High Court of Ireland Decisions

Judgment Title: Leonard -v- Dublin City Council & Ors

Neutral Citation: [2008] IEHC 79


High Court Record Number: 2007 916 JR

Date of Delivery: 31 March 2008

Court: High Court

“13(a) Neither the tenant nor any member of his household or any household or any sub-tenant or visitor shall cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to council staff.
13(c)(vii) The tenant must not, at any time, invite or allow to remain on any part of the dwelling or garden, any persons in respect of whom the council has notified the tenant that they should not enter or remain on the property.
26. The tenancy may be terminated at anytime on the giving of four weeks notice by the tenant or the council…
28. The tenant shall on the termination of the tenancy, peaceably and quietly deliver up possession of the dwelling to the council.”

“if at any time in the future, Mark Keating is found to be or have been in dwelling 17 Robert Emmett Walk, you are in breach of the terms of your tenancy and Dublin City Council will be entitled to bring proceedings to recover possession of the dwelling… under s. 62 of the Housing Act, 1966, in the interests of good estate management.”

“9. By letter dated the 10th February, 2006 your deponent wrote to the applicant for the purpose of drawing to her attention Clause 13(vii) of her tenancy agreement and to point out that as Mark Keating had been found in her dwelling she was in breach of her tenancy agreement. The applicant was requested to attend for interview, and on the 21st February, 2006 both the applicant and Mark Keating attended a meeting with your deponent. Following that meeting the council issued a final warning to the applicant by letter dated 27th April, 2006 that the council would consider terminating her tenancy if she breached Clause 13 of her tenancy agreement. I beg to refer to true copies of the said letters upon which pined together and marked with the letters and number MC3, I have endorsed by name prior to the swearing hereof.
10. On the 9th May, 2006 the council received a complaint that Mark Keating was visiting No. 17 Robert Emmett Walk, and on the 10th May, 2006 a further complaint was received that Mark Keating was residing there. I wrote to the applicant by letter dated the 12th May, 2006 to inform her that complaints had been received that she was in breach of her tenancy agreement, and I requested her to attend for interview and advised her that a recommendation would be made to terminate her tenancy. On foot of that request, both the applicant and Mark Keating attended a meeting with your deponent on the 29th May, 2006 and in the course of that meeting it was admitted that Mark Keating had been on the premises. At the conclusion of the meeting I informed the applicant that a notice to quit would be served on her for breach of the tenancy agreement. Following that meeting the council wrote again to the applicant by letter dated the 26th July, 2006 to advise her that she could request a review of her case within a period of ten days, as it was intended to terminate her tenancy. By letter dated 8th August, 2006, the council received a request for review from Brophy Solicitors on behalf of the applicant. Further correspondence dated the 11th August, 2006 was received from Brophy Solicitors and the council responded thereto by letter dated 25th August, 2006. By letters dated the 8th and the 11th September, 2006, Brophy Solicitors made further representations on the applicants behalf and by letter dated 21st September, 2006 furnished certificates in support of her application for review.”

1. A declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that s. 62 of the Housing Act, 1966 (as amended) is incompatible with Ireland’s obligations under the Convention.
2. A declaration that the determination by the Dublin District Court on the 15th day of February, 2007 in respect of a notice to quit served on the plaintiff pursuant to s. 62 of the Housing Act, 1966 (as amended) was in breach of the plaintiffs rights under the European Convention on Human Rights and in particular, Articles 3 and/or 6 and/or 8 and/or 13 and/or 14 thereof.

“8. When the applicant attended the District Court hearing on the 15th February, 2007 she no longer had legal representation. When her case was called she applied for an adjournment in order to try to seek alternative legal advice, but this application was opposed by the first named respondent and refused by the learned District Judge. Thereupon the first named respondent gave evidence by an officer or employee of various matters pertaining to the tenancy and to the demand made for the possession of the premises. However, the applicant is not in a position to say what actually occurred as it all went by very quickly and she did not understand what was happening.
9. The fact is that the summons commanding her to appear at the said District Court invited her to show cause why a warrant under s. 62 of the Housing Act, 1966 should not issue. Not withstanding that fact the learned District Judge did not call upon, or invite the applicant to address the court or otherwise afford her the opportunity of being heard or to take any part in the proceedings. As a result, the applicant was unable to show what steps she had taken to cease any alleged anti-social behaviour at her said dwelling house by e.g., avoiding former associates in the dangerous drug taking community and refusing to allow them to come to her home. She was unable to point out that Mark Keating had never been convicted of drug trafficking or drug dealing, either at her home or anywhere else. Neither could she give any undertakings to the court to ensure that she and her partner would continue on the methadone treatment programmes they had embarked on. In short, there was no opportunity for the applicant to advance any relevant considerations, excuses or extenuating circumstances either in person or by a representative on her behalf.
10. The District Judge being duly satisfied by the formal proofs provided by the first named respondent, he issued a warrant under s. 62 of the Housing Act, 1966 for delivery of possession of the said dwelling house to the first named respondent. The applicant has appealed this order and her appeal is now pending before the Circuit Court.
11. Accordingly, the procedure before the District Court on the 15th day of February, 2007 was in breach of the applicant’s constitutional rights and of the principles of constitutional and natural justice and of the applicant’s rights under the European Convention on Human Rights.”
The Housing Act 1966

(i) a dwelling provided by a housing authority under this Act,
(ii) any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act, or
(iii) a dwelling of which the National Building Agency Ltd is the owner, whether by reason of determination of a tenancy or otherwise, and
(b) there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver up possession of the dwelling or building or part thereof on a demand being made therefore by the authority or agency as the case may be, and
(c) there is a statement in the demand of the intention of the authority or agency to make application under this subsection in the event of the requirements of the demand not being complied with, the authority or agency may (without prejudice to any other method of recovering possession) apply to the justice of the District Court having jurisdiction in the District Court district in which the dwelling or building is situate for the issue of a warrant under this section…
(3). Upon the hearing of an application duly made under subsection 1 of this section , the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection 1 has been duly made, issue the warrant…
(5). In any proceedings for the recovery of possession of a dwelling or building or part thereof mentioned in subsection 1 of this section, a document purporting to be the relevant tenancy agreement produced by the body by whom the proceedings are brought shall be prima facie evidence of the agreement as it shall not be necessary to prove any signature on the document and in case there is not tenancy in the premises to which the proceedings relate by reason of the termination of a tenancy by notice to quit and the person to whom such notice was given is the person against whom the proceedings are brought, the following additional provisions shall apply:
(a) Any demand or requirement contained in such notice that the person deliver up possession of the said premises to the authority or the agency, shall be a sufficient demand for the purposes or paragraph b of the said subsection 1;
(b) any statement in the said notice of the intention of the authority or the agency to make application under subsection 1 of this section in respect of the premises shall be a sufficient statement for the purposes of paragraph C of the said subsection 1.
(6). Nothing in the Landlord and Tenant Acts, 1931 and 1958 or the Rent Restrictions Act, 1960 shall be deemed to affect the provisions of this Act relating to the obtaining of possession of a dwelling or building or part thereof mentioned in subsection 1 of this section.”

“It will be seen that it is only when the provisions of subs. 1 of s. 62 have been complied with and the demand duly made to the satisfaction of the District Justice that he must issue the warrant. In other words, it is only following the establishment of specified matters that the subsection operates. This is no different to many of the statutory provisions which, on proof of certain matters, make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas. The court, therefore rejects the complaint that the section is invalid having regard to the provisions of the Constitution on the ground alleged.”

“Counsel for the defendant, in his oral argument, relies almost exclusively on the interpretation to be placed on word “duly” which appears twice in the section. As provided for in subs. 3 the judge of the District Court must be satisfied both that the application before him is duly made and, if so satisfied, he must be further satisfied that the demand mentioned in subs. 1 has been duly made. Counsel for the defendant made the ingenious argument that the word “duly” brings into play not just the formal proofs but the entire question of whether the plaintiff is carrying out its statutory obligations of housing towards the defendant, both in a substantive sense and in the sense of affording the defendant fair procedures. In making this argument, counsel for the defendant relies (inter alia) on the modern case law and jurisprudence relating to the obligations to house members of the travelling community, and the general tendency of the courts more and more to ensure that statutory obligations be fairly and constitutionally complied with. For instance, counsel for the defendant would argue that the District Judge should concern himself with whether the housing authority in ejecting the defendant is then in breach of its own housing obligations towards the defendant, that if there is a breach of that obligation, particularly in the context of no provision of reasonable alternative accommodation, the application for the warrant cannot be said to be duly made. Counsel for the defendant would further argue that the defendant is entitled to know the reason for the plaintiff’s desire to recover possession as a matter of fair procedures and that in the absence of such alleged fair procedures the District Judge should not regard the application as duly made. Counsel for the defendant says that having regard to the provisions of the Constitution and having regard to the Housing Acts generally, which form a single code, and the obligations of the housing authority thereunder, the section must be interpreted in this way.”

“While I see the force of these arguments, I find myself unable to accept them. I agree with counsel for the defendant that in considering the meaning of any one section in the Housing Acts, the entire statutory code must be considered and of course the Constitution always has be considered, but it would seem to me to be both reasonable and constitutional that there be available to a housing authority a rapid method of recovering possession of any one dwelling provided by it, without having to give reasons for so doing. The local authority has to consider its overall management of housing and it owes an obligation to all the persons in need of housing, as well as to any one individual. In that context, it is and ought to be entitled to plan its arrangements for providing housing, and furthermore there may be very good reason why confidentiality should be maintained in relation to any particular decision to recover possession of a dwelling provided by the housing authority, even though the person, the subject matter of the warrant may then become a person in need of housing.”

“In particular this court must have regard to the views expressed by Geoghegan J. when he stated that it would inconsistent with the purpose of s. 62 of the 1996 Act to interpret it in any other way than that formal proofs set out in the section alone are required and the district judge is not entitled to inquire into anything else. In reaching this conclusion, Geoghegan J. relied in particular upon the judgment of the Supreme Court in the case of The State (O’Rourke) v Kelly [1983] IR 58. Accordingly the issue that remains is whether having regard to the particular nature of the proceedings in the District Court, the applicant was entitled to the benefit of legal aid and whether in the circumstances where the respondent proceeded to entertain the application of Dublin Corporation when the applicant was bereft of legal aid and was not legally represented, he thereby exceeded his jurisdiction. It is to be noted that the proceedings before the District Court were in no way altered in their nature by reference to the fact that if successful the applicant would not be entitled to be re-housed by Dublin Corporation, unless this court were to hold that the District Court was entitled to consider the background to the application before it brought by Dublin Corporation. Notwithstanding the consequences of a decision made by the District Court in an application for a warrant under s. 62, I am of the opinion that the jurisdiction of the District Court is not enlarged if the consequences are greater for one tenant as opposed to another. Accordingly, I am of the view that the decision of Geoghegan J. in the Hamilton case is a correct statement of the jurisdiction of the District Court in an application such as that made by Dublin Corporation seeking possession of the applicant’s premises. … I am of the view that having regard to the restricted jurisdiction of the District Court in an application under s. 62 of the Housing Act, 1966 that the procedures involved are straightforward and relatively simple and involves certain straightforward proofs to be satisfied. … Essentially I come to the conclusion, contrary to the submission made by Mr. O’Donnell, that the case being presented by Dublin Corporation against the applicant was technical and complex and warranted legal representation being granted to her, that a true examination of the facts reveal that the case being presented to the District Court was not complex and while the term ‘technical’ has been used it simply relates to the procedures to be followed which were straightforward in themselves. This involved the proof of the tenancy agreement which would have been furnished to the applicant previously and secondly the service upon her of a notice to quit. These matters are proved by the production of the letting agreement and the notice to quit to the District Court judge.”

“But it would be inconsistent with the purpose of the section to interpret it in any other way than that formal proofs that the matters set out in this section alone are required and the District Court Judge is not entitled to inquire into anything else. If there are wider complaints, there is another forum for dealing with them.”

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

“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.

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

“In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘a declaration of incompatibility’) that a statutory provision or rule of law is incompatible with the State’s obligations under the convention provisions.”

“The point here is that égalité des armes is not a new concept but rather a new and striking expression of a value which has long been rooted in Irish procedural law. In Steel and Morris v. United Kingdom (Application 68146/01) (ECHR, Unreported, 15th February, 2005), the European Court of Human Rights said:
‘50. The adversarial system … is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality…
59. The court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial (see the Airey v. Ireland [1980] E.H.R.R. 305). It is central to the concept of fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the Court and that he or she is able to enjoy equality of arms with the opposing side.’
At paragraph 61, addressing the question of legal aid, the Court went on:
‘The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend inter alia on the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself or herself effectively.’”

“The important distinction to note between the O’Flaherty case, the Lynch case and the Rainey cases as well, indeed, as the other cases cited by Walsh J. in his judgment in the Lynch case is that they were all concerned with criminal proceedings in one shape or other; in contrast we are here dealing with civil proceedings. The purpose of the summons in this present type of proceeding is to give the party against whom possession of the dwelling house is sought notice that his case will be heard in the District Court on a particular date; that he will be given an opportunity of making his defence and that possession cannot be given against him, unless he gets a chance to make his case and that the District Justice is satisfied that all the statutory requirements entitling the local authority to an order for possession are in place; see State (O’Rourke) v Kelly [1983] IR 58.”

“It goes without saying therefore that the position of the tenant of a housing authority compares unfavourably with that of a private law tenant under contract or under the Landlord and Tenant Acts, the Rent Restrictions Act or a variety of other statutes. It may also be seen that the summary method whereby possession of such dwellings may be recovered, notably in circumstances where the tenant is regarded as having through misbehaviour brought about the termination of his own tenancy and thus forfeited the right to any alternative accommodation, may arguable infringe certain articles of the European Convention on Human Rights, and in particular Articles 6, 8 and 13 there of, and also Article 1 of Protocol 1 (protection of property) of the Convention.”

“neither the tenant or any member of the household or any household or any sub tenant or visitor should cause a nuisance, annoyance or disturbance to any neighbours, their children or visitors or to council staff.”

“Complaints have been received in this office in relation to antisocial behaviour for which, it is alleged, a member or members of your household are responsible, namely a Garda report received outlining details of a search of 17 Robert Emmett Walk where heroin and drug paraphernalia were seized. Also reports received in relation to people coming and going from 17 Robert Emmett Walk believed to be drug users, also allegations of harassment and intimidation of other residents.”

“The Council as landlord of approximately 27,500 dwellings has a duty to manage and control those dwellings and to secure and protect the interests of its tenants as far as reasonably possible in the peaceful enjoyment of their dwellings. The interests of good estate management require that the Council takes steps to avoid, prevent or abate anti-social behaviour in local authority housing areas. Anti-social behaviour adversely effects individuals’ health and well being, prevents them from enjoying their homes and such behaviour can cause a general deterioration in the surrounding living environment.”

“The Bridgefoot Street dwellings and the adjacent Oliver Bond Street Flats are situated in a City Centre residential area with serious social problems caused by high unemployment and serious anti-social behaviour which takes many forms but in particular, such behaviour consists of violence, threats, criminal damage to property and drug related activity. The presence of drug dealers and their customers have had a very serious impact on this local authority housing area. The Council and the local community are now working together to reverse the changes that have taken place and to provide a better living environment. As part of the redevelopment programme, the Bridgefoot Street flats were demolished and replaced with modern good quality duplex housing.”

“In the exceptional case where the applicant believes the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant’s home.”

“It seems to me that the following conclusions can be drawn from the language of article 8 (1) in the light of the observations in Marckx v Belgium 2 EHRR 330. The right to respect referred to in this paragraph extends to the person’s home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person’s right to privacy. The context in which the reference to the person’s “home” must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8 (1) does not concern itself with the person’s right to the peaceful enjoyment of his home as a possession or a property right. Rights of that kind are protected article 1 of the First Protocol.
51. The article must be read as a whole and the wording of article 8 (2) helps to explain article 8 (1). It refers to “interference” by a public authority “with the exercise of” the right described in article described in article 8 (1). The circumstances in which such interference is permissible indicate the limits within the article as a whole was designed to operate. Any interference with the right to respect for the person’s privacy has to be measured against what is in accordance with the law and, in certain strictly defined respects, is necessary in a democratic society. Here too the emphasis is on the balance between the rights to privacy on the one hand and the wider interest of the community in a democratic society on the other, rather than with issues about a person’s right to own or occupy his home as an item of property…
53. As the jurisprudence of the European Court of Human Rights and of the European Commission of Human Rights is developed, it has tended to reinforce the impression which is conveyed by Marckx v Belgium 2 EHRR 330 that the object of article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or occupy property.”

“78. In Lambert London Borough Council v Howard 33 H.L.R. 636, 645, para 32 where possession was sought against a secure tenant on the grounds of nuisance under ground two of Part I of Schedule 2 to the Housing Act, 1985, Sedley L.J said:
‘A legal threat to a secure home will, in the ordinary way, engage article 8 (1). In situations where the law affords an unqualified right to possession on proof of entitlement, it maybe that article 8 (2) is met, but that is not the present class of case and nothing in this judgment should be taken as impinging on it.’
As I have already indicated, I respectfully agree with the opinion which he has expressed in the first sentence of this quotation. But I think the point which he make of the outset of the second sentence can be expressed more strongly. My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met were the law affords an unqualified right to possession on proof that the tenancy has been terminated.”

“It is, of course, the case that the United Kingdom in common, I expected with all other signatories to the Convention have enacted elaborate social housing legislation. The degree of security of tenure provided to tenants of residential property on the expiry of the tenancies is highly complex. There are assured short hold tenancies, secure tenancies, non secure tenancies, introductory tenancies, service tenancies, furnished tenancies and, no doubt, others. The manner in which these tenancies can be brought to an end varies and depends on the contents of the relevant legislation. The respective rights of landlord and tenants, after termination of the tenancy depend on the content of the legislation. If, under the relevant provisions to the relevant legislation the tenant has no right to remain in possession, the case is no different from that in which there is no relevant legislation at all. If, pursuant to the provisions of the relevant legislation the tenant is entitled to remain in possession after the termination of his tenancy, there will have been a corresponding diminution of the landlord’s property rights. This diminution will put article 1 of the First Protocol into play. But social housing legislation of this character is well justifiable on the public interest grounds provided for by the article, James v United Kingdom [1986] E.H.R.R. 123. If, on the other hand, the tenant has no right to remain in possession against the landlord he cannot claim such right under article 8. To hold otherwise that article 8 can vest property rights in the tenant and diminish the landlord’s contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen’s home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state has chosen to enact. There is nothing in Strasbourg case law to suggest the contrary…
145. The third of these cases is Sheffield City Council v Smart [2002] LGR 467. This case concerned non secure tenancies. The tenancies had been duly determined by the local authority landlords. Possession was sought. Laws L.J, with whose judgment the other two members of the Court of Appeal agreed, said, at pages 480 to 481, paragraph 26, that:
‘The premises… were without question the women’s homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amount to an interference with the tenants right of respect of their homes’ and, at paragraph 27, that ‘eviction of these tenants would constitute a prima facie violation of their right to respect for their family homes.’
I respectfully disagree. Each home had been established on the basis of a proprietary interest in the premises obtained under the contractual tenancy granted by the landlord. How could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been established? The home was always subject to contractual and proprietary incidents. The contrary view seems to me to treat a “home” as something ethereal, floating in the air, unconnected to bricks and mortar and land.”

“Since the ‘contestation’ (dispute) over the decisions taken against them concerned a ‘civil right’, the applicants were entitled to have their cases (in French: ‘causes’) heard by a ‘tribunal’ satisfying the conditions laid down in Article 6 (1). In many member states of the Council of Europe the duty of adjudicating on disciplinary offences is conferred on jurisdictional organs of professional associations. Even in instances where Article 6 (1) is applicable, conferring powers in this manner does not in itself infringe the convention. None the less, in such circumstances the Convention calls for least one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).”

“The court notes that the appeal to the High Court, being on ‘points of law’, was not capable of embracing all aspects of the inspector’s decision concerning the enforcement notice served on Mr. Bryan. In particular, as is not infrequently the case in relation to administrative law appeals in the Council of Europe member states, there was no real hearing as such of the original complaints submitted to the inspector; the High Court could not substitute its own decision on the merits of that of the inspector; and its jurisdiction over the facts was limited.
However apart from the classic grounds of unlawfulness under English law (going to such issues as fairness, procedural propriety, independence and impartiality), the inspector’s decision could have been quashed by the High Court if it had been made by reference to irrelevant factors or without regard to relevant factors; or if the evidence relied on by the inspector was not capable of supporting a finding of fact; or if the decision was based on an inference from facts which was perverse or irrational in the sense that no inspector properly directing himself would have drawn such an inference.”

“Further more, in assessing the sufficiency of the review available to Mr. Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the contents of the dispute, including the desired and actual grounds of appeal.”

“In relation to the requirements of Article 6(1) as applied to the review by a court of an administrative decision made by a body not clothed with the independence and impartiality required of a judicial tribunal, the Strasbourg jurisprudence (as in relation to ‘civil rights’) has shown a degree of flexibility in its search for just and workman like solutions. Certain recent authorities are of particular importance… none of these cases is indistinguishable from the present, but taken together they provide compelling support for the conclusion that in a context such as this, the absence of a full fact-finding jurisdiction in the tribunal to which appeal lies from an administrative decision making body does not disqualify that tribunal for purposes of Article 6(1). This is a conclusion which I accept the more readily because it gives effect to a procedure laid down by Parliament which should, properly operated, ensure fair treatment of applicants such as Runa Begum.”

“The Strasbourg court however has preferred to approach the matter in a different way. It has said, first, that an administrative decision within the extended scope of Article 6 is a determination of civil rights and obligations and therefore prima facie has to be made by an independent tribunal. But, secondly, if the administrator is not independent (as will virtually by definition be the case) it is permissible to consider whether the composite procedure of administrate decision together with the right of appeal to a court is sufficient. Thirdly, it will be sufficient if the appellate (or reviewing) court has ‘full jurisdiction’ over the administrative decision. And fourthly, as established in the landmark case of Bryan v United Kingdom [1995] 21 E.H.R.R. 342, ‘full jurisdiction’ does not necessarily mean jurisdiction to re-examine the merits of the case but, as I said in Alconbury, at page 1416, para 87, ‘jurisdiction to deal with the case as the nature of the decision requires.’
It may be that the effect of Bryan is that the Strasbourg Court has arrived by the scenic route at the same solution as the Commission advocated in Kaplan, namely that administrative action falling within article 6 (a good deal of administrative action still does not) should be subject to an examination of its legality rather than its merits by an independent and impartial tribunal. Perhaps that is a larger generalisation than the present state of the law will allow. But, looking at the matter as an English lawyer, it seems to me (as it did to the Commission in Kaplan) that an extension of the scope of article 6 into administrative decision making must be linked to a willingness to accept by way of compliance something less than a full review of the administrators decision.”

“This resolves itself, following the Strasbourg reasoning which I have described, into the question of whether the County Court has jurisdiction to deal with the case as nature of the decision required. Mr. Morgan said that Bryan and Alconbury showed that when a decision turns upon questions of policy or “expediency”, it is not necessary for the appellate court to be able to substitute its own opinion for that of the decision maker. That would be contrary to the principles of democratic accountability. But, when, as in this case, the decision turns upon a question of contested fact, it is necessary either that the appellate court has full jurisdiction to review the facts or that the primary decision-making process be attended with sufficient safeguards as to make it virtually judicial.”

“The present case undoubtedly goes further still. It has four features which take it beyond the existing case law:

“I am persuaded by these considerations that extending the scope of article 6 (1) is a desirable end in itself, but needs to go hand in hand with moderating its requirements in the interest of efficient administration where administrative decisions are involved. In the light of the unsettled state of the jurisprudence of the Strasbourg Court therefore, I am content to assume, without deciding, that Runa Begum’s claim involved a determination of her civil right within the meaning of article 6 (1).”

“ The court cannot substitute its own findings of fact for those of the decision making authority if there was evidence to support them; and questions as to the weight to be given to a particular piece of evidence and credibility of witnesses are for the decision making authority and not the court. But these are the only significant limitations on the court’s jurisdiction, and they are not very different from the limitations which practical considerations impose on an appellate court with full jurisdiction to entertain appeals on fact or law but which deals with them on the papers only and without hearing oral evidence.”

“In the present case the subject matter of the decision was the distribution of welfare benefits in kind and critically depended upon local conditions and the quality and extent of available housing stock. The content of the dispute related to the reasonableness of the claimant’s behaviour in refusing an offer made to her which, if refused by her, would have to be offered to others on the homeless register. Any factual issue arising in the course of the dispute, even if critical to the outcome, would be incidental to the final decision. In my opinion the subject matter of the decision and the content of the dispute demanded that the decision be made by an administrative officer with experience of local housing conditions subject to a proper degree of judicial control; and that a right of appeal to the court on law only was sufficient for this purpose.”

“The emphasis is on the person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person’s right to the peaceful enjoyment of his home as a possession or as a property right.”

“70 The defendant’s lack of security is due to her low priority under the legislation because she was found to be intentionally homeless. She was and must be taken to be aware that she was never more than a tenant as a temporary measure. In the case of someone in her position, even if she is a mother of young children, it is perfectly understandable that Parliament should have provided a procedure which ensured possession could be obtained expeditiously and that Poplar should have availed itself of that procedure…
72 We are satisfied that notwithstanding its mandatory terms, section 21 (4) of the 1998 Act did not conflict with the defendant’s right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there were no contraventions of Article 8 or of Article 6.”

“90 An interference will be considered “necessary in a democratic society” for a legitimate aim and if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reason cited for the interference are relevant and sufficient remains subject to review by the court for conformity with the requirements of the Convention.
In this regard, a margin of appreciation must, inevitably, be left to the national authorities who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, it’s importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions.”

“99 It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.”

“124 The court recalls that in the case of Bryan it held that in the specialised area of town planning law full review of the facts may not be required by Article 6 of the Convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with Article 6 (1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as an affording adequate judicial control of the administrative decisions in issue.”

“81 An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reason cited for the interference are relevant and sufficient remains subject to review by the court for conformity with the requirements of the Convention.

‘insofar as the exercise of the discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principal enjoy a wide margin of appreciation.’
The court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislative judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation. It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individuals identity, self determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community. Where general and social and economic policy considerations have arisen in the context of Article 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.
83 The procedural safeguards available to the individual will be especially material in determining whether the respondent state has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.
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.”

“The existence of other procedural safeguards is however a crucial consideration in this Court’s assessment of the proportionality of the interference. The Government has relied on the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the Council’s decisions. It would also be possible to challenge the Council for any failure to take into account in its decision making relevant matters such as duties towards children. The Court would recall that the applicant sought permission to apply for judicial review and that permission was refused. In the applicant’s case, his principal objection was placed not on any lack of compliance of the Council with its duties or in any failure to act lawfully but on the fact that he and the members of the families living with him on the plot were not responsible for any nuisance and could not be held responsible for the nuisance caused by others who visited the site. Whether or not he would have succeeded in that argument, 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 case as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme. While therefore the existence of judicial review may provide a valuable safeguard against abuse or an 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.”

“However, even allowing for the margin of appreciation which is 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 of ‘flexibility’ or ‘administrative burden’ have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid. It would rather appear that the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursuing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle.”

“That, since the local authority in each case had an unqualified right to possession and the defendants had no right under domestic law to occupy their respective premises or remain on the land, their claims under Article 8 were unsustainable.”

“34. Under some statutory regimes, as where discretionary grounds are relied on to terminate a secure tenancy under the Housing Act 1985, the court may make an order for possession only where, other conditions for making such an order being met, the court thinks it reasonable to do so. This enables the court to take account of all circumstances which it judges to be relevant. If, in any case covered by such a regime, the statutory conditions are satisfied and the court does, on consideration of all the circumstances, think it reasonable to make a possession order, the court will in effect have undertaken the very assessment which Article 8(2) requires. In such a situation Article 8(2) adds nothing of substance to the protection which the occupier already enjoys.
35. Under some statutory regimes the court may be required to make an order for possession if certain conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order, the statutory scheme is nonetheless likely to satisfiy the Article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, the Court of Appeal found no breach of Article 8(2) in the use of s. 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para. 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R(McLellan) v Bracknell Forest Borough Council [2002] QB 1129, the Court of Appeal found no breach of Article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under s. 127(2) of the Housing Act 1996, since (para. 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being, it was held, adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart [2002] H.L.R. 639, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. … Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from Article 8.”

“The question then arises whether these cases should, even after this lapse of time, be remitted to the county court for consideration whether eviction is necessary in a democratic society, as that expression has been defined in the Strasbourg jurisprudence. I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary. But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made.”

“The starting point is clear enough. A possession order made by a court in respect of a defendant's home will be, at least ordinarily, an interference with the defendant's right to respect for his home within the meaning of Article 8. Equally clearly, in almost all cases of the two types mentioned above that interference will be justified as ‘necessary in a democratic society’ on one or more of the grounds set out in Article 8(2). The interference will be justified because in one case the defendants never had any right to be on the property at all. In the other case the defendants had only the limited rights afforded by the housing legislation. This complex, ever-changing law is testimony to the elaborate steps taken by Parliament to strike an appropriate balance between the competing interests of all those who are in need of homes. The country's housing stock is finite, and for many years the legislature has striven repeatedly to achieve the best and fairest use of the available housing. Parliament's decisions on this extremely difficult and intricate social problem are to be respected.
54. I said ‘in almost all cases’ because inevitably there may be the exceedingly rare case where the legislative code or, indeed, the common law is impeachable on human rights grounds. Connors v United Kingdom 40 E.H.R.R. 189, regarding the lack of protection for gypsies, is an example. It is this possibility, rare and exceptional though it may be, which gives rise to a hugely important practical problem. Day in, day out, possession orders are routinely made in county courts all over the country after comparatively brief hearings. The hearings are mostly brief because the time needed to dispose fairly of the formalities and also of questions of reasonableness, where they arise, is usually short. This will no longer be the position if, as has been contended, local authorities must now plead and prove in every case that domestic law meets the requirements of Article 8.
55. I am unable to accept this remarkable contention. The course proposed would be a recipe for a colossal waste of time and money, in case after case, on futile challenges to the Convention-compatibility of domestic law. On the contrary, despite the possibility of a successful challenge under Article 8, I see no reason for the present practice to change. Courts should proceed on the assumption that domestic law strikes a fair balance and that it is compatible with the requirements of Article 8 and also Article 1 of the First Protocol.”

“I agree with the Court of Appeal’s conclusion in the Leeds appeal that the decision in Connors is incompatible with the proposition that the exercise by a public authority of an unqualified right to possession will never constitute an interference with the occupier's right to respect for his home, and that it will always be justified under Article 8(2): [2005] 1 WLR 1825, para 26. Nowhere in my speech in Qazi did I subscribe to a proposition in such extreme terms. On the other hand, as I read the Strasbourg court’s judgment, it did not go so far as to say that the recovery of possession will constitute an interference with that right in every case where the premises are occupied by the person as his home. Connors was decided, as is usual in that court, on a relatively narrow ground which was related to its own facts.
99. As the court said in Connors at the end of para. 85, the central issue was whether, in the circumstances, the framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights. There is an echo here of the point made in para. 84 about the vulnerable position of gypsies as a minority and the need for some special consideration to be given to their needs and different lifestyles. No mention is made of the general principles or their application to the situation that was discussed in Qazi, where the issue was whether the procedure by which a public authority landlord recovers possession of residential accommodation from a former tenant whose tenancy has come to an end by operation of law by asserting its unqualified right to possession was incompatible with the rights guaranteed by Article 8. It is, of course, possible to envisage special cases other than that of gypsies. But the fact that special consideration must be given to their needs does not justify the proposition that this must be done in every case. As the Court of Appeal acknowledged in para. 29, a statutory regime may itself achieve the balance required by Article 8(2) so that, if the judge complies with it, the requirements of Article 8(2) will be satisfied.”

“But it needs to be stressed that the facts in Connors were entirely different from those in Qazi. There was no need in Qazi's case to give special consideration to the needs of gypsies and their different lifestyles, and the background to the local authority’s decision to seek a possession order was that a valid notice to quit had been served on the local authority by one of the tenants of the tenancy. Connors does not resolve the problem as to how the need to give special consideration to cases of that kind where the law itself is defective - and I do not confine this category to gypsies - can be fitted in to the domestic system which requires that orders for possession must be sought in the county court. So I do not think that the decision in Connors is incompatible with the view of the majority in Qazi that there is no need for a review of the issues raised by Article 8(2) to be conducted in the county court if the case is of a type where the law itself provides the answer, as in that situation a merits review would be a pointless exercise. In such a case the Article 8 defence, if raised, should simply be struck out.
113. For these reasons I do not think that the reasoning of the majority in Qazi should be departed from. But I accept that the reasoning needs to be clarified. In the light of the subsequent Strasbourg cases I would now place greater emphasis on the need for the court to provide a remedy in those special cases of a kind not considered in Qazi where it is seriously arguable that the right to possession which is afforded by domestic law violates the Convention right. Lord Millett suggested in para. 109 of his speech in Qazi that judicial review would provide the appropriate remedy. On balance I think that it would be better for the issue to be dealt with by way of defence to the proceedings in the county court, to the extent that the limits on the jurisdiction of that court permit it to do so.”

“As for these appeals, may I consider first the Lambeth appeals. The possession orders sought by Lambeth engage the Article 8 right to respect for the home of the respective occupiers from whom possession was sought. But an order for possession was in accordance with domestic law. As against Lambeth the occupiers had become trespassers with no right to remain in occupation. There was nothing discriminatory or unusual about the statutory and common law framework that produced that result nor about the absence of any statutory protection given to the occupiers by the housing legislation. I respectfully agree with my noble and learned friend Lord Bingham of Cornhill's remarks in para. 36 of his opinion that the balance required by Article 8(2) to be struck was struck by the general law, that the public authority owner had a right to manage and control its property within the bounds set by statute, that the occupier acquired only a limited right to occupy and that on due determination of that right, a claim by the owner must ordinarily succeed. The appellants, the Bruton tenants of LQHT, could not resist Lambeth's possession applications on Article 8 grounds unless either they mounted an Article 8 attack on the legal framework that entitled Lambeth to possession or they attacked on Article 8 grounds Lambeth's decision to seek possession. The first attack was not attempted, and, if it had been, would in my opinion have been bound to fail. There is nothing the matter, from an Article 8 standpoint, with a common law rule which gives the owner of property, which is occupied as a home by a person who has no right as against the owner to remain there, the right to recover possession of the property. Parliament’s omission to provide any statutory security of tenure for home occupiers in the position in which the Bruton tenants found themselves is well within the wide margin of appreciation referred to in Blecic .
170. As to the decision of Lambeth to seek possession of the properties occupied by the Bruton tenants, I agree with and adopt the conclusion expressed by Lord Bingham in para. 47 of his opinion. No facts have been pleaded or alleged by the appellants which outweigh the right and the duty of Lambeth to manage its housing stock. The wide margin of appreciation referred to in Blecic must be accorded to Lambeth.
171. The Article 8 defences were struck out by Judge Roger Cooke. They were in my opinion rightly struck out. If a defendant does not plead or allege sufficient facts which, if made good, could constitute a defence, the defence can be struck out. On the facts pleaded and alleged in the Article 8 defences the defences could not have succeeded.
172. Nor, in my opinion, where a home occupier has no contractual or proprietary right to remain in possession as against the owner of the property, could an Article 8 defence based on no more than the personal circumstances of the occupier and his family ever succeed. Connors is no authority to the contrary. The successful Article 8 defence in Connors was founded on a combination of Mr Connors inability to enjoy the security of tenure advantages afforded by statute to occupiers of privately owned caravan sites and on the Strasbourg court’s perception (which I think was an unjustified perception) of a lack of sufficient procedural safeguards enabling him to dispute the grounds which had led the council to terminate his site licence.”

“64. The court accepts that where State authorities reconcile the competing interests of different groups in society, they must inevitably draw a line marking where a particular interest prevails and another one yields, without knowing precisely its ideal location. Making a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves balancing conflicting interests and allocating scarce resources on this basis, falls within the States margin of appreciation.
65. State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to the State in implementing social and economic policies is necessarily a wide one. The domestic authorities’ judgment as to what is necessary to achieve the objectives of those policies should be respected unless the judgment is manifestly without reasonable foundation.”

“…necessary in a democratic society insofar as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the Court is legitimate and proportionate.”

“Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisdiction of the Court acknowledge such a right”.

(1) Article 8(1) is concerned not with the right to possession or a property right to the home but with freedom from arbitrary interference by public authorities. (Lord Hope at para. 50).
(2) Article 8 must be read as a whole. Any interference with respect for the person’s privacy has to be measured against what is in accordance with law. (Lord Hope at para. 51).
(3) The requirements of Article 8(2) are met when there is an unqualified right to possession on proof that a tenancy has been terminated. (Lord Hope at para. 78).
(4) If the tenant has no right to remain in possession following the termination of the tenancy, he cannot claim such a right under Article 8. (Lord Scott of Foscote at para 125).

(1) A wide margin of appreciation is given to the national authorities in this area. The European Court of Human Rights recognised that the national authorities are better placed than an International Court to evaluate local needs and conditions.
(2) The Court noted that in spheres such as housing it would respect the legislative judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation.
(3) The procedural safeguards available to an individual are especially material in considering whether the State has remained within the margin of appreciation in setting up the relevant regularity framework. Thus the European Court will examine whether the decision making process leading to the measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.

“I would not place greater emphasis on the need for the court to provide a remedy in those special cases of a kind not considered in Qazi where it is seriously arguable that the right to possession which is afforded by domestic law violates the Convention right.” (para. 113)

“An order for possession was in accordance with domestic law. As against Lambeth the occupiers had become trespassers with no right to remain in occupation. There was nothing discriminatory or unusual about the statutory and common law framework that produced that result nor about the absence of any statutory protection given to the occupiers by the housing legislation. ...
There is nothing the matter, from an Article 8 standpoint, with a common law rule with gives the owner of property, which is occupied as a home by a person who has no right as against the owner to remain there, the right to recover possession of the property. …”

“Nor, in my opinion where a home occupier has no contractual or proprietary right to remain in possession as against the owner of the property, could an Article 8 defence based on no more than the personal circumstances of the occupier and his family ever succeed. Connors is no authority to the contrary. The successful Article 8 defence in Connors was founded on a combination of Mr. Connors inability to enjoy the security of tenure advantages afforded by statute to occupiers of privately owned caravan sites and on the Strasbourg Court’s perception (which I think was an unjustified perception) of a lack of sufficient procedural safeguards enabling him to dispute the grounds which had led the Council to terminate his site licence.”

“The domestic authority’s judgment as to what is necessary to achieve the objectives of those policies should be respected unless the judgment is manifestly without reasonable foundation.”