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In the breach

The European Court of Human Rights has ruled that the applicants evicted as a result of the House of Lords decision in LB Lambeth v Kay had their rights under Art. 8(1), European Convention on Human Rights violated as a result of their inability to argue a defence in the county court based on their personal circumstances. The European Court emphasised that it was considering the law as it stood prior to the decision in Birmingham CC v Doherty, adds Arden Chambers.

Kay v United Kingdom, European Court of Human Rights (Fourth Section), App. No. 37341/06

Article 8 of the European Convention on Human Rights provides, inter alia, that everyone has the right to respect for his home (Art.8(1)). There may be no interference with that right by a public authority except in accordance with the law and so far as is necessary in a democratic society (Art.8(2)). In a number of cases in the European Court of Human Rights at Strasbourg, it has been held that a person at risk of losing his home should, in principle, be able to have the proportionality of the measure determined by an independent tribunal, notwithstanding that, under domestic law, his right of occupation has come to an end  (McCann v UK [2008] HLR 40; Cosic v Croatia 28261/06; HousingView, February 16, 2009; Paulic v Croatia App. No. 3572/06; HousingView, November 9, 2009).

In Lambeth LBC v Kay [2006] UKHL 10; [2006] 2 AC 465; [2006] HLR 22, the majority held (at [110]) that where a landlord seeks to enforce his right to possession in accordance with domestic law, the only cases in which it would be open to the court to refrain from proceeding to summary judgment and making an order for possession are:

(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Art.8, in which case either-

(1) the county court should use s.3, Human Rights Act 1998, to read and give effect to the legislation in a way which is compatible with Art.8, if possible to do so; or,

(2) otherwise adjourn the proceedings to enable the issue of compatibility to be determined by the High Court; or

(b) if the defendant has a seriously arguable point that the decision of a public authority to recover possession was an improper exercise of their powers on conventional public law grounds, the county court should allow such a point to be raised by way of a defence (Wandsworth LBC v Winder [1985] AC 461).

The minority differed as to width of the second of these options and would have allowed a defence to be raised where, having regard to the personal circumstances of the occupier, it could be contended that no possession order should be granted on Convention grounds (at [39]); the minority would not, however, have remitted the case because possession orders would in any event necessarily have been made because nothing had been pleaded giving the occupiers a special right to remain in the face of the authority’s unqualified right to possession (at [47]). In McCann, Strasbourg preferred the minority approach (at [52]-[54]).

In Birmingham CC v Doherty [2008] UKHL 57, [2009] 1 AC 367, [2008] HLR 45, in which speeches were delivered after the Strasbourg decision in (and written submissions on) McCann, the House of Lords affirmed the majority approach in Kay, where the courses of action described in [110] were identified as ”gateway (a)” and “gateway (b)”. The latter gateway was, however, not to be confined to traditional Wednesbury unreasonableness in the sense of perversity, but was apt to encompass a defence on any public law ground; any factual dispute between the parties as to the basis on which the decision was taken was capable of being resolved by the court (at [54]-[55]).

Facts

In Lambeth LBC v Kay, the authority owned a number of properties that were scheduled for demolition or redevelopment. The authority did not have sufficient funds to redevelop them. From about 1979, they entered into an informal arrangement with a housing trust under which the trust was to make the properties available for occupation, inter alia by homeless persons to whom the authority owed no duty. The trust purported to grant licences to the individual occupiers.

In 1986, the authority and the trust entered into an agreement, which was intended to formalise their existing arrangements. Under that agreement, the authority granted the trust a licence of all the properties. In 1995, the authority and the trust replaced the 1986 agreement with leases of the properties, with break clauses permitting termination by either party on written notice.

In 1999, the House of Lords gave judgment in Bruton v London & Quadrant Housing Trust [2000] 1 AC 406; (1999) 31 HLR. 902, ruling that the putative licences granted by the trust—including those granted to the defendant occupiers—were in law tenancies. Following that decision, the authority exercised the break clause in the lease and claimed possession on the ground that, on termination of the lease, the applicants had become trespassers.

The applicants contended, inter alia, that even if they had become trespassers, they were entitled to defend the proceedings by reference to their rights under Art.8. Their defences were struck out in the county court and appeals to the Court of Appeal and House of Lords dismissed (above). They applied to the European Court of Human Rights, arguing that there had been a violation of Art.8 as there had been no determination by the court of the proportionality of the interference. In particular, they argued that the approach of the majority in Kay as to the width of gateway (b) was incompatible with Art.8.

The European Court of Human Rights

The UK government accepted that the properties were the applicants’ homes for the purposes of Art.8(1) and that the decision of the authority to seek a possession order, together with the subsequent granting of the order, constituted an interference with their right to respect for the home (at [48]). The key question was whether the interference was “necessary in a democratic society” (at [50]).

Whether an interference was “necessary in a democratic society” raised a question of procedure as well as one of substance (at [67]). In particular, the court had to examine whether the decision-making process leading to the interference was fair and afforded due respect to the interests safeguarded by Art. 8 (at [67]). It was reiterated that any person at risk of loss of his home should, in principle, be able to have the proportionality of the measure determined by an independent tribunal, notwithstanding that, under domestic law, his right of occupation had come to an end (at [68]). In McCann, Strasbourg had previously held that gateway (b), as explained by the majority in Lambeth LBC v Kay, was incompatible with the requirements of Art.8 and that the wider approach of the minority was to be preferred (at [73]).

Applying these principles to the present case, the European Court identified its role as being confined to determining whether the applicants had the opportunity to contest the possession orders on the ground that they were disproportionate taking into account their personal circumstances. The Court's starting point was the House of Lords’ judgment in Kay; it found much significance in the difference between the gateway (b) route as described at [110] by Lord Hope for the majority and the wider route proposed by the minority, which would allow a challenge where, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order was incompatible with a Convention right.

The European Court welcomed the subsequent development of the law and expansion of grounds for judicial review in domestic case-law following Kay (including Doherty) – at [73] but concluded that – at the time that the applicants' cases had been decided by the domestic courts in Kay - there had been an important distinction between the majority and minority approaches. To the extent that, following Doherty, the gateway (b) test set out by Lord Hope in Kay was now to be applied in a more flexible manner, allowing for personal circumstances to be relevant to the county court's assessment of the reasonableness of a decision to seek a possession order, the European Court emphasised that this was a development which had occurred after the disposal of the applicants' domestic proceeding (at [73]). Accordingly, the applicants' challenge to the decision to strike out their Article 8 defences failed because it had not been 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 the light of personal circumstances; hence, the procedural safeguards required by Art.8 for the assessment of the proportionality of the interference had not been observed in that the applicants had been dispossessed of their homes without the proportionality of the measure being determined by an independent tribunal, so that there had been a violation of Art.8 (at [74]).

Comment

The decision does not in itself alter the position in domestic law. The ordinary rules of precedent continue to apply and judges continue to be bound by Lambeth LBC v Kay and Doherty v Birmingham CC (Kay v Lambeth LBC at [43]–[44]; [50]; [62]; [121]; [175]; [178]; [213]) unless and until the Supreme Court rules otherwise. The Supreme Court is considering the issue in Manchester CC v Pinnock, in which it heard oral argument earlier this year but in which written submissions on the effect of the decision in Kay v UK have been invited, and three other cases, Hounslow LBC v Powell, Leeds CC v Hall and Frisby v Birmingham CC, have been listed in the Supreme Court in late November raising the same or overlapping issue.

This is no more than an immediate response to a recent decision or development. There are likely to be competing interpretations of what the European Court has held, broadly as between a finding that the breach could only be cured by a decision of an independent tribunal that the interference is in fact proportionate and reasonable and a finding that the breach would have been cured by application of the test in Doherty.

Andrew Arden QC, Terry Gallivan and John McCafferty of Arden Chambers (www.ardenchambers.com) appeared for the authority in Kay v LB Lambeth. Andrew Arden QC and Terry Gallivan made written representations on behalf of the authority in Birmingham CC v Doherty. Andrew Arden QC and Jonathan Manning are acting for the authority in Pinnock v Manchester CC  and Frisby v Birmingham CC.

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