EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Hardie Lord Bonomy	[2012] CSIH 78 XA57/12 OPINION OF THE COURT delivered by LORD CLARKE in the reference to the Inner House under the Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999 from Glasgow Sheriff Court in causa SOUTH LANARKSHIRE COUNCIL Pursuers and Respondents; against ELLEN McKENNA Defender and Appellant: _______________

Pursuers and Respondents: Upton; Simpson & Marwick

Defender and Appellant: Stalker; Drummond Miller for LSA Brown &Co

For the Lord Advocate: Ross; Scottish Government Legal Directorate

10^th October 2012

[1] This is a reference from the Sheriff Principal at Glasgow under rule 10 of the Act of Sederunt (Proceedings for Determination of Devolution Issues) 1999. The background to the reference being made is as follows.

[2] The appellant had let to her by the respondents, from 7 April 2004, a house at 74 Landmer Drive, Rutherglen, Glasgow under a secure tenancy. On 5 October 2007, an antisocial behaviour order was granted against the appellant in Glasgow Sheriff Court. Thereafter, on 5 March 2009, the respondents served on the appellant a notice under section 35 of the Housing (Scotland) Act 2001, the effect of which was to convert her secure tenancy into a short Scottish secure tenancy. That tenancy was for a period of 6 months with an ish date of 5 September 2009. On 13 May 2009, the respondents served on the appellant a notice under section 36 of the 2001 Act intimating to her that they intended to raise proceedings for recovery of possession of the house. On 13 July 2009, the respondents served on the appellant a notice to quit. The respondents then raised proceedings for recovery of possession by way of a summary cause summons in Glasgow Sheriff Court. This application was brought under section 36 of the 2001 Act which is to the following effect:

"(1) The landlord under a short Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house which is the subject of the tenancy.

(2) Such proceedings may not be raised unless -

(a) the landlord has served on the tenant a notice complying with subsection (3),

(b) the proceedings are raised on or after the date specified in the notice, and

(c) the notice is in force at the time when the proceedings were raised.

(3) A notice under subsection (2) must be in such form as the Scottish Ministers may prescribe by regulations and -

(a) state that the landlord requires possession of the house,

(b) specify a date, not earlier than -

(i) two months, or such longer period as the tenancy agreement may provide, from the date of service of the notice, or

(ii) the date on which the tenancy could have been brought to an end by a notice to quit had it not been a short Scottish secure tenancy, whichever is later, on or after which the landlord may raise proceedings for recovery of possession.

(4) A notice under subsection (2) ceases to be in force six months after the date specified in it in accordance with subsection (3)(b) or when it is withdrawn by the landlord, whichever is earlier.

(5) The court must make an order for recovery of possession if it appears to the court that -

(a) the tenancy has reached the ish referred to in section 34(5)

(b) tacit relocation is not operating.

(c) no further contractual tenancy (whether or not a short Scottish secured tenancy) is in existence, and

(d) subsection (2) has been complied with.

(6) An order under subsection (5) must appoint a date for recovery of possession and has the effect of -

(a) terminating the tenancy, and

(b) giving the landlord the right to recover possession of the house, at that date."

It is those provisions which have given rise to this reference. In her defence to the proceedings brought against her by the respondents under section 36, the appellant argued inter alia that (a) the notice to quit was invalid and (b) that even if the requirements of section 36 were met by the respondents, the eviction of the appellant would be unlawful because it would be an unjustified interference with her rights under article 8 ECHR.

[3] As it happens questions as to the rights under ECHR of persons, such as the appellant, who occupy property on an unsecured basis, to resist eviction when domestic law provides for recovery of possession of the property so occupied under a tenancy, or other arrangement, under which possession of the house has been enjoyed by the occupier in question, were the subject of recent detailed judgments, both from the European Court of Human Rights and the Supreme Court in England and Wales, while the appellant's case has been before the sheriff court.

[4] By judgment dated 22 April 2010, the sheriff found that the respondents' case was soundly based in law. In a second judgment dated 5 November 2010, the sheriff found that the defence was not soundly based in law and granted decree for recovery of possession. The appellant then appealed the sheriff's interlocutor to the sheriff principal. The sheriff had heard arguments in relation to the appellant's defence based on article 8 before the Supreme Court issued its decision in the case of Manchester City Council v Pinnock [2010] 3 WLR 1441, a case which concerned proceedings by a local authority in England against a tenant continuing to occupy a house under what is known in England and Wales as a "demoted tenancy" the statutory regime applicable to certain unsecure tenancies under the housing legislation for England and Wales, in particular the Housing Act 1996. As is noted in the reference to this court the "demoted tenancy" can be regarded as the equivalent of the short Scottish secure tenancy under the 2001 Act, particularly in relation to the way in which such tenancies can be brought to an end. In particular in England and Wales, a tenancy where the tenant originally had security of tenancy may be "converted" or "demoted" to a tenancy where there is no such security of tenure, demotion or conversion occurring where the tenant has been guilty of antisocial behaviour during the occupancy of the tenancy. As under the Scottish legislation, the local or other public authority may raise proceedings under the relevant legislation against the tenant and in such proceedings, according to the plain meaning of the relevant statutory provisions, the court must order recovery of possession of the house in question if the landlord has complied with certain procedural requirements.

[5] It is to be noted that while there exist striking similarities between short Scottish secure tenancies under the 2001 Act and the demoted tenancy under the 1996 English legislation, there are some procedural differences contained in the respective primary legislation which will require to be borne in mind and addressed in this judgment. In the English legislation, in relation to the demoted tenancy regime, the relevant legislation is now section 143 of the Housing Act 1996. Section 143(B)(1) provides that if a tenancy is demoted (because of antisocial behaviour on the part of the tenant) the demotion will last for a year, unless the landlord brings possession proceedings within that year. If such proceedings are brought within the year and are not determined before the year's end, the demoted tenancy continues until the proceedings are determined. When such proceedings are brought within the year, and an order for possession is made, the tenancy ends. If no such proceedings are brought, or they are brought and they fail, then, at the end of the year, the demoted tenancy will become a secure tenancy. Subsection (1) of section 143(D) of the 1996 Act states that a landlord can only bring a demoted tenancy to an end by obtaining an order for possession from the court. Section 143D(2) provides:

"The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed."

The effect of section 143E of the 1996 Act is that, before issuing possession proceedings against a demoted tenant, a local authority landlord must serve a notice informing him of (a) the fact that it has decided to seek possession, (b) the reasons why, (c) the date after which the proceedings will be issued, (d) the tenant's right to request a review of the landlord's decision, and (e) where to get legal advice. Section 143F of the 1996 Act also entitles the tenant, within 14 days of the notice, to request a review, in which case the local authority landlord is obliged to carry out a review which complies with regulations made by the Secretary of State and then to inform the tenant of the outcome. It is to be noted that there are no provisions in the Scottish legislative equivalent to the provisions of section 143E and F of the English legislation and, in particular, with regard to the requirement upon the authority to provide reasons in the notice to quit.

[6] In England and Wales recovery of possession of a house provided to homeless persons is governed by Part VII of the 1996 Act. In the case where proceedings for recovery of possession of such property are brought there is no requirement that they should be preceded by a notice to the occupier setting out the reasons for the landlord seeking recovery of possession of the house.

[7] The decision of the Supreme Court in the case of Pinnock deals authoritatively with how the English legislation, referred to falls to be considered, and applied in the light of article 8 of ECHR. Following that decision, the appellant lodged a Specification of Devolution issue. This was intimated to the Lord Advocate. Answers were lodged by both the respondents and the Lord Advocate. In the meantime the Supreme Court gave its judgment, in the case of Hounslow London Borough Council v Powell [2011] 2 AC 186. That decision elaborated upon the law set out in Pinnock and also dealt with what obligation, if any, there was on a local authority to give reasons for seeking possession of subjects held under a non-secure tenancy and when such duty to give reasons, if it existed, might arise. The Specification of Devolution Issue was adjusted in the light of the decision in Powell. It is on that last aspect of matters, namely what duty, if any, there is on a public authority to give reasons for seeking possession of houses held under short Scottish secure tenancies that the appellant now sought before this court to focus her defence to the action brought against her for recovery of the house she occupies. Her argument in that regard was that, the absence of any obligation, expressly set out in the primary legislation, contained in the 2001 Act, upon the public authority to give reasons for seeking possession, before, or at the time of raising proceedings for recovery of possession, makes the Scottish legislation incompatible with the requirements of ECHR, article 8 and that the legislation cannot be read down in such a way as to make it compatible with ECHR requirements. The questions contained in the reference to this court, however, are broader in scope and do not simply focus on the "reasons" issue. They are in the following terms:

"1. Can section 36 of the Housing (Scotland) Act 2001 ("the 2001 Act") be read and given effect to in a way which is compatible with article 8 of the European Convention on Human Rights ("ECHR")?

2. Is section 36 of the 2001 Act incompatible with article 8 ECHR and therefore not law, being outside the legislative competence of the Scottish Parliament."

[8] After certain decisions of the Supreme Court, which had held that where a person holds a tenancy from a public authority, which comes to an end, by virtue of the passage of time, it would rarely be open for such a person to be able to resist recovery of possession of the property in question on the basis of article 8 of ECHR, the European Court of Human Rights in the case of Kay v United Kingdom [2011] HLR 13 held that the requirement in article 8(2) that interference with a person's right to respect for his home be "necessary in a democratic society" before being justified raised a question of procedure as well as of substance. In particular any person at risk of losing his home should be able to have the proportionality of his eviction determined by an independent tribunal in the light of the relevant principles under article 8 and even though, under domestic law, the right to occupy had come to an end. In the case of Pinnock the Supreme Court was required to consider the implications of that decision together with other aspects of the evolving Strasbourg jurisprudence in this area. The Supreme Court held that if domestic law was to be compatible with article 8, a court which was asked to make an order for possession of a person's home at the instance of a local authority had to have the power to assess the proportionality of making such an order, and, in making that assessment, to resolve any relevant disputes of fact. The court went on to hold that, on a traditional approach to statutory interpretation applied to the provisions of the Housing Act 1996, in particular section 143D(2) it was hard to see how a court could refuse to make an order for possession, even if it considered, however, that it would be disproportionate to do so. Section 6 of the Human Rights Act however had to be read along with section 143D(2). Moreover section 7(1)(b) of the Human Rights Act 1998 conferred the necessary jurisdiction for the county court to consider a defence based on an alleged breach of a tenant's article 8 rights. Consequently, the court's traditional powers of judicial review could, in an appropriate case, be extended to allow it to consider whether it was proportionate to make the order sought and to investigate, and determine, any issues of fact relevant for the purposes of that exercise. In those circumstances the Supreme Court held that the demoted tenancy regime under the 1996 legislation was compatible with article 8 of the Convention. In giving the judgment of their Lordships Lord Neuberger of Abbotsbury (M.R. as he then was) made the following observations. At paragraph 45 of the judgment he said:

"(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e. one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v United Kingdom 40 EHRR 189, para 92; McCann v United Kingdom 47 EHRR 913, para 53; Kay v United Kingdom paras 72-73."

His Lordship noted also at para 45 that:

"Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain: McCann v United Kingdom 47 EHRR 913, para 54; Kay v United Kingdom para 73."

[9] The Supreme Court took their consideration of this topic a stage further in the case of Powell. In that case the court were concerned with two applications by local authorities to recover possession of homes. The first was in respect of a house occupied by a person under an "introductory tenancy" which is the statutory predecessor to a "demoted tenancy". The second application related to a house occupied by a person who had been provided with accommodation in it under the homeless persons legislation. The Supreme Court held that in all cases where a local authority sought possession of a property which constituted a person's home the court, which was asked to order possession, had for the purpose of article 8 the power to consider whether the order would fall to be considered necessary in a democratic society. The court, furthermore, held that when a local authority was intending to apply for an order for possession, the person in possession had to be informed of the reasons for the authority's actions so that he could, if so minded, attempt to raise a proportionality challenge. It was, however, stressed, by the Supreme Court that the court considering the application would only have to consider whether the seeking of the possession order was proportionate if that issue had been raised by the occupier himself and that issue had crossed the high threshold of being seriously arguable.

[10] In the foregoing circumstances the Supreme Court has held that the terms of the English legislation dealing with recovery of property, let under the relevant statutory provisions, in relation to recovery of possession of houses, not held under secure tenancies, is not incompatible with article 8 rights and can be read in a way to comply with those rights.

[11] Before this court, as has already been noted, the appellant's case ultimately focused on the absence in the Scottish legislation of any requirement on the local authority to give reasons. It was not contended, as the appellant's submissions were understood that, but for that omission the Scottish provisions contained in section 36 of the Scottish Act were incompatible with article 8. That would have been a difficult position to adopt in the light of the recent Supreme Court decisions just referred to. For the avoidance of any doubt, we conclude, putting aside for the moment the issue of the absence of any wording in the Scottish legislation expressly requiring the authority to give reasons, at any particular stage, for seeking recovery of possession, that the Scottish legislation can otherwise be read by employing section 6(1) of the Human Rights Act to allow the proportionality of an authority seeking to recover possession of the property in question, before a court to be challenged, notwithstanding that the domestic legislation read literally would appear to exclude such a possibility. Section 6(1) provides "It is unlawful for a public authority to act in a way which is incompatible with a Convention right." Section 36 has to be read as qualified by that provision.

[12] As regards the absence in the Scottish legislation of any express requirement on the local authority to give reasons for seeking recovery, as has been seen the English legislation in relation to "introductory tenancies" under section 128 of the Housing Act 1996, provided that the notice served on a tenant of proceedings for possession being sought "shall set out the reasons for the landlord's decision to apply for such an order". The need to give reasons was discussed at some length by Lord Philips in the Powell case in relation to persons occupying subjects under the relevant homeless legislation in England and Wales, where there is no express statutory requirement for the authority to give reasons, when seeking the recovery of possession of property occupied on a temporary basis by someone who had been a homeless person. The relevant provisions in relation to such arrangements is found in Part VII of the Housing Act 1996.

[12] In pointing out the distinction between the two classes of cases, the "introductory tenancy", on the one hand and, homeless person occupancy on the other, Lord Philips at para 101 of his judgment said:

"There is, however, one important matter of principle upon which I wish to comment. This is whether the local authority should be required to give notice of the reasons that have led it to seek possession of the defendant's home. In the case of the introductory tenancies this question is academic, for sections 128 and 129 of the 1996 Act expressly require reasons to be given. Accordingly I propose to deal with this question in the context of homelessness cases."

The position in Scotland, is of course, as previously noted that there is no requirement in the Scottish legislation upon the authority to give reasons in any case involving a short Scottish secure tenancy. That is also the position, in Scotland, where subjects have been occupied under the homeless persons arrangements. In Powell Lord Philips at para 114 in relation to homelessness cases in England and Wales said:

"Sometimes the authority will be reacting to the behaviour, or perceived behaviour of a tenant. In the latter event the authority may be proceeding on the basis of a factual assumption that is unsound. If the only reason that the authority is seeking possession is that the tenant has been guilty of bad behaviour, obtaining possession will not further the legitimate aim of the authority if that factual premise is unsound. If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authority's actions will serve a legitimate aim."

At paragraph 115 of his judgment his Lordship continued:

"I do not believe that the Strasbourg court would tolerate a regime under which a person can be deprived of his home by a public authority without being told the reason for this. Nor would I, for it is fundamentally unfair. In Connors v United Kingdom (2004) 40 EHRR 189, para 94 the Strasbourg court said:

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

The court was there dealing with gypsies but those words are equally applicable to the present contents."

His Lordship continued at paragraph 116:

"I do not suggest that there is any burden on the local authority, in the first instance, to justify to the court its application for a possession order or to plead the reason for seeking this. What I do suggest is that the tenant must be informed of the reason for the authority's actions so that he can, if so minded, attempt to raise a proportionality challenge."

Five of the other six judges of the Supreme Court, who heard the Powell case, agreed with the judgment of Lord Philips in the entirety and the remaining judge, Lord Hope, did not demur from anything said by Lord Philips. Both Lord Philips and Lord Hope made it abundantly clear in Powell that, as Lord Philips, at para 113, put it "The statement that it will only be in rare cases that a valid proportionality challenge can be raised by way of defence to a possession order applies equally to repossession of accommodation provided under Part VII." The important point to note, for present purposes, is that the Supreme Court in Powell did not suggest that the absence of an express requirement to give reasons in relation to Part VII cases, rendered the relevant English legislation incompatible with article 8. We see no reason in principle why the same approach does not fall to be applied in relation to the Scottish legislation covering short Scottish secured tenancies. The fundamental point is as recently stated by the European Court of Human Rights (First Section) in Orlic v Croatia
[2011] HLR 44 at paragraph 65 and 66:

"In this connection the court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under art. 8 of the Convention, notwithstanding that, under domestic law, he or she has no right to occupy a flat (see muttatis mutandis McCann v United Kingdom at [50]).

The court, however, emphasises that such an issue does not arise automatically in each case concerning an eviction dispute. If an applicant wishes to raise an art. 8 defence to prevent eviction, it is for him to do so and for a court to uphold or dismiss the claim. As previously held, the court does not accept that the grant of the right to an occupier to raise an issue under art. 8 would have serious consequences for the functioning of the domestic systems or for the domestic law of landlord and tenant."

As the European Court of Human Rights has elsewhere observed, article 8 has both a substantive and procedural aspects to it. To enable an occupier to reach an informed judgment as to whether or not to raise a proportionality challenge, which as has been noted will rarely be successful, it is only fair that he be provided by the authority with its reason or reasons for seeking repossession. Once the Scottish legislation has been read, following the approach of the Supreme Court in the authorities referred to in relation to the English legislation, as not excluding a proportionality challenge, then, it appears to us, that, by necessary implication, a right to have reasons expressed follows as a necessary consequence. The English housing legislation has been, as has been seen, held to be compatible with article 8 in the case of homeless persons' occupancy, where there is no express legislative obligation on the authority to give notice of reasons for seeking repossession. Along with the Supreme Court in Powell, we are of the opinion that such an obligation can, and should, be read into the Scottish legislation, simply as an aspect of procedural fairness which underlies all questions in relation to the vindication of human rights. We would stress, however, that only if the application is being sought to be challenged on the basis of proportionality would the authority need to give reasons beyond what is said, as a matter of course in the statutory notice and then, only, if their decision was based on reasons which go beyond what is stated in the statutory notice.

[14] We should also add the following. In reaching our conclusion regarding the compatibility of the Scottish legislation with article 8 we have adopted the approach of the Supreme Court in the Pinnock case at para 78-80 by relying on the provisions of the Human Rights Act sections 6(1) and 7(1). Moreover, although this point was not discussed as such before us, by analogy with the approach adopted by the Supreme Court in that case we are of the opinion that by virtue of section 6 and section 7(1) of the 1998 Act any proportionality challenge may be taken by the occupier of the house in question, as a defence to the proceedings brought against him for possession, and need not be taken by way of petition for judicial review. Compare also Vaughn Engineering Limited v Hinkins and Frewin Limited 2003 SLT 428.

[15] It follows from all of the foregoing that the questions referred to fall to be answered as follows:

Question 1 is answered in the affirmative.

Question 2 is answered in the negative.