terminated the leasehold interests the Appellants unsuccessfully argued that they had thereby become tenants of Lambeth and that their Article 8 rights gave them a defence to the possession claim.

Leeds had issued possession proceedings against the Appellant travellers who had occupied its recreation ground without permission. The Appellants relied on Article 8, contending (amongst other things) that the Council was in breach of the statutory scheme for the protection of gipsy families and relevant guidance. They also submitted exceptional personal circumstances including Alzheimer's disease and other types of physical and psychiatric ill health from which various members of the family had been suffering. However, the judge decided as a preliminary issue that in the light of the decision in Harrow London Borough Council v Qazi (see below) Article 8 could not in law provide a defence to the Council's claim for possession. Following this (and despite having left the recreation ground) the Appellants gave notice of appeal. In the circumstances Lord Scott considered this 'a misuse both of public money and of court time'.

Article 8(1) of the Convention provides that: 'Everyone has the right to respect for his private and family life, his home and his correspondence.' And by Article 8(2), public authorities must not interfere with the exercise of this right:

'. . .except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

Article 6(1) of the Convention provides that it is unlawful for a public authority to act incompatibly with a Convention right.

In the instant case, Lord Scott indicated that the House of Lords in Harrow London Borough Council v Qazi [2004] 1 AC 983 by a majority had held that 'contractual and proprietary rights to possession cannot be defeated by a defence based on article 8'. Consequently, if that is right, he considered that both appeals must fail. However, he pointed out that the issue had come back before the House with an enlarged Appellate Committee of seven because in:

'. . . Connors v United Kingdom [2004] 40 EHRR 189 the European Court of Human Rights in Strasbourg held that the eviction of a gypsy family and their caravan from a local authority gypsy site on which the family had no contractual or proprietary right to remain constituted a violation of their article 8 right to respect for their home.'

In the circumstances, the Appellants submitted that Qazi and Connors were irreconcilable and asked the Lords 'to follow the latter case, reverse the former case, and hold that the possession orders made against the appellants violated their article 8 rights.' As Lord Scott indicated, the main issue was whether or not the Lords should accede to that submission.

In Lord Bingham's view whilst Article 8 does not guarantee a right to a home nor the right to have one's housing problems solved by the authorities, it nevertheless does guarantee a right to respect for the place where a person lives if his links with that place are close and continuous enough to make it proper to regard that place as his home. To evict or seek to evict a person from such a place is to interfere with his exercise of his Article 8(1) right. Article 8(2) forbids such interference by a public authority unless the specified excepting conditions are satisfied.

Whilst compliance with domestic property law is a necessary excepting condition, it is not a sufficient one since the other conditions must also be met. These are in particular that the interference must meet a pressing social need and be proportionate to the legitimate aim sought to be achieved.

Consequently, whilst it necessarily follows that where a public authority seeks to evict a person from premises occupied as home (which may be land where a traveller has pitched his caravan) that person must be given a fair opportunity to contend that the excepting conditions in Article 8(2) have not been met on the facts of his case. However, Lord Bingham did not accept (as the Appellants had argued) 'that the public authority must from the outset plead and prove that the possession order sought is justified'. In his view that would, in the overwhelming majority of cases, be 'burdensome and futile'. It is therefore:

'. . . enough for the public authority to assert its claim in accordance with domestic property law. If the occupier wishes to raise an article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so. In the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile.'

In the circumstances, Lord Bingham summarised as follows the practical future position in relation to possession proceedings:

  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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 (interpretation of legislation). the judge should consider whether it may be appropriate to refer the proceedings to the High Court.

The potential reference to the High Court is of course because it is the High Court (amongst others) and not the County Court that may make a declaration of incompatibility in appropriate circumstances for the purposes of section 4 of the Human Rights Act 1998.

There was also an issue concerning judicial precedent. The difficulty, as Lord Scott pointed out, was that in both cases the lower courts held themselves bound to follow Qazi, notwithstanding the later decision of the Strasbourg Court.

In Lord Bingham's view (save in very exceptional circumstances) the courts should continue to follow binding precedent. If courts consider a binding precedent to be potentially inconsistent with Strasbourg authority they may express their views and give leave to appeal. Leap-frog appeals (per sections 12-15 of the Administration of Justice Act 1969) may in the circumstances be appropriate. In the light of the Strasbourg jurisprudential concept of 'margin of appreciation' 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.

On this basis both appeals were dismissed. As to Lambeth whilst the courts below should have held the premises in question to have been the Appellants' homes and that eviction would interfere with their Article 8 rights, it was clear that under domestic property law the Appellants had no right to occupy their respective premises of which the local authority had an unqualified right to possession. In Lord Bingham's view the Appellants fell outside the categories to which Parliament has extended a measure of protection. The Council has no duty to accommodate the Appellants but did have a power and duty to manage its housing stock. And neither had the Appellants pleaded or alleged facts which would give them a special right to remain. Lord Bingham dismissed the appeals since he was satisfied that if the cases were remitted to the County Court, possession orders would be made.

In the Leeds appeal, Lord Bingham felt it was 'all but unarguable' that the Council recreation ground in question was ever their home for the purposes of Article 8(1). They had been on the site for two days without any authority whatsoever when the Council issued proceedings for possession. Whilst there was nothing to suggest that those Appellants could show such requisite continuous links with the land for it to be regarded as their home, if it was in fact 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.' Lord Bingham could 'see no ground on which such action could be stigmatised as disproportionate, despite the personal afflictions to which these appellants were unfortunately subject'. Again, since Lord Bingham was satisfied that the Appellants could not succeed if the case were remitted to the County Court (and in any event they had left the site over a year ago) he dismissed their appeals.

Lord Hope (in agreement with Lord Scott, Baroness Hale and Lord Brown) went further. He considered that in general a defence which does not challenge the law under which the possession order is sought as being incompatible with Article 8, but is based only on the occupier's personal circumstances, should be struck out. Where domestic law provides for personal circumstances to be taken into account (e.g. 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. However:

'. . .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:

  1. 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;
  2. 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'.

So the Lords appear to have tiptoed elegantly through the minefield of precedent compatibility and the Convention rights embodied in domestic law through the Human Rights Act 1998. In the instant context, the Article 8 proportionality balance should normally be taken to have been systemically struck through the delicately poised operation of domestic property law. But in exceptional cases (where there is a seriously arguable case of Convention incompatibility or where to seek possession would be unlawful per section 6 of the 1998 Act) the court should itself decide the matter. This is unless there is a compatibility issue when the judge should consider whether to refer this to the High Court. So, to paraphrase the Gospels, the Law Lords have rendered unto Strasbourg the things that are Strasbourg's and to domestic law, those that are domestic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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