England and Wales High Court (Administrative Court) Decisions

Somerset County Council v Isaacs [2002] EWHC 1014 (Admin) (24th May, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 May 2002

 
Mr Justice Stanley Burnton:

Introduction

1. This is another in the series of cases in which the court has considered whether statutory provisions having the effect of excluding a person from the benefit of security of tenure that he would otherwise have in respect of his home are compatible with Articles 8 and 14 of the European Convention on Human Rights: I refer to the decisions of the Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2001] 3 WLR 183 [2002] QB48, Sheffield City Council v Smart [2002] EWCA Civ 04, R v Bracknell Forest BC ex p McLellan, Reigate and Banstead BC v Forrest [2001] EWCA Civ 1510, and Michalak v London Borough of Wandsworth [2002] EWCA Civ 271. In the present case, the provisions in question relate to persons occupying sites provided by local authorities for accommodation for gypsies.

The facts

2. The Defendant is a gypsy. He lives in a caravan on Marsh Lane Caravan Site, Tintinhull in Somerset owned by the Claimant local authority providing residential accommodation for gypsies, and has done so for many years. He occupied Plot 6, on which his caravan was stationed, pursuant to a written licence agreement with the Claimant dated 24 October 1997. In July 2000 the Claimant decided that because of the conduct of the Defendant in relation to one of its employees, involving threats of violence, he should be required to leave the site. The Defendant denies that he made any such threats. However, by letter dated 28 July 2000, the Claimant gave notice to the Defendant determining his licence with effect from 28 August 2000. The Defendant did not vacate his plot, and on 14 December 2000 the Claimant began summary proceedings for possession in the Yeovil County Court.
3. On 14 December 2000 the District Judge heard the Claimant’s claim for possession. The Defendant admitted that the notice given by the Claimant on 28 July 2000 had been effective to determine his contractual right to occupy Plot 6, with effect from 28 August 2000. The Defendant accepted that the statutory protection from eviction that he enjoyed was limited to that given by section 2 of the Caravan Sites Act 1968 (“the CSA”):

“In any case where a residential contract is determinable by notice given by either party to the other, a notice so given shall be of no effect unless it is given not less than 4 weeks before the date on which it is to take effect.”

4. In the circumstances, the Defendant admitted that the County Court had no jurisdiction to consider the reasonableness of its making an order for possession of Plot 6 and had no power to suspend or to postpone the operation of such an order. It followed that the Claimant was entitled to immediate possession of Mr Isaacs’ plot.
5. By way of Counterclaim, however, the Defendant contended that his eviction from Plot 6 would be a breach of his rights under Articles 6, 8 and 14 of the European Convention on Human Rights and under Article 1 of the 1^st Protocol. He contended that no order for possession should be made and that:

“a declaration of incompatibility should be made between the statute concerned with this case and Article 6, Article 8, Article 1 of the 1^st Protocol and Article 14 of the Convention as given effect to by Schedule 1 of the Human Rights Act 1998.”

The basis of that claim was stated to be:

“… that section 4(6) of the Caravan Sites Act 1968 and section 5 of the Mobile Homes Act 1983 are incompatible with the above mentioned Articles as given effect by Schedule 1 of the Human Rights Act 1998 on the grounds that the Defendant is denied the right to have remedies available to him; that he would, but for his Gypsy status and/or by living on a Protected Site within the meaning of the Caravan Sites and Control of Development Act 1960.”

6. On 17 April 2001 the County Court ordered that the Claimant should recover possession of the plot occupied by Mr Isaacs. The Claimant undertook not to enforce the order before October 17 2001 so that the Defendant could find alternative accommodation. The County Court transferred the Defendant’s Counterclaim for a declaration of incompatibility under section 4 of the 1998 Act to the High Court, and it is that claim that is the subject of this judgment.
7. Although the Counterclaim refers, in addition to Articles 8 and 14, to Article 6 and Article 1 of the First Protocol, the latter provisions were not relied upon before me. The argument was restricted to Articles 8 and 14, and relates to the compatibility with the Convention of section 4(6) of the CSA and section 5 of the Mobile Homes Act 1983 (“the MHA”). I shall refer to those statutory provisions as “the exempting provisions”. I presume that no reliance was placed on Article 1 of the First Protocol because it adds nothing to the issues under Article 8. No point arises under Article 6: clearly the County Court (and assuming a civil right or obligation is involved in judicial review proceedings the High Court) comply with its requirements.

The Legislative Framework

8. Part 1 of the CSA confers limited security of tenure upon the occupier of a residential caravan on a “protected site”, either as licensee of a pitch on which to station his own caravan or as occupier of a caravan belonging to the site owner. Such a person's contractual right can only be determined by 4 weeks’ written notice, and he may only be evicted by court order. A “protected site” is defined by section 1(2) of the CSA. In effect, any permanent residential caravan site is a protected site; holiday sites and sites only available for occupation during certain periods of the year are excluded. Part 1 of the CSA gives the court power to suspend the enforcement of an eviction order, on such terms if any as the court thinks reasonable, for up to 12 months; and the court may extend the period of suspension, but not for more than 12 months at a time. In considering whether to suspend the enforcement of an eviction order, the court will have regard to all the circumstances, and in particular any failure of the occupier to observe the terms of his contract or of any reasonable rules made by the site owner for the management and conduct of the site and the maintenance of the caravans on it, whether the occupier has unreasonably refused an offer for the renewal of his contract, and whether the occupier has failed to make reasonable efforts to obtain suitable accommodation elsewhere. However, by section 4(6) of the CSA, the court has no power under that Act to suspend the operation of an eviction order in the case of proceedings brought by a local authority. That is the first of the statutory provisions that the Defendant contends to be incompatible with the Convention.
9. Part 2 of the CSA was enacted with a view to resolving the problem of providing orderly caravan sites for gypsy accommodation and of controlling unauthorised gypsy encampments. Section 6 imposed a duty on local authorities to provide caravan sites -

“…so far as may be necessary to provide adequate accommodation for Gypsies residing in or resorting to their area.”

10. The Mobile Homes Act 1975 gave considerably enhanced security of tenure to a person stationing his own caravan or mobile home on a licensed caravan site for occupation as his only or main residence. Its principal effect in this respect was to confer security of tenure upon the occupier for 5 years, renewable for a further 3 years. The 1975 Act, however, withheld the benefit of that enhanced security from the occupiers of caravans on all local authority sites.
11. The 1975 Act was repealed and replaced by the MHA, which remains in force. It confers further security of tenure upon a person who stations his own caravan or mobile home on an authorised site for occupation as his only or main residence. That security of tenure is indefinite and may be transmitted by sale or gift of the caravan. In effect the occupier may not be evicted save by court order and on the owner having established one of the stated grounds in the First Schedule to the MHA. Those grounds are:

(a) that the site owner's estate or interest does not extend beyond a certain date. In those circumstances the occupier 's statutory security is co-extensive. The same approach applies in the case of a site that enjoys planning permission only for a specified period (paragraph 2 of Schedule 1 to the MHA);

(b) that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time; and that it is reasonable for the agreement to be terminated (paragraph 4 of Schedule 1 to the MHA);

(c) that the court is satisfied that the occupier is not occupying the caravan or mobile home as his only or principal residence (paragraph 5 of Schedule 1 to the MHA);

(d) that the court is satisfied at the end of any succeeding period of 5 years beginning with the date of the agreement that the mobile home or caravan is having (or likely to have) a detrimental effect on the amenity of the site by virtue of its age and condition (paragraph 6 of Schedule 1 to the MHA).

12. That enhanced security was conferred upon the occupiers of caravans stationed on privately owned residential sites and was also extended to the occupiers of such sites owned or operated by local authorities. However, section 5(1) of the MHA excludes from the Act

“… any land occupied by a local authority as a caravan site providing accommodation for gypsies…”

This is the other statutory provision that the Defendant contends is incompatible with the Convention. I shall refer to “land occupied by a local authority as a caravan site providing accommodation for gypsies” as an exempted site.

13. “Gypsies” are defined for the purposes of both the CSA and the MHA as:

“persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such.”

I use “gypsy” in the same sense in this judgment.

14. The effect of this exclusion was analysed as follows by Lord Bridge, with whom the other members of the House of Lords agreed, in Greenwich London Borough Council v. Powell [1989] AC 995, 1012:

“…the intention of the legislature in the Act of 1983 was clearly to exclude … sites … provided by local authorities in discharge of their duty under section 6 of the Act of 1968 to accommodate those whom they bona fide believe to be Gypsies because they are nomadic for part of the year, notwithstanding that they may establish a permanent residence on the site by returning from year to year; such a site will not become a “protected site” even if some of the erstwhile nomads, as well they may, give up their nomadic way of life entirely. It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment, but this is hardly ever likely to happen.”

15. Section 6 of the CSA, which imposed a duty on local authorities to provide sites for gypsy accommodation, was repealed by section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”). However, local authorities retain the power to provide new caravan sites for gypsy accommodation and to maintain their existing sites provided for that specific purpose. Marsh Lane Caravan Site is such a site.
16. The guidance issued by the Department of the Environment in Circular 18/94, following the enactment of the 1994 Act, states:

“10. Social Services departments and local housing authorities are reminded of their obligations under Part III of The Children Act 1989 (Local Authority Support for Children and Families); and Part III of the Housing Act 1985 (Housing the Homeless). The Secretaries of State expect authorities to take careful account of these obligations when taking decisions about the future maintenance of authorised gypsy caravan sites and the eviction of persons from unauthorised sites.

11. Local education authorities should bear in mind their statutory duty to make appropriate educational provision available for all school-age children in their area, whether resident temporarily or permanently. As noted in paragraph 33 of Circular 11/88 and paragraph 9 of Circular 11/92 from the Department for Education (formerly the Department of Education and Science) and paragraph 6 of the annex (revised annually) to Welsh Office Circular 52/90, this duty embraces traveller children. Local education authorities should take careful account of the effects of an eviction on the education of children already enrolled, or in the process of being enrolled, at a school. Where an authority decides to proceed with an eviction, and any families concerned move elsewhere in the same area, alternative educational arrangements must be made in accordance with the requirements of the law appropriate to the children’s ages, abilities and aptitudes.

12. The Secretaries of State also expect local authorities who decide to proceed with evictions to liase with other local authorities who may have statutory responsibilities to discharge in respect of those persons who are being evicted.

…

21. The Secretaries of State consider it important that authorities should maintain their existing gypsy caravan sites, or should make suitable arrangements for their maintenance by leasing them to other persons who are willing and able to maintain them.

22. The Secretaries of State also expect authorities to continue to consider whether it is appropriate to provide further permanent caravan sites for gypsies in their areas. …”

17. In summary, therefore, the Defendant is excluded from the protection of the CSA because his caravan is on a site owned by a local authority, and excluded from the protection conferred by the MHA because the site is used by the local authority as a caravan site providing accommodation for gypsies. The extent of his disadvantage as compared with his comparators is emphasised by section 89 of the Housing Act 1980, which precludes a court making an order for the possession of any land (with certain exceptions inapplicable to this case) from postponing the giving up of possession to a date later than 14 days after the making of the order, unless it appears that exceptional hardship would be caused by requiring possession to be given up by that date, and provides that the giving up of possession shall not in any event be postponed to a date later than 6 weeks after the making of the order.

The submissions of the parties

18. On behalf of Mr Isaacs, Mr Watkinson submitted:

(a) Mr Isaacs’ caravan on the site at Marsh Lane Caravan Site is his home, and has been for some considerable time.

(b) His eviction would unless justified under Article 8.2 infringe Article 8.1.

(c) The lack of security of tenure, resulting from the exempting provisions, deprives the court of the power sufficiently to investigate the justification or lack of it for his eviction. Even if a gypsy were able to bring judicial review proceedings against a local authority seeking his eviction from an exempted site, the court would be unable to investigate any issue of primary fact (such as whether the gypsy had been guilty of the conduct leading to the local authority’s decision). Those provisions were therefore liable to lead to an infringement of Article 8.

(d) The legislation in question cannot be justified. It has not been shown that the exclusion of security of tenure, which it may be assumed creates no difficulty for non-local authority site owners or in relation to sites that are not exempted sites, is a necessary or a proportionate response to any social or other need.

(e) In any event, the different treatment of gypsies on exempted sites as against other occupants of caravan sites amounted to unlawful discrimination contrary to Article 14.

19. Mr Mould, for the Secretary of State, accepted that an eviction prima facie interferes with the Article 8 right to respect for one’s home, and that the statutory provisions in question required to be justified under Article 8.2. He submitted:

(a) The exempting provisions were enacted by a deliberate decision of Parliament in order to preserve flexibility of management of exempted sites. Parliament had accepted that the lack of security of tenure was a necessary and proportionate measure appropriate to exempted sites, in order to meet a clear social need, namely the provision of sites for short-term occupation by gypsies. The court should respect that expression of policy by the legislature and accept its conformity with Convention rights.

(b) It followed that the statutory provisions in question do not infringe Article 8.

(c) The difference between the rights of gypsies on exempted sites and other occupiers of caravan sites was not due to any personal attribute or characteristic of the gypsies, and was therefore not prohibited by Article 14.

Discussion: (a) Article 8

20. The relevant provisions of the Human Rights Act 1998 and of Articles 8 and 14 are by now familiar, and it is unnecessary to refer to them or to set them out specifically.
21. It is accepted, and indeed incontrovertible, that the Defendant’s caravan at the Marsh Lane caravan site is his home. His eviction from the site, unless justified under Article 8.2, would infringe his right to respect for his home (and, possibly, for his private and family life) under Article 8.1. However, rights under Article 8.1 are not absolute. Interference with those rights will be justified if “in accordance with the law” and if “necessary in a democratic society in the interest of national security, public safety or 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”. Any such interference must, of course, be legitimate and a proportionate response to the interest alleged to justify it.
22. On a narrow reading of the protection conferred by Article 8, a case such as the present is relatively straightforward. Mr Isaacs’ eviction by order of the County Court would unquestionably be “in accordance with the law”. The interest asserted for interfering with the Article 8 right is “the rights and freedoms of others”, the “other” in this case being the Claimant local authority. It owns the Marsh Lane caravan site; having terminated Mr Isaacs’ licence, it has a right to possession of his plot; and his eviction is necessary in order to give effect to, and therefore protect, that right. Conversely, Mr Isaacs legal right to his home has always been qualified, in that he has been in occupation under a terminable licence. It follows that his eviction is necessary and justifiable.
23. That, however, is not a sufficient analysis of the protection conferred by Article 8. Article 8 requires that the interference with the rights it confers should be not only legitimate, but also proportionate to the interest or need relied upon to justify it: see, for example, Poplar Housing etc. v Donoghue at paragraph 72.
24. The Claimant concedes that there may be cases, of which his is not one, where a site owner is justified in obtaining possession of a caravan site, because, for example, of the unacceptable and irredeemable behaviour of the occupier of the caravan; and that in such cases there is no infringement of Article 8. His complaint is that in his case the local authority are able to evict him without there being, on his account of the facts, any justification for his eviction, and without the court considering whether or not there is such justification.
25. However, it seems to me that a claimant seeking a certificate of incompatibility in a case such as the present on the ground of infringement of Article 8 faces a formidable difficulty. He is in what used to be called a “Catch 22” situation. The authorities referred to above, and in particular Smart, show that there are two possibilities. The first is that the legislation excluding persons such as the Claimant from security of tenure is justified for the purposes of Article 8.2 as a matter of general policy: i.e., the legislation in question is objectively necessary in a democratic society and is a legitimate and proportionate response to an identified social or other need. This level of examination of Convention issues has sometimes been referred to as the macro level. If this is the position, then assuming that the public authority in question has acted reasonably in a Wednesbury (or “super-Wednesbury”) sense, and has complied with applicable procedures, the fact that the claimant’s rights under Article 8.1 will be affected will not assist him: see the judgment of Laws LJ in Smart at paragraphs 39 and 40.
26. On the other hand, if the legislation fails the test at the macro level, so that Article 8 would be infringed unless the individual necessity for a person’s eviction is established, the court must strive to establish procedures by which that necessity can be investigated and determined, if necessary by determining for itself whether the alleged necessity exists. If these are the circumstances, the court, as a public authority, must strive to avoid acting unlawfully by granting an eviction order that infringes Article 8. In an appropriate, albeit exceptional, case, and contrary to Mr Watkinson’s submission, the court may try disputed questions of primary fact, if that is necessary in order to avoid infringement of a Convention right: see R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545 [2002] 1 WLR 419. The issue of infringement or not of Article 8, assuming it is a genuine issue duly raised, would be determined either by the Administrative Court in judicial review proceedings, in which case the County Court would be expected to adjourn possession proceedings pending the decision of the Administrative Court, or by the County Court itself: see the judgment of Laws LJ Smart [2002] at paragraph 40. The determination by the court of the Article 8 issue on the basis of the facts of the individual case (referred to in some authorities as the micro level of examination) would mean that the lack of express statutory security of tenure would not result in any infringement of Article 8 rights, and in effect remedy any deficiency in the legislation.
27. On this basis, it seems to me that Mr Isaacs cannot establish his counterclaim on the basis of Article 8, whether or not his submissions concerning the statutory provisions of which he complains are well-founded. It is not inevitable that section 4(6) of the Caravan Sites Act 1968 and section 5 of the Mobile Homes Act 1983 will lead to the infringement of Article 8 rights. Inevitability of breach is the test for incompatibility: see McLellan (paragraphs 46-47), in which Longmore J’s judgment at first instance was approved.
28. Different considerations may arise in relation to Article 14, which cannot be so easily circumvented, and which I consider below.
29. I shall nonetheless consider the question whether section 4(6) of the CSA and section 5 of the MHA 1983, as a matter of general principle and policy, satisfy the requirements of Article 8.2.
30. In this connection it is first necessary to consider the position of a gypsy living on an exempted site. Mr Mould submitted that such a person has some security beyond that conferred by his licence agreement and the statutory requirement of a minimum 28 days’ notice. He referred to the implied or common law right of a residential licensee to a reasonable time to find alternative accommodation: see Ministry of Health v Bellotti [1944] 1 KB 298. However, in my judgment that implied or common law right cannot apply where statute lays down a notice period and the notice given complies with the statutory requirement. That is the position here.
31. Secondly, Mr Mould relied on the position of a local authority as a public authority whose decisions may be subject to judicial review. It is undoubtedly an important consideration that local authorities must make their decisions responsibly and with regard to applicable central government guidance. That guidance includes the provisions of Circular 18/94 set out above which, although concerned primarily with unauthorised encampments, applies also to exempted sites. In addition, as a public authority a local authority is subject to the prohibition in section 6 of the Human Rights Act against the infringement of Convention rights. The experience of the Administrative Court indicates that judicial review is a practical remedy for gypsies faced with eviction by a local authority. There is, therefore, an important difference between the position and security of a licensee or tenant of a private site owner and a licensee or tenant of a local authority.
32. Mr Watkinson accepted that the fact that the site owner is necessarily a local authority subject to judicial review differentiated the position of an occupant of an exempted site from an occupant of a privately-owned site. He submitted, however, that the inability of the court to consider primary questions of fact that might be relevant to the justification for interference with rights conferred by Article 8.1, the limitation of review to questions of reasonableness and proportionality, and the inability of the court to suspend an order for possession in appropriate circumstances, were not justifiable. He also pointed to the relative lack of protection for gypsies on exempted sites as compared with the “important safeguards” applicable to introductory tenants of conventional residential accommodation referred to by Waller LJ in McLellan at paragraph 63:

“… First, the local authority has a statutory obligation to set out a full statement of reasons for terminating the introductory tenancy in the notice for possession. Second, an attempt is made to remove any bias that there may be by requiring the review to be conducted by an officer senior to the officer who took the decision to issue the notice for possession, and someone who was not involved in that previous decision. Third, the tenant has an opportunity to make representation at an oral hearing or to make written representations (see paragraphs 2, 4, and 5 of the 1997 regulations). Fourth, the tenant has the right to representation including legal representation (see paragraph 5(2)(a) of the 1997 regulations). Fifth, the tenant as the right to call witnesses to give evidence (see paragraph 5(2)(b) of the 1997 regulations). Sixth, the tenant has the right to put questions to any person who gives evidence at the hearing (see paragraph 5(2)(c) of the 1997 regulations).”

Mr Watkinson submitted that the absence of such safeguards could not be justified as necessary or proportionate to any social or other need.

33. Before turning to the specific justification put forward for the exempting provisions, two further general points need to be made. First, statutory regulation of housing and the consequences of such regulation are matters of some complexity. For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960’s, security of tenure for residential tenants and control of rents were reimposed under the Rent Act 1965. Doubtless those measures were in the short term interests of residential tenants. However, in the long term they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest.
34. The second general consideration is related to the first. Housing is very much “the area of policy where the court should defer to the decision of Parliament”: Donoghue at paragraph 72. The need for, and the consequences of, legislation in this area are matters for Parliament, not the courts.

“41. … Parliament might enact a provision, even a whole scheme, which would be repugnant to the Convention; and if that were done it would of course be the court’s duty to say so. The measures contained in HRA dealing with declarations of incompatibility patently demonstrate Parliament’s own foresight of the possibility. But one would expect such clashes between the policy of main legislation and the Convention rights to be exceptional, not least for the good reason that distribution of the Convention rights has to go hand-in-hand with deference to the democratic legislature. A democratic system of government is a premise of all the Convention’s philosophy, underlined in the multiple references to what is “necessary in a democratic society”, a phrase which not only invokes the claims of proportionality, but also calls for respect for the elected arm of the State.

42. … We do not lose sight of the fact that the courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide ‘margin of appreciation’ in such matters. (see, in addition to Chapman, Mellacher 12 EHRR 391 paragraph 45). ‘Margin of appreciation’ is, of course, a concept apt only to reflect the necessary distance from which an international tribunal must view the affairs of a nation State subject to its jurisdiction. But our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny.”

Sheffield City Council v Smart [2002] EWCA Civ 04, per Laws LJ, with whom the other members of the Court of Appeal agreed.

35. The policy behind the exempting provisions was clearly stated by Lord Bridge in his speech in the House of Lords in Powell at 1012. Following the passage from his speech cited above, Lord Bridge continued:

“Any other construction of "protected site" in section 5(1) of the Act of 1983 would, it seems to me, cause great difficulties both for local authorities and for most of the gipsy community and would undo much of the good work which has been done in this difficult field. Those already established on sites like Thistlebrook would, of course, enjoy full 1983 security of tenure. But local authorities in the position of the council would need to start de novo to discharge their duty under section 6 of the Act of 1968. Many existing designations under section 12 would have to be revoked or would perhaps be automatically invalidated. Your Lordships were told that, on the strength of the Court of Appeal's decision, some proceedings had already been instituted seeking judicial review of existing orders made under section 12. For the future, local authorities establishing new sites providing accommodation for gipsies would have to be vigilant to prevent their residence acquiring any degree of permanency. This, I think, they could in practice only do by applying a short rule-of-thumb limit of stay, which would be quite contrary to the interests of the gipsy community.”

36. Mr Watkinson submitted that this statement was no longer applicable as a result of the abolition of the duty of local authorities to provide sites for gypsies. I do not accept this submission. The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide, although they are under no duty to do so. Furthermore, as has been seen, central government guidance is that it is important for those sites to be maintained.
37. The evidence of Duncan Campbell, of the Department for Transport, Local Government and the Regions, on the aims of the legislation, is as follows:

“The aims of the two statutory frameworks

24. As the brief summary of legislative history set out above indicates, the specific statutory provisions of which the Defendant complains form part of two separate statutory frameworks: one which applies to local authority Gypsy caravan sites, and another for all other residential caravan sites operated by local authorities and private owners.

25. With Part I of the 1968 Act, and with the 1975 and 1983 Acts, Parliament sought to address specific problems of commercial exploitation experienced by occupiers of private sites. There has never been any evidence to suggest that such problems extend to local authority Gypsy sites, and accordingly those legislative provisions that are directed at those problems have not been not extended to such sites. The problems faced by Gypsies were wholly different, relating primarily to the acute shortage of sites available to meet their particular accommodation needs. The said problems were addressed by Part II of the 1968 Act, and supplemented by the departmental guidance circulars issued to local authorities. By 1994, the scheme of Part II of the 1968 Act was found to have served its purpose as far as it could reasonably be expected to do. There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities. The emphasis of Government policy has now changed to one of encouraging Gypsies themselves to add to that existing supply. Nevertheless existing local authority supply remains an essential component of the Government’s strategy of securing an adequate level of accommodation for Gypsies. The policy of the 1994 Act is to maintain and safeguard that distinct source of supply.

26. Thus, I draw particular attention to the fact that the statutory protection afforded by Part I of the 1968 Act and the 1975 and 1983 Acts has been and still is available to Gypsies if they choose to reside at sites other than those provided by local authorities specifically for Gypsies. In general, the key difference between such sites has been the greater flexibility, which is usually available on local authority Gypsy sites, in order to accommodate the nomadic lifestyle of occupiers. This may allow Gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, while paying a reduced rent as a retainer during the few months of while they may be travelling in search of seasonal work. Other local authority sites and private sites, in general, are aimed at longer-term residential occupiers, without the need for such flexibility because they are not pursuing a nomadic lifestyle.

27. Nevertheless, there are of course a number of Gypsies who occupy sites on a long-term basis, and other mobile home residents who do not consider themselves to be Gypsies, but who prefer to occupy private sites on a more short-term basis. The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families; it is not to classify or categorise individuals or families. Accordingly, Gypsies seeking to settle on a more permanent site may occupy private or local authority (non-Gypsy) sites and benefit from the scheme put in place by Part I of the 1968 Act and the 1983 Act. This diversity of public and private site provision reflects that which is available in housing generally.

28. The separate statutory framework allows for flexibility in meeting the accommodation needs of Gypsies. It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites, including local authority Gypsy sites. In my view, such a single statutory framework would be detrimental to the interests of Gypsies throughout the country. If the security of tenure provisions of that framework applied equally to local authority Gypsy sites, it would undermine the flexibility that such sites provide in catering for the varied lifestyles of Gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each Gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site, whether or not they pursue a nomadic lifestyle. Inevitably, fewer sites, if any, could be made available specifically for Gypsies pursuing a nomadic lifestyle.

…

32. Experience suggests that local authorities would face difficulties in managing sites of eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders. There is a balance to be struck between the latter and the merits of flexibility (already mentioned) that such sites offer in catering for the varying accommodation needs of Gypsies. To this (and in favour of the existing position) must be added the fact that in reaching decisions about evictions local authorities, as responsible bodies, need to take into account the range of obligations and considerations outlined in paragraph 29 above. These amount to significant safeguards against unscrupulous or unjustified evictions. Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.”

38. While I am not over-impressed by the vagueness of the statement in paragraph 32 that “experience suggests”, applying the guidance given by Laws LJ in Smart, this evidence satisfies me that the exempting provisions are “necessary in a democratic society”, and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant. Moreover, any such safeguards would detract from the flexibility that Parliament has decided is appropriate for exempted sites.

(b) Article 14

39. I can deal with Article 14 quite shortly. The exemption in section 4(6) of the CSA is justified by the special position of local authorities and the policy considerations referred to above. The exemption in section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant. It therefore raises no question of discrimination contrary to Article 14.

Conclusion

40. For the above reasons the Counterclaim will be dismissed.
41. This conclusion is consistent with that of the Commission in P v UK (App. No. 14751/89) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under Articles 8 and 14. Mr Watkinson submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies. As I stated above, I do not regard this as a valid distinction between the present position and that before 1994. There are still sites provided by local authorities for gypsies, and indeed if there were none there would be no scope for section 5 of the MHA.
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MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft and sets out my reasons for concluding that this claim must be dismissed. I express my gratitude to counsel for their corrections to the draft.

Yes, Mr Watkinson.

MR WATKINSON: My Lord, may I indicate my learned friend Mr David Kolinsky appears for the Secretary of State in place of Mr Timothy Mould, who appeared at the hearing, and I anticipate the first application will be his.

MR KOLINSKY: I am grateful to my learned friend. My Lord, I understand the claimant is in receipt of Legal Servicers Commission funding. In those circumstances, I seek the usual order for an order for costs not to be enforced, save for section 11.

MR WATKINSON: I cannot make any resistance to that at all. I have two applications. The first is that there be an order for detailed assessment of the claimant's costs being incurred under his Community Legal Service certificate, and my second application is an application for permission to appeal your Lordship's judgment.

MR JUSTICE STANLEY BURNTON: I will make orders for costs as asked on both sides.

MR WATKINSON: I am obliged.

MR JUSTICE STANLEY BURNTON: What is the basis of your application?

MR WATKINSON: My Lord, the first basis -- and I hope this at least will be controversial -- is that issues raised by the counterclaim were important issues relating to the compatibility of the Caravan Sites Act 1968 and Mobile Home Acts 1983 with the Convention and issues which have not yet been raised before the Court of Appeal. More particularly, so far as Article 8 is concerned, your Lordship decided that the claim failed both at the micro and at the macro level, as I took --

MR JUSTICE STANLEY BURNTON: So to speak.

MR WATKINSON: -- your Lordship's judgment. Indeed. So far as the micro level is concerned, your Lordship dealt with that at paragraphs 26 and 27 of your Lordship's judgment. The issue which arises, I submit, is whether the restricted basis upon which the first instance court may investigate facts as outlined in the case of Smart, which your Lordship referred to, that was on the basis where wholly exceptional events had occurred since the notice to quit altering the rights and wrongs of the eviction were sufficient to avoid the infringement of Article 8 rights which would otherwise be enjoyed in possession proceedings and were sufficiently --

MR JUSTICE STANLEY BURNTON: Can I stop you for a moment. In Smart, Laws LJ was dealing with a position where the legislation that had been criticised conformed at the so-called macro level.

MR WATKINSON: Indeed, and he held compatibility because of the opportunity of judicial review and that exceptional category.

MR JUSTICE STANLEY BURNTON: Yes.

MR WATKINSON: As I read your Lordship's judgment, your Lordship was indicating that there would be power in the court hearing possession proceedings to adopt a similar approach in relation to possession proceedings relating to gypsies. The question I raise is whether that would be sufficient to avoid incompatibility of the provisions which deny any defence to possession proceedings and compatibility with the Convention. That is the micro level submission. Your Lordship also referred to the case of Wilkinson v Broadmoor when dealing with the micro level. In my submission, that case would be distinguishable. It dealt with very particular law and facts.

MR JUSTICE STANLEY BURNTON: I think I changed the wording in my judgment in that paragraph to point out that the circumstances in which direct evidence on issues of primary facts will be received in judicial review will be exceptional.

MR WATKINSON: I am obliged. I hope your Lordship appreciates that I have not had the opportunity of reading your Lordship's final draft of judgment.

MR JUSTICE STANLEY BURNTON: The ambit of Wilkinson, a case which is probably unknown to the students who are sitting in the back, is controversial, and it remains to be seen how far it goes. But the power is there. I cannot remember now where I referred to it.

MR WATKINSON: Your Lordship referred to it in paragraph 26 of your Lordship's judgment and it remains so in the final version.

MR JUSTICE STANLEY BURNTON: In an appropriate, albeit exceptional, case.

MR WATKINSON: Indeed, yes.

MR JUSTICE STANLEY BURNTON: That was a second thought, frankly.

MR WATKINSON: I am obliged. My Lord, so far as the macro level is concerned, the issue there was whether exemption was necessary to meet a policy of flexibility in the management of gypsy caravan sites so as to justify a potential breach of Article 8. Now, the arguments as to why exemption is not necessary were traversed at the hearing before your Lordship, and I add to that, from paragraph 38 of your Lordship's judgment, there your Lordship suggests that there is also an issue as to whether the Secretary of State's evidence was sufficient to ground the submission that the exemption was necessary. My Lord, that is what I have to say about Article 8 as to the macro and micro level.

So far as Article 14 is concerned, I take that very shortly, because the issue under section 4(6) of the Caravan Sites Act was the same issue as dealt with under the macro level heading in relation to Article 8.

MR JUSTICE STANLEY BURNTON: Yes.

MR WATKINSON: Your Lordship dealt with it, so I do not need to add anything to that.

So far as the Mobile Homes Act 1983 is concerned, I submit that the issue arises whether the exemption which is in respect of local authorities providing accommodation for gypsies amounts to discrimination on the ground of gypsy status. Again, that is an issue canvassed before your Lordship at the hearing.

On those grounds, I would submit those would be sufficient for your Lordship to give permission for this case to proceed to the Court of Appeal.

MR JUSTICE STANLEY BURNTON: Thank you. Mr Kolinsky, is there anything you want to say?

MR KOLINSKY: My Lord, I am instructed on behalf of the Secretary of State to resist the application for permission. Your Lordship refers in paragraph 1 of your judgment to a quartet of cases from the Court of Appeal which, in my respectful submission, set out the clear path of reasoning which your Lordship has applied to the particular circumstances of the case. In those circumstances, I would say that given the Court of Appeal have given consideration to issues which are related, similar and applicable by analogy to the present circumstances, there is no real prospect of them taking a different approach in relation to this application and also no compelling reason for them to restate those clear principles in the context of this particular case.

Therefore, the Secretary of State invites your Lordship to dismiss the application for permission to appeal.

MR WATKINSON: Nothing to add in reply.

MR JUSTICE STANLEY BURNTON: Mr Watkinson, it seems to me you have my judgment in writing; you are in a position to go straight to the Court of Appeal to apply for permission to appeal. I attempted to apply the principle laid down in the cases I referred to in my judgment. The Court of Appeal can decide fairly easily whether I did so correctly or incorrectly.

MR WATKINSON: Much obliged.

MR JUSTICE STANLEY BURNTON: Thank you very much.