Locking the front door but leaving the back door wide open

1
Locking the front door but leaving the back door
wide open

• Alex Offer
• Park Court Chambers

2
Article 8 ECHR

• Right to respect for private family life
• Everyone has the right to respect for his private
  and family life, his home and his correspondence.
• 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.

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Human Rights Act 1998

• s6(1) It is unlawful for a public authority to
  act in a way which is incompatible with a
  Convention right
• s7(1) A person who claims that a public
  authority has acted (or proposes to act) in a way
  which is made unlawful by s6(1) may
• (b) rely on the Convention right or rights
  concerned in any legal proceedings.
• RSLs as public authorities
• - Poplar HARCA v Donoghue 2002 QB 48
• - R(Weaver) v London Qadrant Housing Trust
  2008 EWHC 1377

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Doherty v Birmingham CC 2008 3 WLR 636

• What use is it?
• For the occupier, it is a potential defence
• trespassers
• introductory tenants
• demoted tenants
• mandatory Grounds for Possession
• joint tenancies where one partner terminates

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Doherty v Birmingham CC 2008 3 WLR 636

• What use is it?
• For the public authority landowner, it is also a
  potential defence.
• s6(2)(b) Human Rights Act 1998
• For all of us?
• the power to call evidence in judicial review.

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Doherty the facts

• Doherty family are Irish Travellers living on a
  local authority site
• No security of tenure. Plain licence.
• Licence validly determined by notice.
• Birmingham claimed possession on basis of
  absolute right to possession as owner of land
  against trespassers.
• Defence Article 8, their eviction would be
  disproportionate.

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The Legal Background

• Harrow LBC v Qazi 2004 1 AC 983
• Art 8 never a defence to a claim for possession
• Connors v UK (2005) 40 EHRR 9
• ECtHR unanimously violation of Art 8 where
  landowner had an absolute right to possession
• Kay v Lambeth LBC Price v Leeds CC 2006 2 AC
  465
• Art 8 may be a defence if the law itself is
  incompatible (gateway (a))
• Can defend on JR grounds (gateway (b)).

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Gateways (a) (b)

• Kay Price, Lord Hope, paragraph 110
• The only circumstances in which the court can
  refuse the possession order are
• (a) if a seriously arguable point is raised that
  the law which enables the court to make the
  possession order is incompatible with article 8,
  the county court in the exercise of its
  jurisdiction under the Human Rights Act 1998
  should deal with the argument in one or other of
  two ways (i) by giving effect to the law, so far
  as it is possible for it to do so under section
  3, in a way that is compatible with article 8 or
  (ii) by adjourning the proceedings to enable the
  compatibility issue to be dealt with in the High
  Court
• (b) if the defendant wishes to challenge the
  decision of a public authority to recover
  possession as an improper exercise of its powers
  at common law on the ground that it was a
  decision that no reasonable person would consider
  justifiable, he should be permitted to do this
  provided again that the point is seriously
  arguable.

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Gateway (a) after Doherty

• Whether or not gateway (a) applies only to
  statutory law or also to the common law is left
  undecided.
• A statutory scheme was in play which was
  incompatible with Art 8.
• But, because it was a statutory scheme the
  local authority had a defence under s6(2)(b) HRA
  1998.

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s6(2)(b) Human Rights Act 1998

• s6(1) It is unlawful for a public authority to
  act in a way which is incompatible with a
  Convention right.
• s6(2) Subsection (1) does not apply to an act
  if
• (a) as the result of one or more provisions of
  primary legislation, the authority could not have
  acted differently or
• (b) in the case of one or more provisions of, or
  made under, primary legislation which cannot be
  read or given effect in a way which is compatible
  with the Convention rights, the authority was
  acting so as to give effect to or enforce those
  provisions.

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What is the effect in practice?

• The public authority landowner may have a
  defence to most Human Rights claims.
• The fact is that the City Councils common law
  right was surrounded on all sides by statutory
  infrastructure, like a patch of grass in the
  middle of a motorway junction. Lord Walker,
  para 100.

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Is the door closed on Art 8?

• No.
• 1) Per Lord Walker, para 104
• Where domestic law on a particular topic is a
  complex amalgam of common law and statute it may
  be difficult for the court to decide whether
  s6(2) of the HRA applies or not.
• Difficult cases may need to be determined on a
  case by case basis.
• 2) McCann v UK

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McCann v UK

• The Court is unable to accept the Government's
  argument that the reasoning in Connors was to be
  confined only to cases involving the eviction of
  gypsies or cases where the applicant sought to
  challenge the law itself rather than its
  application in his particular case.   The loss of
  one's home is a 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 the light of the relevant
  principles under Article 8 of the Convention,
  notwithstanding that, under domestic law, his
  right of occupation has come to an end.
• Para 50

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Gateway (b) after Doherty

• Can challenge the reasonableness of the
  decision on conventional JR grounds as a
  defence
• Can challenge factual allegations and call
  evidence
• You do all this in the county court.

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Reasonableness

• What is the test? Doherty is not clear.
• Could be proportionality?
• Could be Wednesbury irrationality?
• Could be super-Wednesbury?
• But see
• Smith Grady v United Kingdom (1999) 29 EHRR
  493
• R(Daly) v Secretary of State for the Home
  Department 2001 2 AC 532

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Other Issues

• What should a court do when it finds that the
  facts are not as the public authority believed
  them to be?
• What about other conventional JR grounds?
• Can you routinely challenge the facts in other
  judicial review cases?

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What use is it?

• a defence for public authorities to Human Rights
  claims
• a right to call and challenge evidence in
  judicial review
• a potential defence for
• trespassers, including former licensees
• introductory demoted tenants
• those facing mandatory Grounds for Possession
• former joint tenants.