Case comment: Human rights, proportionality and local authority evictions

5 November 2010 by Rosalind English

Updated | We posted earlier on the Supreme Court ruling in Manchester City Council (Respondent) v Pinnock (Appellant), that requires courts to be satisfied that any order for possession sought by local authorities must be “in accordance with the law”, and (ii) “necessary in a democratic society” – that is, that it should be proportionate in the full meaning of the word.

How far this takes us from the previous position, where the role of the county court was limited to conducting a conventional judicial review of the councils’ decision in such cases, remains to be seen.

It is true that this marks an important departure from the three relatively recent cases where the House of Lords held that it was not open to a residential occupier, against whom possession was being sought by a local authority, to raise a proportionality argument under article 8:  Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983, Kay v Lambeth London Borough Council [2006] UKHL 10; , and Doherty v Birmingham City Council [2008] UKHL 57.  An important distinction between all these cases and the present one was that the appellants were not secure tenants so when their tenancies had come to an end they were in effect trespassers. To decline to make a possession order under Article 8 in these circumstances would be, in Lord Bingham’s words in Qazi,  “highly exceptional” .

Now that the Supreme Court has felt itself compelled to follow consistent line of Strasbourg decisions going the other way, by upholding the minority view in Doherty, which allowed a challenge based on the wider proportionality test than that permitted by just traditional Wednesbury grounds. The latest of these cases is Kay v United Kingdom (App no 37341/06), 21 September 2010,  where the Strasbourg Court concluded that the individual resisting possession 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 (see  our post on this case).

It is trite law that 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. But will the introduction of the full proportionality test into possession proceedings so radically overhaul the procedure under the 1996 Housing Act that local authorities find themselves considerably constrained in the exercise of their statutory duties and powers?

The Supreme Court acknowledged – and this is an important acknowledgement that suggests the law has not moved quite so radically on from the House of Lords position in Qazi,  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 47 EHRR 913, para 54. And of course the conclusion in this case only relates to possession proceedings brought by the local authority. Lord Neuberger was at pains to emphasise that nothing that is said in the instant case was intended to bear on cases where the person seeking the order for possession is a private landowner.

To require a council routinely to plead and prove, from the outset,  that the possession order sought is justified would, “in the overwhelming majority of cases” be burdensome and futile. What the Court seems to be suggesting here is that the very  fact that the authority is entitled to possession and is assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession.  And in cases where 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.

Where secure tenancies are concerned, the Court predicts that it would be “highly unlikely” that if the court granting the possession order is acting reasonably, it could not possibly at the same time be disproportionate to do so under Article 8. This is because the Regulations protecting various procedural rights of the secure tenant under the 1996 Act have to be considered by the court before it grants an order.

So as a practical matter, the main change is that Section 143(D)  should now be read as allowing the court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in the possession proceedings. And to achieve that end, In effect, section 7(1)(b) of the Human Rights Act confers the necessary jurisdiction on County Court judges when it is necessary for them to deal with a defence which relies on an alleged breach of the defendant’s article 8 Convention rights.

Where this rearrangement of the priorities in relation to possession orders is most likely to impact is in the observance and implementation of other of the local authorities’ duties in the housing context. It was submitted on behalf of Manchester City Council  that section 17 of the Crime and Disorder Act 1998 requires a local authority to exercise its functions, paying “due regard” to the need to prevent crime and disorder, and that this would conflict with its duty, by virtue of the occupier’s article 8 Convention rights, to consider whether it would be proportionate to bring or continue possession proceedings against him. This argument has considerable force and it is surprising that Lord Neuberger disposed of it so summarily, saying that it was “devoid of substance”.  Section 17, he said,

imposes no absolute obligation on an authority to do everything to reduce crime and disorder, irrespective of other persons’ rights or of its own other duties – and it would be very surprising if it did. Accordingly, the furthest this point goes is to suggest that a local authority, when deciding to bring possession proceedings against a demoted tenant, should take into account its duty under section 17, as well as the article 8 Convention rights of the tenant and any other Convention rights that may be in play.

The point may be devoid of substance semantically speaking, but in terms of practical implementation of its statutory powers the bolstering of tenants’ home rights against other occupiers’ rights to be protected from anti-social behaviour or crime, or indeed conflicting rights to accommodation, refurbishment and any of the other obligations of the council vis a vis its tenants is likely to skew the balance between these interests as local authorities boiler plate their decisions against judicial attack.

Update, 2 December 2010 – Barrister John Holbrook has written an article on the case in the New Law Journal: Trouble at Mill. He argues that the decision is “as important as it is troubling” and the Supreme Court has “placed our government in a straitjacket”:

But it is at a political level that the Pinnock judgment does most harm. In a democracy those who make the laws must be accountable to the electorate. And in a parliamentary democracy Parliament must have the power to set the parameters within which judges apply the law. MPs legislate on the basis of what they consider to be in the public interest, they are accountable for their decisions and from time to time are replaced. Judges, on the other hand, may have a partial view of the public interest which may be skewed by the apparent plight of the potentially homeless litigants who appear before them. Law making and judging are wholly different disciplines. Furthermore, judges are not elected and are not democratically accountable.

Pinnock ushers in an era where contrary to the clear text of several statutes the courts will now need to consider the proportionality of an eviction. This proportionality test is not a law that has been considered by Parliament and it is not a law that has been debated by the public.

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