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||Neutral Citation Number:  EWCA Civ 289
||Case No: B2/2004/2353
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
His Honour Judge Bush
||Royal Courts of Justice
Strand, London, WC2A 2LL
||16 March 2005
B e f o r e :
LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
|| PRICE & ORS
||- and -
||LEEDS CITY COUNCIL
(Transcript of the Handed Down Judgment of
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Alex Offer (instructed by Messrs Davies Gore Lomax) for the Appellants
Ashley Underwood QC & Tom Tyson (instructed by Leeds City Council) for the Respondent
HTML VERSION OF JUDGMENT
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Lord Phillips, MR :
This is the judgment of the Court.
- Where a public authority demonstrates that it has an absolute right to possession of land, whether under relevant statutory provisions or, if there is none, at common law, can a defendant raise by way of defence to an action for an order for possession of that land a plea that the obtaining of possession will infringe his rights under Article 8 of the European Convention on Human Rights ('the Convention')? That is the important preliminary issue raised before His Honour Judge Bush, sitting as a deputy judge of the High Court in proceedings transferred from the Leeds County Court. In a judgment delivered on 25 October 2004, Judge Bush answered that question in the negative, holding that he was bound so to do by the decision of the House of Lords in Harrow London Borough Council v Qazi  UKHL 43;  AC 983. He granted leave to appeal.
- The appellants had submitted that Qazi was incompatible with a subsequent decision of the European Court of Human Rights ('the Strasbourg Court'), Connors v United Kingdom (Application no. 66746; judgment 27 May 2004) and that the court was bound to follow Connors rather than Qazi. Those submissions have been repeated by Mr Alex Offer in this court. Judge Bush rejected them, holding that Qazi was not incompatible with Connors and that he was bound to follow Qazi. We have to consider two questions. Is Qazi incompatible with Connors? If so, which decision should we follow?
- The appellants ('the Maloneys') are members of the Maloney family. They are gypsies in as much as that definition covers those who live in caravans or trailers and who, regularly or occasionally, travel from place to place with their homes. The respondent, Leeds City Council ('the Council'), is the freehold owner of land at Spinkwell Lane, Wakefield. The Council contends that this is recreational land used as a football pitch by a local football team and others, although this is not admitted. On or about 24 May 2004 that land was occupied by a group of gypsies. By 2 June some had moved on and others had arrived. On 13 June the Maloneys moved onto the land. On 15 June the Council commenced proceedings in Leeds County Court for possession of the land. On 24 June the matter came before the court where the Maloneys identified themselves as being in possession of the land. On 22 September 2004 the action was transferred to the High Court.
The issues raised in the action
- The Council's title to the land is not in dispute. Nor is it disputed that the Maloneys entered onto and remained in occupation of the land without any licence from or consent of the Council. Mr Offer accepted that their only defence to the claim for possession lay in their assertion that this would infringe their rights under Article 8 of the Convention. Article 8 provides:
"1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right, except such as 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. "
- The following questions can arise in respect of the application of Article 8 in a case such as this:
i) Can Article 8 ever be infringed by a claim to possession of land by a public authority that has, Article 8 apart, an absolute right to possession? If so:
ii) Does English domestic law provide protection of the Article 8 rights of a defendant facing a claim for possession of the land on which he has his home? If so:
iii) Under what procedure is that protection available and is the protection adequate?
These questions are framed with reference to a landowner which is a public authority. Such a landowner is directly affected by the obligation contained in s.6(1) of the Human Rights Act to act in conformity with the Convention. The extent, if any, to which the matter with which we are dealing affect private landowners is outside the ambit of this appeal.
The Council took two points in response to the Maloneys' defence. First they challenged the jurisdiction of the court, which was, at that stage, the County Court. They contended that the function of the County Court was restricted to determining whether the Council was, in private law, entitled to possession. The Maloneys were seeking to challenge, on public law grounds, the Council's decision to seek possession. The County Court had no jurisdiction to rule on such an issue. It should properly have been raised by an application for judicial review in the High Court.
- So far as the substance of the defence was concerned, the Council contended that Qazi established that Article 8 could not be raised to defeat contractual or proprietary rights to possession. Connors was a decision on special facts which did not put in doubt the authority of Qazi.
What did Qazi decide?
- In Qazi the local authority, as freehold owners of a house, brought proceedings for possession in the Watford County Court. In 1992 they had leased the house to Mr Qazi and his wife as joint tenants under a secure tenancy, subject to the provisions of the Housing Act 1985. In 1999 the wife, having left Mr Qazi, gave the local authority notice bringing the tenancy to an end in accordance with its terms. The local authority asked Mr Qazi to leave the premises, but he refused to do so. He continued to live in the house, latterly with a new wife whom he married in July 2000 and her five year old son. Before the proceedings were brought the Human Rights Act 1998 came into force. Mr Qazi pleaded by way of defence that the local authority, in seeking possession, were infringing his rights under Article 8 and that the court would also do so if it made the order sought. Mr Recorder Williamson, before whom the action came, dismissed this defence and made a possession order. He held that, once the wife's notice had terminated the tenancy, Mr Qazi had no legal or equitable interest in the house, which consequently ceased to be his home within the meaning of Article 8(1). Accordingly that Article was not engaged. Mr Qazi appealed successfully to the Court of Appeal, which ordered that the matter should be remitted to the County Court for consideration of whether the local authority could justify under Article 8 (2) their interference with Mr Qazi's right to respect for his home.
- The local authority appealed to the House of Lords. It is relevant to consider both the minority and the majority opinions, for it is Mr Offer's submission that the minority were vindicated by Connors. All five members of the Committee agreed that the house remained Mr Qazi's home, for the purpose of Article 8, while he continued to live there as a trespasser. To that extent they endorsed the judgment of the Court of Appeal. The remaining issues were (i) whether the act of the local authority in seeking possession of their house in accordance with their proprietary right infringed Mr Qazi's right to respect for his home and, if so, (ii) whether the fact that they were asserting a clear proprietary right meant, inevitably, that they could justify their action under Article 8(2), so that there was no arguable defence to be tried.
- Lord Bingham of Cornhill and Lord Steyn would have dismissed the appeal. They were not prepared to accept that, if domestic law accorded to a local authority an absolute proprietary right to possession of land, the assertion of that right could never constitute an interference with the right to respect for the home of an individual living on that land. Each cited with approval the following passage of the judgment of Laws LJ in Sheffield City Council v Smart  EWCA Civ 4;  LGR 467:
"27. Before proceeding to the issues arising under article 8(2), I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of article 8(1). It concerns the relationship between the two paragraphs of article 8. I have held that eviction of these tenants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute's correct construction (here, article 8(1)) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation's words mean. The first choice … would entail a judgment that the Convention requirement was met at the article 8(1) stage … The second choice (accepting a prima facie violation of article 8(1)), which I prefer, entails a judgment that the more rigorous and specific standards set out in article 8(2) have to be met if the court is to hold that the evictions are compatible with the tenants' Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court's task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in article 8(1). I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose the Human Rights Act 1998 was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the article 8(2) standards. Such a process is demanded by the fullness of our municipal law of human rights."
Lord Bingham and Lord Steyn would have remitted the case to the County Court Judge. It seems to us implicit in this that they considered that, despite the relevant statutory provisions, it would have been open to the judge to decline to make an order for possession having regard to the impact that this would have had on Mr Qazi and his family.
- Lord Hope of Craighead's conclusions appear from the following sentences extracted from a speech which analysed at length the Strasbourg jurisprudence:
"78….My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated.
84….the Strasbourg jurisprudence has shown that the contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question of whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court."
- The reasoning of Lord Millett was similar, and appears in the following passages of his speech:
"101….In most cases article 8(2) calls for a balance to be struck between the applicant's right to "respect" for his home and some competing interest….But article 8(2) also permits interference with the right where it is necessary "for the protection of the rights and freedoms of others". Those others include but are not limited to private citizens. They include landowners whether they are private citizens or public authorities.
103…..The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to "respect" Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had been agreed that he might occupy them. There was simply no balance to be struck.
106….there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law. "
- Lord Scott of Foscote was more categoric in holding that the exercise of absolute proprietary rights could never amount to interference with the right to respect for the home of a person infringing those rights. The following passages illustrate his reasoning:
"125. If … the tenant has no right to remain in possession as against the landlord he cannot claim such right under article 8. To hold otherwise, to hold that article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen's home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary.
145. …How could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a "home" as something ethereal, floating in the air, unconnected to bricks and mortar and land.
146. It is true that in a number of cases the Strasbourg tribunal (whether court or commission) has held article 8 to be prima facie applicable but has held the "interference" constituted by the claim or the order for possession to be justified under article 8(2). But there is no case in which this conclusion has been reached by considering the degree of impact on the tenant's home life of the eviction. There is no case in which a balance has been struck between the tenant's interests and the landlord's rights. In every case the landlord's success has been automatic. And so it must be unless article 8 is to be allowed to diminish or detract from the landlord's contractual and proprietary rights. In my opinion, the Strasbourg jurisprudence has shown, in effect, that article 8 has no relevance to these landlord/tenant possession cases. "
- Thus all three of the majority held that, under the Strasbourg jurisprudence, the exercise of an absolute proprietary right to possession could not infringe Article 8. Implicit in this conclusion was the premise that the English domestic law which conferred the absolute right to possession was, itself, compatible with Convention rights. Indeed Lord Hope expressly observed at paragraph 74 that no suggestion had been made to the contrary and that, had it been, it would not have been sustainable "in view of the fundamentally subsidiary role of the Convention, which gives special weight to the role of the domestic policy maker". It may also be observed that, while there was a majority for the dismissal of the appeal, there was no majority ratio. Unlike Lord Hope and Lord Millett, Lord Scott considered that art.8 was not engaged at all.
- Each of the majority made observations to the effect that any objection on grounds of public law to the exercise by a public authority of its private law right to recover possession of its property had to be advanced in judicial review proceedings, rather than by a defence to the possession action itself. None however stated in terms that, if an objection to the authority's action lay under the Human Rights Act, it had to be advanced in judicial review proceedings rather than by a defence to the possession action in the County Court.
- Lord Steyn began his vigorous dissent with the following observation at paragraph 27:
"It would be surprising if the view of the majority on the interpretation and application of article 8 of the European Convention on Human Rights, as incorporated into our system by the Human Rights Act 1998, withstood European scrutiny."
Mr Qazi in fact made an application to the Strasbourg Court and it was ruled inadmissible. Mr Underwood QC for the Council suggested that this implicitly endorsed the reasoning of the majority of the House of Lords. Without sight of the reasons given for rejecting Mr Qazi's application we do not think it would be safe to draw this inference. Petitions processed by the registry and recommended by a lawyer for dismissal in limine go in batches of fifty or more before a single judge of the Court. The recommendation is generally adopted and communicated in a short-form letter either setting out one of the grounds specified in art. 35 or simply stating that the matters complained of do not disclose any appearance of a violation of the Convention. Having regard to the summary nature of this procedure, the rejection of admissibility cannot carry the same weight as a reasoned decision of the Court in a case that has been ruled admissible. Such a case was Connors.
What did Connors decide?
- Mr Connors was a gypsy, whose daughter had married into the Maloney family. His application arose out of the eviction by Leeds City Council of himself and his family from two plots that they occupied on a gypsy site run by the Council at Cottingley Springs. The County Court had made a possession order, which had been enforced. An application for permission to challenge the Council's decision to evict the family had been made to the High Court and refused. All these events took place before the Human Rights Act came into force. Before the Strasbourg court Mr Connors had the advantage of being represented by Mr Offer. He alleged that Mr Connors' treatment involved infringement of Articles 6, 8, 13 and 14 of the Convention. The Court dealt first with Article 8.
- The Court recorded a degree of common ground between the parties:
"68. The parties were agreed that Article 8 was applicable in the circumstances of this case and that the eviction of the applicant from the site on which he had lived with his family in his caravans disclosed an interference with his right to respect for his private life, family life and home.
69. The parties were also agreed, in the context of the second paragraph of Article 8, that the interference was "in accordance with the law" and pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site.
70. The question remaining for examination by the Court is whether the interference was "necessary in a democratic society" in pursuit of that aim."
- The English statutory regime affords a degree of security of tenure to those who make their home on a caravan site and that regime distinguishes between sites that are privately owned and those that are provided by local authorities to meet the needs of gypsies. Under the Mobile Homes Act 1983, a person who lives on a privately owned caravan site in a caravan or mobile home as his only or main residence may only be evicted by court order and on one of a number of stated grounds. These include a failure to remedy a breach of a licence agreement within a reasonable time, provided that this renders it reasonable to terminate the licence. So far as gypsy sites are concerned, under the Caravan Sites Act 1968 a local authority is given an unconditional right to terminate a licence on 28 days notice, albeit that possession may only be obtained pursuant to a court order.
- The Council had alleged that Mr Connors' family misbehaved in such a way as to constitute a nuisance in breach of the Council's licence conditions. Originally this allegation was advanced in the County Court proceedings by way of justification for the possession order sought. Mr Connors disputed the allegation. In these circumstances the Council decided not to pursue the allegation of breach of licence and to seek possession on the simple ground that, having terminated the licence on 28 days notice, Mr Connors and his family had become trespassers and the Council had an absolute proprietary right to possession. The County Court ordered possession on this basis.
- Much of the debate reflected in the judgment of the Court related to an attempt by the United Kingdom Government to justify a statutory regime which, so Mr Connors alleged, discriminated against gypsies. The Government argued that the different regime was justified because its object was to cater for the desire of gypsies to lead a nomadic life by enabling local authorities to ensure that there were always places available for those who were travelling. Mr Connors argued that Article 8 required the Government to show that his eviction was necessary and proportionate. The Council had averred that it had good reason to evict him and his family. He had challenged this assertion, but there was no procedure which entitled him to require the Council to substantiate its allegations.
- In making its assessment the Court started by recognising that national authorities had a margin of appreciation in deciding when interference with Article 8 rights was "necessary in a democratic society". It commented:
"83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8…
84. 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 a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life…"
- The Court went on to apply these considerations to the case before it. It identified the issues as follows:
"85. The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children's education. The family was, in effect, rendered homeless, with the adverse consequences on security and wellbeing which that entails. The Council, and the Government in these proceedings, took the view that the eviction was justified by a breach of the licence conditions, the applicant being responsible for causing nuisance on the site. The applicant contested that he was at fault. It is not for the Court however to assess in retrospect whose version of events was correct as the Council in evicting the applicant relied instead on the power to give 28 days notice to obtain summary possession without proving any breach of licence. While it was variously alleged by Council officers that the applicant's licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights.
86. The serious interference with the applicant's rights under Article 8 requires, in the Court's opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case (cited above), in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees procedural available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family."
- The Court reached the conclusion that the legal framework did not provide Mr Connors with sufficient procedural protection of his rights. It rejected the Government's argument that the need to cater for gypsies' nomadic lifestyle justified a failure to give them the security of tenure enjoyed by those who lived on private caravan sites. The Court did not consider Qazi. It did, however, consider domestic cases involving gypsies, decided after the Human Rights Act had come into force, in which the courts had found that there was no infringement of Article 8 or 14. The Court commented in paragraph 91 that these showed a judicial reluctance to trespass on the legislative function and that the domestic courts' position could not therefore be analysed as providing strong support for the justification of continuing the current regime.
- The Court's conclusions appear in the following final passages:
"94. However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family had been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. …
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. "
- Mr Underwood's first submission in respect of the significance of the decision in Connors was that it had none, because the case had been decided on the basis of the Government's concession that Article 8 was fully engaged and that the issue was whether the Council's interference with Mr Connors' Article 8 rights was justified under Article 8(2). This was a concession that the Government had previously made in domestic cases where it had intervened in support of local authorities. Mr Underwood submitted that the concession was wrongly made and that the Court's decision was founded upon it. We do not accept Mr Underwood's submission on this point. The reasoning of the Strasbourg Court in Connors was not founded on the Government's concession. It is quite clear that the Court considered that the concession was properly made.
- The decision in Connors is unquestionably incompatible with the proposition that the exercise by a public authority of an unqualified proprietary right under domestic law to repossess its land will never constitute an interference with the occupier's right to respect for his home, or will always be justified under Article 8(2). To that extent Connors is incompatible with Qazi. Mr Underwood submitted that this was the extent of any incompatibility. All that Connors demonstrated was that, contrary to Lord Hope's observation to which we have referred in paragraph 13 above, there was one area of English law which was not compatible with the Convention, namely that area which dealt with a local authority's right to recover possession of land forming part of a gypsy site.
- Mr Underwood's submission receives some support from the decision of this court in Kay and Others v London Borough of Lambeth and Another  EWCA Civ 926. The primary issues in that case were whether the appellants, who were defendants to possession actions, had enjoyed the rights of secure tenants under Part IV of the Housing Act 1985 and, if so, whether their tenancies had been lawfully terminated. One of the appellants had, however, pleaded by way of defence to the possession action reliance on Articles 8, 14 and Article 1 of the first Protocol of the Convention. The judge struck out this defence on the grounds, inter alia, that the decision in Qazi precluded reliance by way of defence on Article 8. This court decided that the judge had correctly ruled on the Article 8 point. As Auld LJ put it at paragraph 100 of the judgment of the court:
"The fact is that Lambeth has an unqualified right to possession. And on the basis of the majority opinions in Qazi by which we are bound that is a sufficient answer to the claims under Article 8"
- After the hearing the court was provided with a report of the decision that had just been given in Connors and Auld LJ commented on this. After citation of some of the passages that we have set out above, he held:
"Whilst there is, in those general statements of principle, some support for the argument of Mr Luba, they cannot, it seems to us, affect this court's assessment of the decision in Qazi. The general statement of principle in paragraph 83 of the Court's judgment is based upon the Court's decisions in Buckley, and Chapman, to which it refers, both of which were cited to and considered by the House of Lords in Qazi. Connors is therefore only of assistance to the courts of this country in relation to cases involving gypsies."
It is questionable whether this finding, apparently made without oral argument as a postscript to the judgment, would bind us were we minded to make an order that conflicted with it.
- With respect to Auld LJ, we do not consider that the reasoning of the Court in Connors can be confined to the treatment of gypsies. It is true that, at paragraph 86, the Court remarked that the case was not concerned "with matters of general planning or economic policy but with the much narrower issue of procedural protection for a particular class of persons", but some of the Court's observations appear to be of more general application. Thus, at paragraph 83, under the heading 'General principles', the Court remarked that the procedural safeguards available to the individual would be especially material in determining whether the respondent State had, when fixing the regulatory framework, remained within its margin of appreciation. Statutory regimes that govern obtaining possession of land must be open to scrutiny. The decision in Connors does not exclude the possibility that a particular statutory regime may itself achieve the balance required by Article 8(2), so that, if the judge complies with it, the requirements of Article 8(2) will be satisfied. Equally, however, the decision in Connors does not exclude the possibility that, if a statutory regime is to comply with the Convention, it must require a public authority to weigh in the balance the impact of its actions on the individual affected and permit the individual affected to challenge in the courts the conclusion reached by the public authority.
- For these reasons we do not accept that Connors can be treated as simply identifying a discrete exception to the general rule propounded by the majority in Qazi. We accept Mr Offer's submission that Connors is incompatible with Qazi.
Should this court follow Qazi or Connors?
- Mr Offer submitted that, should we conclude that Qazi could not stand with Connors, we should follow the latter decision. Only in this way could we satisfy our obligation under section 2 of the Human Rights Act to "take into account" the decisions of the Strasbourg Court. His primary submission was that this would not offend the principle of stare decisis. Strasbourg law is capable of development and, so he submitted, the decision in Connors could properly be considered as a development in the law which had occurred since the decision in Qazi. It seems to us that to accept this submission would be to subvert the principle of legal certainty. Less than a year elapsed between the decision in Qazi and the decision in Connors. In the latter case the Strasbourg Court did not purport to be making new law. The jurisprudence on which it based its decision pre-dated Qazi. The issue is a stark one. If a decision of the House of Lords in relation to the Convention is followed by a decision of the Strasbourg Court that is incompatible with it, which decision should an inferior court follow?
- Mr Underwood submitted that we were bound to follow the House of Lords. He drew our attention to the statement of Lord Hoffmann in R (Alconbury Ltd) v Environment Secretary  UKHL 23;  2 AC 295 at paragraph 76 to the effect that section 2(1) of the Human Rights Act did not make it mandatory to follow the Strasbourg jurisprudence. He also drew our attention to the following statement of Judge LJ, sitting in the Divisional Court in R(Bright) v Central Criminal Court  1 WLR 662 at p. 682 in a judgment which pre-dated the entry into force of the Convention:
"We are not permitted to re-examine decisions of the European Court in order to ascertain whether the conclusion of the House of Lord or Court of Appeal may be inconsistent with those decisions, or susceptible to a continuing gloss. The principle of stare decisis cannot be circumvented or disapplied in this way, and if it were the result would be chaos."
These observations were made in a very different context, but the warning of the risk that chaos will follow if inferior courts are to be permitted to rely on decisions of the Strasbourg Court to justify departing from decisions of the House of Lords is timely. Nonetheless, we have to decide upon the appropriate course without the benefit of any precedent that is directly applicable.
- In D v East Berkshire NHS Trust  EWCA Civ 1151;  QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council  2 AC 633 could not survive the introduction of the Human Rights Act. This was, however, because the effect of the Human Rights Act had undermined the policy consideration that had largely dictated the House of Lords' decision. Departing from the House of Lords decision in those circumstances has attracted some academic criticism. It remains to see whether this will be echoed by the House itself. What Mr Offer invites us to do in this case, however, is iconoclasm of a different dimension. There has been no change of circumstances, but simply a decision of the Strasbourg Court that conflicts with a previous decision of the House of Lords. It seems to us that in these circumstances, the only permissible course is to follow the decision of the House of Lords but, to give permission, if sought and not successfully opposed, to appeal to the House of Lords, thereby and to that extent taking the decision in Connors into account. If in due course the House considers that we have not followed the appropriate course, it will no doubt make this plain.
- Had we accepted Mr Offer's invitation to depart from Qazi we would have had to consider some difficult questions. Where gypsies trespass on the land of a local authority without leave or licence, can seeking their removal ever constitute an interference with their Article 8 rights that is not justified under Article 8(2)? If so, can their Article 8 rights be raised as a defence to the proprietary claim for possession rather than by proceedings for judicial review? If so, on the facts of this case is there an arguable defence that requires the case to be remitted to the Judge? As it is these questions are not for us. For the reasons that we have given, we must dismiss this appeal.
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