London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent)
HOUSE OF LORDS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
London Borough of Harrow (Appellants)
Qazi (FC) (Respondent)
THURSDAY 31 JULY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
LORD BINGHAM OF CORNHILL
The action came on for trial in the Watford County Court sitting at Luton before Mr Recorder Williamson. He held that the effect of Mrs Saman Qazi's notice to quit had been to determine the whole of the previous joint tenancy; that the tenancy had not come to an end because of any decision made by a public authority but by the act of one of the joint tenants; that since expiry of the notice Mr Qazi had had no legal or equitable right or interest in the house and thus had none at the time when action had been brought; and that accordingly the house was not Mr Qazi's home within the meaning of article 8(1) of the Convention and that article was not engaged. The recorder did not therefore consider the issue of justification raised under article 8(2) of the Convention and made the possession order sought.
After a close examination of the Strasbourg jurisprudence she gave an affirmative answer to that question, rejecting the argument that article 8 is not engaged where a former tenant lacks any legal or equitable right or interest in the house. In paragraph 57 she concluded that Mr Qazi "did have a right to a home for the purposes of Article 8 when the possession proceedings were served on him".
If both questions are answered in Mr Qazi's favour there arises the issue of justification, which the recorder did not have to address and which the Court of Appeal remitted to the county court. If that stage is reached, the issue of justification turns on the application of article 8(2) of the Convention:
The first question
The Commission repeated the substance of this passage in Mabey v United Kingdom (1996) 22 EHRR CD123, 124, and in O'Rourke v United Kingdom (26 June 2001, Application No 39022/97) the Court once again insisted on an individual's need to show sufficient and continuing links with a place in order to establish that it is his home for purposes of article 8.
It is, however, noteworthy that this ruling was made before formulation of the sufficient continuing links test in Gillow, that it has not been relied on by the Court or the Commission in any of the later cases I have cited, and that after the passage quoted above the Commission went on to review the issue of justification under article 8(2) on the assumption that the applicant's right to respect for her home had been the subject of interference. In paragraph 55 of her judgment Arden LJ concluded that S v United Kingdom no longer offered guidance to be taken into account in deciding the issue before the Court of Appeal.
The second question
My initial reaction to this submission is, I must acknowledge, one of resistance. The simple, untechnical test of "home" which I have described above is easily understood and easily applied to facts arising in the different member states. I would expect a similarly simple and untechnical test to be applied to "respect" and "interference". Details of the bargain made between owner and occupier, and the provisions of national law governing that bargain, are likely to be crucial in deciding the issue of justification under article 8(2) if that stage is reached, but it would seem to me to undermine the broad international application at which the Convention aims if matters of this kind are treated as determinative when considering whether there has been interference or a lack of respect.
The Commission pointed out that the applicants could not derive from article 8 an unconditional right to remain on the site.
Wood v United Kingdom (1997) 24 EHRR CD 69 arose from the repossession of the applicant's house by a mortgagee when she defaulted on her payments due under the mortgage. The Commission held the application to be manifestly ill-founded, observing (at 70-71):
It was, it seems, that order, which under domestic law the national court was bound to make, which constituted the required interference or lack of respect.
In the result, the Court did not find "any appearance of a breach" of article 8 on account of the authorities' decision to proceed with the applicant's eviction from his apartment.
R (McLellan) v Bracknell Forest Borough Council; Reigate and Banstead Borough Council v Benfield  EWCA Civ 1510,  QB 1129 concerned the termination of introductory tenancies in accordance with procedures introduced under the Housing Act 1996. In both of these appeals, heard together, the Secretary of State was again represented by counsel who asserted that article 8 was engaged (see paragraph 36). The submission made by Mr Arden QC, then representing the Reigate and Banstead Borough Council, was recorded in the leading judgment of Waller LJ (with whom Latham and Kay LJJ agreed) in paragraph 37:
Having referred to the Commission's ruling on the meaning of "home" in paragraph 63 of the decision in Buckley v United Kingdom (1996) 23 EHRR 101 and to the Court of Appeal's decision in this case, Laws LJ continued in paragraphs 26-27:
This reasoning, like that of Arden LJ in the present case, reflects the tenor of the Strasbourg jurisprudence and, in my opinion, gives effect to the purpose of the Convention. I agree with it. In South Bucks District Council v Porter  UKHL 26,  2 WLR 1547 paragraph 37, I wished to leave open the question whether "any action by a public authority seeking possession of residential property occupied by a defendant engages the operation of article 8". Now that the question has been fully explored, I am satisfied that such actions will ordinarily do so if the residential property is occupied by the defendant as his home. But nothing I have said in this opinion should be understood as applying to any landlord or owner which is not a public authority.
Such differences of opinion as exist in this case do not extend to this formulation of the issues.
This statement admirably reflects the meaning of article 8 and the European approach to its application. It is in accord with the new landscape created by the Human Rights Act 1998.
LORD HOPE OF CRAIGHEAD
Article 8: what it protects
The Court too held that there had been a violation of article 14 taken in conjunction with article 8. Of particular interest are the following observations, at p 608, para 28:
The Commission found that the applicant's complaint that she was prevented from living with her family in her caravans on her land fell within the scope of article 8 as relating to her right to respect for her family life, private life and home: p 115, para 65.
Is article 8(1) "engaged"?
Is the interference permitted by article 8(2)?
In this case the point which was taken in the first paragraph which I have quoted from Ure v United Kingdom was decisive. Reading these two cases together with the second paragraph of the passage which I have quoted from the decision of the Commission in S v United Kingdom, I would expect the European Court to attach much importance to the fact that it was clear from the outset of the respondent's joint tenancy that it could be terminated by a notice to quit by one of the joint tenants, that the appellants' right to immediate possession is in these circumstances unqualified in domestic law and that the premises, once recovered, will be available for letting to others who are in need of housing in their area. The conclusion which I would draw is that on these facts the proposition that there was a violation of article 8 was unarguable.
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 that the point which he makes at 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 where the law affords an unqualified right to possession on proof that the tenancy has been terminated.
The reference in article 8(2) to "interference with the exercise of this right" is somewhat clumsily expressed in relation to the right in question. It is to be interpreted as forbidding interference with the enjoyment of the right in question.
LORD SCOTT OF FOSCOTE
Neither this language, nor the language of article 8 can, in my opinion, be read as authorising any deprivation of the property rights of others.
Strasbourg case law
Just so, but what the Commission was saying, in effect, was that the landlord's legal right to recover possession of its property at the end of the tenancy prevented article 8 from providing any assistance to S. A possession order was necessary in order to give effect to, "for the protection of", that right to possession. How else could it have been protected?130.
Di Palma v United Kingdom (1986) 10 EHRR 149 was a case in which the landlord (a private landlord, not a local authority) had forfeited the tenant's lease on account of her failure to pay a service charge. The landlord then brought possession proceedings in the county court. Subject to the question of relief from forfeiture the tenant had no defence to the action. The issue was whether either the county court or the High Court had jurisdiction to grant that relief. If there had been jurisdiction to grant relief, relief would, on the facts, have been granted. But the county court's jurisdiction to grant relief from forfeiture was statutory and was very limited. On the facts of the case it was not exercisable. The High Court's jurisdiction to grant relief had been removed by the statute which had conferred the limited jurisdiction on the county court (see section 191, County Courts Act 1959). So the tenant fell in a black hole, was unable to obtain relief from forfeiture and lost her flat, notwithstanding that the forfeiture was a disproportionate penalty for her failure to pay the service charge: (see Di Palma v Victoria Square Property Co Ltd  Ch 346, 362A-B and 368E- 369B). The tenant applied to Strasbourg complaining, inter alia, that the possession order was in breach of her article 8 rights. She said that "her eviction from her home constitutes an unjustified interference with the right to respect for her home protected by article 8" (p 155). But the Commission held, at pp 155 - 156, that
They held her article 8 complaint to be manifestly ill-founded. It is important to notice that this was not a conclusion to which the Commission came on grounds of proportionality. Otherwise they must have found in favour of the applicant. They held in effect, as they had done in S v United Kingdom, that article 8 rights could not suffice against an owner of property with an otherwise unimpeachable right to possession.
Buckley v United Kingdom, Mabey v United Kingdom and Chapman v United Kingdom were cases where gypsies had acquired land on which to stand the caravans in which they lived. They began using the land, their own land, for that purpose, but the standing of caravans on the land was unlawful under the planning laws. The planning authorities brought proceedings to prevent these breaches of the planning laws. The land/caravan owners contended that to bring these proceedings was an interference with their article 8 rights to respect for their homes. It was contended, in answer, that because the establishing of their homes was in breach of the planning law and therefore unlawful article 8 could not apply. This contention was rejected. In Buckley the European Court quoted the Commission which said, at p 115, para 63:
There is no suggestion that this decision was reached by weighing up the applicant's interest in retaining her home against the mortgagee's interest in enforcing its security. The Commission's conclusion makes it clear, in my opinion, that a mortgagor cannot invoke article 8 in order to diminish the contractual and proprietary rights of the mortgagee under the mortgage. Article 8 is simply not applicable.
Domestic case law
R (McLellan) v Bracknell Forest Borough Council  QB 1129 concerned an introductory tenancy. The tenancy had been duly terminated by the local authority landlord in accordance with the procedures prescribed by the relevant legislation. The tenant had no contractual or proprietary right, as against the landlord, to remain in possession. Counsel for the landlord submitted that "the rights of the tenant to occupy the premises were simply in accordance with [the introductory tenancy] scheme" (para 37) and that article 8 had no application. But the Court of Appeal disagreed and held that "the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others" (per Waller LJ in para 42). Waller LJ went on to say that even in a case where the landlord was a private landlord, in which case article 8(2) would appear to have no application, the court, as a "public authority", would have to consider, before making a possession order, whether an article 8(2) justification was established.
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 thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a "home" as something ethereal, floating in the air, unconnected to bricks and mortar and land.