|Judgments - Doherty (Fc) and Others V Birmingham City Council
HOUSE OF LORDS
 UKHL 57
on appeal from:  EWCA Civ 1739
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents)
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Jan Luba QC
(Instructed by Community Law Partnership)
Ashley Underwood QC
(Instructed by Birmingham City Council)
Intervener (Secretary of State for Communities and Local Government)
Philip Sales QC
(instructed by Treasury Solicitors)
12 MARCH 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents)
 UKHL 57
LORD HOPE OF CRAIGHEAD
Qazi as modified by Kay
"(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder  AC 461."
I added that, as the common law as explained in Wandsworth Borough Council v Winder was compatible with article 8, it provided an additional safeguard. Lord Scott of Foscote (para 174), Baroness Hale of Richmond (para 192) and Lord Brown of Eaton-under-Heywood (para 212) agreed with what I said in that paragraph.
McCann v United Kingdom
"The court does not accept that the grant of the right to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed , it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings."
The basic law
" there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council  2 AC 465."
The basic rule is that such interference with the right to respect for the home as may flow from the application of the law which enables a public authority to exercise its unqualified right to possession does not violate the essence of the Convention right. Unless the legislation itself can be attacked, this is a conclusion which can be applied to all cases of this type generally. It is not open to the court, once it has decided in any individual case that the effect of the legislation is that the public authority's right to possession is unqualified, to hold that the exercise of that right should be denied because of the occupier's personal circumstances.
The exceptional position of gipsies
"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 regulatory framework referred to in that paragraph was discussed in paras 43-46. The effect of the statutes which apply to sites for caravans and other mobile homes was to deny gipsies the security of tenure that is available to others who occupy such sites. Their effect was to enable the court to apply the common law, which gave the local authority the right to recover possession on the expiry of the period of notice referred to in section 2 of the 1968 Act.
"A local authority shall have power within their area to provide sites where caravans may be brought, whether for holidays or other temporary purposes or for use as permanent residences, and to manage the sites or lease them to some other person."
Subsection (2) of that section provides that a local authority shall have power to do anything appearing to them desirable in connection with the provision of such sites.
"In conclusion, the court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights, and consequently cannot be regarded as justified by a 'pressing social need' or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of article 8 of the Convention."
Connors as seen in Kay
LORD SCOTT OF FOSCOTE
Paragraph 110 of Lord Hope's opinion in Kay and Price
"[Mrs Blecic] was involved in the decision making process to a degree sufficient to provide her with the requisite protection of her interests."
" 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"
It was the " power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal " (para.94) that the Strasbourg court was unable to accept (see also para.95).
"Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder  AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard."
"The practical position, in future, in possession proceedings can be briefly summarised as follows. (1) It is not necessary for a local authority to plead or prove in every case that domestic law complies with article 8. Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with article 8. (2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds. (3) The two grounds are: (a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and (b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6. (4) Deciding whether the defendant has a seriously arguable case on one or both of these grounds will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 the judge should consider whether it may be appropriate to refer the proceedings to the High Court."
The only proposition which is in any respect inconsistent with the majority opinions is proposition 3(b) and the inconsistency there is slight though important. Proposition 3(a) covers the same ground as Lord Hope's paragraph 110 gateway (a). But proposition 3(b) attributes to the occupier's personal circumstances a central importance that the majority opinions did not accept. The view of the majority, as expressed by Lord Hope in his gateway (b), was, as I have explained, that a local authority's decision to recover possession would be open to challenge on public law grounds and that the challenge could be raised as a defence in the possession proceedings. The personal circumstances of the defendant might well be a factor to which, along with the other factors relevant to its decision, a responsible and reasonable local authority would need to have regard. The question for the court would be whether the local authority's decision to recover possession of the property in question was so unreasonable and disproportionate as to be unlawful.
The application of gateways (a) and (b) in the present case
" will protect Public Health and Safety and make the site available for genuine travellers, who are currently deterred from going on the site because of the presence of the Defendants, as a result of which the site is severely under utilised and this causes unauthorised encampments in the city" (see para.4(iv))
It is possible that this passage was intended as an implicit allegation of anti-social behaviour or misconduct on the part of members of the Doherty family but I would not, speaking for myself, so read it. It is a well known rule of pleading that if the pleader is intending to allege misconduct the allegation should be made expressly and not be left simply as a possible inference. Be that as it may, the defendants in their Defence denied being guilty of any anti-social behaviour or of causing damage to the site (para.9 (iii)(c) and (d)). If the Council did intend to allege the contrary, there is an unresolved issue as to the truth of the allegation.
"61. ..In our view this case is distinguishable from Connors because the authority's decision depended, not on a factual allegation of nuisance or misconduct, or 'the bald ground that the family were trespassers' (in Lord Brown's words), but on an administrative judgment about the appropriate use of its land in the public interest. It is true that one aspect was an issue about whether the Doherty's [sic] presence 'deterred' others. However, this was not in the context, as in Connors, of an allegation of breach of a licence condition (analogous to a private law cause of action), but simply one part of its overall assessment of the various factors in play. That seems to us well within the margin of appreciation allowed by the Strasbourg jurisprudence in the exercise of an administrative discretion Under gateway (b) the council's action was open to challenge on conventional judicial review grounds, but not on the grounds that it was contrary to Article 8. We recognise that the judge did not rule out the possibility of a successful judicial review challenge, and that he was wrong in any event to hold that such a defence could not be taken in the county court. However, we see no purpose in remitting the matter for him to redetermine that issue. On the pleadings, we can see no arguable basis for asserting that the decision could have been successfully challenged under gateway (a). Accordingly, the appeal must fail."
"52. under domestic law in summary proceedings such as those brought against the applicant, it was not open to the county court to consider any issue concerning the proportionality of the possession order, save in exceptional cases where, as the Court of Appeal put in the present case, 'something has happened since the service of the notice to quit, which has fundamentally altered the rights and wrongs of the proposed eviction'. No such exceptional circumstances applied in the present case. Furthermore, although since the applicant's landlord was a public authority it was open to him to challenge the decisions to obtain the notice to quit and to bring possession proceedings in an application for judicial review, his application failed because the local authority had not acted unlawfully.
53. the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference [with the applicant's right to respect for his home] were not met by 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 local authority's decisions. Judicial review procedure is not well adapted for the resolution of sensitive factual questions which are better left to the County Court responsible for ordering possession. In the present case, the judicial review proceedings, like the possession proceedings, did not provide any opportunity for an independent tribunal to examine whether the applicant's loss of his home was proportionate under Article 8 para.2 to the legitimate aims pursued."
LORD RODGER OF EARLSFERRY
LORD WALKER OF GESTINGTHORPE
"The fact that a person cannot be evicted without a court order does not mean that the court, as a public authority, is bound in each case to consider whether an order for possession would be disproportionate and infringe article 8 rights. The court is merely the forum for the determination of the civil right in dispute between the parties: see Di Palma v United Kingdom (1986) 10 EHRR 149. Its task is to resolve the dispute according to law. In doing so it would, of course, have to consider whether the landlord was entitled to possession as a matter of our ordinary domestic law (i e apart from the Human Rights Act 1998), taking into account the various statutory provisions which operate in this field. But once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate."
"The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to 'respect' Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck."
The metaphorical question of whether there is a balance to be struck (or conversely whether Parliament, by its frequent and complex modifications of the common law of landlord and tenant, has conclusively struck the balance) has increasingly dominated the debate. For instance in Kay Baroness Hale of Richmond observed (para 182):
"As I understand it, none of your Lordships accepts that the sequential approach adopted in Strasbourg to the cases which it declares admissible should be adopted in the general run of possession actions. This is because the Court is entitled to make two assumptions. The first is that the domestic law has struck the right balance between the competing interests involved: those of a person occupying premises as his home and those of the landowner seeking to regain possession of those premises in accordance with the law. The second is that the landowner, if a public authority, has acted compatibly with the Convention rights of the individual occupier in deciding to enforce its proprietary rights."
But it is clear from the following paragraphs of her speech that Baroness Hale was speaking of prima facie assumptions, not irrebuttable presumptions (para 185):
"My Lords, we are all agreed that it must be possible for the defendant in a possession action to claim that the balance between respect for his home and the property rights of the owner, struck by the general law in the type of case of which his is an example, does not comply with the Convention. We also agree that the cases in which such a claim will have a real prospect of success are rare."
"an area of the law much trampled over by the legislature as it has tried to respond to shifting and conflicting social and economic pressures."
"does not include any land occupied by a local authority as a caravan site providing accommodation for gipsies."
Those words are a very clear indication of Parliament's intention that the law should be different in respect of gipsy caravan sites provided by local authorities. There is no possibility of the different treatment having arisen through some error or inadvertence. Parliament deliberately enacted the exception in order to give effect to a policy based on gipsies' nomadic lifestyle, a policy which the United Kingdom defended, strenuously but unsuccessfully, in Connors: see 40 EHRR 189, paras 43-46 (summarizing the statutory provisions and referring to Greenwich LBC v Powell  AC 995, 1012); paras 77-80 (the government's submissions); and paras 81-95 (the Court's assessment). It would be disingenuous to say that the government was defending the common law; it was defending Parliament's deliberate adoption of a special regime for gipsy caravans on local authority sites.
"It simply recognises that Parliament may express its policy intentions in a particular statutory scheme equally by means of exclusion or by inclusion. In Connors (para 44) the Strasbourg court itself referred to Greenwich LBC v Powell  AC 995, 1012 B-C, where the House of Lords had referred to the clear 'intention of the legislature' shown by the 1983 Act to exclude local authority sites from protection. In our view, in respectful agreement with Lord Hope, it is artificial to draw a distinction between the two means."
"It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council  EWHC 301 (Admin)."
In Atkinson Sedley J (at p 534) quoted from an official circular, the quotation being repeated by Carnwath LJ in this case at para 56):
". . . local authorities should not use their powers to evict gypsies needlessly. They should use the powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land."
He added (at pp 535-536):
". . .those considerations in the material paragraphs which are not statutory are considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security."
That case was of course decided several years before the HRA came into force.
"The central legislative purpose [of the HRA] is that of bringing the Convention rights home, that is, of domesticating them so that they are not regarded as alien rights protected exclusively by a 'foreign' European Court. To change the metaphor yet again, Convention rights must be woven into the fabric of domestic law. In the absence of a written British constitution, it is especially important to weave the Convention rights into the principles of the common law and of equity so that they strengthen rather than undermine those principles, including the principle of legal certainty."
Still more importantly, they must be woven into the fabric of public law. The argument against speaking about "conventional judicial review grounds" is not limited to the verbal incongruity of using that phrase to mean "grounds that have nothing to do with the European Convention on Human Rights."
"But section 6(2)(b) says nothing about a decision having to be necessary for any particular purpose. If the 1992 or 1999 Acts had made it necessary not to make extra-statutory payments, the case would have fallen under section 6(2)(a). The Secretary of State could not have acted differently.
Clearly, section 6(2)(b) has a different purpose. It assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant in accordance with section 3. It follows that section 6(1) does not apply if the Secretary of State was acting incompatibly with Convention rights because he was giving effect to sections 36 and 37 of the 1992 Act . . .
This reasoning is in my opinion supported by the evident purpose of section 6(2), which was to preserve the sovereignty of Parliament: see Lord Nicholls of Birkenhead in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, para 19. If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation."
"The important point to notice about paragraph (b) is that the source of the discretion does not matter. What matters is (a) that the provisions in regard to which the authority has this discretion cannot be read or given effect compatibly with the Convention rights and (b) that the authority has decided to exercise or not to exercise its discretion, whatever its source, so as to give effect to those provisions or to enforce them. If it does this, this paragraph affords it a defence to a claim under section 7(1) that by acting or failing to act in this way it has acted unlawfully. In this way it enables the primary legislation to remain effective in the way Parliament intended. If the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. This power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament."
Lord Brown of Eaton-under-Heywood took a rather different line, but reached much the same conclusion. Hooper and Wilkinson were very special cases and the line of argument which the House rejected would indeed have amounted to an obvious large-scale subversion of Parliament's intention. I am not at all sure that the same reasoning can sensibly be applied to a housing authority's general powers of management of its stock of social housing. But I understand that I am bound, by the majority decision in Kay, to assume that that is how section 6(2)(b) applies.
"the Court is entitled to make two assumptions. The first is that the domestic law has struck the right balance between the competing interests involved: those of a person occupying premises as his home and those of the landowner seeking to regain possession of those premises in accordance with the law."
But it is only an assumption, and both Connors and the present case show that the special treatment which Parliament accorded to local authority gipsy caravan sites was, in human rights terms, a legislative error.
"It is, for present purposes, immaterial whether or not Mrs McCann understood or intended the effects of the notice to quit. Under the summary procedure available to a landlord where one joint tenant serves notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case."
The statutory background
Kay - gateway (a)
Kay - gateway (b)
Human Rights Act s.6(2)(b)
"the fatal flaw in the claimants' argument is that its effect is to convert the power to make an extra-statutory payment into a duty. It destroys the power altogether. There are no circumstances in which the defendant could exercise a power not to give a benefit."
"The claimants' submissions as to s.6 come .. perilously close to a submission that the court should impose a duty to grant benefits where Parliament has chosen not to do so. The defendant gives effect to the primary legislation by declining to recognise that duty."
"If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation".
"Ss.36 and 27 make provision for payments to widows alone. If the Secretary of State were asked "Why are you not making similar payments to widowers?" he would have answered: "Because the statute provides these payments should be made to widows and makes no provision for payments to widowers". The fact that the Secretary of State could lawfully have made corresponding payments to widowers does not detract from the crucial fact that in declining to pay widowers he was 'giving effect' to the statute".
"74 The effect of the argument that the commissioners were not entitled to rely on s.6(2)(b) was to convert the power to give an extra-statutory allowance into a duty to do so. That would destroy the power altogether. It would replace it with an obligation to make widowers the same allowance as widows, as this would be the only way that the commissioners could act, as s.6(1) requires, in a way which was compatible with the widowers' Convention right".