Comments on: Public Law Defence – an arguable case

By: J

Sun, 05 Apr 2009 15:34:04 +0000

Carl – quite right. No-one thinks that the approach taken by the ECtHR and the domestic courts can stand together and, ultimately, we suspect that the ECtHR’s position will win out, if only because the Government agrees with the ECtHR!

Although, arguably, the Art. 8 duty already bites on the court, regardless of any additional protection imposed by Art. 6. See para. [46] of Doherty [2008] 3 WLR 636

By: NL

NL — Sat, 04 Apr 2009 11:19:34 +0000

Carl, you are exactly right about the rearguard action, and the ECtHR is about to tackle the major Lords decision on this in Kay. But what you suggest also shows the scale of the problem. So far Strasbourg has taken proportionality as an Art 8 issue, not an Art 6 one, so it has been a question of proportionate actions by the public body landlord, and the issue is whether the process allows for an examination of whether the landlord’s decision to seek possession was proportionate – Judicial Review not being sufficient where possession is summary (McCann). But it is not about whether making a possession order is proportionate, rather whether there is the opportunity for scrutiny of whether the public body landlords’ decision to seek possession was lawful. It is a procedural issue for the Courts.

But if you make it an Art 6 issue – whether granting a possession order is a proportionate action by the Court – then the whole private sector tenancy system would be caught, and also all the mandatory possession grounds. The whole statutory apparatus of possession for private letting (and some RSL letting) would be dismantled. This may be why Strasbourg has avoided Art 6.

By: Carl Gardner

Carl Gardner — Sat, 04 Apr 2009 09:58:48 +0000

I’ve not been following this closely till recently – but either I’m failing (as a non-housing specialist) to get something, or this is all just a desperate, over-complex and futile rearguard action from our judges. Isn’t it clear from Strasbourg that there simply must be consideration of proportionality when an order is made (and allowing possession is in substance equivalent to an order whatever its formal categorisation domestically)?

My one concern about the Strasbourg approach is on the Begum issue: the point must be whether possession actually is proportionate, not whether a court considered its proportionality. But in a situation like possession where the court’s decision whether to grant possession is key, they amount to the same thing under the HRA, don’t they, in a practical sense? To do its section 6 duty a court must consider proportionality.

I can’t see how or why our judges are trying to stand against this. And the attempt seems to be making the law ludicrously convoluted, with these two gateways and the question whether gateway b is now a shade wider. Bonkers!

By: J

Thu, 02 Apr 2009 08:56:19 +0000

But, of course, any well advised LA/RSL should have been doing that since Kay… :-)

By: NL

NL — Thu, 02 Apr 2009 08:47:54 +0000

I agree that it probably isn’t unusual – I think the Court of Appeal was playing safe, not wanting it to look like such a challenge could be common. That said, actually sending the letter stating the policy after serving the NTQ probably was unusual ;-)

As you say, most RSL/LAs would have such a policy, and it struck me as arguably unreasonable if there wasn’t a policy in place.

Not exciting? No new law? Perhaps not, but useful to see gateway b arguments bedding down – and also to see the nails banged into the coffin of the ‘we don’t have to carry out quasi judicial investigations’ argument from the LA. And it does make absolutely clear that it would now be a foolish LA that would simply seek to rely on ‘NTQ served’ without being able to adduce evidence of the considerations that led to the decision to do so.

By: J

Thu, 02 Apr 2009 07:29:21 +0000

Three points spring to mind:
(a) I’m not so sure that this is an “unusual” case. Most of the RSL and LA policies that I’ve got on my laptop make clear that they too would only serve an NTQ once they were satisifed of some sort of wrongdoing;
(b) However, the authority in this case were the authors of their own misfortune. By failing to adduce evidence to explain why they were satisfied that the ASB had occured, they were inviting a result like this;
(c) It’s reassuring to see everyone accepting that “gateway (b)” isn’t limited to a Wednesbury challenge but encompases the whole scope of public law. Quite why anyone ever thought the contrary is beyond me, since Kay hadn’t argued for that position and Doherty was expanding, not reducing, the scope of Kay.

In truth, this isn’t a particularly exciting case and I certainly don’t see it as laying down any new law. The public law element of this defence was manifestly arguable and one suspects that, had the case been heard by someone other than a DJ (i.e. someone with public law experience, even if only a CJ with experience of s.204), the correct result would have been obtained at the outset without a need for the appeal.