UKSC 45
On appeal from:  EWCA Civ 852
Manchester City Council (Respondent) v Pinnock (Appellant)
Lord Phillips, President
Lord Hope, Deputy President
JUDGMENT GIVEN ON
3 November 2010
Heard on 5, 6, 7 and 8 July 2010
Richard Drabble QC
(Instructed by Platt Halpern)
Andrew Arden QC
(Instructed by Manchester City Council )
|Intervener (Secretary of State for Communities and Local Government)
Daniel Stilitz QC
(Instructed by Treasury Solicitor)
|Intervener (Equality and Human Rights Commission)
Jan Luba QC
(Instructed by Equality and Human Rights Commission)
The background to the appeal: secure and demoted tenancies
"The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed."
The procedural background to the appeal
The issues which arise on this appeal
"Section 143D of the 1996 Act restricts the county court to considering whether the procedure under sections 143E and 143F has been followed. If the court concludes the procedure has not been followed, it will not make an order for possession. If it has been followed, it must make the order. I emphasise the word procedure. The court's review is limited to matters of procedure, and the county court cannot review the substance or rationality of the landlord's decision, or whether or not it is consistent with the tenant's or other occupiers' Convention rights."
Stanley Burnton LJ nonetheless went on, helpfully, to consider whether he would have agreed with the Judge's conclusion that the Council's decision to maintain a claim for possession was rational. He concluded that it was; indeed he thought that the Judge had taken rather a restrictive view of the relevant evidence which the Council could have taken into account.
First issue: what does the Convention require of the courts?
The nature of the issue
"1. Everyone has the right to respect for his home .
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 the economic well-being of the country, for the prevention of disorder or crime, or for the protection of the rights of others."
It is also appropriate to refer to article 6, which, so far as relevant, provides:
"In the determination of his civil rights and obligations everyone is entitled to a fair hearing by an independent and impartial tribunal established by law."
(a) At any rate where the person seeking possession is a "public authority", a court invited to make an order for possession of a person's home must be satisfied that article 8 is complied with.
(b) Accordingly, in the present proceedings, Judge Holman had to satisfy himself that the order for possession which he was being invited to make complied with article 8.
(c) Article 8, when read together with article 6, required the Judge, as the relevant independent tribunal, to be satisfied that the order for possession (i) would be "in accordance with the law", and (ii) would be "necessary in a democratic society" i e, that it would be proportionate.
(d) The order for possession was "in accordance with the law" since it was made pursuant to the provisions relating to demoted tenancies in the 1985 and 1996 Acts, which are in principle unobjectionable under article 8.
(e) However, Mr Pinnock was not given the opportunity to raise with the court the question whether the order for possession was, in all the circumstances of this case, proportionate. Therefore article 8 was violated.
(f) Further, in order to determine proportionality, the court should have had power to resolve for itself any issues of fact between the Council and Mr Pinnock, and to form its own view of proportionality, rather than adopting the traditional judicial review approach taken by the Judge.
(g) Either the legislation should be interpreted to have the effect contended for in points (e) and (f), or this court should make a declaration of incompatibility.
The House of Lords Cases
The Strasbourg Jurisprudence
"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 reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention.
82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities . This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions .... Where general 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."
"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 that judgment is manifestly without reasonable foundation. Although this principle was originally set forth in the context of complaints under article 1 of Protocol No 1 the State enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of article 8. Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued."
The case then went to the Grand Chamber, which held that, ratione temporis, the court had had no jurisdiction to hear it. The Grand Chamber said nothing, however, to cast doubt on what the First Section had said in the passage which we have quoted:  ECHR 207.
"The loss of one's home is the most extreme form of interference with the right for respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under [article 8], notwithstanding that, under domestic law, his right of occupation has come to an end."
"The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8. A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants' to encompass more than just traditional Wednesbury grounds (see Lord Hope at para 55; Lord Scott at paras 70 and 84 to 85; and Lord Mance at paras 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the Court considers that at the time that the applicants' cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann, the Court agreed with the minority approach [in Kay v Lambeth  2 AC 465] although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that 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 conclusion, the Kay applicants' challenge to the decision to strike out their article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant's article 8 defences meant that the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of article 8 of the Convention in the instant case."
Conclusion on the first issue
(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v UK (2008) 47 EHRR 40, para 50; Cosic v Croatia (App no 28261/06), para 22; Zehentner v Austria (App no 20082/02), para 59; Paulic v Croatia (App no 3572/06), para 43, and Kay v UK (App no 37341/06), paras 73-4.
(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 UK (2005) 40 EHRR 9, para 92; McCann v UK (2008) 47 EHRR 40, para 53; Kay v UK (App no 37341/06),  ECHR 1322, paras 72-73.
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria (App no 20082/02), para 54.
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.
Although it cannot be described as a point of principle, it seems that the EurCtHR 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 UK (2008) 47 EHRR 40, para 54; Kay v UK (App no 37341/06),  ECHR 1322, para 73.
"[T]he administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."
Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.
Second issue: the application of this conclusion in general
Third issue: the application of this conclusion to demoted tenancies
The proper interpretation of section 143D(2) of the 1996 Act
"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(b) rely on the Convention right or rights concerned in any legal proceedings ."
By virtue of this provision, an occupier who is the defendant in possession proceedings in the County Court and who claims that it would be incompatible with his article 8 Convention rights for him to be put out of his home must be able to rely on those rights in defending those proceedings. This approach fits with the observation of the EurCtHR in Paulic v Croatia (App no 3572/06), para 43, that the court need consider proportionality only if it is raised by the person whose article 8 rights are said to be infringed.
Section 17(1)(a) of the Crime and Disorder Act 1998
"Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent (a) crime and disorder in its area "
Section 6(2) of the Human Rights Act
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
"(1) The landlord may only bring a demoted tenancy to an end by obtaining
(a) an order of the court for the possession of the dwelling-house, and
(b) the execution of the order."
In addition, as already explained, section 143E provides for the local authority to give notice of its decision to apply for an order for possession of the tenant's house. Section 143F provides for the Panel to review that decision at the request of the tenant.
"Accordingly, a local authority which fails to take into account Convention values when deciding whether or not to give any and if so what length of notice to quit cannot, in my opinion, be said to be 'acting so as to give effect to or enforce' statutory provisions which are incompatible with the Convention rights."
Conclusion on the third issue
Fourth issue: application of these conclusions to the facts of this case