What passage are you relying on for the contention that Doherty extends (even marginally) the range of circumstances in which Gateway (a)(ii) might be useful? Surely Hope at [42] confirms that Gateway (a)(ii) remains as per Kay and, at [46] that a possession order would still be made, albeit with a declaration of incompatibility?

It is accepted (both by the Lords and by me for the purpose of this exchange!) that Doherty was an exceptional case because of interaction of the common law, Mobile Homes Act and Caravan Sites Act. The problem was remedied by the amendments contained in Part 3 of the Housing and Regeneration Act.

“Gateway b”
The categories of Judicial Review are (to the extent that it is useful or helpful to categorise an inherent jurisdiction!):
(a) Unreasonableness / irrationality – Wednesbury
(b) illegality – CCSU
(c) procedural impropriety – CCSU

There is some (to my mind unhelpful and confusing) discussion as to whether or not breach of the Human Rights Act is a new head of judicial review or simply an aspect of an illegality challenge (since s.6 HRA makes it unlawful to violate the HRA etc..). But no-one, in any case, has contended that a breach of the HRA would not be susceptible to judicial review under one category or another.

What their Lordships are saying is that the High Court should be more willing to hear factual disputes and, hence, to determine the proportionality of an action taken by a local authority. Again, I don’t see why this is controversial. I accept that Kay didn’t necessarily spell this out but, in other HL cases, (see previous post), the HL have already said something similar.

Proportionality and the courts
My academic interests come through on this one – their Lordships have (again!) ducked a significant issue. There is a danger of the law diverging, with HR concerns only relevant in cases involving a public authority as a litigant. That doesn’t square with either the interpretative obligation under s.3 or the status of the court as a public body under s.6. Now, if only I could find a case to run to the Lords on this point!

McCann
But their Lordships disagree with McCann and, therefore, we all have to follow what their Lordships say. We’ve known for years that the ECtHR doesn’t think JR is an adequate remedy (Art. 13) or provides adequate procedural safeguards – Smith v UK (1999) 29 EHRR 493 springs immediately to mind. But their Lordships disagree and see JR as perfectly suited; Alconbury; Runa Begum etc, albeit that there needs to be a more relaxed approach to how the High Court deals with factual disputes.

This “more relaxed approach” is all that we get from Doherty and, as I said, it is just a re-statement of a position taken by the HL in other recent HR cases.

Your turn!

Anyway, you are quite right that there are loose ends, the whole thing is loose ends to some extent. So, to quasi summary proceedings (introductory, demoted and maybe even assured mandatory under HA 1988).

As most of the judgments take the LA’s exercise of common law possession powers as being statutory ‘by exclusion’ in this case, one could argue a parallel with the exercise of statutory power in introductory etc. possessions. Therefore both gateway (a) and (b) ought to be potentially applicable. But, look at Lord Walker at para 117 and 118. Lord Walker takes it that the ECtHR conclusion in McCann on procedural breach would have been the same for intro or demoted tenancy. But, at para 119, he points out that Kay holds that the distinctions between kinds of tenancy in HA 1985 is not challengeable under Art 8 incompatible – so no gateway (a) without overturning Kay. In para 120 -122, though, he clearly envisages challenges to the Local Authority’s decisions in giving effect to the legislation, where a procedural consideration of proportionality is not possible. He suggests it will be a lot more widespread than he thought in Kay or ECtHR thought in McCann.

In view of this, it is surely arguable that gateway (b) challenges are available for Intro/Demoted tenancies. Maybe even ground 8, if one takes RSLs as public bodies under the HRA, post Weaver.

But surely in most of those cases, it would be trivial to show the decision was not unreasonable. Plus, no Art 8 challenge to the statutary process.

J: Point by point…

‘treated as “Just a gipsy case… no gateway a in other possession cases’

I don’t think so – Doherty was the case in hand and was a gipsy case, but the analysis goes beyond that. Granted that gateway (a) remains extremely limited, but their Lordships were not asked to apply gateway (a) to any other kind of possession case. Gateway (a) is frankly of limited use – a declaration at best – and Strasbourg awaits, I suppose.

‘gateway b’
What is going on is odd, but I think goes beyond a simple restatement of Kay – domestic public law – grounds. Even Lord Hope extends, ambiguously, his own formulation. Look at para 55, or at para 52 – 53. At 52 he gives the grounds of JR as ‘arbitrary, unreasonable or disproportionate’ but then at 53 the requirement is that ‘the decision was in the Wednesbury sense not unreasonable’. Lords Walker, Mance and Scott all, in various ways indicate that the JR grounds should not be taken as the traditional limited grounds of JR, whether by suggesting including hearing disputes of fact, an examination of the LA’s consideration of personal circumstances, full blown Convention grounds or suggesting that JR and Convention grounds are coalescing. Add in a recognition (Walker, Mance) that gatway (b) will be more widespread than first thought, and there is a recasting of ‘what Kay meant’ going on. Note that the Court of Appeal’s strict interpretation of Kay in Doherty is overturned.

Part of the reason for this is McCann, I suspect. On which see below.

‘regretted not 7 strong panel’. Yes, I should have put 9 strong panel. And yes, regret is too strong, but expressly in one judgment and suggested in a couple of others is the view that if they had known McCann was going to be on the agenda, a 5 panel wouldn’t have been chosen.

Proportionality and the Courts.
No doubt we’ll return to this one. I agree there are questions here.

McCann.
McCann is not a well done or entirely consistent judgment. The specific case involved is not, as Lord Scott rants, exactly a poster child for proportionality. Nonetheless, the key points in McCann, that Connors is not a gipsy exception case, and that JR grounds do not offer adequate consideration of proportionality are absolutely bang on as the faultlines, implicit and explicit running through Doherty. The JR issue is at the core of the gateway (b) consideration in each judgment, even where apparently written pre McCann.

Really? My reading of this is that it is – for the most part – treated as “just a gypsy” case. There is nothing to encourage a “gateway a” defence in any other type of possession case. The (very limited) role of the county court is affirmed.

As to “gateway b” – there is some encouragement given to bringing JR claims and suggestions that the High Court should now hear and decide cases involving a dispute of fact, but this isn’t particularly controversial – see Tweed v Parades Commission [2006] UKHL 53. No-one doubts that Wednesbury remains the standard. Likewise, it isn’t controversial that the personal circumstances of gypsies can be relevant (see the circular mentioned at para. 108)

In practical terms, there is clear advice for public authorities to avoid ‘summary’ procedures for the recovery of land but, again, this isn’t controversial. As their Lordships note, the summary procedures often end up being slower and more expensive in any event!

NL said – “Their Lordships generally regretted that they hadn’t been constituted as a 7 strong panel, in the light of the late arrival of McCann. A 5 strong panel simply could not change the decision of the panel of 7 in Kay”

Again, I’m not sure that is right. Mance certainly goes this far but the others are more cautious. The others recognise that the HL should not depart from recent decisions without a very good reason. I also think Hope is right to say (at [19]) that a committee of 9 law lords would be needed to overturn Kay.

NL said – “The proportionality issue is seen as a matter of the decision brought by the landlord – so only applies to public landlords and their decisions – not to the decisions of the court”

This is where their Lordships get into something of a mess. They all recognise that the court is a public authority for the purposes of the HRA, but don’t think that issues of “horizontal effect” need to be considered. This can’t be right and (to my mind), this is the more exciting point to challenge in the future.

As to McCann, I suspect we have different views on this too! The criticisms seemed entirely fair and reasonable to me. McCann is a very poor decision (and I won’t repeat the criticisms I made of it elsewhere on the blog). It is reassuring to see the HL engaging in dialogue with the ECtHR and developing a domestic appreciation of what Art. 8 involves and not just accepting a (poorly reasoned) decision (based on written submissions only).

I’d (skim) read it with interest to see what their Lordships might have made of the quasi-summary position of proceedings for possession against Introductory Tenants, Demoted Tenants and RSLs’ “starter” ASTs which are subject to internal reviews (the latter being non-statutory) – the difference being that the tenant in those cases has pre-action rights which simply don’t happen in the CA/HL/ECtHR travellers’ cases and joint tenant spouse NTQ cases. It’s a key distinction that the CA has felt in recent years needs to be challenged by Admin Court JR only, in cases which the County Courts have felt comfortable adjourning and leaving to the Knights of the Bench. But these too count as “summary” possession claims (though would this unqualified portmanteau yet accommodate RSLs’ Ground 8 claims?) Now all these cases are most definitely being chuted down Gateway (b), using words that indicate that any other type of proceedings are as outmoded as kipper ties.

The Lords seem to think that County Court judges will just be able to “do JR” on these sorts of cases. A growing number of IT and Demotion cases in particular are being challenged by tenants, many with good reason (“just cos they’ve cleared the arrears this time means nothing, they’re a bad family, everyone knows that…” as one housing officer told me about an Introductory Tenant).

I don’t think that half the Designated Civil Judges in the country can exercise JR jurisdiction adequately, without any training, let alone the District Bench and part-timers. Does anyone else remember doing s.204 appeals before baffled old Criminal Recorders and bemused DDJs? Why else would JR have been entrusted to just a few dozen smart ‘uns on the Crown Office list, otherwise?

Repent at leisure, hare set running, tears before bedtime, etc., etc.