England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th December 2008

JUDGE GILBART QC:

1. Although listed before me as a Case Management Conference, this matter, as all the parties urged on me, concerns an important case on the application of the effect of the House of Lords recent decision of 30^th July 2008 in Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57, [2008] 3 WLR 636. Indeed Mr Findlay QC, for the claimant authority, described it as a test case.
2. I am sorry that this judgement is longer than I would have wished, but it has been prepared since the court rose on Wednesday afternoon, to be given at 10.00 am on Friday, so that no delay was caused to the proceedings by awaiting a written judgement after my return to the Northern Circuit on Monday. Inevitably, the time for editing down of citations from authority has not been available to me.
3. It is sensible if I start by setting out the way in which I will deal with the issues

(a) Subject matter of the claim and defence thereto, and history of the litigation

(b) Orders applied for

(c) The common law and statutory context

(d) The future conduct of the litigation and consequent orders.

A Subject matter of the claim and defence thereto and history of the litigation

4. The Defendants occupy caravans on plots on a site owned by the Claimant authority ("LBH"). The agreements by which they do so give no security of tenure at common law. The First and Second Defendants have occupied a plot since June 2003, while the Third Defendant has done so since November 2004.
5. On 13^th October 2006 the First and Second Defendants were served with a notice to quit their plot by 13^th November 2006. An application was made on 12^th October 2006 for a without notice Anti-Social Behaviour Injunction "ASBI") under sections 153A and 153C of the Housing Act 1996 (as amended) against 7 persons, including these 3 Defendants. The claim sought the exclusion of the Second Defendant from his plot at the site. An injunction was granted against the Defendants on 12^th October 2006, but it did not exclude them from the site, limiting itself to restraining them from causing nuisance or annoyance, or engaging in violence, harassment or threatening behaviour. The application was adjourned on 29^th October 2006, pending the outcome of mediation, but interim injunctions were granted until 12^th April 2007. (The order of 29^th October 2006 was by consent). On 12^th April 2007 they were extended, but an appeal against their extension was allowed on 11^th January 2008. The allegations made in the ASBI proceedings are the same allegations as are made in the schedules attached to the possession claims, as set out below. I note that one of the grounds taken by the Defendants in their successful appeal (although I have not been provided with HH Judge Behar's reasons for allowing the appeal) was that section 153A of the Housing Act 1996 (as amended) does not apply to caravan sites where what is owned by the authority is the plot and not the dwelling.
6. Proceedings for possession were issued on 9^th March 2007 (although dated 9^th March 2006 in error) and served on 23^rd March 2007. The Third Defendant was also served with a similar notice, and served with concurrent proceedings (also misdated) which were issued and served on the same dates as those relating to the First and Second Defendants.
7. In the case of the First and Second Defendants, LBH alleged that they were in arrears with their rent to the extent of £ 1,683, had failed to pay electricity charges of £ 573.67 and that "the defendant's (sic) have taken part in a particularly vicious attack on a pregnant female on the site, and such behaviour will not be tolerated." A schedule attached to the Particulars of Claim alleges that, inter alia;

(a) The Second Defendant had assaulted a named woman (whom I shall refer to as M) on 29^th May 2006 after she had alleged that he had made improper advances to her and her teenage daughter. On the day before a fight involving knives and weapons had taken place between his family and her family

(b) On 20^th June 2006, after a fight between the two families, the Second Defendant kicked the pregnant M as she lay unconscious on the floor;

(c) On 5^th July 2006 the Second Defendant threatened to kill another member of M's family;

(d) The First Defendant had engaged in harassment, and in particular in conjunction with the Second Defendant , harassment of M on 1^st September 2006;

(e) The Defendants' family, and in particular the Second Defendant, had been harassing other residents on occasions in September 2006;

(f) The Second Defendant assaulted the First Defendant on 15^th September 2006;

(g) In September 2006 the Second Defendant had stated that he intended to cut up one member, and stab another member, of M's family;

(h) On 25^th September 2006 the Second Defendant deposited rubbish from a truck near the entrance to the site

(i) On 26^th September 2006 the First Defendant behaved offensively by spitting at children on the site;

(j) On 28^th September 2006 the Second Defendant threatened the postman;

(k) On 29^th September 2006 the First and Second Defendants fought one another.

8. In the case of the Third Defendant the proceedings allege that he is in arrears, but in a sum of just £ 7.16, which is less than half a day's rent. He is also alleged to owe £ 746.75 for electricity. He is alleged to have engaged in what is described as a campaign of harassment. A schedule attached to the Particulars of Claim alleges that, inter alia;

(a) On 29^th May 2006 he was arrested for taking part in an assault with the Second Defendant against John M with a baseball bat and pickaxe handle (an allegation not made against the Second Defendant)

(b) On 5^th July 2006 he is alleged to have " been involved in an incident whereby threats were made by (the Second Defendant ) towards Michael (M)"

(c) On 1^st August 2006 that he and a member of his family were intimidating an unnamed person on the site;

(d) On 18^th September 2006 he was said to be making further threats to the M family ;

(e) On 22^nd September 2006 it was reported that that he was , with the Second Defendant, threatening members of the M family;

(f) On 26^th September 2006 the Third Defendant behaved offensively by spitting at children on the site.

9. In both cases the Defendants filed Defences and Counterclaims as follows

(a) The Defendants family's rights under the ECHR were engaged because of the length of time they had lived there;

(b) Acute hardship would be caused by their eviction as they had nowhere to go;

(c) It was for LBH to justify the proposed eviction and, given the terms of Article 8 of the ECHR, the need for conviction must be convincingly established. It was argued that it was for the Court to assess whether the reasons given to justify the intended eviction were sufficient;

(d) Eviction would be disproportionate in the absence of a suitable alternative plot;

(e) In the absence of an opportunity to subject the facts to scrutiny, and challenge it before an independent Tribunal, the common law provision to LBH of an otherwise absolute right to a possession order was incompatible with the Defendants' Article 8 rights;

(f) The Court was under a duty to make an Article 8 enquiry;

(g) All arrears have been paid, and it was unreasonable of LBH to continue to press for eviction.

(h) The alleged incidents of violence, harassment and other disreputable behaviour were denied;

(i) LBH had acted unfairly by failing to put the allegations to the Defendants to see if another remedy could be found short of possession being sought;

(j) The decision to bring the claim was unlawful because the matters complained of had been dealt with by interim injunction. It was argued that the possession claim was being used as a way of avoiding a trial of the injunction application;

(k) The procedure used infringed Article 8 of the ECHR;

(l) LBH had not addressed Article 8 of ECHR;

(m) LBH had failed to consider whether to acquire land for the Defendants to move to, in the context of the duty of LBH to act consistently with its race equality duty under section 71 of the Race Relations Act 1976;

(n) A declaration was sought that the "regulatory framework which results in the Court having no discretion to withhold an order for possession and no jurisdiction to withhold an order even if the allegations are found to have occurred, is incompatible with the Defendants' rights under the ECHR" It is an obvious that a negative has been omitted from that sentence in the pleading.

10. On 18^th April 2007, the Defendants applied to have the actions for possession transferred to the High Court. They did so on the basis that they were contending that the claim involved an issue on whether the legislation relating to possession proceedings for sites such as this was incompatible with Article 8 of the ECHR. On 5^th July 2007 District Judge Wicks ordered that

(a) The claims be transferred to the Queens Bench Division Administrative Court pursuant to section 42 of the County Courts Act 1984 and CPR part 30.3(2)(g) for consideration of a declaration of incompatibility under section 4 of the Human Rights Act 1998 and thereafter determinations of the claim

(b) The Administrative Court shall consider whether to issue a declaration that the Caravan Sites Act 1968 as amended by the Housing Act 2004 is incompatible with the Defendants' rights under the ECHR.

11. Since then, the Secretary of State has applied successfully to intervene in the litigation. On 16^th October 2007 the proceedings were stayed to await the outcome of the appeal in what is now reported as Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318 which took place on 12^th December 2007. On 2^nd September 2008 the Defendants stated that they would no longer seek a declaration of incompatibility. However it is their case that in the light of the Doherty decision of the House of Lords in July 2008, they are entitled to have the decision of LBH to issue proceedings scrutinised by the court, and to that end seek directions relating to the calling of evidence and disclosure, which is resisted by LBH and the Secretary of State. A hearing is fixed for 27^th and 28^th January 2009 in the Administrative Court.
12. The Defendants seek leave (without opposition) to amend the defence and counterclaim to allege a breach of Article 1 of the First Protocol, and to allege that, given the race equality duty imposed on LBH, the procedure used was unfair as it differed from that applying to other long term caravan dwellers. They have also been permitted to file voluntary further and better particulars of the defence and counterclaim which contend that

(a) Smith v Buckland is not binding with regard to Article 1 of the First Protocol

(b) Those rights were engaged when the Notices to Quit were issued and in these proceedings

(c) LBH , as a public authority, was required to act proportionately and the Court had to consider if a fair balance was struck;

(d) Notwithstanding the decision in Smith v Buckland the lack of an ability on the part of the Defendants to challenge the factual basis for a possession order is incompatible with Article 1 of the First Protocol

(e) The difference in treatment between dwellers on sites for gypsies and dwellers on other sites was discriminatory

(f) It was for LBH to evaluate the effects of the taking of proceedings, and the lack of alternative provision, and the Court should consider whether it had done so.

13. However Mr Cottle is not seeking a declaration of incompatibility. Given the decision in Doherty that is realistic.

B Orders applied for

14. The Defendants seek

(a) A hearing which considers whether the decision of LBH to issue proceedings was lawful, which includes the question whether it was compliant with the ECHR

(b) The calling of witnesses on the disputed allegations of fact

(c) Disclosure as it would normally take place in a multi-track possession action- i.e. under CPR 31.5(1).

(d) Transfer of the proceedings back to the County Court, which would be a more local forum for the parties.

15. The Claimant LBH and the Secretary of State seek

(a) A two part hearing, which will consider

(i) On the papers, whether there was a seriously arguable case that LBH had acted unreasonably in seeking a possession order, " unreasonably" meaning that it was unjustifiable in a public law sense

(ii) If it rejects the defence, then considers the making of the possession order, and whether to suspend it for up to 12 months

(b) No disclosure under CPR 31.5, but reliance on the duty of candour which applies in judicial review cases: see R (Quark Fishing Limited) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at 50.

(c) They are neutral on the question of transfer, but raise concerns about more time being spent, and about whether a judge is actually sitting in Uxbridge at the present time.

C The common law and statutory context

16. At common law, LBH have the right to determine the possession of the plots. The law provides no defence to an action for possession, although 4 weeks notice is required of termination of a licence to occupy – see section 2 of the Caravan Sites Act 1968. Although section 4(1) of that Act enables a court to suspend an order for possession for up to 12 months, a court had no power until 18^th January 2005to suspend an order for possession if the site was owned by a local authority and it was seeking possession. On that date sections 211 and 270(3) of the Housing Act 2004 amended the legislation to remove that excluding provision. It did so after the ECHR decision in Connors [2004] 40 EHRR 189.
17. As Dyson LJ pointed out in Smith v Buckland at paragraphs 8 and 9:

8. The Mobile Homes Act 1983 ("the 1983 Act") applies to any agreement under which a person is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence: see section 1(1). The 1983 Act provides a degree of security of tenure to occupiers of caravan sites by implying into licence agreements falling within the ambit of its provisions various protective terms. The effect of section 2(1) and paragraph 4 of Schedule 1 to the 1983 Act is that the owner of a relevant site is entitled to terminate the licence only if (a) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (b) the court considers it reasonable for the agreement to be terminated.

9. The protection provided by the 1983 Act does not avail the appellant because section 5(1) excludes from the definition of a "protected site" any land occupied by a local authority as a caravan site providing accommodation for gypsies. The Government has indicated that it proposes to amend the 1983 Act to remove this exclusion. To this end, the House of Commons Second reading of the Housing and Regeneration Bill took place on 27 November 2007.

18. These Appellants also fall outwith that protection. The legislation to remedy the deficiency in the law (as the House of Lords has found it to be in Doherty) has been enacted by section 318 of the Housing and Regeneration Act 2008, although the relevant provision is not yet in force.
19. It is necessary also to consider the grounds on which an order for possession may be suspended under section 4 of the Caravan Sites Act 1968 (as amended). Section 4 reads

"4 Provision for suspension of eviction orders

(1) If in proceedings by the owner of a protected site the court makes an order for enforcing in relation thereto any such right as is mentioned in paragraph (b) of subsection (1) of section 3 of this Act, the court may (without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section) suspend the enforcement of the order for such period not exceeding twelve months from the date of the order as the court thinks reasonable.

(2) Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.

(3) The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than twelve months at a time.

(4) In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions—

(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;

(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;

(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).

(5) Where the court makes such an order as is mentioned in subsection (1) of this section but suspends the enforcement of that order by virtue of this section, the court shall make no order for costs unless it appears to the court, having regard to the conduct of the owner or of the occupier, that there are special reasons for making such an order.

(6) The court shall not suspend the enforcement of an order by virtue of this section if—

(a) no site licence under Part 1 of the Caravan Sites and Control of Development Act 1960 (c 62) is in force in respect of the site; and

(b) paragraph 11 of Schedule 1 to that Act does not apply;

and where a site licence in respect of the site is expressed to expire at the end of a specified period, the period for which enforcement may be suspended by virtue of this section shall not extend beyond the expiration of the licence."

20. It is thus plain that in these proceedings, if the possession order is made there will come a point where the judge then seised of the matter must himself consider whether it is reasonable to evict the Defendants. If s/he did not do so, the court would be failing to apply section 4(4) of the 1968 Act. In making a decision s/he must balance the case for eviction against the case for suspension, and will have to make his/her own judgement of the proportionality of a decision not to suspend the order for possession. As I note below, it is hard to imagine a conscientious and careful judge not wanting to consider why it was that LBH sought possession and why the Defendants resist it.
21. The law in this area, and its interrelationship with issues of public law and the effect of the European Convention on Human Rights, have on any view kept the courts occupied for some little time. In Wandsworth LBC v Winder [1985] 1AC 461 the House of Lords held that a defendant to a claim for possession by a local authority could argue in his defence to the action that the decision to take proceedings was unreasonable in a Assoc Provincial Picture House Ltd v Wednesbury Corpn [1948] 1 KB 223 sense. The effect of the Wandsworth decision is that a defence may be made on the grounds that a decision by an authority to seek the recovery of possession from a tenant (or licensee of a plot such as this) is unlawful on public law grounds.
22. The effect of the Human Rights Act 1998 has of course been to make the European Convention and the relevant Protocols part of domestic law. It follows that any consideration of whether a local or other public authority's decision is lawful must encompass consideration of whether the ECHR has been applied. The question of how it is to be applied in the context of possession proceedings of this kind has caused the courts considerable difficulty.
23. I start with sections 3 and 6 of the Human Rights Act 1998

"3. Interpretation of legislation.

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section—

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

"6. Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,…..

(4)…………………………………...

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6) "An act" includes a failure to act but does not include a failure to—

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.

24. Article 8 reads

"Right to respect for private and family life

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."

25. Article 1 of the First Protocol reads

"Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary"

26. These proceedings relate to LBH taking possession of the plots where the Defendants live, and it was not argued before me that Article 8 rights are not engaged. Article 1 was barely referred to before me, but I can see that there is an argument that the right to occupy the plot with a mobile home (as the each of the occupiers on this site have pursuant to a contractual licence) is a proprietary interest engaged by Article 1.
27. I must turn now to the series of decisions in this area of the law. I adopt the account of the authorities given by Dyson LJ in Smith v Buckland at paragraphs 12-21, which take one up to the point at which that judgement was given

" The three principal authorities

12. I start with Connors, a decision of the ECtHR. The applicant in Connors was a gypsy. He had lived with his wife and children pursuant to a licence on a gypsy site run by the local authority for approximately 15 years. The local authority served a notice to quit, on the basis that the family had been causing a nuisance and were accordingly in breach of their licence conditions. When the family failed to leave, it commenced possession proceedings. The local authority subsequently withdrew the allegations of breach of licence and asserted a right to summary possession on the simple basis that, upon the expiry of the notice to quit, the family became trespassers. The county court granted a possession order on that basis.

13. Before the ECtHR, the parties were in agreement that article 8 was applicable and that the eviction of the applicant constituted an interference with his right to respect for his private life, family life and home (para 68). It was also agreed 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 local authority as owner and manager of the site (para 69). The central focus of the case was therefore whether the interference was "necessary in a democratic society" i.e. whether it was proportionate to the aim pursued.

14. In considering the general principles to be applied to the case, the ECtHR said:

"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....

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 thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (para 84)."

15. In applying those principles to the particular case, the ECtHR held:

"85. … 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 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."

16. Having considered various policy reasons put forward by the United Kingdom Government for the lack of security accorded to gypsies living on local authority sites, the ECtHR set out its conclusions on the article 8 issues in these terms:

"92. The existence of other procedural safeguards is however a crucial consideration in this Court's assessment of the proportionality of the interference … a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court's attention to the Court of Appeal's decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law. …

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 has 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. The references to 'flexibility' and 'administrative burden' have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid …

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."

17. Subsequent to the decision in Connors, the House of Lords heard the conjoined appeals in Kay v Lambeth London Borough Council and Price v Leeds City Council [2006] UKHL 10 [2006] 2 AC 465. The appellants in both cases contended that, in the light of the decision in Connors, they should be permitted, at least in principle, to raise a defence to the possession proceedings brought against them pursuant to article 8 of the Convention. The House of Lords rejected their appeals.

18. Lord Hope of Craighead said at para 110, in a passage specifically approved by Lord Scott at para 174, Baroness Hale at para 192 and Lord Brown at para 212:

"Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier's personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown [1973] Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with Article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461. The common law as explained in that case is, of course, compatible with Article 8. It provides an additional safeguard."

19. The third principal authority is Doherty v Birmingham City Council [2006] EWCA Civ 1739 [2007] LGR 165 in which this court considered what approach should be taken (in the light of the decisions in Connors and Kay) to possession cases commenced prior to the amendment of the 1968 Act. Doherty involved the eviction of a family of gypsies from a local authority caravan site, in circumstances where there were allegations of nuisance, but against the background of the local authority landlord having plans to redevelop the site.

20. This court decided that, in a case not distinguishable from Connors, the county court would have no choice but to grant possession, because the Kay "exceptions" (identified by Lord Hope at para 110) allowed challenge only to the relevant statutory regime or challenge on public law grounds, and did not permit any modification of the common law. However, the court went on to hold that the case before them was distinguishable from Connors because the decision to seek possession was based on an administrative judgment about the appropriate use of land in the public interest (see Carnwath LJ at para 61). In those circumstances, there was no breach of article 8.

28. I must now turn to the decision itself in Smith v Buckland, and then consider it in the light of the subsequent decision in Doherty. In Smith v Buckland proceedings were taken against 5 gypsy Defendants occupying plots on a site, including the Defendant. The site was managed by the Borough Council concerned. The County Court Judge, following the approach in Kay, first considered on paper whether there was a seriously arguable case that the law on which the claimant relied to seek possession was incompatible with Article 8 of the ECHR, or whether it was seriously arguable that the decision to seek possession was amenable to judicial review in accordance with Wandsworth BC v Winder. He held that it was not, so that the claimant was entitled to an order for possession. He then gave a further judgement in which he considered whether or not to suspend the order. He concluded that he should do so until 24^th November 2006 on the basis of certain undertakings. It is however worth noting how the County Court judge expressed himself in his judgment, which is set out at paragraphs 21-4 of Dyson LJ's judgement.

21. The claim for possession against the appellant was based on (i) her remaining in occupation of pitch 16 without the claimant's consent following the expiry of the notice of termination of the licence and (ii) allegations that she had been guilty of conduct amounting to nuisance. It is important to bear in mind that the proceedings in this case (unlike those in Doherty) were started after the amendment to section 4 of the 1968 Act had come into force. On 25 July 2006, the judge considered whether he should make an order for possession in the light of the submissions made by the appellant that (i) a possession order would be incompatible with her article 8 rights and/or (ii) the decision to bring these proceedings was unreasonable and unlawful on conventional public law grounds.

22. In relation to (i), the judge referred to the fact that the amendment to the 1968 Act was introduced by the 2004 Act in response to the decision in Connors. As I have said, he held (para 59) that it was impossible to say that a seriously arguable point had been raised that the law which enabled the court to make a possession order merely on the grounds that the licence to occupy had been terminated was incompatible with article 8. The amendment cured any incompatibility. In any event he had to give effect to the domestic law which obliged him to make an order for possession in this case. As for (ii), he said at para 58 of his judgment:

"That the decision of the claimant to commence possession proceedings was unreasonable is open to the defendants following Wandsworth London Borough Council v Winder, but given that the fourth defendant has only occupied the premises since 2004 his situation is drastically different from Mr Connors. I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable, having regard to the judgment of Lord Brown in paragraph 209."

23. The reference to Lord Brown is a reference to his speech in Kay to which I refer at para 39 below.

24. On 28 July, the judge went on to deal with the applications made by the appellant and some of the other defendants to suspend the enforcement of the possession orders under section 4 of the 1968 Act. He heard both evidence and argument. He found that the appellant's son had been guilty of misconduct. But he rejected the allegations of misconduct that had been made against her and suspended the order for possession on terms that her son leave the site, that she pay the arrears of water charges at a rate of £5 per week and that she continue the undertaking she had given to the court.

29. It follows that the approach of the Judge under the Wandsworth v Winder head had been to address the question of whether the length of her occupation had been such as to make the decision unreasonable.
30. Dyson LJ, with whom the other members of the Court agreed (Wall LJ gave a short additional judgement as well) endorsed the approach of the judge below. He expressed himself as being bound by Kay and by Doherty in the Court of Appeal (paragraph 27). When he came to consider the availability of the public law grounds defence, he said this

The public law defence ground

37. It is now established law that 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: see, for example, per Lord Hope in Kay (para 86) following Wandsworth Borough Council v Winder [1985] AC 461 and Doherty (paras 33-36). In the present case, the judge decided that the defence was not seriously arguable without hearing any evidence. Mr Luba submits that he was wrong to do so. He emphasises the following points. The appellant was living on the site with her two teenage children. It was their only home. She had been a licensee in her own right since 2004 and had been living there since 1999. When the judge decided that the public law defence was not seriously arguable, he knew that allegations of misconduct had been made, but he had heard no evidence and had made no findings in relation to them. Mr Luba submits that the claimant's decision to terminate the licence and issue proceedings was one which no reasonable authority could have made. It was taken without warning and without giving the appellant an opportunity to answer the allegations of misconduct. If the problem of concern to the claimant was the behaviour of the appellant's teenage son, this could and should have been addressed by seeking an ASBO or injunction.

38. The public law defence was not pleaded, but it seems that the claimant did not object to it being advanced by the appellant. In deciding that it was not seriously arguable that the decision of the claimant to recover possession was an improper exercise of its powers at common law, the judge was (rightly) following the approach summarised by Lord Hope at para 110 of Kay.

39. In Kay, Lord Brown of Eaton-under Heywood considered the availability of the public law defence in this class of case. He said:

"208. I should perhaps just add this. These appeals were brought on the basis that it is for the trial judge, pursuant to his section 6 duty, to consider for himself the issue of justification under article 8 (2) in any contested possession action. There is, however, a quite different basis upon which an occupier could challenge a public authority's claim for possession, namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful. Such a defence can clearly be advanced in the county court—see the decision of the House of Lords in Wandsworth London Borough Council v Winder [1985] AC 461.

209. The difficulty with such a defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court, as the appellants assert, under a primary duty to reach its own judgment on the justifiability of making a possession order.

210. For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That was not, be it noted, the basis of the actual judicial review application for which permission in that case was sought and refused. Indeed the council's decision there to drop the allegations of breach of licence and to assert instead a right to summary possession on the bald ground that the family were trespassers (see para 25) followed rather than preceded the failed judicial review challenge.

211. It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself. Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced."

40. This defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it or that it was unlawful for some other public law reason: see Kay at paras 110,118-190 and 207-212 and Doherty at paras 22(iii)(b), 37-40 and 61.

41. Mr Andrew Keyser QC rightly accepts that the length of a person's occupation of the site and his or her behaviour as an occupant are capable of being relevant to a consideration of this defence. I accept his submission, however, that the legislative and procedural framework is fundamental to any consideration of whether the authority was acting in a manner in which no reasonable authority could have acted. Connors involved a misuse of position in that the authority used its power to evict summarily by unilateral decision, bypassing any procedures for scrutinising the factual basis on which it had made its decision. Since the amendment to section 4 of the 1968 Act, that is no longer possible, at any rate if the occupier applies to the court for a suspension of the possession order. A local authority can obtain a possession order, but cannot recover possession if an application is made to suspend enforcement unless the court considers that it is not appropriate to exercise its discretion to suspend enforcement having regard to all the circumstances, including in particular those set out in section 4(4)(a) to (c) of the 1968 Act. The amendment introduced by the 2004 Act has changed the legislative landscape. Whether the change is sufficient to meet the requirements of article 8 is the issue raised by the amendment ground of appeal. But for the purposes of deciding whether in a particular case the public law defence is seriously arguable, let alone that it is made out on the facts, it is highly material that section 4 has been amended in this way.

42. The significance of the amendment is that a claimant's decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant's complaints about the defendant's behaviour.

43. The appellant can draw no comfort from the observations of Lord Brown in Kay to which I have referred. It may be that, for the reasons given by Lord Brown, a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence "without the need to make good any underlying reason for taking such precipitate action". The real difference between the present case and Connors is not that the appellant had been in occupation for a shorter period than was the family in Connors. The judge mistakenly thought that she had been in occupation since 2004, when she had in fact been in occupation since 1999. On any view, the site was her home and had been for a substantial period of time. The fact that she had not been in occupation for as long as the family in Connors is not, in my judgment, of much significance. The real difference between the two cases is that in Connors, once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended by the court.

44. Since the amendment to the 1968 Act, I find it difficult to conceive of a case in which a public law defence would succeed. Lord Brown referred to an "infinitely rare case such as Connors itself". It will only be in a truly exceptional case that it will even be seriously arguable that such a defence will succeed.

45. In the present case, the judge was right to hold that the defence was not seriously arguable. Although he rejected the allegations of personal misconduct on the part of the appellant, his finding of misconduct on the site by her son involved a finding that she was in breach of a condition of her licence, since she was responsible as the licence-holder for the conduct of those on the site with her permission: see condition A(n) of the licence. This provides:

"The Licensee or his/her resident family or visitors must not create a nuisance on the sites or to neighbouring properties. The Licensee shall be held responsible if any visitor/person living with him/her contravenes any of these Site Rules or Conditions."

46. Further, as Mr Keyser says, the claimant was entitled to bring proceedings on the basis of the evidence that it had from its site manager, Tina Farrow, that the appellant was personally guilty of conduct amounting to a nuisance on the site. The decision to terminate the licence and bring proceedings was informed by that evidence. It is true that the judge rejected certain of the allegations made by Ms Farrow. But it does not follow that the claimant was acting outside the bounds of reasonableness in bringing proceedings on the basis of those allegations. Although the judge generally found the appellant to be a good witness, he considered that she glossed over the conduct of some of the members of her family (para 7) and he made her son's absence from the site a condition of the suspension. Moreover, as Mr Keyser submits, the decision to institute these proceedings must be viewed in the context of an attempt to address the problems caused by a generally disruptive family, in which a culture of disrespect affecting the first and second defendants and the appellant's son presented a risk of disturbance and violence: see paras 30 and 31 of the second judgment.

47. But the most significant factor which justifies the judge's conclusion that the public law defence was not seriously arguable is the amendment to section 4 of the 1968 Act itself. It is true that the decision to serve the notice to terminate the licence was taken before the amendment came into force. But the amendment had been enacted before the notice was served and it came into force before the notice expired and before the proceedings were issued on 2 August 2005. In other words, the proceedings were started at a time when it was no longer possible for a public authority to evict a person such as the appellant merely on the basis of a valid notice to quit.

48. In these circumstances, it was reasonable for the claimant to issue these proceedings. In my judgment, Mr Luba has come nowhere near showing that this is one of those wholly exceptional cases where it is seriously arguable that the public law defence was available to the appellant.

31. Thus, Dyson LJ held that once the ground for possession had been shown, the authority was entitled to possession, and it was only in the rarest cases that a public law defence could succeed. I shall return to some observations I must make on that passage after setting out other features of the judgement. The Defendant in that case was arguing an incompatibility point. At paragraphs 52 to 66 Dyson LJ sets out his conclusions on that ground, and thereby sets out his approach to the relevance of Article 8 in this context:

" The amendment ground

52. Mr Luba submits that the amendment to section 4 of the 1968 Act did not remedy the incompatibility of the statute with article 8. The question whether the amendment made good the deficiencies in domestic law exposed by the ECtHR in Connors was left open in Doherty (para 21).

53. In support of his submission, Mr Luba makes the following points. First, the court still does not have the power to control the circumstances in which and the basis on which a gypsy's right to occupy a local authority site may be terminated by the court. An occupier can be reduced to the status of trespasser without any judicial scrutiny of the overall merits of the owner's entitlement to evict. The only control available is in relation to the owner's enforcement of the owner's right to possession.

54. Secondly, the vulnerable position of gypsies as a minority means that special consideration should be given to their lifestyle both in the relevant regulatory framework and in reaching decisions in individual cases: see Connors para 84. The amendment does not do this. One of its consequences is that the burden is placed on the occupant to show why the order for possession should not be enforced. The position under the Convention is that, if an order for possession would interfere with the occupant's rights under article 8(1), the burden is on the public authority to justify the interference under article 8(2).

55. Thirdly, one of the factors to which the court is required to have regard in deciding whether or how to exercise its powers to suspend enforcement is "whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it)" (section 4(4)(c)). This factor assumes that an occupant may be evicted from his home whether or not there are substantive grounds for requiring him to leave.

56. Fourthly, enforcement may be suspended for no more than 12 months at a time. Frequent recourse to the court is not compatible with the special treatment accorded by the Strasbourg jurisprudence to gypsies. Although section 4(5) of the 1968 Act provides that, where the court makes an order for possession but suspends its enforcement, the court is required to make no order for costs unless there are special reasons for making such an order, there are costs implications for the occupant in having to make frequent applications to the court to extend the suspension of the order. Each time, he has to pay the court fee and the cost of his legal representation.

57. Finally, Mr Luba submits that, even if the amendment sufficiently makes good the absence of procedural safeguards identified in Connors, it does not meet the discrimination point.

58. In my view, the starting point for a consideration of these submissions should be to decide the extent of the margin of appreciation accorded to the contracting states by the Strasbourg jurisprudence in this area. The general position is that in the field of socio-economic matters such as housing, the margin of appreciation available to the domestic authorities is a wide one: see, for example, Blecic v Croatia (2005) EHRR 13 para 65 and Stankova v Slovakia (merits and admissibility decision of 9 October 2007) para 59. Both of these were claims for possession by local authorities of rented housing accommodation and in both cases the tenant invoked article 8. But it has also been said that "where general social and economic policy considerations have arisen in the context of Art 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant": para 82 of the judgment in Connors. The vulnerable position of gypsies as a minority means that "some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases" (Connors para 83). Para 86 in Connors is the critical passage of the judgment for present purposes:

"The serious interference with the applicant's rights under Art.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 procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case, 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 with 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 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."

59. The main reason given by the court for its conclusion in this passage that the margin of appreciation is "correspondingly narrowed" is that the complete absence of any procedural safeguards was a serious interference with the applicant's article 8 rights which called for particularly weighty reasons of public interest in justification. The court is saying that, because of their vulnerable position, gypsies are entitled to procedural safeguards. The precise scope of these safeguards is a matter for the national authorities to determine. Provided that a reasonable degree of protection is afforded by the domestic law, the ECtHR will not interfere, even if a greater degree of protection could have been afforded.

60. I would reject Mr Luba's submissions largely for the reasons given by Mr Stilitz and Mr Keyser. The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession, but to order the eviction of an occupant such as the appellant provided that the 4 weeks' notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant's eviction. The local authority's reasons were irrelevant as were the occupant's personal circumstances. Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article 8(2). In short, there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier's rights under article 8(1) was justified on an application of article 8(2). Provided that the relevant formal requirements had been satisfied, the role of the court was purely mechanistic.

61. The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site. Summary eviction has been replaced by judicial examination. Section 4(1) now provides that the enforcement of a possession order may be suspended for such period up to 12 months "as the court thinks reasonable". The court has a wide discretion under subsection (2) to impose conditions when making an order for suspension. By subsection (3), the court may extend the suspension of the possession order for up to 12 months at a time. Subsection (4) requires the court to have regard to "all the circumstances" in deciding whether to exercise its power to suspend. The court is, therefore, required to conduct an examination of all the circumstances of the case. Moreover, as a public authority, the court is bound by section 6(1) of the 1998 Act to act in a manner which is compatible with occupiers' Convention rights. This means that it must exercise the discretion given by section 4 of the 1968 Act in that way.

62. Parliament could have gone further than it did to make good the deficiencies identified in Connors. It could have given security of tenure such as is afforded by the 1983 Act which the Government has announced that it will do. The question is whether the amendment goes far enough. In my view, for the reasons given by Mr Stilitz and Mr Keyser, it can no longer be said that the domestic law does not afford gypsies who occupy local authority sites procedural safeguards against eviction. It is true that such gypsies still do not enjoy procedural safeguards against the making of possession orders. But it is the act of eviction, rather than the act of making a possession order, which interferes with a person's right to respect for his home. Throughout the judgment in Connors, the emphasis is on the eviction, rather than on the possession order: see, for example, paras 68, 85, 89, 92, 94 and 95.

63. In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors.

64. I turn to the particular points made by Mr Luba (paras 54 to 58 above). In view of the conclusion that I have reached for the reasons given in paras 61 to 64 above, I shall express my views on these points briefly. I have already dealt with the first one. As regards Mr Luba's second point, it is true that there is a difference in the burden of proof. I doubt, however, whether in practice this is likely to make any real difference, especially since the court is obliged to exercise its discretion under section 4 in accordance with the Convention. But if it does, the difference falls within the margin of appreciation. The third point is of little weight. Whether alternative accommodation is available is a factor which would be taken into account under article 8: see para 85 of Connors. There is obvious force in the fourth point. A court should not repeatedly suspend the enforcement of a possession order for short periods unless there are good reasons for doing so. It must take account of the occupant's article 8 rights when exercising its discretion under section 4 of the 1968 Act.

65. Finally, I come to Mr Luba's argument that the discrimination point has not been met by the amendment. I have already said that, although the discrimination point was one of the features of the court's reasoning in Connors, it was not the main reason for the decision: see para 36 above. But even if that is wrong, the answer to Mr Luba's argument is that, by addressing the lack of procedural safeguards for gypsies of local authority sites, the amendment has also gone a long way to meeting the discrimination point. It is true that discrimination persists: it will not be cured completely until the 1983 Act is amended. But the discrimination has been much mitigated. In my judgment, the discrimination point adds nothing to Mr Luba's main submission that the amendment does not make good the lack of procedural safeguards identified in Connors. In my view, to the extent that the discrimination persists, the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting states.

66. I note that the appellant does not seek a declaration of incompatibility in relation to the amendment because of the likely amendment to the 1983 Act.

32. Wall LJ said:

68. "I have had the advantage of reading Dyson LJ's judgment in draft. I respectfully agree with it, and would dismiss this appeal for the reasons he gives.

69. I wish to add only two very short points. The first is to pay tribute to the manner in which this case was argued at the bar. Mr Luba's submissions, in particular, although they have not succeeded in this court, were extremely cogent and advanced with both realism and considerable skill.

70. Secondly, it is, I think, plain from the speech of Lord Brown of Eaton-under-Heywood in Kay that, as Dyson LJ states in paragraph 44 of his judgment, it will only be in a truly exceptional case that it will even be seriously arguable that what can be described in shorthand as the Winder defence will succeed. In my judgment, however, if such a defence is to be raised, it should be pleaded, so that the circuit judge having the conduct of the application can decide whether or not an adjournment is required for further evidence to be filed and whether or not oral evidence and cross-examination are necessary. I note that in paragraph 210 of his speech in Kay Lord Brown expressed the opinion that such a defence could have been successfully mounted in Connors, and it would seem to me equally that the defence might be available where, for example, the action of the claimant in instituting proceedings against a particular defendant was motivated by improper or personal considerations.

71. I respectfully agree with Dyson LJ, however, that quite apart from the absence of any pleading, the facts of the instant case come nowhere near the threshold required, and that the judge was right summarily to reject the defence."

33. Thus the Court of Appeal approach is to say that it is the act of eviction which deprives a man of his home, and the power to suspend possession is what provides the protection of rights under Article 8. On that basis, the court hearing these proceedings should not consider whether LBH addressed the Defendants' position under Article 8, nor whether it considered that LBH's decision to take proceedings was proportionate. It is fair to say that there are passages in Dyson LJ's judgement at paragraphs 42, 45 and 46 where he appears to say (a) that the claimant, by making a claim submits its reasons for seeking possession open to judicial scrutiny in the proceedings and (b) that the judge's findings about the conduct of the Defendant occupiers, as found by the judge in his second judgement after hearing oral evidence, were relevant to his conclusion that the public law grounds defence was not arguable. Mr Findlay QC and Mr Stilitz urged on me that those passages do not detract from the broader thrust of the judgement.
34. It will be recalled that section 5(1) of the Mobile Homes Act 1983, which does give some security of tenure, did not protect the Defendant in Smith v Buckland . It follows that the protection afforded as a result of the Court of Appeal decision was less than granted by section 5(1), and was limited to allowing for suspension.
35. However since Smith v Buckland we now have the decision of the House of Lords in Doherty. While Doherty relates to a statutory context which predates the 2005 amendment, the breadth of the discussion gives it great significance. The headnote at [2008] 3 WLR 636 summarises the facts;

The local authority owned a site which had been used for many years as a travellers' caravan site. The defendants, a family of gypsies, had been resident on the site for about 17 years pursuant to a licence granted by the authority when in March 2004, exercising its powers of management under section 24 of the Caravan Sites and Control of Development Act 1960, the authority served notice to quit on them. On 27 May 2004 it commenced proceedings for possession. On the same day the European Court of Human Rights gave a judgment holding that the eviction of a family of gipsies from a gipsy site by a local authority had been a violation of their rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The defendants relied on, inter alia, their right to respect for their home under article 8 and the duty of the local authority under section 6(1) of the Human Rights Act 1998 not to act in a way which was incompatible with a Convention right. The case was transferred to the High Court. The judge, relying on House of Lords authority that the contractual and proprietary rights to possession of a local authority landowner could not be defeated by a defence based on article 8 of the Convention, gave summary judgment in favour of the local authority with stay of execution pending a claim for judicial review or an appeal. The Court of Appeal dismissed the defendants' appeal.

36. The House of Lords held (per Lord Hope. Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe) that (in the words of the headnote) the definition of "protected site" in section 5(1) of the Mobile Homes Act 1983, in excluding gipsies from the statutory protection provided by the Act, was incompatible with the defendant's right under article 8 of the Convention to respect for his home; that section 5(1) of the 1983 Act could not be interpreted under section 3(1) of the 1998 Act in a way which was compatible with that right but in view of the passing of the Housing and Regeneration Act 2008 which remedied the defect a declaration of incompatibility was unnecessary. They concluded that the incompatible primary legislation remained fully effective until repealed or modified by Parliament, and under section 6(2)(b) of the 1998 Act the right of the local authority to exercise its unqualified right to possession of the defendant's site had to be enforced unless its decision to seek possession could be said to be one which no reasonable person would consider justifiable, that being an issue which could be raised in the proceedings for possession. They applied Kay v Lambeth London Borough Council [2006] 2 AC 465, HL(E) and Connors v United Kingdom (2004) 40 EHRR 189, and allowed the appeal, remitting the case to a High Court judge to determine the reasonableness of the local authority's decision to serve the notice to quit, taking into account the reasons given by the local authority for its decision and the length of time for which the defendant and his family had resided on the site. The majority held that the guidance in Kay on the approach to be adopted should continue to be followed, but in modified form.
37. It will be noted that the exercise remitted to the High Court Judge was one of "determining the reasonableness of the local authority's decision to serve the notice to quit, taking into account the reasons given by the local authority for its decision and the length of time for which the defendant and his family had resided on the site." (My italics) Of course that second matter is one which Dyson LJ appears to exclude from consideration in the passage cited above at paragraph 41 of his judgement, and impliedly does so at paragraph 60-62 and by Wall LJ in paragraph 70. Does, as Mr Cottle submits, Doherty widen the opportunity for the public law grounds defence to be argued than it was held to be in Smith v Buckland or in Kay, and do so to the point at which its decision should be considered against the ECHR ? In other words, in a case such as this does one still only apply Article 8 and any other engaged Articles at the stage of considering whether to evict – i.e. at the section 4 Caravan Sites Act 1968 (as amended) stage, or at the earlier stage also of the decision to seek possession ?
38. I bear in mind of course that Doherty is a case about the law before it was amended in 2005 to bring the amended section 4 into play, but if Doherty requires that the earlier stage under gateway (b) involves a wider remit than was held in Kay then that may have a significant effect on the degree of reliance one can place on Smith v Buckland.
39. As all counsel agreed, there are passages in Doherty which can be taken as supporting the arguments of both the Defendants in this action, and those of the Claimant LBH.
40. In my judgement, the starting point of applying Doherty must be that the existing statutory framework before section 4 was amended in 2005 has now been held definitively to be incompatible with Article 8 in the lack of the protection given under section 5(1) of the 1983 Act. The conclusion of the Court of Appeal in Smith v Buckland was that the amended section 4 of the 1968 Act had now introduced safeguards which were missing before, and in particular whether the occupier had the opportunity to challenge the allegations made against him- see Dyson LJ at paragraph 36.
41. In his speech at paragraph 22 ff Lord Hope states what he calls the " basic law"

"22 So I must make it clear at the outset that nothing that I may say in this opinion is to be understood as detracting in any way from the basic law as laid down by the majority in  Qazi  and reaffirmed by the majority in Kay  . The effect of those decisions was summarised by Baroness Hale of Richmond in  Belfast City Council v Miss Behavin' Ltd  [2007] 1 WLR 1420, para 36:

"there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in  Kay v Lambeth London Borough Council  [2006] 2 AC 465."

The basic rule is that such interference with the right to respect for the home as may flow from the application of the law which enables a public authority to exercise its unqualified right to possession does not violate the essence of the Convention right. Unless the legislation itself can be attacked, this is a conclusion which can be applied to all cases of this type generally. It is not open to the court, once it has decided in any individual case that the effect of the legislation is that the public authority's right to possession is unqualified, to hold that the exercise of that right should be denied because of the occupier's personal circumstances.

23 As I pointed out in Qazi  , at paras 37-38, the background to the issue which the House was asked to consider in that case was set out in the Law Commission's Consultation Paper on Renting Homes 1: Status and Security (2002) (Consultation Paper No 162), Part V, The Impact of Human Rights Law. As the author explained in para 5.76 of the Consultation Paper, the implication of a conclusion that article 8(1) was always engaged by an eviction was that a procedure which enabled the court to consider the issue of proportionality would become a necessity in respect of any use by a public authority landlord of a procedure under which, by the operation of law, it would previously have been entitled to recover possession automatically. If so, this result would affect housing associations and other registered social landlords as well as local housing authorities. The point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants whose lease has by the operation of law been terminated. A procedure which gave a discretion to the court by requiring it to consider whether having regard to article 8(2) the making of the order would be proportionate would be inimical to that purpose. Lord Bingham of Cornhill was careful to point out in Qazi  , at para 23, and again in Kay  , at para 28, that nothing in his opinions in those cases was to be understood as applying to any landowner or owner who was not a public authority. But, as I said in Kay  , para 64, the effect of such a procedure on private landlords cannot be left out of account. I described the conundrum that, as I saw it, the minority view in  Kay  gave rise to and which the majority in  Qazi  were seeking to solve in para 65 of my opinion in that case.

24 Therein lies the importance of the decision in  Qazi  in domestic law. But it was soon to become apparent that it was in need of some modification if it was to be compatible with the reasoning of the European Court in Strasbourg in three cases which were decided after the decision of this House in  Qazi: Connors v United Kingdom  40 EHRR 189;  Blecic v Croatia  (2004) 41 EHRR 185 and Stanková v Slovakia  (Application No 7205/02) (unreported) given 9 October 2007. The decision in McCann  fits in to this pattern. The applicant in that case had been entitled under the statutory scheme to the protection of an independent determination by the court of the reasonableness of a claim for possession: see ground 2A in Schedule 2 to the Housing Act 1985 (as inserted by section 145 of the Housing Act 1996 and amended by paragraph 33(b) of Schedule 8 to the Civil Partnership Act 2004). The local authority deprived him of that protection by inviting his wife to sign a notice to quit. This was something that it was enabled to do by the common law as, in the absence of any term in the tenancy agreement to the contrary, the tenancy was terminable by a notice to quit given by one joint tenant without the concurrence of the other:  Hammersmith and Fulham London Borough Council v Monk  [1992] 1 AC 478. As in Connors  , he was evicted from his home without the proportionality of the local authority's decision to recover possession being determined by an independent tribunal.

42. Lord Hope then turned to the position of gypsies. After describing the statutory framework, he concluded at paragraph 32-3

" 32 The Strasbourg court said in Connors , at para 94, that it was not persuaded that the necessity for a "statutory scheme" which permitted the summary eviction of the applicant and his family had been sufficiently demonstrated. The same scheme applies to the first defendant's case, as the council commenced proceedings against him before the coming into effect of the changes that have been and are about to be made to it. In para 92 the court set out its conclusions on the point that it had made in para 84 that some special consideration should be given to the needs of gipsies and their different lifestyle in reaching decisions in particular cases. The Government had relied on the possibility of applying for judicial review to obtain scrutiny of the lawfulness and reasonableness of decisions taken by the local authority. But the court did not consider that this could be regarded as assisting gipsies in circumstances where the local authority terminates licences in accordance with the applicable law. It summarised its conclusions as to the effect of the legal framework in para 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."

33 The procedural safeguard that was lacking in  Connors  was an ability to challenge in court, by way of a defence, the allegations of misconduct that were the basis for the authority's decision to seek the possession order against the applicant. Applied to this case, special consideration to the needs of gipsies and their different lifestyle requires that the first defendant must be able to insist, by way of a defence to the claim, that it be shown there is a proper justification for the decision to seek a possession order. It must be shown that the claimant's decision to evict him and his family from the site was justified by a pressing social need and was proportionate. If that cannot be done, there is a risk that the first defendant's rights under article 8 will have been violated."

43. He then referred to the decisions in Qazi and Kay, and said at paragraph 36:

"36 The decision of the majority, as summarised in para 110 of my speech, went as far as it was necessary to go to provide answers to the two cases that were before the House in Kay. But the facts in those two cases were very different from those in the present case and from those in McCann. The appellants in Kay v Lambeth London Borough Council never had any rights of occupation granted to them by the landowner. The appellants in Leeds City Council v Price were gipsies, but they had been present on the recreation ground for only two days when proceedings were taken against them for the making of a possession order. In both cases it was held the appellants' interests were sufficiently protected by requiring proof by the local authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. Neither of them was close on its facts, as this case is, to Connors. For reasons that I shall seek to show, I believe that the answer to the article 8 issue in this case can be found in the formula that is set out in para 110. But I would be the first to acknowledge that the way that the formula works in a case of this kind requires further explanation. To some extent too it needs to be modified."

44. At paragraph 39, having addressed the fact that on the Doherty case the parties had been in occupation for about 17 years (cf the 16 years in Connors ) he referred to the effects of section 6 of the Human Rights Act 1998, and identified three categories of case, the third one being the one material to this issue:

The cases in which the effect of section 6(2)(b) of the 1998 Act has been considered so far demonstrate that three distinct situations may arise. The first is where a decision to exercise or not to exercise a power that is given by primary legislation would inevitably give rise to an incompatibility. That was the situation in R v Kansal (No 2) [2002] 2 AC 69, as Moses J observed in R (Wilkinson) v Inland Revenue Commissioners [2002] STC 347, para 41. The prosecutor's decision to adduce evidence of the answers which had been obtained under compulsion pursuant to section 433 of the Insolvency Act 1986 was bound to result in a breach of article 6 of the Convention. The second, which lies at the opposite end of the spectrum, is where the act or omission of the public authority which is incompatible with a Convention right is not touched by one or more provisions of primary legislation in any way at all. As the matter is not to any extent the product of primary legislation, the sovereignty of Parliament is not engaged. The act or omission will be unlawful under section 6(1) because section 6(2)(b) does not apply to it. The third situation lies in the middle. This is where the act or omission takes place within the context of a scheme which primary legislation has laid down that gives general powers, such as powers of management, to a public authority. That is the situation in this case. The answer to the question whether or not section 6(2)(b) applies will depend on the extent to which the act or omission can be said to be giving effect to any of the provisions of the scheme that is to be found in the statutes."

45. Lord Hope continued:

40. Guidance as to how the third situation is to be approached was given in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681, with which the House's decision in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30; [2005] 1 WLR 1718 should also be read. My noble and learned friend Lord Walker of Gestingthorpe has very helpfully quoted the relevant passages from Hooper, so I do not need to repeat them. The important point, as Lord Hoffmann explained in paras 48 and 49, is that section 6(2)(b) assumes that the public authority could have acted differently but excludes liability if it was giving effect to a statutory provision which could not be read in a way that was compatible with the Convention rights. It protects a decision to exercise or not to exercise a discretion that is available to it under the statute. It seems to me, looking at the statutory scheme as a whole that applies to this case, that this is indeed what the respondent was doing when it decided to apply for a possession order. It was exercising its powers of management under section 24 of the 1960 Act when it decided to terminate the appellant's contract. It is true that it was making use of the method which the common law provides for doing this, but this was because the statutory scheme permitted it to do so. Public authorities which make use of the common law in the exercise of their statutory powers of management are in no less favourable a position under that section 6(2)(b) than they would have been had their powers been derived entirely from statute: see my own opinion in Hooper, para 83.

41. In one key respect the two cases are different. Here, unlike Connors, there are no factual allegations of anti-social behaviour or of misconduct in any other respect on the part of the appellant or members of his family. Had there been allegations of that kind it would have been clear that, unless some special consideration were given to his case to enable him to challenge them, there would be a violation of article 8 of the Convention. There would be a strong argument that this would also result in a violation of article 14 in conjunction with article 8 because the appellant was being discriminated against by the legal framework that existed when these proceedings were brought. But the absence of factual allegations of that kind does not mean that there may not be a violation in this case. On the contrary, the discrimination against gipsies that is inherent in the legal framework applies generally irrespective of the grounds on which possession is being sought.

42. The question is whether it is possible for this violation of the appellant's Convention rights to be avoided, given that the basic principle that was established by Qazi is that the law itself strikes a fair balance between the rights of the individual and the interests of the community. As I said in para 109 of my opinion in Kay, and again at the outset of para 110, a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out. The personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law. That is the basic law that was established in Qazi and it is the point on which the majority in Kay differed from the minority: see ground (3)(b) in para 39 of Lord Bingham's opinion. This however is an exceptional case, and it is the law itself that is at fault. The legal framework that applies to the appellant's case is defective because the statute excludes the gipsy community from its procedural safeguards. The modification that was made to Qazi to accommodate the decision in Connors applies to this case.

46. So one may extract the following principles

(a) The "basic law" as set out in Qazi is compatible with Article 8, unless allegations are made of anti-social behaviour or of misconduct in any other respect on the part of an occupier or members of his family which he is not permitted to challenge, in which case it is incompatible;

(b) The law dealing with the taking of possession against gypsies is defective in is omission of procedural safeguards.

47. One sees then that in the speech of Lord Hope, a case where alleged misconduct is involved may involve a breach of Article 8, whether or not the procedural safeguards are provided to protect gypsies.
48. Lord Hope then addressed what has become known as gateway (b). He described it thus at paragraph 44

The other part of para 110, referred to by the Court of Appeal as gateway (b), was designed to leave open the possibility of a challenge on public law grounds that the public authority's decision to bring the claim was so unreasonable as to be unlawful. Its purpose was also to make it clear that this objection could be advanced as a defence in the county court. Lord Brown mentioned this point in Kay, para 209; see also Lord Bingham of Cornhill, para 30, Lord Nicholls, para 60. In para 210 Lord Brown said that an argument could perhaps have been mounted successfully in Connors that, having regard to the great length of time that the family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That comment was made in the context of a discussion about review of the decision at common law. In this case, as the Court of Appeal pointed out in para 61, the respondent's decision was based on an administrative judgment about the appropriate use of the site in the public interest. This is the kind of decision whose lawfulness is open to challenge by way of a defence to the proceedings as an improper exercise of the powers of the public authority, quite apart from its obligations under section 6 of the Human Rights Act 1998, as Lord Nicholls said in Kay, para 60."

49. It will be noted that there he is addressing considering of the reasonableness of the authority's decision as a discrete topic from Article 8. At paragraph 52 he went on to say

" Gateway (b)

52. As I said earlier, the speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review. In para 60, for example, Lord Nicholls indicated that he had in mind a challenge in accordance with Wandsworth Borough Council v Winder [1985] AC 461 on grounds which, he said, had nothing to do with the Human Rights Act 1998. In para 208 Lord Brown too acknowledged that this was a quite different basis from that which the Act provides upon which a public authority's claim for possession could be challenged. In para 110 of my own speech I described this as a challenge that would be made at common law, on the ground that the decision was one that no reasonable person would consider justifiable. In para 114 I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary, unreasonable or disproportionate.

53. Gateway (b) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available. The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent's powers. In this respect the two routes, or "gateways", may be said to work together to address the incompatibility due to the lack of a procedural safeguard, which is the fundamental point that is at issue in this case. Gateway (a) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article 8. If it cannot do this, it will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent's decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable. This route offers a procedural protection under the common law. If taken, it will enable the grounds on which the respondent based its decision to be scrutinised. It might, on the facts of this case, provide the appellant with an effective defence to the making of the possession order. The fact that it is available as a defence seems to me to strengthen the argument, should it be needed, that it also provides him with the protection which he seeks against an infringement of his Convention right.

54. The Court of Appeal said in para 61 that it could see no purpose in remitting the case to the judge. I disagree, with respect, with this assessment. In para 43 of his judgment the judge said that it seemed to him that in this case judicial review would be able to check the fairness and legality of the respondent's decision. Now that it is clear that arguments of that kind may be presented by way of a defence to the proceedings under gateway (b), I think that he should be given the opportunity to carry out that exercise. Any factual disputes that may exist between the parties as to the facts on the basis of which the decision was taken will be capable of being resolved by him too. Lord Brown's observations in para 210 of his opinion in Kay add a further point that is relevant to this issue. The site had been occupied as their home by the appellant and his family for about 17 years when the notice to quit was served. So it could be argued that it was unfair for the respondent to be able to claim possession without being required to make good the reasons that it gave in its own statement of claim for doing so.

55. I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent's decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable. The further point to which Lord Brown referred will have a part to play in that assessment.

Conclusion

56. County Court judges should continue to follow the guidance that was given in Kay, para 110, as more fully explained in paras 45-55 of this opinion. As for this case, the Court of Appeal was right to hold that there was no arguable basis for asserting that the incompatibility of the respondent's decision could be dealt with under gateway (a). But it was wrong to hold that no purpose would be served by remitting the case to the judge so that he could examine the appellant's defence under gateway (b).

57. I would allow the appeal. I would remit the case to the judge in the High Court so that he can review the reasons that the respondent has given for serving a notice to quit to obtain vacant possession of the plots that the appellant and his family occupy. It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant's licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable. If he is satisfied that this requirement has been met he must make a possession order. There will be no answer to the respondent's unqualified right to recover possession. If he is not satisfied he must decline to make the order unless or until a justification that meets that test has been made out.

50. In my judgement it is quite clear from Lord Hope's speech that he was not seeking to permit a broadening of Kay to the extent that analysis of the decision of the authority against ECHR rights should be undertaken. His approach is predicated on the assumption that the law relating to gypsies is incompatible with the ECHR, and in my judgement it is thus illogical to read or apply it as if it allowed the Kay gateway (b) to introduce one. But, as he said at paragraph 36, the Kay approach required modification. Paragraph 57 of the speech introduces an additional element , namely "It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant's licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable."
51. I regard the reference to " resolving any dispute that he needs to about the facts" as potentially significant in a case such as this. It is to be noted also that Lord Hope is there addressing whether or not to make an order for possession. In a case where the authority's claim for possession rests upon hotly disputed cross- allegations of criminal and anti-social behaviour involving two families on a site, it is hard to imagine that such disputes would not include disputes about (a) what happened, and (b) whether it was reasonable of LBH to prefer one version to the other. I refer also to the reference by Lord Hope in paragraph 55 to Lord Brown's opinion at paragraph 210 of Kay.
52. Lord Rodger agreed with Lord Hope and Lord Walker. When addressing gateway (b) Lord Walker expressed unease about the decision in Kay on a topic which may be important. His speech reads in part:

107. I must candidly admit that I feel difficulty about this part of the appeal. As one of the minority in Kay, I must accept the decision of the majority, which distinguishes between grounds of judicial review which are based on the HRA and grounds ("common law" or "conventional" grounds) which are not based on the HRA. The minority accepted the view of Lord Bingham of Cornhill (in Kay at paras 36-38, and at sub-para (3)(b) in the summary in para 39) that article 8 might, highly exceptionally, provide a tenant or licensee with additional protection. Lord Hope, in the leading speech for the majority, disagreed (para 110). So did Lord Scott (para 172), Baroness Hale (paras 189-190) and (most emphatically) Lord Brown (paras 207-208).

108. We are all agreed that the decision in Kay cannot be reopened, and I must and do accept it. Nevertheless I think that I may properly express unease and indeed incomprehension at the suggestion, which is at least implicit in this part of the decision, that HRA grounds and traditional judicial review grounds can always be separately identified. My unease is only partly diminished by Baroness Hale's observations in Kay at para 190:

"It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council [2006] EWHC 301 (Admin)."

In Atkinson Sedley J (at p 534) quoted from an official circular, the quotation being repeated by Carnwath LJ in this case at para 56):

". . . local authorities should not use their powers to evict gypsies needlessly. They should use the powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land."

He added (at pp 535-536):

". . .those considerations in the material paragraphs which are not statutory are considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security."

That case was of course decided several years before the HRA came into force.

109. Public authorities are bound to take account of human rights. As our domestic human rights jurisprudence develops and becomes bedded down, this should be seen as a normal part of their functions, not an exotic introduction. I would echo a note by Anthony Lester QC and David Pannick QC to which I have already alluded ((2000) 116 LQR 380, 383):

"The central legislative purpose [of the HRA] is that of bringing the Convention rights home, that is, of domesticating them so that they are not regarded as alien rights protected exclusively by a 'foreign' European Court. To change the metaphor yet again, Convention rights must be woven into the fabric of domestic law. In the absence of a written British constitution, it is especially important to weave the Convention rights into the principles of the common law and of equity so that they strengthen rather than undermine those principles, including the principle of legal certainty."

Still more importantly, they must be woven into the fabric of public law. The argument against speaking about "conventional judicial review grounds" is not limited to the verbal incongruity of using that phrase to mean "grounds that have nothing to do with the European Convention on Human Rights."

110. The majority in Kay did not spell out clearly why they thought it necessary to distinguish between "conventional" and HRA grounds for challenging a housing authority's decision to take possession proceedings against a tenant. The most likely reason, I think (and Carnwath LJ seems to have taken the same view), is that most of the majority were applying section 6(2)(b) of HRA as construed by this House in R (Hooper) v Secretary of State for Work & Pensions [2005] 1 WLR 1681. That brings me to the second important and difficult point on section 6(2). The House's decision in Hooper answered (at least partially) a question which had been simmering since the HRA was enacted, as to the scope and effect of section 6(2)(b). The topic was considered in two cases of alleged discrimination which were decided together at each stage of their course through the courts: R (Hooper) v Secretary of State for Work & Pensions [2002] EWHC 191(Admin) (Moses J, 14 February 2002); [2003] 1 WLR 2623 (CA); [2005] 1 WLR 1681 (HL) and R (Wilkinson) v Inland Revenue Commissioners [2002] STC 347 (Moses J); [2003] 1 WLR 2623 (CA); [2005] 1 WLR 1718 (HL). At first instance they were heard separately, but disposed of in judgments delivered on the same day; in the Court of Appeal they were heard together, but with separate judgments; in this House they were heard consecutively by the same Appellate Committee. Each case concerned alleged discrimination against widowers on the ground of their gender, Hooper in connection with the payment of pensions under social security legislation and Wilkinson in connection with the grant of bereavement allowances for income tax purposes. Each case was complicated by issues of constitutional law (as to the authority for and the legality of extra statutory payments and concessions) which make some of the arguments on section 6(2) quite difficult to follow.

111. It is generally accepted that section 6(2)(a) applies to statutory duties, and section 6(2)(b) to statutory powers and discretions. But there is need for more analysis. A public authority with a statutory power may exercise it or not as it thinks fit, subject only to the usual public law restraints. Does section 6(2)(b) enable it to exercise the power with impunity in a way that infringes Convention rights, when it could act differently? In Wilkinson, Moses J cited the view expressed by Grosz, Beatson and Duffy, Human Rights: the 1998 Act and the European Convention (2000) para 4-22, that a public authority can rely on section 6(2)(b) only in circumstances where any exercise of the power would involve a breach of Convention rights. He saw this as supported by the Divisional Court in the Alconbury case (reported at that level as R (Holding & Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929 ); R v Kansal (No 2) [2002] 2 AC 69 and R (Friends Provident Life & Pensions Ltd) v Secretary of State for Transport, Local Government and the Regions ([2001] EWHC Admin 820 But Moses J went on to hold that the position was different in a situation in which a public authority could avoid a breach of Convention rights only by exercising a power on every single occasion when it was possible to do so, since then the power would become a duty, and would be destroyed as a power (the context was the suggestion that the Inland Revenue should grant an extra-statutory bereavement allowance to every widower, so as to avoid any discrimination). Moses J reached a similar conclusion in his unreported judgment in Hooper (his conclusion was quoted by the Court of Appeal, [2003] 1 WLR 2623, para 115).

112. In Hooper the Court of Appeal accepted the first limb of Moses J's reasoning, but rejected the second. However, on further appeal to this House Lord Hoffmann (with whom Lord Nicholls of Birkenhead and Lord Hope agreed) differed from the Court of Appeal and also differed from Moses J on what I have called the first limb ([2005] 1 WLR 1681, paras 48, 49, 51):

"But section 6(2)(b) says nothing about a decision having to be necessary for any particular purpose. If the 1992 or 1999 Acts had made it necessary not to make extra-statutory payments, the case would have fallen under section 6(2)(a). The Secretary of State could not have acted differently.

Clearly, section 6(2)(b) has a different purpose. It assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant in accordance with section 3. It follows that section 6(1) does not apply if the Secretary of State was acting incompatibly with Convention rights because he was giving effect to sections 36 and 37 of the 1992 Act . . .

This reasoning is in my opinion supported by the evident purpose of section 6(2), which was to preserve the sovereignty of Parliament: see Lord Nicholls of Birkenhead in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, para 19. If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation."

113. Lord Hope, as well as agreeing with Lord Hoffmann, added some further reasons of his own, including the following (para 73):

"The important point to notice about paragraph (b) is that the source of the discretion does not matter. What matters is (a) that the provisions in regard to which the authority has this discretion cannot be read or given effect compatibly with the Convention rights and (b) that the authority has decided to exercise or not to exercise its discretion, whatever its source, so as to give effect to those provisions or to enforce them. If it does this, this paragraph affords it a defence to a claim under section 7(1) that by acting or failing to act in this way it has acted unlawfully. In this way it enables the primary legislation to remain effective in the way Parliament intended. If the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. This power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament."

Lord Brown of Eaton-under-Heywood took a rather different line, but reached much the same conclusion. Hooper and Wilkinson were very special cases and the line of argument which the House rejected would indeed have amounted to an obvious large-scale subversion of Parliament's intention. I am not at all sure that the same reasoning can sensibly be applied to a housing authority's general powers of management of its stock of social housing. But I understand that I am bound, by the majority decision in Kay, to assume that that is how section 6(2)(b) applies.

114. In cases of this sort the relevant statutory discretions arise as part of the City Council's general statutory functions in managing its social housing stock under s.21 of the Housing Act 1985 or (as in this case) s.24 of the Caravan Sites and Control of Development Act 1960. There seems to be nothing in these statutory provisions which compels the City Council to take proceedings for possession in any particular circumstances (in contrast to the position of a judge who, if the case for possession has been made out, has no freedom of choice because of s.4(6) of the Caravan Sites Act 1968). But for Hooper and Kay I would have supposed that s.6(2)(b) does not apply to a case where a housing authority had power to start proceedings aimed at a summary order for possession but could lawfully have decided to take a different course (that is, either holding their hand for the moment, or starting proceedings framed in such a way that any complaint which they had against the tenant or licensee would be adjudicated on by the court).

115. My Lords, I had prepared most of my opinion down to this point when the House was informed of the decision of the Fourth Section of the European Court of Human Rights in McCann v United Kingdom 13 May 2008, Application No 19009/04, and decided to entertain further written submissions from the parties (including the Secretary of State as intervener) as to the significance of McCann. Having studied the decision and the further submissions I do not feel it necessary to withdraw or qualify anything that I have so far written. In common (as I understand it) with the rest of your Lordships I do not think, despite the decision in McCann, that it would be right for this Appellate Committee to depart from the decision recently arrived at in Kay by an Appellate Committee of seven members. That is my view even though we now know that McCann will not go to a full hearing before the Grand Chamber. But your Lordships certainly have to take account of McCann.

116. In the light of McCann the precise scope of what was decided by this House in Kay becomes a still more pressing question, since the Fourth Section of the Strasbourg Court shows an obvious preference for the views of the minority. Lord Hope takes the view (in para 36 of his opinion) that para 110 of his opinion in Kay requires further explanation, and as his explanation develops it narrows (without closing) the gap between HRA grounds and traditional judicial review grounds.

117. At this point I find it helpful to stand back a little and consider the very different positions of the Strasbourg Court and a court hearing a possession action in England and Wales. Strasbourg is concerned with the bigger picture: has the United Kingdom failed, through all or any of its legislative, executive or judicial arms, to meet the requirements of article 8(2) (it being a given that eviction from one's home engages article 8)? The Strasbourg Court is normally not much concerned with the separation of powers under the constitution of any particular country which is a party to a complaint, although it generally does in its written judgments record the part which each arm of government has taken in the matter. In McCann there is a particularly careful analysis, in paras 19 to 28 of the judgment, and it is clear that in that case (as in Connors) the breach of article 8 which the Court found was procedural (para 59 of the judgment in McCann). But the outcome in Strasbourg would have been the same, I think, whether the County Court judge's conclusion that he could not or should not enquire into proportionality had been imposed on him by Parliament (as for instance with an introductory or demoted tenancy under, para 1A or 1B of Schedule 1 to the Housing Act 1985), or resulted from the housing authority's action (under its normal policy, recorded in para 21 of the Strasbourg judgment) in getting Mrs McCann to give a notice to quit, or was caused by the judge's (wholly understandable) inability to foresee the twists and turns by which this area of law has evolved.

118. For the domestic court the position is very different. For the domestic court (at every level from a district judge to your Lordships' House) the European Convention on Human Rights is mediated through the HRA, which preserves parliamentary sovereignty. All courts have a duty to apply the interpretative obligation in section 3, but no one suggests that section 3 applies here. Judges at the level of the High Court and above have the power and duty, in appropriate cases, to make a declaration of incompatibility under section 4. Kay shows that a successful challenge to our housing legislation, as legislation, is likely to be extremely rare, because (as Baroness Hale put it in para 182 of her opinion, in a passage which I have already quoted)

"the Court is entitled to make two assumptions. The first is that the domestic law has struck the right balance between the competing interests involved: those of a person occupying premises as his home and those of the landowner seeking to regain possession of those premises in accordance with the law."

But it is only an assumption, and both Connors and the present case show that the special treatment which Parliament accorded to local authority gipsy caravan sites was, in human rights terms, a legislative error.

119. By contrast, the important distinction drawn by our housing legislation between tenancies as to which the court must be satisfied, and those as to which it need not be satisfied, that it is reasonable to make a possession order is, Kay tells us, not open to attack under section 4 of HRA, because Parliament has over a long period worked out arrangements which strike a fair balance between the article 8 rights of existing tenants (who may be only probationary, or may have lost secure status as a result of past failings) and the claims of others with a pressing need for social housing. So the important distinctions drawn by the Housing Act 1985 (as amended) between different types of tenancy cannot, since Kay and at the legislative level, be attacked as incompatible with article 8 rights.

120. But Connors and McCann show that the decisions that a housing authority makes in giving effect to the legislation may be open to attack, subject to section 6(2)(b), as having been made with insufficient respect towards the tenant's article 8 rights. It is understandable that housing authorities, faced with long waiting lists and limited human and financial resources to deal with possession cases, should seek the simplest and cheapest way of obtaining possession from tenants or former tenants. Why embark on proceedings which may involve a day or more's oral evidence (possibly involving witnesses liable to be intimidated) if there appears to be a route under which the defendant will not be able to resist summary judgment? Does not the authority's duty to its council tax payers, and in particular to those on the waiting list, compel the choice of the simpler, cheaper remedy?

121. The decisions of the Strasbourg Court in Connors and McCann show that housing authorities may find that, in the long run, that course will not be simpler and cheaper. Their housing policies ought to take account of the article 8 rights of tenants or ex-tenants, even if they are protected by section 6(2)(b) from direct challenge in the courts. To adopt a Convention-compliant policy could not possibly be described as subverting the will of Parliament (the expression used by Lord Hoffmann in Hooper). Even if section 6(2)(b) of HRA gives a housing authority immunity, the decision-making process leading up to the commencement of proceedings ought to be Convention-compliant. In Connors, the authority decided simply to terminate Mr Connors' licence rather than undertake the burden of proving anti-social behaviour amounting to nuisance on the part of his extended family. In McCann, the authority gave effect to its policy of obtaining a "relinquishing form" (that is, a notice to quit terminating the tenancy) signed by the departing wife, so making it unnecessary for the authority to call evidence of domestic violence, and depriving Mr McCann of the opportunity of challenging such evidence. The Strasbourg Court stated (para 55):

"It is, for present purposes, immaterial whether or not Mrs McCann understood or intended the effects of the notice to quit. Under the summary procedure available to a landlord where one joint tenant serves notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case."

122. In these circumstances I find that I have to reconsider a remark in my dissenting opinion in Kay, that circumstances of this sort would be highly exceptional. Obtaining a "relinquishing notice" was (and perhaps still is) part of the Birmingham City Council's housing policy, and it may also be the policy of many other housing authorities. Such policies will need to be reconsidered. In the meantime there may be more cases of this sort than the Strasbourg Court supposed (para 53).

123. In deciding whether an arguable defence has been raised, and in hearing any contested case on its merits, the County Court judge (who is also a public authority for the purposes of HRA) will follow the guidance in para 110 of Lord Hope's opinion in Kay, as more fully explained by his opinion in this case. Occasionally section 3 of HRA may be in play. If section 4 is seriously in play, the case will have to be transferred to the High Court. If the defence is focused not on the legislation but on the housing authority's decision-making process the judge will in effect be hearing an application for judicial review on traditional review grounds. It is clear that any defence on these lines may now be raised and decided on oral evidence given in the County Court. It will no longer be necessary to have an adjournment to enable the defendant to make a separate application for judicial review (in which oral evidence would probably not be permitted).

124. I agree with Lord Hope (paras 54-56) that the Court of Appeal was wrong in its conclusion that there would be no point in remitting the case to the judge for further consideration. I would allow the appeal and make the order for remission that he proposes."

53. I have cited Lord Walker's speech at some length for three reasons

(a) His speech, and the reasons for his sense of unease, bears out the point that the effect of Kay and of Lord Hope's application of it in Doherty is not to enable scrutiny of LBH's decision to obtain possession in the context of ECHR/Article 8;

(b) He confirms that the Kay gateway (b) test has broadened so that it narrows (without closing) the gap between HRA grounds and traditional judicial review grounds.

(c) He draws attention to the wisdom of having such a case heard in the County Court.

54. I consider that the effect of the speeches in Doherty is to widen the scope of the enquiry that may be made into decision making by an authority. I do not consider that the effect of the amendment of section 4 in 2005 undercuts the points of principle which are established in Doherty but I do consider that , as per Smith v Buckland, the fact that Article 8 can operate at the stage of considering whether or not to evict, still gives it effect within the domestic law framework when taken as a whole, as per Smith v Buckland. However I also consider that in the light of Doherty the observations in Smith v Buckland that the circumstances where such a defence can be made out as wholly exceptional have been overtaken by subsequent authority. They were justified on the basis of the previous Kay test, but not on the wider one which now encompasses a broader consideration of reasonableness.
55. I also consider that the test is no longer whether the claim on public law grounds is " seriously arguable." It is now , as per Doherty at paragraph 55, whether the decision was reasonable, in the sense of whether no reasonable person would think that recovering possession was justifiable.
56. I also consider in the light of Lord Hope's speech that a judge, while he must eschew simply substituting his own judgement for that of the local authority, must grapple with whether it had material before it, and whether the decision was reasonable. He is not bound to consider the matter on paper, but has a discretion as to how he should conduct the hearing, within the limits set by Lord Hope's speech. I draw attention also to paragraph 54 of Lord Hope's speech, and the importance of the claimant authority justifying its decision to seek possession, and to his reference to Lord Brown's concerns..
57. That approach has other practical effects:

(a) it will help the judge when he gets to the stage of considering whether or not to suspend possession. As already noted, at that stage he will have to weigh the case in favour of suspension against the case for it. Of course the fact that LBH will have a right to possession is a matter which must attract weight, but the degree of weight depends on many other factors, and since that is the relevant stage at which to address Article 8 issues, then proportionality will be of significance. An order for possession sought because an occupier is one month behind with the rent is a far less powerful one than one where the arrears have amassed over six months. An occupier who has been engaged in one drunken act of disorder during a row with his neighbour may be regarded as much less culpable than one who has inflicted serious physical harm and engaged in numerous threats. I do not intend to set out a prescriptive list, as there is a wide variation of relevant circumstances, and a wide variation of potential weight that can be ascribed.

(b) I regard it as artificial to have one judge address whether the authority acted reasonably when considering the wider Kay approach, and another one then addressing that issue again, or at least a closely related issue, at the suspension stage. I follow Lord Walker's reluctance to see an Administrative Court judge having to hear oral evidence in a forum unsuited to it. There is no better tribunal, nor one more experienced in dealing with disputes of this kind in housing cases, than an experienced circuit judge sitting in the county court. I express the view that this matter should be heard by a circuit judge with experience of possession disputes.

D The future conduct of the litigation and consequent orders

58. Given the fact that the protection of Article 8 rights (and Article 1 of the First Protocol) is only achievable at the stage when suspension is considered, but must be considered then, I regard it as inevitable that this action will at some stage involve disputes on fact. That being so, witnesses will inevitably be required, certainly for the defendants, and for the claimant LBH.
59. In my judgement the most convenient forum for the determination of all the disputes which are before the court is the County Court, now that the incompatibility argument has been abandoned. I appreciate that the hearing may not be in Uxbridge, but I regard the County Court as the preferable forum. That accords with the approach in Wandsworth BC v Winder and with that of Lord Walker in Doherty.
60. I therefore order that the matter be remitted to the Uxbridge County Court. At that hearing I direct that the Court should approach the issue of the challenged decision by LBH in accordance with paragraphs 45-55 of Lord Hope's speech in Doherty as interpreted in this judgement.
61. The Defendants shall, by 18^th December 2008, file and serve any witness evidence upon which they intend to rely. The Claimant LBH and , if so advised, the Interested Party Secretary of State shall, by 16^th January 2009, serve any detailed ground of resistance and any witness evidence upon which they intend to rely.
62. I consider that , as the action will inevitably involve disputes of fact, disclosure should take place as per CPR 31.5. Once the witness evidence has been exchanged, it will then be appropriate for any disputed areas of discovery to be resolved by the District Judge.
63. It is a matter for the County Court Judge, when s/he has read the documents, and importantly, read the witness evidence, to determine whether s/he holds one hearing or more than one when dealing with the claim, provided that is that s/he follows the guidance in Kay as amplified in Doherty on the scope of the gateway (b) issue. It may be that convenience to witnesses and the avoidance of delay makes it sensible to have one hearing: or s/he may conclude that a split hearing approach is more sensible.
ORDER

1. Both matters remitted to the Uxbridge County Court.

2. Hearing date of 27^th and 28^th January 2009 vacated

3. Direction that the County Court should approach the issue of the challenged decision by the Claimant in accordance with paragraphs 45-55 of Lord Hope's speech in Doherty as interpreted in this judgement.

4. The Defendants shall, by 18^th December 2008, file and serve any witness evidence upon which they intend to rely. The Claimant and , if so advised, the Interested Party Secretary of State shall, by 16^th January 2009, serve any detailed ground of resistance and any witness evidence upon which they intend to rely.

5. Disclosure should take place as per CPR 31.5. Once the witness evidence has been exchanged, any disputed areas of discovery to be resolved by the District Judge.

6. Costs in the cause.

7. If permission is required, the parties have permission to appeal to the Court of Appeal, the time for appealing being extended to 12^th January 2009