Updated x 2 | Kay and Others v United Kingdom (European Court of Human Rights, 21st September) – Read judgment
The European Court of Human Rights has ruled that the UK violated the human rights of short-term tenants of council property whose leases had been terminated. The decision will not, however, prove much help to evicted tenants in similar situations in the future, although it should encourage courts to take their personal circumstances into account when deciding if they should be evicted.
The applicants were occupiers of housing units owned by Lambeth borough council under leases which had been provided by a charitable housing trust. Lambeth brought possession proceedings after the leases were terminated in 1999. The applicants complained that these proceedings breached their right to respect for private and home life under Article 8 (the right to a family life). They were unsuccessful before the domestic courts but the Strasbourg Court found a violation of Article 8, insofar as the applicants had been prevented from raising it as a defence.
Grounds for Judicial Review: The “Gateway (b)” Defence
In the House of Lords ruling (Kay and Others v London Borough of Lambeth  UKHL 10) their lordships considered that the only two defences to possession proceedings available to occupiers in this situation were the claim that the relevant law was incompatible with Article 8 of the Convention (Gateway (a)) , or (Gateway (b)) that the decision of the public authority to recover possession was one that no reasonable person would consider justifiable. In essence, the applicant’s complaint before Strasbourg was that this set a higher threshold than that required under the Article 8 (2) test of proportionality.
In our report on Kay we noted that the House of Lords followed its own ruling in Harrow London Borough Council v Qazi  1 AC 983, where it had held that once a local authority had a contractual and proprietary right to possession of a property, there was ‘nothing further to investigate’: an Article 8 defence could never prevail against the local authority’s right to possession.
The position of the majority of the House of Lords in Kay is best summed up by Lord Browne of Eaton-under-Haywood at para 26:
although article 8 is clearly engaged in every home repossession case, its requirements are satisfied provided only and always, first, that the substantive domestic law under which the order is sought strikes an acceptable balance between the competing needs and rights at stake and, secondly, that law is properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it. If either of those two conditions is not satisfied then, I accept, a complaint would properly sound under article 8. But, as I shall seek to show, it by no means follows that article 8 provides the occupier in such cases with a freestanding defence independent of whatever rights he may have under domestic law.
However, shortly after Qazi was decided further uncertainty was introduced by the Strasbourg Court ruling in Connors v United Kingdom  EHRR 189 in which it was held that the eviction of a family from a caravan site provided for travellers by the local authority constituted a violation of Article 8 despite the lack of any contractual or proprietary right on their part to remain. But the House of Lords got round the Connors problem by distinguishing from Kay the “infinitely rare” circumstances that enabled Mr Connors to make out a Wednesbury challenge to the public authority’s decision to pursue its domestic law rights. This route, they said, offered sufficient procedural protection under the common law. Such a case would be exceptional, however; in most cases it would not be “reasonably arguable” that, on the face of the pleadings, or from the contents of the affidavits, the public authority had behaved in such a fashion.
The Doctrine of Precedent in Human Rights Cases
Their Lordships also disposed of the Connors difficulty by asserting the traditional principle of precedent that domestic courts are bound by decisions of the highest UK appellate court, irrespective of apparently inconsistent decisions from Strasbourg.
Kay therefore appeared to settle the question as to what the lower courts are to do when confronted with a ruling from Strasbourg which appears to conflict with binding domestic authority. This question of precedent will shortly be exercising the Supreme Court when it hears the leapfrogged appeal in the DNA case of GC and C v Metropolitan Police Commissioner . In an earlier post on that case we quoted Lord Justice Moses’ assertion in the Administrative Court that
the UK courts were bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.
But whatever the outcome of the Supreme Court’s deliberations in GC, there is nothing in the instant Strasbourg ruling concerning the hierarchy of decisions vis-a-vis Strasbourg and our appellate courts that changes the principles of precedent set out by Lord Bingham in his much quoted passage in Kay:
It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.
The applicants may have been successful in securing a ruling from the Court concerning the procedural shortcomings of the common law in the context of Article 8 rights in possession proceedings. However this is essentially a time limited violation since it was only at the time that the applicants’ cases were considered by the domestic courts that there was an important distinction between rights based and traditional judicial review, a distinction which the Strasbourg Court at least considers to have fallen away since Doherty v Birmingham City Council  EWCA Civ 1739 , where Lord Hope opined that 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. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site
In light of Doherty, the test for availability for judicial review challenge to possession proceedings set out by Lord Hope himself in Kay should now 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 (para 73)
This, of course, is the Strasbourg Court’s interpretation. The current position in English law may not be so simple. There is still a resistance to the conflation of common law judicial review principles, which have become “hard-edged” over centuries of jurisprudence, with the more open-ended interests articulated by the Convention. Despite what was said in Doherty, it would be a brave litigant who insists on the lower threshold for review required by proportionality rather than the stiff Wednesbury unreasonable test in challenging a public authority.
Update, 24 Sep – Barristers representing the council provide their commentary here. Their conclusion: “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 –; ; ; ; ; ; ) 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.”
- More posts on Article 8 (right to family life)
- Baroness Hale predicts the courts may rule in favour of a human right to a home soon
- When is access to environmental justice “prohibitively expensive”?