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HOUSE OF LORDS
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SESSION 2005-06
[2006]
UKHL 10
on appeal from: [2004] EWCA Civ 926
and [2005] EWCA Civ 289
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OPINIONS
OF THE LORDS OF APPEAL
for judgment IN THE CAUSE
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Kay and
others and another (FC) (Appellants) v.
London Borough of Lambeth and others (Respondents)
Leeds City
Council (Respondents) v. Price and
others and others (FC) (Appellants)
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Appellate
Committee
Lord Bingham of Cornhill
Lord Nicholls Of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
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Counsel
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Appellants:
Jan Luba QC
David Watkinson
Kelvin Rutledge
Alex Offer
(Instructed by Davies Gore Lomax for the Leeds
appellants, and Nicholas & Co and Thomas & Co for the Lambeth
appellants)
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Respondents:
London
Borough of Lambeth
Andrew Arden QC
Terence Gallivan
John McCafferty
(Instructed by Devonshires)
Leeds City
Council
Ashley Underwood QC
Thomas Tyson
(Instructed by Leeds City Council)
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Interveners
Philip Sales and Daniel Stilitz intervening in both
appeals (Instructed by Treasury Solicitor) for the First Secretary of State
Written intervention in the second appeal by Justice
and Liberty
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Hearing dates:
12, 13, 14 and 15 December 2005
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on
WEDNESDAY 8 march 2006
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HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents)
Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants)
[2006] UKHL 10
LORD BINGHAM OF CORNHILL
My Lords,
- These appeals have been joined and heard together because they raise an important common issue on the scope and application of the right to respect for the home protected by article 8 of the European Convention on Human Rights and the Human Rights Act 1998. The House is invited to reconsider and depart from its decision in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983.
The Lambeth appeal
- The first (Lambeth) appeal also raises a discrete issue on the occupation status of the appellants as the result of transactions between the London Borough of Lambeth, the London & Quadrant Housing Trust and them over a period of years. On that issue, I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote, with which I am in complete agreement and to which I cannot usefully add. I need not repeat the facts summarised in his opinion. I take as the legal and factual premise of this opinion that, on termination by Lambeth of the headleases to Quadrant and notification by Quadrant to these appellants of that termination, the appellants' right to occupy their respective premises came to an end and they continued in occupation with no right to do so under the domestic property law of England and Wales.
- In July 2000 Mr Gorman (the second-named Lambeth appellant) brought an action against Lambeth seeking a declaration that he was a secure tenant. In August 2000 Lambeth began summary proceedings for possession against all these appellants including Mr Gorman. In his case, the claim was struck out as abusive, and Lambeth sought an order for possession by way of counterclaim. Since the other appellants were also seeking recognition as secure tenants, the issue was in each case the same.
- For detailed reasons given in his judgment dated 13 December 2002, His Honour Judge Roger Cooke resolved all the domestic property law issues against the appellants. The judge then heard argument on the appellants' alternative defence based on the European Convention and the 1998 Act and, following the decision of the House in Harrow London Borough Council v Qazi [2004] 1 AC 983, he struck it out. His decision on that ground (as on the domestic property law ground) was upheld by the Court of Appeal (Auld, Latham and Arden LJJ) [2004] EWCA Civ 926, [2005] QB 352. Certain Convention issues argued in the Court of Appeal have not been pursued in the House, and only the appellants' argument on article 8 remains for decision.
The Leeds appeal
- In the second (Leeds) appeal there is an additional issue, on the extent to which, if at all, our domestic rules of precedent are, or should be, modified to give effect to our obligations under the European Convention and the duties imposed on domestic courts by the 1998 Act.
- The respondent, Leeds City Council, is a local authority and the freehold owner of a recreation ground at Spinkwell Lane in Leeds. On about 24 May 2004 that land was occupied by travellers without the Council's permission. By 2 June 2004 the first group of travellers had left but others had arrived. On 13 June these appellants (who are the Maloney family) moved onto the site. On 15 June the Council issued proceedings for possession in the Leeds County Court. On 24 June, the return date on the claim form, the appellants attended and were represented. On 22 September the proceedings were transferred to the High Court. They had originally been issued against Mr Price, Mr Smith and Persons Unknown, but the Maloney family were the only occupiers to appear at court or contest the proceedings and they were formally joined as defendants on 18 October 2004 when the claim was heard.
- The Council claimed possession as freehold owner against the appellants as trespassers. The appellants did not challenge the Council's title, and they claimed no leave or licence to enter or occupy the land. They based their defence on article 8, averring that, although the statutory scheme for the protection of gipsy families, taken with the Government guidance, was compatible with the Convention, the Council could not rely on this when it was itself in clear and substantial breach of its obligations under the scheme and the guidance. They also asserted that their personal circumstances and those of their immediate family were exceptional, and so required the Council to justify evicting them.
- In making these allegations of breach against the Council the appellants contended that the Council
"(a) had not addressed the needs of the gipsy population in its homelessness strategy at all, contrary to the Homelessness Act 2002 and the Government Guidance given thereupon. This was also averred to be in breach of its obligations under the Race Relations Act 1976;
(b) had failed to deal adequately with the needs of the gipsy community in its Unitary Development Plan. This was alleged to be contrary to both the Homelessness Act 2002 and the Government Guidance given thereupon and to be a breach of the Respondent's duties under the Race Relations Act 1976;
(c) did not have a Race Relations Strategy which made any provision for the needs of the gipsy/traveller population;
(d) had not complied with the Guidance given either in the 1998 DETR and Home Office publication, 'Managing Unauthorised Camping: A Good Practice Guide' or that given in Circular 18/94."
The appellants further submitted that these alleged failures had to be seen in context, namely that:
"(a) the [Council] had declined to consider additional site provision for the gipsy community; despite the fact that this should be a key part of any homelessness strategy, and;
(b) there was only one official site in the Leeds metropolitan area. This site was full and had a waiting list. Approximately 20% of the gipsy population of Leeds consequently lived on unauthorised encampments."
The appellants further relied on a number of matters particular to them and at the date of trial:
"(a) in the 12 months immediately prior to them moving onto the land at Spinkwell Lane the family had either been evicted or forced to move under the threat of eviction in excess of 50 times;
(b) in May 2004 Kim Maloney had been admitted to the Leeds General Infirmary suffering from exhaustion and stress resulting directly from these regular moves. She had been in hospital for 2 nights;
(c) Patrick Maloney (Senior) suffered from Alzheimer's disease. He was also affected by a serious head injury which he had sustained in a road traffic accident. He was unable to copy on his own and had significant memory loss and care needs;
(d) Ellen Maloney suffered from depression and associated psychiatric problems as detailed in the report of Dr K Rix. She also had mobility problems;
(e) Ellen Elizabeth Maloney suffered from fits. She was hospitalised with pneumonia at the beginning of June 2004. She was only one year old. Her mother Kathleen Maloney was a single parent;
(f) Patrick Maloney (Junior) had major mental health problems as a result of a serious head injury he sustained following a vicious assault on him on 4th July 1998. He was also blind in one eye following a further attack with broken glass. His mental health condition was variable and unpredictable;
(g) there were 3 school age children residing on the site;
(h) Patrick Maloney (Senior) had just been treated as an inpatient at the Leeds General Infirmary for a gall bladder problem. He was admitted to the hospital on 9th July 2004. He was awaiting further admission and treatment;
(i) Patrick Maloney (Junior) had recently suffered from bowel problems and had been treated as an inpatient at St James' hospital for about 3 weeks. He was awaiting further investigations."
- Before the trial, by a letter dated 8 October 2004, the Council had formally notified the appellants that they had been found to be unintentionally homeless and in priority need, and had accepted a duty to help them secure accommodation. The appellants at trial contended that in all the circumstances an order for possession was neither necessary nor proportionate. The Council replied that it had an absolute right to possession, that the Human Rights Act had no application to the case and that the court had no need to consider questions of necessity, justification or proportionality. It had been agreed that the question whether article 8 of the Convention could in law provide the appellants with a defence to the Council's claim for possession should be resolved as a preliminary issue and on the trial date His Honour Judge Bush, sitting as a judge of the High Court, heard submissions and reserved his decision.
- On 25 October 2004 the judge gave judgment resolving the preliminary issue in the Council's favour. Holding himself bound by the decision of the House in Qazi and that of the Court of Appeal in the Lambeth appeal, he held that the Council's contractual and proprietary claim to possession could not be defeated or qualified by article 8. He made an order for possession forthwith, and refused a stay of execution, but granted leave to appeal to the Court of Appeal.
- After this order the appellants left the site. But they appealed to the Court of Appeal (Lord Phillips of Worth Matravers MR, Brooke and Sedley LJJ), which on 16 March 2005 dismissed the appeal: [2005] EWCA Civ 289, [2005] 1 WLR 1825. The court held that it was bound by the decision of the House in Qazi, [2004] 1 AC 983. But it considered that decision to be incompatible with a later decision of the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189 and granted the appellants leave to appeal to the House.
Mr Qazi's case
- The facts of this case were summarised by four members of the House (paras 2-3, 40-44, 90-92 and 112-114), and were of the simplest. The local authority were the freehold owners of a house which they let to Mr Qazi and his wife as joint tenants. After some six years she left, with their daughter, and she gave notice to quit, which brought the tenancy to an end. He applied to the local authority for the grant of a tenancy to him alone, but this was refused. The authority issued proceedings for possession, which he resisted. He had married another wife in an Islamic ceremony before the proceedings began, and was later living at the house with her and her young son. He based his resistance to the claim for possession on the right to respect for his home, protected by article 8 of the European Convention, to which effect in the domestic law of the United Kingdom was given by the 1998 Act. 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 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."
- In the House there were said to be two issues and a third potential issue (para 6), and there was no difference of opinion on the formulation of the issues (para 28). They were (1) whether, when proceedings were issued and possession was ordered, the house was Mr Qazi's home within the meaning of that expression in article 8 and, if so, (2) whether what the local authority did or proposed to do infringed his right to respect for his home. If those questions were answered in Mr Qazi's favour, there arose the issue whether the local authority's action or proposed action was justified.
- At first instance, the recorder answered the first question in the local authority's favour and adversely to Mr Qazi. He held that because Mr Qazi had no legal or equitable right in the house, it was not his home and article 8 was not engaged. He did not, therefore, address the remaining questions. The correctness of this answer to the first question was the main focus of debate in the Court of Appeal and in the House (per Lord Steyn, para 29). But the Court of Appeal unanimously took a different view, and a clear view was expressed by the House that the premises had at the relevant times been Mr Qazi's home within the autonomous meaning of that expression in article 8: see paras 11, 26, 68, 95, 99, 110.
- A majority of members of the House, and perhaps all members, held in answer to the second question that there had on the facts been an interference by a public authority with Mr Qazi's right to respect for his home. That was my conclusion (para 24) and that of Lord Steyn (paras 30-33). Lord Hope (para 70) and Lord Millett (para 103) were, as I understand them, of the same opinion. Lord Scott (para 149) would for his part have ruled that article 8 was not in the circumstances applicable, but he also expressed agreement with Lord Hope and Lord Millett.
- There was, however, a clear difference of opinion among the members of the House. In a case such as Mr Qazi's where a public authority had an unqualified right to possession under domestic property law, Lord Hope did not consider article 8 to be irrelevant (para 83) but held that article 8(2) is satisfied where domestic property law gives an unqualified right to possession (paras 78, 83). He concluded (para 84) that contractual and propriety rights to possession cannot be defeated by a defence based on article 8. Lord Millett was of a similar opinion: article 8 was engaged (para 100), but save in wholly exceptional circumstances there would be no lack of respect and no infringement of article 8, where an order is made in favour of a person entitled to possession under domestic property law (para 107). Lord Scott echoed this view in holding that article 8 cannot be raised to defeat contractual and proprietary rights to possession. Lord Steyn and I, dissenting, were of opinion that where, as in that case, there was a proposed interference with a person's right to respect for his home, the question of justification, if raised, did fall to be considered (paras 24, 26), even though considerations of domestic property law were likely to be crucial (para 12) and the occasions on which a court would be justified in declining to make a possession order would, as the parties agreed, be very highly exceptional (para 25).
The Court of Appeal decisions under appeal
- In its judgment on the Lambeth appeal [2005] QB 352, the Court of Appeal first considered at length and in detail the private law issues raised by the appellants, resolving them in favour of the local authority, as the House concludes, rightly. The court then turned to the article 8 issue and (para 93 of the judgment) the decision of the House in Qazi, and stated what it understood to be the ratio of the majority. In para 98 it said:
"The majority opinions are based, it seems to us, on the logic that the incidents of the domestic law of landlord and tenant provide the answer to the question whether or not, in any case, the interference with the person's home is justified under article 8(2)."
In para 100 it added:
"The fact is that Lambeth has an unqualified right to possession. And on the basis of the majority opinions in Qazi's case by which we are bound, that is a sufficient answer to the claim under article 8."
Thus the appellant's article 8 claim was bound to fail. After reserving judgment, the court received the judgment of the European Court in Connors (paras 20, 22 below). It heard no oral argument on the significance of that decision, but concluded (para 106) that it could not affect its assessment of the decision of the House in Qazi and that it was of assistance to UK courts only in relation to cases involving gipsies.
- In its judgment on the Leeds appeal ([2005] 1 WLR 1825), the Court of Appeal again summarised the ratio of the majority in Qazi (para 13 of the judgment):
"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."
The court then reviewed the compatibility of the majority reasoning in Qazi with the decision of the European Court in Connors and concluded (para 26):
"The decision in Connors's case 40 EHRR 189 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's case is incompatible with Qazi's case [2004] 1 AC 983."
The court considered (paras 27-28) the earlier judgment of the court in the Lambeth appeal, but did not consider (para 29) that the reasoning of the European Court in Connors could be confined to the treatment of gipsies and accordingly accepted (para 30) the appellants' submission that Connors was incompatible with Qazi.
The Strasbourg jurisprudence
- In their opinions in Qazi the members of the House analysed what were then the leading Strasbourg authorities pertaining to the right to respect for the home, although the majority and the minority drew different inferences from them: contrast the opinions of Lord Hope (para 78), Lord Millett (paras 103-104) and Lord Scott (paras 125, 146 and 149) with those of myself (paras 20,23) and Lord Steyn (para 30). S v United Kingdom (1986) 47 DR 274, to which my noble and learned friend Lord Hope attaches much significance, was an early admissibility decision of the Commission on which the Court has never, to my knowledge, relied in any later case. It would, in my opinion, serve no useful purpose to repeat this analysis, since if matters rested where they did when Qazi was decided the majority interpretation of the Strasbourg jurisprudence would be bound to prevail, whatever reservations there may have been in the minds of some, at the time, about its correctness. It is, however, argued by the appellants, with strong support by the First Secretary of State as intervener, that matters do not rest where they did when Qazi was decided, since two cases have since been decided by the European Court which are inconsistent with the ratio of the majority in Qazi and support the approach of the minority. Those decisions are Connors v United Kingdom (2004) 40 EHRR 189 and Blecic v Croatia (2004) 41 EHRR 185.
- The facts of these two cases were quite different. Mr Connors and his family had lived as licensees on a local authority gipsy site for most of the preceding sixteen years when, in January 2000, they were given notice to quit. This notice was prompted by complaints about the behaviour on the site of some members of the applicant's family or their guests, which was said to be a breach of the licence conditions. The applicant did not leave, and proceedings were brought for possession. He sought to challenge the authority's decision to initiate proceedings by judicial review, but permission was refused. The authority's complaints of misbehaviour were strongly denied by the applicant, and so the authority dropped these complaints and relied instead on its right to terminate the applicant's licence on notice, which had been given. There was no answer to this claim under English domestic property law. A possession order was accordingly made, and some weeks later the applicant and his family and their caravans and possessions were forcibly removed from the site.
- In Blecic the applicant had for nearly forty years before 1992 been a specially-protected tenant of a publicly-owned flat in Zadar. Under the domestic property law of Croatia a specially-protected tenancy might be terminated if the tenant ceased to occupy the flat for a continuous period of six months, but termination might not be effected on that ground if the tenant's failure to use the flat was attributable to medical treatment, military service or "other justified reasons". The applicant left Zadar in July 1991 to visit her daughter in Rome. War then intervened, conditions in Zadar were bad, and the applicant did not return until May 1992, by which time another occupant had, without permission, moved into the flat. In February 1992 the local authority had already initiated proceedings to terminate the tenancy. The applicant claimed that she had had justified reasons for not using the flat, and this argument was accepted by an intermediate court, but it was rejected at first instance and, finally, by the Supreme Court. Thus, without justified reasons, the applicant had no grounds for resisting the termination of her tenancy.
- It was agreed in Connors (para 68 of the Court's judgment in that case) and held in Blecic (para 52 of the Court's judgment in that case) that the premises in question were, for purposes of article 8, the applicant's home. It was agreed in Connors (para 68) and held in Blecic (para 54) that the facts disclosed an interference with the applicant's right to respect for his and her home. Under the domestic property law of the two jurisdictions there was no arguable defence to either claim (in the Blecic case, once she had been found to have no justified reasons). But in each case the Court went on to consider, at some length, the excepting conditions in article 8. In Connors (para 69) it was agreed, and in Blecic (paras 57-58) it was held, that the interference had a legitimate aim. In each case the crux was whether the interference was necessary in a democratic society, namely whether the interference answered a pressing social need and was proportionate to the legitimate aim pursued (Connors, para 81; Blecic, para 59). These are matters which would not have fallen for consideration at all if a clear answer given by domestic property law were decisive. As it was, the Court devoted fourteen paragraphs of its judgment in Connors to this aspect and eleven paragraphs of its judgment in Blecic. It reached differing conclusions in the two cases. In ruling against the United Kingdom in Connors the court took account of the nature of the rights involved in the case (para 82), the procedural safeguards available to the individual (para 83), the vulnerable position of gipsies as a minority whose way of life member states are positively obliged to facilitate (para 84) and the disadvantageous position of gipsies on local authority as opposed to privately-owned sites (paras 43-46, 87-90). It concluded that judicial review was not an adequate safeguard (para 92) and that (para 95)
"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 Art. 8 of the Convention."
Reaching a different conclusion in Blecic, the Court respected the margin of appreciation accorded to national authorities (paras 64-65) and found (paras 68-70) that the applicant had had a fair opportunity to put forward her views and resist the claim made against her.
- The decision of the House in Qazi was not cited in Connors, perhaps because the majority reasoning was inconsistent with the basis on which the United Kingdom's case was put (and had been put on earlier occasions such as Howard v United Kingdom (1985) 9 EHRR 117, P v United Kingdom (Appn No 14751/89), 12 December 1990, unreported, and Chapman v United Kingdom (2001) 33 EHRR 399 and, domestically, in Southwark London Borough Council v St Brice [2001] EWCA Civ 1138, [2002] 1 WLR 1537). The respondents, however, place considerable reliance on the fact that when Mr Qazi sought to apply to Strasbourg to complain of a violation of his article 8 right his application was declared inadmissible. From the very brief reasons given, the respondents infer approval of the majority's reasoning. The Court of Appeal in the Leeds case discounted the significance of this finding in paragraph 15 of its judgment, and the House itself has been at pains over the years to make plain that the refusal of leave does not necessarily import approval of the reasoning of the judgment which it is sought to challenge. It may have been thought, as the Qazi minority certainly thought, that Mr Qazi was most unlikely to win even if his case were remitted to the county court, and his case may have had more in common with earlier cases held inadmissible because the justification was obvious than cases such as Connors and Blecic. I do not, in any event, think that any reliable inference can be drawn from the finding of inadmissibility made against Mr Qazi's application.
- The respondents sought in argument to explain Connors, as the Court of Appeal did in its Lambeth judgment, as a case turning on the special position of gipsies. This is, in my opinion, partly right and partly wrong. It is right inasmuch as the position of Mr Connors and his family as members of a vulnerable minority, to whom the state owed a positive obligation, and who had inadequate means of protecting their rights in domestic law, founded the Court's finding in their favour on the issue of necessity in a democratic society (i.e. pressing social need and proportionality). It is wrong insofar as it is relied on to support the majority reasoning in Qazi: for on that reasoning the applicants' lack of any proprietary interest whatever under domestic property law would have effectively concluded the case against them, without any need to explore questions of necessity, pressing social need and proportionality. The Court of Appeal in paragraph 29 of its Leeds judgment was in my opinion correct to hold that the reasoning in Connors could not be confined to the treatment of gipsies.
- The appellants point out that in Connors both the applicability of article 8 and an act of interference by a public authority were conceded by the United Kingdom. This is correct, as noted in para 22 above. But the Court of Appeal in its Leeds judgment (para 25) rejected the suggestion that the decision was founded on the concession, and thought it clear that the Court considered the concession to have been rightly made. I agree. It is also clear that if either of the two cases now before the House were to reach Strasbourg the same concessions would be made (subject, in the Leeds case, to the prior contention that the premises were not the appellants' home: see para 48 below).
- The Court of Appeal in its Leeds judgment (para 26) was in my view right to hold that the decision in Connors is "unquestionably incompatible" with the majority ratio of Qazi. It does not appear that Blecic was cited to the Court of Appeal: had it been, it could only have fortified the court in the correctness of its conclusion.
The application of the Strasbourg jurisprudence
- The appellants contended, with strong support from the First Secretary of State, that
(1) the majority ratio in Qazi should be modified to take account of the later Strasbourg jurisprudence, particularly Connors and Blecic;
(2) defendants to possession proceedings brought by public authorities should be permitted in principle to raise an article 8 defence in those proceedings;
(3) defendants should be permitted to raise such defences in the county court in the possession proceedings and should not be required to raise such defences in separate proceedings for judicial review, and
(4) such a procedure would not in practice impose an excessive or unsustainable burden on the administration of justice in the county courts.
Each of these contentions was challenged by the respondents, and each of them is important.
- The mandatory duty imposed on domestic courts by section 2 of the 1998 Act is to take into account any judgment of the Strasbourg Court and any opinion of the Commission. Thus they are not strictly required to follow Strasbourg rulings, as they are bound by section 3(1) of the European Communities Act 1972 and as they are bound by the rulings of superior courts in the domestic curial hierarchy. But by section 6 of the 1998 Act it is unlawful for domestic courts, as public authorities, to act in a way which is incompatible with a Convention right such as a right arising under article 8. There are isolated occasions (of which R v Spear [2002] UKHL 31, [2003] 1 AC 734, paras 12 and 92, is an example) when a domestic court may challenge the application by the Strasbourg Court of the principles it has expounded to the detailed facts of a particular class of case peculiarly within the knowledge of national authorities. The 1998 Act gives it scope to do so. But it is ordinarily the clear duty of our domestic courts, save where and so far as constrained by primary domestic legislation, to give practical recognition to the principles laid down by the Strasbourg Court as governing the Convention rights specified in section 1(1) of the 1998 Act. That Court is the highest judicial authority on the interpretation of those rights, and the effectiveness of the Convention as an international instrument depends on the loyal acceptance by member states of the principles it lays down. In the present instance the governing principle is now clear, and gives fair effect to the right to respect for his home which everyone is entitled to enjoy under article 8(1). That provision does not, as has been repeatedly and rightly held, guarantee a right to a home or the right to have one's housing problems solved by the authorities: Chapman v United Kingdom (2001) 33 EHRR 399, para 99; Marzari v Italy (1999) 28 EHRR CD 175, 179; O'Rourke v United Kingdom (Application No 39022/97), unreported, 26 June 2001. But it does guarantee a right to respect for the place where a person lives if his links with that place are close enough and continuous enough (Buckley v United Kingdom (1996) 23 EHRR 101, 115, para 63; Mabey v United Kingdom (1996) 22 EHRR CD 123, 124; O'Rourke v United Kingdom above) 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, as the House held in reliance on Strasbourg and other authority in Qazi. Article 8(2) forbids such interference by a public authority unless the excepting conditions are satisfied. Compliance with domestic property law is a necessary excepting condition but not a sufficient one, since the other conditions must also be met, notably that the interference must answer a pressing social need and be proportionate to the legitimate aim which it is sought to achieve. This must now be recognised as the correct principle. In stating it, I enter the same important reservation as in Qazi, para 23: nothing in this opinion should be understood as applying to any landlord or owner which is not a public authority. Competing submissions were made on this point. It does not arise for decision in these appeals. It is best left for resolution in a case where it arises.
- It necessarily follows, in my judgment, that where a public authority seeks to evict a person from premises (which may be land where a traveller has pitched his caravan) which he occupies as his home, 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. I do not accept, as the appellants argued, that the public authority must from the outset plead and prove that the possession order sought is justified. That would, in the overwhelming majority of cases, be burdensome and futile. It is 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.
- The respondents submitted that if, on article 8 grounds, an occupier wishes to resist a claim for possession valid under domestic property law, the proper medium for such a challenge is an application for judicial review and the proper venue the Administrative Court and not the county court. That is the proper forum in which a challenge to an exercise of public power by a public authority should be resolved. If this were a correct submission it would have to be accepted, but it would have very unfortunate procedural consequences. It would lead to the adjournment of the county court proceedings while application was made for permission to apply for judicial review. Even if permission were refused, as would almost always be the case, there would be additional expense and delay, preventing summary disposal of the matter in the county court. The occupier would be restricted to a procedure not well-adapted or routinely used for the resolution of sensitive factual questions and to a court traditionally and rightly reluctant to explore the merits of an apparently lawful decision, as it proved to be in Connors' case. But in my opinion it is not a correct submission. Effect must be given to section 7(1)(b) of the 1998 Act, which provides:
"(1) a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. in a way which is incompatible with a Convention right] may
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."
This is express authority entitling the occupier to raise his article 8 challenge to the possession order sought against him in those proceedings. It is consistent with authorities such as Wandsworth London Borough Council v Winder [1985] AC 461 and Boddington v British Transport Police [1999] 2 AC 143, and respects the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review: see, for example, R v Huntingdon District Council, Ex p Cowan [1984] 1 WLR 501, 507. Where a party seeks relief, on conventional judicial review grounds, which only the Administrative Court can grant, there will, of course, be no alternative to an application for judicial review, but that will very rarely, if ever, be the case where an occupier seeks to resist a possession order in reliance on article 8.
- The respondents contended that if the approach indicated above were given practical effect the result would be to dislocate the conduct of housing claims in the county court, distort local authority housing policies and budgets, and upset the important compromises inherent in our property law and housing legislation. The appellants, supported by the First Secretary of State, strongly challenged this prediction, while accepting that the threshold for relying successfully on article 8 in response to an otherwise well-founded possession claim should be very high and that the number of successful defendants would be minimal. This is an important aspect of these appeals, and one that has caused the House much concern.
- The respondents insisted on the relevance of three principles which are very familiar but are, indeed, fundamental. The first is that the Strasbourg authorities routinely accord a wide margin of appreciation to the national authorities of member states, not least in the context of both article 8 and article 1 of the First Protocol. While in some situations (such as that in Connors) the margin is treated as narrower than in some other situations, and the Court reserves to itself the power of final review, this principle is undoubtedly correct. So is the closely-allied second principle, that the Strasbourg authorities generally respect, subject to similar qualifications, decisions made by democratically - elected assemblies following public debate. So too is the third principle, that inherent in the whole of the Convention is a search for balance between the rights of the individual and the wider rights of the society to which he belongs, neither enjoying any absolute right to prevail over the other. It is unnecessary to cite authority for propositions so well established and understood.
- The third of these principles has obvious relevance in a context such as that giving rise to these appeals. For the general property law of England and Wales has developed over the centuries reconciling the rights and interests, sometimes in harmony, sometimes conflicting, of owners, landlords and licensors on one hand and occupiers, tenants and licensees on the other. Over the last century or so, this general property law has been overlaid by a mass of very detailed, very specific housing legislation. Giving the House the benefit of their great expertise, the respondents' counsel drew attention to, among other examples, secure tenancies, introductory tenancies, demoted tenancies, assured tenancies, assured shorthold tenancies and demoted assured shorthold tenancies, all of them created or to a greater or lesser extent regulated by statute. Most of these statutes (and further examples could readily be given) were no doubt prompted by recognition that housing (in which expression I include pitches on which travellers may lawfully pitch their caravans) is a scarce and in the short term finite commodity. The demand for housing at a reasonable price is greater than the supply. This of course means that security of tenure for A means a denial of accommodation for B, recognition of a right for C to succeed to a tenancy means there is no tenancy for D, an extension of time granted to E defers the date when F can find somewhere to live. Our housing legislation strikes a balance between the competing claims to which scarcity gives rise, taking account, no doubt imperfectly but as well as may be, of the human, social and economic considerations involved. And it is, of course, to housing authorities such as the respondents that Parliament has entrusted the power of managing and allocating the local authority housing stock and the pitches on local authority gipsy sites.
- Under some statutory regimes, as where discretionary grounds are relied on to terminate a secure tenancy under the Housing Act 1985, the court may make an order for possession only where, other conditions for making such an order being met, the court thinks it reasonable to do so. This enables the court to take account of all circumstances which it judges to be relevant. If, in any case covered by such a regime, the statutory conditions are satisfied and the court does, on consideration of all the circumstances, think it reasonable to make a possession order, the court will in effect have undertaken the very assessment which article 8(2) requires. In such a situation article 8(2) adds nothing of substance to the protection which the occupier already enjoys.
- Under some statutory regimes the court may be required to make an order for possession if certain prescribed conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order. The statutory scheme is nonetheless likely to satisfy the article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, [2002] QB 48, the Court of Appeal found no breach of article 8(2) in the use of section 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, the Court of Appeal found no breach of article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under section 127(2) of the Housing Act 1996, since (para 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being (it was held) adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] HLR 639, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. See also Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, paras 63, 78. Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8.
- There are of course some cases (of which the present cases are examples) in which the relationship between public authority owner or landlord and individual tenant or occupier is not governed by any statutory scheme. But possession may be sought on expiry of the period for which the right to occupy was granted, or because the notice required by domestic property law to bring that term to an end has been given, or because one or more of the conditions on which the right to occupy was granted has been broken. It cannot be said that the relationship between the parties in such cases is the subject of a balance struck by Parliament, but it is not unrealistic to regard the general law as striking such a balance. The public authority owner or landlord has, broadly speaking, a right to manage and control its property within bounds set by statute. The occupier acquires a right, but only a limited right, to occupy. On due determination of that interest, a claim for possession must ordinarily succeed, since any indulgence to the occupier necessarily derogates from the property right of the public authority, whose rights are also entitled to respect. It is not therefore surprising that in P v United Kingdom (Application No 14751/89), 12 December 1990, and Ure v United Kingdom (Application No 28027/95), unreported, 27 November 1996, the occupiers' complaints were held to be inadmissible because the public authority's interference or assumed interference was held to be clearly justified. It would, again, require highly exceptional circumstances before article 8 would avail the occupiers. The peculiar facts and circumstances of Connors could fairly be regarded as crossing that high threshold, given the positive obligation to which reference is made in paragraph 24 above.
- Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end, with the environmental hazards it is likely to entail. Rules 55.5(2) and 55.6 of the Civil Procedure Rules provide for the summary removal of squatters. The rule in McPhail v Persons, Names Unknown [1973] Ch 447 must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite.
- I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind. They are well used to exercising their judgment under existing statutory schemes and will recognise a highly exceptional case when they see it. I do not, however, consider that problems and afflictions of a personal nature should avail the occupier where there are public services available to address and alleviate those problems, and if under the relevant social legislation the occupier is specifically disentitled from eligibility for relief it will be necessary to consider the democratic judgment reflected in that provision. Nor can article 8 avail a tenant, otherwise perhaps than for a very brief period, if he can be appropriately accommodated elsewhere (whether publicly or privately). Where, as notably in the case of gipsies, scarcity of land adversely affects many members of the class, an article 8(2) defence could only, I think, succeed if advanced by a member of the class who had grounds for complaint substantially stronger than members of the class in general.
- The practical position, in future, in possession proceedings can be briefly summarised as follows. (1) 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. (2) 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. (3) 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. (4) 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. (5) 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. (6) 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 the judge should consider whether it may be appropriate to refer the proceedings to the High Court.
Precedent
- Reference has already been made to the duty imposed on United Kingdom courts to take Strasbourg judgments and opinions into account and to the unlawfulness of courts, as public authorities, acting incompatibly with Convention rights. The questions accordingly arise whether our domestic rules of precedent are, or should be modified; whether a court which would ordinarily be bound to follow the decision of another court higher in the domestic curial hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the Court in Strasbourg. The Court of Appeal concluded, in paragraph 33 of its judgment on the Leeds appeal, that the only permissible course was to follow the decision of the House in Qazi, despite finding that it was incompatible with Connors, but to give permission, if sought and not successfully opposed, to appeal to the House, and in that way to take the decision in Connors into account.
- The House has had the benefit of carefully considered submissions on this issue. In a written case submitted on behalf of JUSTICE and LIBERTY as interveners it is contended that the lower court is free to follow, and barring some special circumstances should follow, the later Strasbourg ruling where four conditions are met, namely (1) the Strasbourg ruling has been given since the domestic ruling on the point at issue, (2) the Strasbourg ruling has established a clear and authoritative interpretation of Convention rights based (where applicable) on an accurate understanding of United Kingdom law, (3) the Strasbourg ruling is necessarily inconsistent with the earlier domestic judicial decision, and (4) the inconsistent domestic decision was or is not dictated by the terms of primary legislation, so as to fall within section 6(2) of the 1998 Act. The appellants' formulation was to very much the same effect, although they did not suggest that the domestic court should follow the Strasbourg ruling, only that it might; they emphasised that the inconsistency between the otherwise binding domestic decision and the later Strasbourg ruling should be very clear; and they elaborated somewhat the conditions pertaining to primary domestic legislation. The First Secretary of State, after a judicious review of the arguments for and against the Court of Appeal's approach, favoured a (strictly circumscribed) relaxation of the doctrine of precedent in the circumstances of the Leeds appeal. He proposed that a lower court should be entitled to depart from an otherwise binding domestic decision where there is a clearly inconsistent subsequent decision of the Strasbourg Court on the same point. But the inconsistency must be clear. A mere tension or possible inconsistency would not entitle a lower court to depart from binding domestic precedent. The respondent gave a guarded answer. A lower court may decline to follow binding domestic authority in the limited circumstances where it decides that the higher courts are bound to resile from that authority in the light of subsequent Strasbourg jurisprudence.
- While adherence to precedent has been derided by some, at any rate since the time of Bentham, as a recipe for the perpetuation of error, it has been a cornerstone of our legal system. Even when, in 1966, the House modified, in relation to its own practice, the rule laid down in London Street Tramways Company Limited v London County Council [1898] AC 375, it described the use of precedent as
"an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules:" Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
The House made plain that this modification was not intended to affect the use of precedent elsewhere than in the House, and the infrequency with which the House has exercised its freedom to depart from its own decisions testifies to the importance its attaches to the principle. The strictures of Lord Hailsham of St Marylebone LC in Broome v Cassell & Co Limited [1972] AC 1027, 1053-1055, are too well known to call for repetition. They remain highly pertinent.
- The present appeals illustrate the potential pitfalls of a rule based on a finding of clear inconsistency. The appellants, the First Secretary of State and the Court of Appeal in the Leeds case find a clear inconsistency between Qazi and Connors. The respondents and the Court of Appeal in the Lambeth case find no inconsistency. Some members of the House take one view, some the other. The prospect arises of different county court and High Court judges, and even different divisions of the Court of Appeal, taking differing views of the same issue. As Lord Hailsham observed (ibid, p 1054), "in legal matters, some degree of certainty is at least as valuable a part of justice as perfection." That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.
- There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus 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. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.
- To this rule I would make one partial exception. In its judgment on the Leeds appeal, paragraph 33, the Court of Appeal said:
"In D v East Berkshire Community NHS Trust [2004] QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 could not survive the introduction of the Human Rights Act 1998. This was, however, because the effect of the Human Rights Act 1998 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."
When that case reached the House, no criticism of the Court of Appeal's bold course was expressed, the House agreed that the policy considerations which had founded its decision in X v Bedfordshire had been very largely eroded and it was accepted that that decision was no longer good law: [2005] UKHL 23, [2005] 2 AC 373 paras 21, 30-36, 82, 119, 124-125. The contrary was not suggested. But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in paragraph 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course is not permissible save where the facts are of that extreme character.
Disposal
The Lambeth appeal
- It follows from the foregoing paragraphs of this opinion that the courts below should have held the premises in question to be the homes of the respective appellants and should have held their eviction or proposed eviction to be an interference with their exercise of their right to respect for their homes within the meaning of article 8(2). Their defences should not have been struck out save on the basis that nothing sufficient was pleaded to support them.
- The question then arises whether these cases should, even after this lapse of time, be remitted to the county court for consideration whether eviction is necessary in a democratic society, as that expression has been defined in the Strasbourg jurisprudence. I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary. But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made. I would accordingly, although for reasons differing from those of the Court of Appeal, dismiss these appeals.
The Leeds appeal
- It seems to me all but unarguable that the recreation ground at Spinkwell Lane on which the appellants parked their caravans was ever their home within the meaning of article 8(1). On the agreed facts, they had been on the site for two days, without any authority whatever, when the Council issued proceedings for possession. There is nothing to suggest that they could show such continuous links with the land as would be necessary if it were to be regarded as their home. If, however, the land was 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. I can see no ground on which such action could be stigmatised as disproportionate, despite the personal afflictions to which these appellants were unfortunately subject. The facts are far removed from those of Connors where the family had been lawful occupiers of the authority's gipsy site, with one relatively brief intermission, for many years. I am satisfied that these appellants could not succeed if the case were remitted to the county court. In any event, they left the site over a year ago. I would accordingly, dismiss this appeal also.
- I would, in each case, invite written submissions on costs within 14 days.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
- I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I fully agree, I too would dismiss both appeals. I also agree with his observations on the judicial precedent point. On the 'Bruton tenancy' issue in the Lambeth appeal, I agree with the conclusions and reasoning of my noble and learned friend Lord Scott of Foscote whose speech I have had the advantage of reading in draft. I add some short observations only on the procedural aspects of the main issue. I must first set them in their context.
- These appeals concern a subject matter of great importance to many people: the right of a local authority to repossess a property occupied by a defendant as his home. The two sets of proceedings exemplify two typical circumstances where repossession claims are made by a local authority. One is where the defendant was lawfully in possession of property, his rights of occupation were duly terminated, and a possession order was then sought. The other is where the defendant entered upon the local authority's property unlawfully and the local authority then took steps to obtain a possession order.
- The problems before the House arise from the impact of the Human Rights Act 1998 in these cases. In both sets of proceedings the defendants contend that eviction would violate their Convention right to respect for their home. The House is concerned to give guidance on what should be the general approach to such contentions and, where seriously arguable issues arise, in which court the issues should be decided.
- The starting point is clear enough. A possession order made by a court in respect of a defendant's home will be, at least ordinarily, an interference with the defendant's right to respect for his home within the meaning of article 8. Equally clearly, in almost all cases of the two types mentioned above that interference will be justified as 'necessary in a democratic society' on one or more of the grounds set out in article 8(2). The interference will be justified because in one case the defendants never had any right to be on the property at all. In the other case the defendants had only the limited rights afforded by the housing legislation. This complex, ever-changing law is testimony to the elaborate steps taken by Parliament to strike an appropriate balance between the competing interests of all those who are in need of homes. The country's housing stock is finite, and for many years the legislature has striven repeatedly to achieve the best and fairest use of the available housing. Parliament's decisions on this extremely difficult and intricate social problem are to be respected.
- I said 'in almost all cases' because inevitably there may be the exceedingly rare case where the legislative code or, indeed, the common law is impeachable on human rights grounds. Connors v United Kingdom (2004) 40 EHRR 189, regarding the lack of protection for gypsies, is an example. It is this possibility, rare and exceptional though it may be, which gives rise to a hugely important practical problem. Day in, day out, possession orders are routinely made in county courts all over the country after comparatively brief hearings. The hearings are mostly brief because the time needed to dispose fairly of the formalities and also of questions of reasonableness, where they arise, is usually short. This will no longer be the position if, as has been contended, local authorities must now plead and prove in every case that domestic law meets the requirements of article 8.
- I am unable to accept this remarkable contention. The course proposed would be a recipe for a colossal waste of time and money, in case after case, on futile challenges to the Convention-compatibility of domestic law. On the contrary, despite the possibility of a successful challenge under article 8, I see no reason for the present practice to change. Courts should proceed on the assumption that domestic law strikes a fair balance and that it is compatible with the requirements of article 8 and also article 1 of the first protocol.
- This assumption is of course rebuttable. It is for a defendant to place before the court material necessary to displace this assumption, and he must have a fair opportunity to do so. Like Lord Bingham of Cornhill, I am in no doubt that judges will quickly be able to recognise the highly exceptional case where there is a seriously arguable issue based on the requirements of article 8 or article 1 of the first protocol.
- So far I have referred in quite general terms to the compatibility of domestic law with the requirements of the Convention. I must now delve just a little more deeply into the particular types of challenge which may be made, because that has a bearing on which court should decide the issue. At this point it is necessary to recall the two routes by which the Human Rights Act has incorporated Convention rights into this country's law. These are set out in section 3 and section 6 of the Act. These sections provide the protection afforded to Convention rights in United Kingdom law.
- Against this background take first a case where the defendant's challenge is to the Convention-compatibility of primary or secondary legislation. In such cases a judge in the county court, like every judge in every court, is bound to give effect, should occasion arise, to the interpretive obligation set out in section 3. That is within his jurisdiction. But in the scheme of the Act the section 3 interpretive obligation may lead on to a declaration of incompatibility under section 4, which is a matter not within the jurisdiction of a county court. So, in the rare case where seriously arguable questions of this nature arise in the county court, it will be for the judge to consider whether the more appropriate course is for these questions to be resolved in the High Court.
- The human rights challenge may take a different form. A local authority is obliged by section 6 to act compatibly with Convention rights. The defendant's contention may be that the local authority's exercise of its power to seek a possession order is, in the circumstances, an unlawful act within the meaning of section 6. As with a challenge to the Convention-compatibility of housing legislation, so here it will be a rare case indeed where this allegation can be made good. This is because in the ordinary course a public authority in seeking possession will be doing no more than relying on its ownership of land coupled with the limits on the defendant's rights of occupation as determined by Parliament or, where the defendant has never had any rights of occupation, coupled with his absence of any rights to be present on the land at all. However, if a Convention-compatibility issue under section 6 is raised in county court possession proceedings, that court is the appropriate forum for deciding the issue. It is the appropriate forum because in such a case the defendant is entitled to rely upon this allegation as a defence in the possession proceedings: section 7(1)(b) of the Human Rights Act. If the allegation is made good, the court may grant relief as provided in section 8 of the Act. The relief would include dismissing the possession proceedings or staying a possession order for such a period and on such terms as the court considers just and appropriate. I agree therefore with the summary of the practical position set out in paragraph 39 of the speech of Lord Bingham of Cornhill.
- For completeness I mention a third possibility which has nothing to do with the Human Rights Act. A defendant may seek to challenge the lawfulness of the local authority's decision to pursue possession proceedings as an improper exercise of its powers quite apart from its obligations under section 6. Here again, this issue can be treated as a defence in the proceedings, in accordance with the principle enunciated in the well known decision of Wandsworth London Borough Council v Winder [1985] AC 461.
- These brief observations on section 6 are directed solely at local authorities and other landlords which are public authorities within the meaning of section 6. I say nothing about private landlords. They are not public authorities and they are outside the scope of section 6. The court of course is itself a public authority. Courts are bound to conduct their affairs in a way which is compatible with Convention rights. The court's own practice and procedures must be Convention-compliant. Whether, and in what circumstances, the court's section 6 obligation extends more widely than this, and affects the substantive law to be applied by the court when adjudicating upon disputes between private parties, still awaits authoritative decision. This point does not call for a decision in the present appeals, nor was the point argued.
LORD HOPE OF CRAIGHEAD
My Lords,
- I have had the advantage of reading in draft the speeches of all my noble and learned friends. I agree with Lord Scott of Foscote, for all the reasons he gives, that the appellants in the Lambeth appeal had no right under ordinary domestic law to retain possession of their respective properties after the termination of the 1995 lease and had become trespassers with no right to remain. I agree with everything that Lord Bingham of Cornhill has said on the issue of precedent. I also agree, for substantially the same reasons as those given by all my noble and learned friends, that both appeals should be dismissed.
- Although the essential point on the main issue has been put much more simply and much more attractively by Lord Nicholls of Birkenhead and Lord Brown of Eaton-under-Heywood, I must deal more fully with the detail of the appellants' argument. It was directed to two main questions. The first was how the right to respect for a person's home under article 8(1) of the European Convention on Human Rights is to be given effect to by the court where a public authority landowner seeks an order for possession of the premises to which it is undoubtedly entitled under domestic property law. The second was whether the decision of the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189 is, as the Court of Appeal put it in its Leeds judgment [2005] 1 WLR 1825, para 26, "unquestionably incompatible" with the ratio of the majority in Harrow London Borough Council v Qazi [2004] 1 AC 983.
- These are important questions, as the answers to them will affect all cases in which the owner of land seeks to recover possession from someone who has no right under domestic law to remain there. I agree with Lord Bingham and Lord Nicholls that the position as it affects private landlords does not call for decision in this case, as the respondents to these appeals are both public authorities. But I do not think that it can be left out of account as we explore the wider implications of the argument. As Mr Sales for the First Secretary of State explained, the article 8(1) right to respect for the home does not distinguish between public authorities and private landlords and landowners. Private landlords and landowners too must obtain an order from the court, and the court itself is a public authority (see para 104 below). For the purposes of section 6(1) of the Human Rights Act 1998 the words "public authority" embrace a wide and indeterminate variety of bodies, in addition to those that are "core" public authorities, which perform functions of a public nature: see Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 6-12, 41, 163. But in my opinion a correct understanding of the basis of the majority decision in Qazi and of the Strasbourg jurisprudence both before and after Qazi should lead to the conclusion that it is not unquestionably incompatible with Connors, although I accept that in one respect the reasoning in Qazi needs to be modified. I agree with Lord Scott that such differences as there may be between Qazi and the Strasbourg court as to article 8 defences in possession cases are of no relevance to the issue which the House had to decide in Qazi.
- The appellants' argument, following the approach favoured by the minority in Qazi, gives rise to the following conundrum. They say that every person against whom a public authority seeks a possession order with respect to premises which he occupies as his home must be given a fair opportunity to raise as a defence to the proceedings that the excepting conditions in article 8(2) have not been met on the facts of his case and that, if such a defence is raised, it must be rebutted by the public authority. But what if there is a statutory scheme which covers the case of an occupier, and the scheme itself is not challenged as being incompatible with his Convention rights? What if that scheme prescribes conditions that must be met for the obtaining of a possession order by the public authority and the court finds that the requirements of the scheme have all been satisfied? And what if there is no statutory scheme but all the requirements for the making of a possession order by the court under domestic property law, which is not challenged as being incompatible with the occupier's Convention rights, have been satisfied? Lord Bingham says of these cases, that it would require highly exceptional circumstances before a defence under article 8(2) would avail the occupiers: paras 35, 36. But what are these circumstances? What is there in the jurisprudence of the Strasbourg court that tells us that, in those situations, there is anything left for the court to consider under that article? Does that jurisprudence not teach us that the only question that can be raised under that article is whether the law itself is compatible with the occupier's Convention rights and that, so long as the law itself is compatible, it is open to the court to apply it to the facts of each case once the requirements of the law have been satisfied? This is the point that the majority in Qazi were seeking to grapple with when they said that, because the domestic property law gave an unqualified right to immediate possession to the housing authority once service of the notice to quit had terminated the joint tenancy, there was nothing left for the court to consider under article 8 in that case and the judge had been right to strike out the defence and make the possession order.
- The jurisprudence of the Strasbourg court indicates that three requirements must be met under article 8(2) in cases where a possession order is sought before it can be held that the interference with the exercise of the right to respect for the home that will result from the making of the possession order is justified. Article 8(2) provides:
"There shall be no interference by a public authority 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."
The first question is whether the interference is "in accordance with the law". As article 12 of the Universal Declaration of Human Rights which was adopted by the General Assembly of the United Nations in 1948 puts it, no one shall be subjected to arbitrary interference with his home. The requirement that any interference must be in accordance with the law meets the point that it must not be arbitrary. The next question is whether it has an aim that is identified by that paragraph as a legitimate one. Satisfaction of the housing needs of others is regarded as a legitimate aim for this purpose, because it was intended to promote "the economic well-being of the country" and "the protection of the rights of
others": Blecic v Croatia (2004) 41 EHRR 185, para 58. In Connors v United Kingdom (2004) 40 EHRR 189 the legitimate aim pursued by the interference was "the protection of the rights of
others" - other occupiers of the site and the public authority as its owner and manager: para 69. It is hard to conceive of a case where this requirement would not be met where a landowner seeks to vindicate his right to obtain an order for possession of his property on the grounds that all the requirements that the law lays down for recovery of possession from its occupier by means of a court order have been satisfied. The final question is whether interference in pursuit of that aim is "necessary in a democratic society". The notion of necessity implies a pressing social need, and the measure employed must be proportionate to the legitimate aim pursued: Blecic, para 59. In this context a margin of appreciation is allowed to the government of the contracting state. The scope of this margin of appreciation will depend not only on the aim of the interference but also, where the right to respect for the home is involved, the importance of that right to the individual: Gillow v United Kingdom (1986) 11 EHRR 335, para 48; Blecic, paras 59, 60. This is the only area for legitimate debate in cases where the other requirements have been satisfied.
- But, as I shall seek to show in the following paragraphs, Connors is the only case where the Strasbourg court has held that the making of a possession order against an occupier in favour of a public authority in accordance with the requirements of domestic property law has failed to meet the third requirement in article 8(2). It failed to do so in that case because the making of the order was not attended by the procedural safeguards that were required to establish that there was a proper justification for the interference with the applicant's right to respect for his private and family life and his home. So it could not be regarded as justified by a pressing social need or as proportionate to the aim being pursued: para 95. The point of that case, however, was that the law enabled the public authority to evict the applicant from the site which he had been given a licence to occupy without giving reasons which could be examined on their merits by an independent tribunal. There were exceptional circumstances, but it was the law itself that was defective. The margin of appreciation within which in spheres such as housing the judgment of the legislature will be respected did not save it from this criticism: para 82. It leaves untouched cases, of which Qazi is an example, where the judgment of the legislature on issues of property law meets the third requirement of the article.
The correct starting point
- The key to a proper understanding of the decision in Qazi is to be found in an appreciation of the fact that the question whether an interference with the respondent's right to respect for his home is permitted by article 8(2) of the European Convention for Human Rights raises a question of procedure as well as one of substance. The question of substance is whether, on the facts of that case, the interference with the respondent's Convention right is permitted by article 8(2). The question of procedure is whether it is necessary, as the appellants submit, for the question whether the excepting conditions in article 8(2) are met to be considered by the county court in every case where the court is asked to make a possession order. In the view of the majority in Qazi the question does not require to be considered by the county court if the case is of a type where an application of the law shows that the outcome is a foregone conclusion, as it was in that case because the tenancy which gave the right to occupy had come to an end on the expiry of a notice to quit. In that situation the exercise would have been a pointless one: paras 83, 84; 103; 152.
- The jurisprudence of the European court to which we must look for guidance as to how the question of substance should be answered does not provide much guidance as to how we should deal with the question of procedure. It is a domestic problem. It is not one which troubles the European court when it is asked to decide the issues remitted to it by article 41 of the Convention. That is why the questions arising under article 8(1) and 8(2) are so often run together at the admissibility stage, with the result that the commission or the court, as the case may be, is content to address article 8(2) on the assumption that, or after only a cursory examination of the question whether, the right to respect for the home has been interfered with and has to be justified: S v United Kingdom (1986) 47 DR 274, para 4; O'Rourke v United Kingdom (Application No 39022/97), 26 June 2001, p 5; Connors v United Kingdom (2004) 40 EHRR 189, para 68 (the parties were agreed that the applicant's eviction disclosed an interference with his right to respect for his private life, family life and home); Blecic v Croatia (2004) 41 EHRR 185, para 54 (the court found, in the light of its finding in para 52 that the flat in question could reasonably be regarded as the applicant's home, that the termination of her specially protected tenancy of it by the domestic courts constituted an interference with her right to respect for her home).
- The European court leaves questions of procedure to the contracting states. Its only concern is that procedures are in place which enable individuals to assert their Convention rights where there is a live question as to whether or not they have been violated. How this is to be done is a matter for the domestic system. There is therefore no objection in principle, on Convention grounds, to a system which treats cases where a violation of article 8 of the Convention is likely to be a live issue differently from those where it is not. Provided means are in place which enable those cases where this is a live question to be dealt with appropriately, a system which provides for all other cases where possession is sought to be dealt with simply and summarily will not be objectionable. That, no doubt, is why, notwithstanding Lord Steyn's strong condemnation of it in para 27 of his dissenting opinion, the decision in Qazi's case which on its own facts did not disclose a breach of the Convention right has survived European scrutiny: see para 88.
- In the domestic legal order actions for possession are brought in the county court. In Scotland they are brought under the summary cause procedure in the sheriff court. This has important implications for the way issues as to whether an interference with the article 8 right is justified can be dealt with domestically. These courts do not have unlimited jurisdiction. They cannot make a declaration of incompatibility: see section 4(5) of the Human Rights Act 1998. The question whether, and if so to what extent, they have a discretion to make or withhold an order for possession depends, and depends only, on the law which has to be applied to the facts of each case.
- The effect of the decision in Qazi is that where an order for possession is made by the court in accordance with domestic property law the essence of the article 8(1) right to respect for the home will not be violated. So the question whether the interference is permitted by article 8(2) is not a matter that need be considered by the county court. The law itself provides the answer to that question. The only matter which the court needs to consider is whether the requirements of the law and the procedural safeguards which it lays down for the protection of the occupier have been satisfied. There may perhaps be cases where the party seeking to recover possession is a public authority and there is a live issue as to whether the requirements of the law and the procedural safeguards which it lays down fall short of what is required to satisfy the Convention right. The law in this area is guided by the decisions of the European court in Strasbourg, and it must be acknowledged that it is capable of being adapted to new and as yet unexplored circumstances. But cases of this kind are likely to occur only very rarely in practice. As a general rule all the court need concern itself with are the requirements of the law and the relevant safeguards.
- Almost every working day judges sitting in the county and sheriff courts throughout the United Kingdom are presented with a long list of claims by public authorities seeking orders for possession of houses and other property forming part of their social housing stock against their occupiers. Almost all of these cases are brought by local authorities, housing association trusts or registered social landlords with respect to property let to tenants on a secure tenancy under section 79 of the Housing Act 1985 and the equivalent legislation that operates in Scotland under the Housing (Scotland) Act 2001. For the most part they are cases where, assuming that one or other of the various grounds for possession which are laid down in Schedule 2 to the 1985 Act or its Scottish equivalent is established (and there is usually little or no dispute about this), the court cannot make an order for possession unless it considers it reasonable to make the order, or it is satisfied that suitable alternative accommodation will be available and it is also reasonable to make the order: see section 84(2) of the 1985 Act and section 16 of the 2001 Act.
- The hearings on this issue are, for the most part, brief and to the point. They are often unopposed, although an order cannot be made in accordance with the statute unless the party seeking possession can show that the statutory requirements are satisfied. Where there is opposition the hearings are frequently adjourned for a short period for the parties to reach agreement. Where agreement cannot be reached a full hearing is necessary. But this rarely happens. On the whole, despite the high volume of cases, the system appears to work well. It is widely seen as fair, quick and reliable. The legislation relating to housing in the public sector has been in place for over twenty years. It was recently reviewed and the Scottish equivalent of the 1985 Act was re-enacted in 2001 with only minor modifications by the Scottish Parliament. Nowhere has it been suggested in the Strasbourg case law that a public authority landlord's claim to possession which has been upheld on these grounds in accordance with the statute was a violation of the occupier's right to respect for his home under article 8 of the Convention.
- At the other extreme, and much less frequent, are actions brought by the owners of land in the public or private sector for the recovery of possession of property over which the occupiers had no security of tenure at all. These include licensees, other than those such as persons employed in agriculture whose licence to occupy is protected by statute, tenants such as those in property with a high rateable value who are excluded from the security of tenure which most tenants in the private sector have under the Housing Act 1988 and other statutes whose contractual right to occupation of the property has been terminated, occupiers under student or holiday lets and trespassers. The absence of any statutory protection in these cases is the result of a deliberate decision by Parliament that the owner's right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier. That was the position in Connors under the legislation that was then in force. The significance of the decision in that case is that it has shown that cases falling within this end of the spectrum may raise issues as to whether the law itself satisfies the requirements of article 8(2). This is not something that can be dealt with in the county court.
- In between these extremes there are a wide variety of lettings of one kind or another controlled by statute or by the common law which it is impossible accurately to summarise in a few sentences. The position is complex because it has been appreciated for many years that the law in this area has a strong social content. By the end of the war of 1914-1918 many countries had enacted provisions controlling rent: John W Willis, "A Short History of Rent Control Laws" (1950) 36 Cornell LQ 54, 67-71. By 1950 some 150 countries had adopted such laws: Megarry, The Rent Acts, 10th ed (1967), p 7. Hand in hand with rent control goes security of tenure. In Feyereisel v Turnidge [1952] 2 QB 29, 37, Denning LJ said that the guiding light through the darkness of the Rent Acts was to remember that they confer personal security of tenure on a tenant in respect of his home. The same approach is taken almost every day in the county and sheriff courts as the judges apply the legislation by which Parliament controls the provision of housing in the public sector. As Lord Porter observed in Baker v Turner [1950] AC 401, 417, the rules of formal logic must not be applied with too great strictness to legislation of this kind.
- The issues addressed by this legislation involve questions of social and economic policy where the choices that are to be made can easily be seen as falling within the discretionary area of judgment best left to the considered opinion of the legislature. They include decisions as to the circumstances in which protection of tenure is not to be given to those who have no contractual right to occupy as well those in which there is to be security of tenure, and if so, on what terms. Cases falling into this category are typical of those where the Strasbourg court will respect the judgment of the contracting state. They are most unlikely to raise an issue as to whether the right to possession which is afforded by domestic law violates the article 8 Convention right. If they do, the county court in the exercise of its ordinary jurisdiction should, so far as it is possible for it to do so, deal with it: see para 109. But no example has been referred to in the Strasbourg jurisprudence where a claim to possession in such a case has failed on article 8(2) grounds.
- This is the background to the claim by the appellants in these two appeals that the orders for possession which were made against them in the county court violated their rights under article 8(1) of the Convention.
The appeals
- In the Lambeth appeal the properties in question are owed by Lambeth. The appellants were let into possession of them by the London and Quadrant Housing Trust ("LQHT") at various times from about 1981, initially under an informal arrangement with Lambeth and from 1986 under the authority of a licence which was replaced in 1995 by ten year leases granted by Lambeth to LQHT which were subject to a break clause providing for early termination by either party. In 1999 Lambeth gave notice to terminate these leases. The county court judge, HH Judge Roger Cooke, held that the effect of the notices was that Lambeth had an unqualified right to possession and that, as the appellants were not tenants of Lambeth, they had no security of tenure under the 1985 Act. The defence under article 8 was struck out. The Court of Appeal, applying Qazi, dismissed the appeal: Kay v Lambeth London Borough Council [2005] QB 352.
- In the Leeds appeal the respondent local authority is the freehold owner of a recreation ground onto which the appellants, who are gypsies, moved without the respondents' consent on 13 June 2004. The respondents issued possession proceedings against them two days later on 15 June 2004 on the ground that they were trespassers. It was not disputed that the appellants had entered onto and remained in occupation of the land without any licence from or consent of the respondents. The case having been transferred to the High Court, HH Judge Bush held that the appellants had no defence to the claim for possession under article 8. The Court of Appeal held that the decision in Qazi was incompatible with Connors. But, regarding itself as bound to follow the decision in Qazi, it dismissed the appeal: [2005] 1 WLR 1825.
- The following points are common to both cases. First, the claim by the owners of the properties is that the appellants have no right to remain in occupation of them. They seek to vindicate their right, as owners of the land, to exclusive occupation of the properties. Secondly, the owners in each case are a public authority. They are under a statutory duty to use the property which they own for public purposes - in Leeds' case as land held for use as a public recreation ground, in Lambeth's case as part of the land held for use as part of its social housing stock. Thirdly, as they are public authorities, they are under a duty not to act in a manner that is incompatible with the appellants' Convention rights: section 6(1) of the Human Rights Act 1998. Fourthly, the factual circumstances are different from those which were before the House in Qazi. In neither of these cases was there a right to possession of the property granted by the owner of the land which under domestic law was no longer enforceable against it by the occupier.
The article 8(2) issue
- In Connors v United Kingdom (2004) 40 EHRR 189 the European Court of Human Rights held that the eviction of the applicant and his family, who were gypsies, from a local authority gypsy site which they were licensed to occupy so long as they did not cause a nuisance was a violation of article 8 because it had not been attended by the requisite procedural safeguards. The appellants submit that this case shows the decision of the majority in Harrow London Borough Council v Qazi [2004] 1 AC 983 was wrong, and that the decision in Qazi should be departed from because it is incompatible with what the European court said in Connors.
- The facts in these two cases were different, as indeed are the facts in these two appeals. But the scope of the argument is such as to raise again the question of procedure to which the majority drew attention in Qazi's case. In para 5.74 of the Law Commission's Consultation Paper on Renting Homes I; Status and Security (Consultation Paper No 162, March 2002), Part V, The Impact of Human Rights Law, it is said that a procedure which gives a discretion to the county court by requiring it to consider whether having regard to article 8(2) the making of an order would be proportionate is inimical to the purpose of providing a quick and reliable way of evicting tenants whose leases have by the operation of law been terminated. This conclusion has all the more force if the case is one where the person in possession never had a right to occupy the land in the first place.
- Mr Luba QC for the appellants submitted that it was a norm of Convention law that every case of a person's dispossession from his home had to be justified under article 8(2). He said that a merits review was required in every case, and that there was no room for a short cut. It was not sufficient for the public authority to show that it had an absolute right to possession. Its claim for possession must be accompanied in every case by a pleaded case that the claim for possession was justified under article 8(2). Mr Sales for the First Secretary of State submitted that in principle it was open to any defendant to proceedings for possession to advance an article 8(2) defence in the county court. He differed from Mr Luba in that he accepted that in the vast majority of cases it would be sufficient for the public authority simply to assert its absolute right to possession. But he maintained that in every case - even in those cases where the statutory reasonableness test had to be satisfied by a housing authority - there was a balance that had to be struck under article 8(2) of the Convention. This was a matter about which the county court had to be satisfied in every case, notwithstanding the fact that in the overwhelming majority of cases this would, as Lord Bingham points out, be both burdensome and futile: para 29.
- Despite Mr Luba's assurances to the contrary, there are substantial grounds for thinking that, if it were to be open to a defendant to raise this issue in the county court in every case where the premises are occupied as his home, this would have serious consequences for the system which Parliament has chosen for dealing with possession cases - as the Law Commission has pointed out. He would have to be given a fair opportunity to advance this defence, as the article 8 right carries with it the right to respect for the interest safeguarded in the decision-making process. So he would have to be permitted to plead the defence if he wished to do so. This would have consequences both for the public authority, which would have to rebut it, and for the court which would have to consider and dispose of the issue in every case where it was raised. This is the procedural problem under the domestic system which confronts us, as it did in Qazi.
- Any procedure that requires consideration of the article 8(2) issue on its merits would be bound to delay the proceedings in one way or another. It is preferable, wherever possible, that the matter should be dealt with in the county court, rather than by adjourning the proceedings to enable the defendant to apply in the High Court for permission for judicial review of the decision to apply for the possession order. A defendant has the right to contend in his defence that the decision of a public authority to recover possession was one which no reasonable person could consider justifiable, as Lord Fraser of Tullybelton explained in Wandsworth London Borough Council v Winder [1985] 1 AC 461, 506C-D, 509E-H. But it has to be borne in mind that it would not have been open to the county court to hold that the claim by the public authority in Connors to seek to recover possession was unlawful as it was invoking a right to possession that was provided by statute: see section 6(2)(b) of the Human Rights Act 1998, which provides that section 6(1) does not apply to an act if the authority was acting so as to give effect to or enforce provisions under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. If the ground of challenge is that the legislation is incompatible with article 8 and the statute cannot be read or given effect in a way that is compatible with that article, the county court judge must make the order required by the legislation notwithstanding the incompatibility. The defendant can, if he wishes, apply to the High Court for a declaration of incompatibility. But it would serve no good purpose for the proceedings in the county court to be adjourned to allow him to do so.
- In R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20 Lord Bingham of Cornhill acknowledged that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court:
"This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 [of the Human Rights Act 1998] should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
- The question is whether the jurisprudence of the Strasbourg court now requires us to say that county courts trying a claim for possession must in every case conduct a review of the defendant's personal circumstances before they can be satisfied that the requirements of article 8(2) are met before they make a possession order or, if the proposition for which Mr Luba contends is too wide, how far if at all the decision in Qazi needs to be modified in the light of the decision in Connors. The question is not made easier by the fact that when Qazi's case reached the Strasbourg court it was dismissed as inadmissible without any reasons having been given, and by the absence of any mention of the House's decision in Qazi in the court's judgment in the Connors case. Lord Steyn's declaration in Qazi, in para 27, that it would be surprising if the views of the majority on the interpretation and application of article 8 withstood European scrutiny cannot have escaped attention in Strasbourg. But two opportunities to meet his challenge have now been passed over. This is not a ground for complacency. But it does make it all the more important for us to be careful lest taking account of the decision in Connors leads us to breach Lord Bingham's rule that national courts should not outpace the Strasbourg court. The "no more" part of this rule is just as important as the "no less" part.
- I propose therefore to examine this issue in three stages: (1) to look again at the Strasbourg cases before Qazi, (2) to look at the Strasbourg cases after Qazi and (3) then to re-examine Qazi itself to see whether that decision should be departed from and, if so, to what extent.
The Strasbourg cases before Qazi
- I do not think that any advantage is to be gained by conducting a fresh review of all the decisions of the Strasbourg institutions that were considered in Qazi. There was a good deal of common ground between the majority and the minority as to the cases that were relevant and their effect. It was agreed that article 8 does not in terms give a right to be provided with a home and does not guarantee the right to have one's housing problem solved by the authorities: Lord Bingham, para 6; myself, paras 50, 53, 55. It was agreed that sufficient and continuous links are required for a house to be considered a "home" for the purposes of article 8: Lord Bingham, para 9; myself, paras 64, 68. It was accepted by both parties that the Strasbourg jurisprudence did not provide a conclusive answer to the case in the respondent's favour: Lord Bingham, para 13. Lord Bingham's analysis of the relevant Strasbourg authority was matched step by step in the analysis of it by the majority. There was only one case about the effect of which there was any real disagreement. This was S v United Kingdom (1986) 47 DR 274. In that case the commission, when considering whether a house could be regarded as the applicant's home and whether her right to respect for her home could be regarded as interfered with, attached importance to the fact that she was not entitled in domestic law to succeed to the tenancy of the dwelling house and remain in possession of it on the death of her partner who had been the tenant of it: para 4.
- For reasons which he explained in para 10 and were concurred in by Lord Steyn, Lord Bingham concluded that the ruling in S v United Kingdom no longer offered guidance on the issue of justification as it was made before the formulation of the sufficient and continuing links test in Gillow v United Kingdom (1986) 11 EHRR 335, para 46. The majority however took a different view on this point: myself, paras 62, 67; Lord Millett, paras 97, 98, 103; Lord Scott of Foscote, paras 126-129, 134. I recognised that the decisions in S and in Gillow were not entirely consistent with each other. But I drew support from the commission's approach in S, para 4, to the contractual relations established between the local authority and the deceased partner for the proposition that the purpose of article 8 must be kept firmly in mind when one is considering the question whether the right to respect for the home is being interfered with, and for my conclusion that such interference with that right as flowed from the claim for possession by the public authority landlord did not violate the essence of it: para 83. Lord Millett and Lord Scott were of the opinion that, although it was clumsily expressed, the commission's decision in S, properly understood, remained authority for the proposition that the applicant's house could no longer be regarded as attracting the protection of article 8 so as to afford a defence to the local authority's claim to possession as she no longer had any right vis-à-vis the landlord to remain th
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