Human Rights and possession claims after Kay v Lambeth

The House of Lords decision in Kay v Lambeth [2006] UKHL 10 addressed Human Rights defences to possession claims, attempting to unify Harrow v Qazi [2004] 1 AC and the subsequent European Court judgement in Connors v United Kingdom [2004] 40 EHRR 189.

Qazi effectively ruled out a human rights defence to possession based upon Article 8 where domestic law had been complied with.

Article 8 of the European Convention on Human Rights provides that

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

2. 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.

Qazi effectively said that any possession claim made in accordance with domestic law satisfied 8.2.

Connors concerned an eviction of a gipsy family under a statutory procedure that required no reasons to be given by the local authority and no examination by the Court. The European Court held that the power to evict without giving reasons to be examined by a tribunal had, in this case, not been shown to satisfy 8.2. Moreover the legislation that enabled this did not give the requise procedural safeguards (there have since been amendments to change this). There was a positive obligation to consider the needs and lifestyle of gipsy families, both in legislation and in particular cases.

So, Connors apparently re-opened possible Article 8 challenges via two routes, a failure by a public body to consider the particular circumstances of the occupier where that should have been considered, and the incompatibility of legislation with Art. 8.

Kay v Lambeth, by a 4 to 3 majority, appeared to decide that the issue in Connors was solely that of the law itself, such that the only possible Art. 8 challenge was to whether the law under which possession was claimed met the Art. 8 requirements in terms of interference with the right to respect for the home. The assumption that the County Court should make was that if the interference was permitted under domestic law, it met those requirements. In some exceptional cases, such as Connors, it may be that the statutory procedure should ensure that special consideration is given to Art. 8 rights and this is a matter of statute. The minority considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.

The upshot of Kay therefore appeared to be that any Art. 8 defence had to be that the law was incompatible with the ECHR. Either the County Court would attempt to give effect to the law as best it could in accordance with Art. 8 or the matter would be sent to the High Court for consideration. At best the result would be a declaration of incompatibility, which, as the statute would still stand, still wouldn't help the occupier who would still have possession granted against them.

This view has now been tested in the Court of Appeal in Doherty v Birmingham CC [2006] EWCA Civ 1739, which concerned a summary order for possession. The Court of Appeal take a lengthy and considered comparison of the six reasoned judgments in Kay v Lambeth and settled on the 'majority' view as set out by Lord Hope.

Both Kay and Doherty though, do confirm that public law defences are available in County Court possession hearings, at least against public bodies. So anything that might be a ground for judicial review of the decision to take proceedings can be raised as a defence to a possession claim by a public body. It seems this is now the only way in which individual circumstances could be raised where possession procedures don't alow them to be addressed by the County Court.

What does that leave for Human Rights challenges? Not a lot, I think.

Possibly in Connor style termination of licences for Gipsy/Traveller cases, where there are strong merits. But the specific law in Connor has been amended to give some discretion to the Courts, so a duplicate challenge may now fail.

In an article in the May 2006 LAG, after the decision in Kay, it was suggested that a challenge to Ground 8 1988 Housing Act claims may be possible, at least where arrears are solely due to housing benefit errors. I'm not sure about this, for two reasons. Firstly, this looks like considering specific personal circumstances in relation to housing benefit, and secondly, because the challenge would surely have to be against Ground 8 as incompatible with Art. 8 tout court, against an absolutely express intention of parliament. Plus, of course, it wouldn't benefit the occupier who would still have possession given against them. (It may be that a putative public law defence would be an option here: Housing Association as a functional public authority and making an unreasonable decision to pursue a mandatory ground in view of housing benefit issues. The Housing Corporation guidance on ground 8 could help here. But this is also untested).

Whilst on the Housing Act 1988, the other big ground of non-discretionary possession, this one against private tenants - s.21 Notice and the accelerated possession procedure, might similarly lack procedural consideration of circumstances, but this one has already been tackled and dismissed by the Court of Appeal in Donoghue v Poplar Housing [2001] EWCA Civ 595.

No doubt there will be further challenges, but given Doherty's confirmation of the majority view in Kay, these are likely to be in quite exceptional areas. Mainstream possession claims, where in accordance with statute and the law, are beyond human rights defences.

m4s0n501
Posted in FLW case note, Housing law - All, Licences and occupiers, Possession and tagged , , , , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

13 Comments

  1. I am the solicitor acting for Mr Doherty (Doherty v B’ham CC). The CoA distinguished Mr Doherty’s case from Connors v UK, stating that the former was an ‘administrative’ matter and the latter a ‘factual’ matter. We disagree and Mr Doherty has recently been granted leave to appeal to the House of Lords. The CoA did say that there were two ‘gateways’ in a Connors style case: to interpret the law to make it compatible/ seek a declaration of incompatibility; or to bring a judicial review challenge but now to be done by way of defence in the court of first instance.
    As Doherty proceeds in the Lords, a case that certainly cannot be said to be other than ‘factual’ is porceeding in the Court of Appeal – Buckland v the Gypsy Council(being run by my colleague, Sharon Baxter).
    Hope this information is of use and congratulations on your website.

  2. Thanks for the comment. Very interesting. The factual v administrative issue hadn’t struck me as key on my first quick reading and report on the judgment, but having had a re-read…

    Good luck with the HoL and I’ll look forward to Buckland.

    The significance of the discussion of a public law defence at County Court wasn’t lost on me. I’m thinking Ground 8 HA 1989, in some circumstances at least (with YL v Birmingham as a fresh problem in that regard).

  3. I am acting as the Lay Representative for Patrick Stokes with leave from the CJ at Reading CC to appeal to the CoA against her Part 55 order for Possession of the Recreation Ground at Theale. It will be a test case on the Right to Education in the 1st Protocol, Article 2 of the ECHR, but also of the Council’s duty to show “common humanity” by delaying the eviction of school age children and those with health problems as held by Sedley J, as he then was, in 1995 in his Wealden Judgement (R v Wealden DC ex parte Wales and Stratford.) Common humanity refers to the Law of Nations used at the Hague to try cases of genocide and this law is higher than domestic UK law.
    Also we shall argue, as in Connors, that UK law did not allow Patrick Stokes any remedy as most of his over frequent evictions were by the police using s61 of the CJPO Act. Also what use is the CC and the CJ if it is a only a rubber stamp? Also the ODPM Guidance 2004 and 2006.

  4. The UK courts have been talking the most ridiculous carp about the HRA for some time. And did so again in an absolutely disgraceful miscarriage of justice (Truman, McDuff, McKenna), giving victory to criminals and a blameless severely ill harassment victim being forced to leave his home of 17 years the very next day.

    If the UK judges were talking sense about the HRA, then the whole of the following means no more than “except such as is in accordance with the law”, and therefore that that long contiunation after those words must (by the implication of these jokers) be no more than meaningless redundant verbage:

    “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.”

    According to the UK courts (Lord Bingham apart) that lot means no more than “except such as is in accordance with the law full stop”. That is manifestly learned and honourable B.S.

    Why do we bother paying these charlatans’ salaries? There can be few people with less real merit on which to base their conceit. We would get less pseudic justice by dragging rough sleepers in to give the judgments instead, and they might be less arrogant about it..

  5. Robin Clarke,

    You are clearly furious about something, unfortunately I can’t quite penetrate the fog of fury to tell what it is. Can you give references to Truman, McDuff, McKenna? Or an outline of the case(s)? Why was this a human rights issue?

    What was the Art 8 issue that the Court did not address in considering Art 8(2)?

  6. I think these are references to judges at Birmingham County Court. HHJ MacDuff QC is the presiding judge and HHJ McKenna is the deputy presiding judge. From memory, I think there is also a DJ Truman…

  7. Ah, thanks.

    Light dawns, in all sorts of ways. You would have thought that a couple of years taking new enquiries from the public at large would have given me a hair trigger sensitivity, but there you go…

  8. Well, I don’t think anyone expects you to have the names of all of the CJs and DJs in the country to hand!

  9. I have a question related to sec 8 and possession. I wonder if it could be answered here.

    In 1997 57,000 people had an object that it was perfectly legal for them to own.

    The law was changed making that object illegal to own and the government confiscated all those that were on record as being owned.

    I do not think it right that the state can just change the law and make an object illegal and take it away from its citizens.
    The right to property under ECHR comes to mind.

    The property in question is the pistols owned by sportsmen.

  10. Smokeless

    Your question is not related to Art 8 and possession at all. It isn’t even particularly analagous, but anyway…

    States make objects illegal and take them away from their owners all the time, but, under the ECHR, there has to be a good reason why. The question that would have to be answered in an apparent breach of Protocol 1 Art 1 (right to property) is whether the deprivation is in the public interest, or general interest, and whether it is permitted by law.

    If you want to mount a challenge to the firearms laws on that basis, go right ahead, there is nothing stopping you. There would seem to be a fairly clear public interest defence (whatever one might consider the be the practical effect of the Act).

  11. Thanks for the reply Contact. I tried to phrase my question broadly, more about having a lawful possession and then have a state make that item illegal and confiscate it.

    For instance an ivory ornament. At one point perfectly legal to own but a change in the law makes it illegal so a persons possessions are removed because the goal posts have been moved.

    It could happen with other possessions, blood diamonds, 4×4 vehicles etc. You could look further afield at the land grabs of Zimbabwee.

    The pistols were taken away over ten years ago but are still being held without having been destroyed. I have a feeling this may be in case a legal challenge to their removal is feared and they have to be returned.

  12. Smokeless

    I got your point, that was what I was trying to address. The right to property under the human rights convention is not an absolute right. States that have signed up to the ECHR can and do interfere with the right to property all the time, but, broadly speaking, the interference must be in pursuit of a legitimate goal in the public interest. Some of your examples go to prove this point – they are arguably in pursuit of a legitimate public interest (e.g Ivory – not retrospective, by the way, your existing ivory is not about to be confiscated).

    I hope this is clear – there is no absolute right to property, but confiscation cannot be arbitrary.

    The move from being legal to being illegal is absolutely standard, of course. One used to be able to not wear a seat belt, for example, or rape one’s wife. Just because it was once legal makes no difference to it being illegal now. You say ‘the goalposts have been moved’ – well yes. That is the way the law works.

    As I said before, if you want to challenge the gun law, go right ahead, it is open to you to argue that it is not justified by being in the public interest.

  13. Pingback: Human Rights and Possession Claims - looking for the exception at Nearly Legal

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