Eviction of council tenants was breach of human rights

23 September 2010 by

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 [2006] 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 [2004] 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 [2004] 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 [2006] 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 [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.”

Update, 26 Sep – See also commentary from housing law specialists at the Nearly Legal Blog, who provide a Socratic-style debate on the possible implications.

Read more:

Sign up to free human rights updates by email, Facebook, Twitter or RSS

1 comment;

  1. Andrew Wade says:

    I wonder if Article 8 would be of help to people caught up by the new social housing rules, where you’ll be evicted if you get a decent job? I mean, victims won’t have done anything wrong, and in many ways will have done things right – got jobs, paid their rent on time etc. I’d be interested to hear a lawyers opinion on this as I think you could drive a wedding procession through it.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: