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.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals 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 birds directive blogging Bloody Sunday brexit Bribery British Waterways Board 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 buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information 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 Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


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: