Sorry for the delay in getting this post up, the delay is partly due to work but, more importantly, we’ve been arguing between ourselves as to how best to deal with it. Frankly, we can’t agree on what the case actually means and what the possible effects are. So we’ve done this as a co-authored post, with individual writers making comments, as set out below. Dave takes credit for the background and introductory material.
Regular readers will no doubt be aware of the background to the case. It really goes back to Bruton v London and Quadrant Housing Trust  1 AC 406, in which the House of Lords held that occupiers of a short-life accommodation which had been licensed to L&Q were found to have a tenancy by estoppel, from which certain rights (e.g. to repair) emanated. L&Q subsequently terminated their rights. Lambeth sought possession against the occupiers, who included Messrs Kay, Constantine, Cole, Greenhalgh, Armstrong, Ballantine, Breschinsky, and Ms Barnett. The occupiers put in a defence inter alia alleging breach of their rights under Article 8. That defence was struck out in the County Court on the basis of Qazi v LB Harrow  1 AC 983, and subsequent appeals to the Court of Appeal and (a seven person) House of Lords were unsuccessful. The House of Lords ( UKHL 10), in particular, adumbrated the now well-known gateway (a) (incompatibility per se of the possession proceedings with Article 8 / s.3 “reading down”) and gateway (b) (public law defence, possibly incorporating proportionality but unclear, although subsequent Court of Appeal decisions have made clear that it does not). Those were set out most notably by Lord Hope at . As regards gateway (a), in most cases (although cf Doherty where they would have made a declaration of incompatibility but for the intervention of Parliament), such a challenge would go nowhere because one could assume that the relevant balances had been made by Parliament and, if they had not been made expressly, one could imply them from inaction.
The role of the occupier’s personal circumstances for the purposes of a gateway (b) defence appears to have been what divided the majority and minority. For the majority, it appears that personal circumstances were not particularly relevant; Lord Bingham in the minority, however, argued (at , (3)(b)) that courts should have regard to the occupier’s personal circumstances as part and parcel of the gateway (b) defence.
Subsequently, in Doherty, the House of Lords accepted that some modification to the standard Wednesbury principles was needed in order to shore up gateway (b) (see Lord Hope at ). Proportionality seems to have been suggested by Lords Hope and Scott at least as part of the test, but the rest were mostly unclear on the point although Lord Mance and Lord Walker did suggest that any differences had been narrowed. And it is notable, as regards the occupier’s personal circumstances, that the length of occupation was a relevant factor (by reference to Connors v UK App. No. 66746/01 as interpreted by Lord Brown in Kay at ).
The ECHR frame
Again as regular readers of this blog will know, the UK and ECtHR have been on a collision course, so much so that we have previously drawn on Tarantinoesque analogy to summarise the differences – viz, will the UK adopt a Royale approach to mandatory possession proceedings (i.e. ECtHR) or retain its quarter pounder approach (i.e. the UK approach). In summary, in a succession of judgments, the ECtHR has found that mandatory possession proceedings in which the occupier has no opportunity to challenge the proportionality and reasonableness of the decision to evict them, breach the procedural requirements inherent in Article 8. That is to say, they are not “necessary in a democratic society” (Article 8.2). This approach was best summarised in Cosic v Croatia (at ):
In this connection the Court reiterates that 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 and reasonableness 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 or her right of occupation has come to an end.
In McCann v UK, which preceded Cosic, the ECtHR not surprisingly found that the rule in Hammersmith and Fulham LBC v Monk similarly breached Article 8 because of the lack of procedural safeguards (see especially paras -). The reception of McCann by the UK House of Lords was, ahem, not pleasant, the latter essentially saying that the ECtHR had misunderstood the possession process (a view which, for myself, I take with a pinch of salt – did Lord Scott really understand the day-to-day travails of the District Judge hearing such cases in a couple of minutes?)
Kay v UK: the general principles
It can, then, be of little surprise that the ECtHR found the UK in breach of those same requirements in Kay. It first set out the general principles (at -, and, in particular  and ).
67. Further, it is clear from the case-law of the Court that the requirement under Article 8 § 2 that the interference be “necessary in a democratic society” raises a question of procedure as well as one of substance (Connors, cited above, § 83; McCann, cited above, § 49). The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports of Judgments and Decisions 1996-IV; Chapman v. the United Kingdom [GC], no. 27138/95, § 92, ECHR 2001-I; and Connors, cited above, §§ 83 and 92)
68. As the Court emphasised in McCann (cited above, § 50), the loss of one’s home is the 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 light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end
Now pausing here for a moment – we have our first NL writers dispute.
J – I have a couple of thoughts here. One of the (many!) things that the ECtHR needs to clarify is what sort of hearing they have in mind. I think they probably mean that the court should decide – for itself – whether an eviction is proportionate. However, at , when they say “the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8″, can they be read as saying that the Court should adopt a review of the fairness of the procedure, i.e. is this a Wednesbury review where they’re concerned with the process or is it a merits review? Secondly, I’m not sure what to make of . In the previous cases (well, certainly Cosic, Paulic, McCann) this has been the central holding. Is it significant that it’s now moved merely to a general principle? Thirdly, what do they actually mean by “in principle” in ? Do they mean “in every case as a matter of principle” or do they mean “as a general rule, subject to possible exceptions”?
NL – On process -v- merits, I’m not sure I see the distinction. Assessing the fairness of the process inevitably requires an assessment of the merits of the decision. On “in principle” in , I tend to the view that what is meant is akin to ‘as a matter of principle’. Given the the same phrase – “in principle” – is used in the same context in Cosic (at , as quoted above), I don’t see that its use in Kay marks any departure of the Court from previous, erm, principle.
Kay v UK: The violation
The House of Lords judgment in Kay had already been considered by the ECtHR in McCann and that discussion was referred to by them again in Kay (at ); they accepted that Lord Bingham’s approach in his dissenting judgment in Kay as not having serious consequences for the functioning of the system. Based on the discussion in McCann, there was no reason to depart from that decision and it followed that the minority in Kay were right, the majority wrong and, therefore, there must have been a violation of Art. 8.
In conclusion, the Kay applicants’ challenge to the decision to strike out their Article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the instant case.
Nothing controversial here.
Kay v UK: the present and future
However, although the ECtHR made clear that it had to decide Kay on the basis of the law as pertained at the time of the decision and without consideration of what had happened subsequently, including the House of Lords’ modifications of Kay in Doherty. The Court went on, however, to consider Doherty and the developments to gateway (b).
You might think that this would be helpful, after all, the violation in Kay was obvious and inevitable, following McCann. The real question is whether the modifications to Kay in Doherty do the trick, so as to make current UK mandatory possession proceedings Article 8 compliant. On this, we may be left in the dark. On one view, there are hints in the judgment that the Doherty modification is sufficient; but, on the other, the ECtHR may be saying we have not come far enough. The key (albeit eliptical) paras are  and :
73. The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of Article 8. A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants’ to encompass more than just traditional Wednesbury grounds (see Lord Hope at paragraph 55; Lord Scott at paragraphs 70 and 84 to 85; and Lord Mance at paragraphs 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the Court considers that at the time that the applicants’ cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann, the Court agreed with the minority approach although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue (see McCann, cited above, § 54). To the extent that, in light of Doherty, the gateway (b) test set out by Lord Hope 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, the Court emphasises that this development occurred after the disposal of the applicants’ proceedings.
74. In conclusion, the Kay applicants’ challenge to the decision to strike out their Article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the instant case. (emphasis added)
J – what do they mean by “at the time”? Are they saying that Doherty has solved the problem? If so, why? Doherty is not, as the Court of Appeal has made clear in the Famous Five (Frisby et al), a proportionality review. So how can Doherty solve the incompatibility? Has the ECtHR actually understood Doherty? If English law still has some distance to go, why did they not say that? If Doherty had made no difference, surely the ECtHR would have said that? What on earth does it all mean? I agree with Dave (below) that the ECtHR was taken aback by the ferocity of the attack on McCann in Doherty (Lord Scott in particular) and have rather bottled it as a result.
Dave – My view is this: what seems to be happening is that we are reaching a stage where the collision course previously set is moving towards a pragmatic solution in which the Royale is merging with the quarterpounder without either necessarily being required to accept the other. Most likely, the ECtHR were stung by the criticism of McCann by the House of Lords in Doherty. If the Supreme Court gives a little more ground, and is clearer on proportionality, then we will be compliant. So, as Lord Hope said in Doherty (at  and, in my view, not enough attention has been paid to this), there is an important interaction between gateway (a) and (b) so that a slight expansion of gateway (b) will effectively cure any procedural defect. Now, that’s great to a point – and the point must surely be that there will be an added onus to find registered providers (or whatever you want to call them) subject to HRA principles when proceeding to eviction. In other words, Weaver must be right (and I would go further than Weaver, thinking about the more diffuse roles of RPs). But, what about mandatory possession proceedings when functions of a public nature are not being exercised, eg by private landlords (whether or not providing Part 7 accommodation)?
The further question is this: if one accepts the relevance of personal circumstances and proportionality, when are personal circumstances enough to succeed on a gateway (b) challenge? The significance of the facts in Kay (and, I have to admit, I did not realise this) is that broadly some were promised alternative accommodation, but not offered it; Kay was offered alternative accommodation but only for himself and not his partner and their baby; and others refused accommodation giving reasons which were not considered. Procedural impropriety anyone? But, significantly, when it came to assessing damages, the ECtHR made clear that there had been a procedural violation only, and, more significantly: “It is far from clear from the applicants’ submissions that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted” (at ).
NL – I rather agree with Dave that the ECtHR’s intention was to endorse a direction of travel, rather than a simple approval of Doherty/gateway b. In the context of the submissions of the applicants and the EHRC on the current confusion over the nature and extent of a gateway b review, the ECtHR’s lack of comment is pointed. The difference between Kay v Lambeth and now is that there is some form of review, and the difference between Connors and McCann and now is that the form of review has been expressed to extend beyond traditional judicial review grounds. The judgment clearly supports that extension but is silent on its sufficiency in the context that was put to it, being one of uncertainty and movement. Gateway b in Doherty was not the issue in the case on which it had to decide – Kay. Anything further would potentially be taken as interfering in the domestic courts.
That said,  and  do have the potential to be read as supporting the view that Doherty is sufficient to satisfy the proportionality assessment. But I think only if read in isolation.
Finally, for those waiting to have applications heard by the ECtHR, subject to admissibility (Darrell Dixon and Stephen Howe), don’t expect to get a significant award of your costs bearing in mind how much work goes into such an application (see ).
NL – the costs award is frankly very poor, at below County Court inter-partes guideline rates (for inner and outer London, at least). My sympathies to Thomas & Co.