Right you are
HAS ARTICLE 8 COME HOME AT LAST?
On 21st September the European Court of Human Rights (ECtHR) delivered its judgment in Kay v United Kingdom (UK), a case in which it focused upon the question whether defendants to possession proceedings brought by local authorities who have no contractual or other right to remain in a home may nevertheless rely upon their rights protected by Article 8 of the European Convention on Human Rights (ECHR) in their defence. The answer to that question will clearly be very important for those Gypsies and Travellers who live on unauthorised sites and those that live on local authority run sites[1].
Article 8 states:
- 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[2]
There have been a series of important judgments in both our UK courts and the ECtHR on the this issue in the last few years. Put shortly, the UK courts have taken the position that as the UK Parliament had decided that there should be a right to possession, then that could not be defeated by a defence under Article 8. On the other hand, the ECtHR has consistently maintained that a defendant to an eviction action should have the opportunity of raising Article 8 as a defence.
Though some of the most important judgments on Article 8 do not involve Gypsies or Travellers it is important that we touch upon them so that we can explain the development of the law on this issue.
Kay v London Borough of Lambeth (LBL)
LBL owned a number of properties which were unsuitable for normal housing use ( known as “short life properties”). In around 1977, LBL began licensing short life properties to London & Quadrant Housing Trust (LQHT). Some of these properties were let to single people or childless couples who would not usually have a priority for accommodation under the homelessness legislation.
In 1999 LBL terminated the lease to LQHT. Mr Kay and the other appellants in this case then ceased to be tenants and, effectively, as regards LBL, became trespassers. They sought to use Article 8 as a defence to the eviction action that was taken against them.
On 8th March 2006, 7 members of the HoL dismissed the appeal against the eviction order that had been granted[3].
The majority judgment of the HoL[4] stated that there were only two situations where a defence could be raised. These became known as ‘gateway (a)’ and ‘gateway (b)’.
The gateway (a) defence can be raised where the law itself (e.g. a section of an Act of Parliament) is incompatible with the provisions of the Convention (see the Doherty case below for a situation where the HoL were on the verge of making just such a declaration of incompatibility).
The gateway (b) defence can be raised in circumstances where a defendant has grounds to challenge a decision to seek possession on traditional ‘judicial review’ grounds. Central amongst those grounds is the concept (taken from the name of another case) of Wednesbury unreasonableness – that is, where a public authority acts in a way in which no reasonable public authority would be expected to act. As can be imagined, it can be difficult for defendants to persaude a court that a public body has acted in such a way.
The dissenting HoL judges in Kay[5] indicated that any defence based upon Article 8 and the question of proportionality should be considered by the court dealing with the claim for possession, albeit that it would only be in an exceptional case that such a defence might succeed.
McCann v UK
Mr McCann was joint tenant with his wife of premises let to them by a local authority. His wife left him and terminated her tenancy. The legal position in UK law is that this led to the termination of the entire joint tenancy. Eviction action was taken against Mr McCann. His wife stated that she had not realised the legal effect that the termination of her tenancy would have upon her husband’s occupation of the premises. Mr McCann was evicted and took his case to the ECtHR. The ECtHR concluded that he should have been given an opportunity to raise an Article 8 defence and, when doing so, agreed with the minority judgment of the dissenting judges of the HoL in the Kay case.
Doherty v Birmingham City Council (BCC)
Mr Doherty is an Irish Traveller and a resident for many years on BCC’s only Gypsy/Traveller site. BCC decided they wanted to refurbish the site and then turn it into a transit site. They took eviction action against Mr Doherty. Mr Doherty attempted to defend the action but his defence was struck out on the basis that BCC had an absolute right to possession. An eviction order was made.
Mr Doherty appealed all the way to the HoL. His appeal was allowed. Indeed the HoL would have made a declaration that Mobile Homes Act 1983 section 5 was incompatible with the Convention because it excluded local authority run sites from its protection but for the fact that, by the time of the hearing, the Government had included a clause in a bill (which eventually became the Housing and Regeneration Act 2008 section 318) which would amend section 5 accordingly.
When giving its judgment in Doherty the HoL confirmed the majority judgment of the HoL in Kay but held that Mr Doherty should have had the opportunity of presenting a defence under gateway (b). Though the HoL did not go as far as the ECtHR in McCann, Lord Hope did state:
I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider.
However, the judgment was confused as to how far beyond traditional judicial review grounds a gateway (b) defence could extend.
Kay v UK
Having lost in the HoL, Mr Kay and the others took their case to the ECtHR. When giving its judgment, the ECtHR analysed the HoL’s decision and re-iterated the important point that it had made in McCann, namely that:
...the loss of one’s home is the most extreme form of interference with the right to 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 light of the relevant principles under Article 8...notwithstanding that, under domestic law, his right to occupation has come to an end (para 68).[6]
The main conclusion of the ECtHR is set out at paragraphs 73 and 74 of its judgment:
The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of Article 8...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 although it noted that, in the great majority of cases, an order for possession could 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...
...Accordingly, for the reasons given in McCann, the court concludes that the decision by the County Court to strike out the applicants’ 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...(emphasis added).
Thus, it is clear from the ECtHR’s judgment in Kay that it regards the HoL’s case of Kay to have been wrongly decided and that it essential that proportionality be addressed if and when it is raised by a defendant in his defence, albeit that it will only be in an exceptional case that such a defence will be successful.
Surely this is the most that those who have been pressing the case for defendants in situations where the claimant has an otherwise absolute right to possession under domestic law could ever have hoped for and thus it can be said that Article 8 has ‘come home’?
However, we must await the judgment of the Supreme Court[7] in Pinnock v Manchester City Council (a case concerning a demoted tenancy, where a secure council tenant has had his or her security taken away for a period of time due to certain specified grounds e.g. nuisance) to see whether the ECtHR’s views will be accepted by our domestic courts.
If accepted then Gypsies or Travellers living on an unauthorised site could argue in defence to eviction proceedings that the eviction amounts to an interference with their right to respect for their home and private and family life and their traditional way of life and that it is not ‘necessary in a democratic society’ having regard to all the circumstances (including, for example, personal circumstances and the lack of alternative available accommodation); in other words that it is disproportionate and would violate their rights protected by Article 8 of the Convention.
At the 2009 Housing Law Practitioners’ Association Conference, three distinguished judges said that they felt the county court would have no problem in dealing with Article 8 defences just as they have no problem in dealing with reasonableness defences presented by secure council tenants (of houses and flats). It is hoped that the Supreme Court now end this long drawn out debate and accept the position that the ECtHR has restated in Kay, namely that a defendant in a possession action can raise an ‘Article 8 defence’ albeit that it will only be likely to be successful in an exceptional case.
Chris Johnson, Travellers Advice Team (TAT) at Community Law Partnership and Marc Willers, Garden Court Chambers.
TAT operate a Gypsy and Traveller Helpline available Monday to Friday 9am to 5pm on 0845 120 2980. For an initial chat about any matter involving ‘accommodation issues’ for Gypsies and Travellers please call on 0121 685 8595 and ask for the person who is covering the Helpline.
Kay v Lambeth BC; Price v Leeds CC [2006] UKHL 10
McCann v UK, application no. 19009/04, 13th May 2008
Doherty v Birmingham CC [2008] UKHL 57
Kay v UK, application no. 37341/06, 21st September 2010
For the applicants in Kay v UK, David Watkinson of Garden Court Chambers and David Thomas of Hartnells solicitors.
[1] At least up until the time when the Government implements s318 of the Housing and Regeneration Act and provides those living on such sites with the same protection as that which is enjoyed by those living on Mobile Home parks.
[2] It has been held in a case concerning a Romani Gypsy that Article 8 extends to the right to respect for one’s traditional way of life: see Chapman v UK (2001)
[3] This case was heard by the HoL together with a case involving Travellers called Price v Leeds City Council.
[4] The leading judgment was given by Lord Hope.
[5] The main judgment for the minority was given by Lord Bingham.
[6] If you are finding it difficult to imagine how such a defence might actually be successful, see the South African Constitutional Court judgment in Port Elizabeth v Squatters [2004] ZACC 7, where Mr Justice Steyn dismissed the possession action against a squatters’ camp because the local authority had not done sufficient to look at rehousing of the squatters.
[7] The court which has replaced the HoL and inherited its role.