COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
His Honour Judge Bush
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
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Ashley Underwood QC & Tom Tyson (instructed by Leeds City Council) for the Respondent
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Lord Phillips, MR :
This is the judgment of the Court.
The issues raised in the action
"1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right, except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "
i) Can Article 8 ever be infringed by a claim to possession of land by a public authority that has, Article 8 apart, an absolute right to possession? If so:
ii) Does English domestic law provide protection of the Article 8 rights of a defendant facing a claim for possession of the land on which he has his home? If so:
iii) Under what procedure is that protection available and is the protection adequate?
These questions are framed with reference to a landowner which is a public authority. Such a landowner is directly affected by the obligation contained in s.6(1) of the Human Rights Act to act in conformity with the Convention. The extent, if any, to which the matter with which we are dealing affect private landowners is outside the ambit of this appeal.
The Council took two points in response to the Maloneys' defence. First they challenged the jurisdiction of the court, which was, at that stage, the County Court. They contended that the function of the County Court was restricted to determining whether the Council was, in private law, entitled to possession. The Maloneys were seeking to challenge, on public law grounds, the Council's decision to seek possession. The County Court had no jurisdiction to rule on such an issue. It should properly have been raised by an application for judicial review in the High Court.
What did Qazi decide?
"27. Before proceeding to the issues arising under article 8(2), I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of article 8(1). It concerns the relationship between the two paragraphs of article 8. I have held that eviction of these tenants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute's correct construction (here, article 8(1)) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation's words mean. The first choice … would entail a judgment that the Convention requirement was met at the article 8(1) stage … The second choice (accepting a prima facie violation of article 8(1)), which I prefer, entails a judgment that the more rigorous and specific standards set out in article 8(2) have to be met if the court is to hold that the evictions are compatible with the tenants' Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court's task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in article 8(1). I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose the Human Rights Act 1998 was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the article 8(2) standards. Such a process is demanded by the fullness of our municipal law of human rights."
Lord Bingham and Lord Steyn would have remitted the case to the County Court Judge. It seems to us implicit in this that they considered that, despite the relevant statutory provisions, it would have been open to the judge to decline to make an order for possession having regard to the impact that this would have had on Mr Qazi and his family.
"78….My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated.
84….the Strasbourg jurisprudence has shown that the contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question of whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court."
"101….In most cases article 8(2) calls for a balance to be struck between the applicant's right to "respect" for his home and some competing interest….But article 8(2) also permits interference with the right where it is necessary "for the protection of the rights and freedoms of others". Those others include but are not limited to private citizens. They include landowners whether they are private citizens or public authorities.
103…..The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to "respect" Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had been agreed that he might occupy them. There was simply no balance to be struck.
106….there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law. "
"125. If … the tenant has no right to remain in possession as against the landlord he cannot claim such right under article 8. To hold otherwise, to hold that article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen's home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary.
145. …How could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a "home" as something ethereal, floating in the air, unconnected to bricks and mortar and land.
146. It is true that in a number of cases the Strasbourg tribunal (whether court or commission) has held article 8 to be prima facie applicable but has held the "interference" constituted by the claim or the order for possession to be justified under article 8(2). But there is no case in which this conclusion has been reached by considering the degree of impact on the tenant's home life of the eviction. There is no case in which a balance has been struck between the tenant's interests and the landlord's rights. In every case the landlord's success has been automatic. And so it must be unless article 8 is to be allowed to diminish or detract from the landlord's contractual and proprietary rights. In my opinion, the Strasbourg jurisprudence has shown, in effect, that article 8 has no relevance to these landlord/tenant possession cases. "
"It would be surprising if the view of the majority on the interpretation and application of article 8 of the European Convention on Human Rights, as incorporated into our system by the Human Rights Act 1998, withstood European scrutiny."
Mr Qazi in fact made an application to the Strasbourg Court and it was ruled inadmissible. Mr Underwood QC for the Council suggested that this implicitly endorsed the reasoning of the majority of the House of Lords. Without sight of the reasons given for rejecting Mr Qazi's application we do not think it would be safe to draw this inference. Petitions processed by the registry and recommended by a lawyer for dismissal in limine go in batches of fifty or more before a single judge of the Court. The recommendation is generally adopted and communicated in a short-form letter either setting out one of the grounds specified in art. 35 or simply stating that the matters complained of do not disclose any appearance of a violation of the Convention. Having regard to the summary nature of this procedure, the rejection of admissibility cannot carry the same weight as a reasoned decision of the Court in a case that has been ruled admissible. Such a case was Connors.
What did Connors decide?
"68. The parties were agreed that Article 8 was applicable in the circumstances of this case and that the eviction of the applicant from the site on which he had lived with his family in his caravans disclosed an interference with his right to respect for his private life, family life and home.
69. The parties were also agreed, in the context of the second paragraph of Article 8, that the interference was "in accordance with the law" and pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site.
70. The question remaining for examination by the Court is whether the interference was "necessary in a democratic society" in pursuit of that aim."
"83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8…
84. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases…To this extent, there is a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life…"
"85. The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children's education. The family was, in effect, rendered homeless, with the adverse consequences on security and wellbeing which that entails. The Council, and the Government in these proceedings, took the view that the eviction was justified by a breach of the licence conditions, the applicant being responsible for causing nuisance on the site. The applicant contested that he was at fault. It is not for the Court however to assess in retrospect whose version of events was correct as the Council in evicting the applicant relied instead on the power to give 28 days notice to obtain summary possession without proving any breach of licence. While it was variously alleged by Council officers that the applicant's licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights.
86. The serious interference with the applicant's rights under Article 8 requires, in the Court's opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case (cited above), in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees procedural available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family."
"94. However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family had been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. …
95. In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a "pressing social need" or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention. "
"The fact is that Lambeth has an unqualified right to possession. And on the basis of the majority opinions in Qazi by which we are bound that is a sufficient answer to the claims under Article 8"
"Whilst there is, in those general statements of principle, some support for the argument of Mr Luba, they cannot, it seems to us, affect this court's assessment of the decision in Qazi. The general statement of principle in paragraph 83 of the Court's judgment is based upon the Court's decisions in Buckley, and Chapman, to which it refers, both of which were cited to and considered by the House of Lords in Qazi. Connors is therefore only of assistance to the courts of this country in relation to cases involving gypsies."
It is questionable whether this finding, apparently made without oral argument as a postscript to the judgment, would bind us were we minded to make an order that conflicted with it.
Should this court follow Qazi or Connors?
"We are not permitted to re-examine decisions of the European Court in order to ascertain whether the conclusion of the House of Lord or Court of Appeal may be inconsistent with those decisions, or susceptible to a continuing gloss. The principle of stare decisis cannot be circumvented or disapplied in this way, and if it were the result would be chaos."
These observations were made in a very different context, but the warning of the risk that chaos will follow if inferior courts are to be permitted to rely on decisions of the Strasbourg Court to justify departing from decisions of the House of Lords is timely. Nonetheless, we have to decide upon the appropriate course without the benefit of any precedent that is directly applicable.