So, Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57
Well, well, and once more for effect, well. This is a very interesting result indeed, although I use the word result in a non-definite kind of way.
The headline is simple enough, the case was remitted to the High Court for determination of the domestic judicial review issues raised as defence to possession. Court of Appeal overturned. The majority would also have made a declaration of incompatibility in regard to the Mobile Homes Act 1998, if the incompatibility had not already been removed by the passing of the Housing and Regeneration Act. Their Lordships declined to vary or amend Kay v Lambeth in the light of this appeal or the last minute submissions on McCann v UK.
Behind the headlines though, there is a hell of a lot of devil in the details. In particular, I think it is safe to say that there has been some movement on Kay v Lambeth, enough to make the situation not quite so bleak as it then appeared.
I’ll start with the majority and the judgments of Lords Hope and Walker, agreed by Lord Rodger
For those with attention spans of less than a year, the majority in Kay v Lambeth held to a formulation on Human Rights challenges to possession claims where the landlord’s right to recover possession is unqualified that was set out by Lord Hope in para 110 of Kay. To wit, the only situations in which it would be open to the Court to refrain from proceeding to summary judgment 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: Wandsworth London Borough Council v Winder [1985] AC 461.
These will be called gateway (a) and gateway (b) below. In Kay the majority view was clearly that gateway (b) would mean a challenge on the basis of domestic public law grounds, not broader Convention grounds. The minority in Kay considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.
In his judgment, Lords Hope held that the facts of Doherty – a gipsy family faced with summary possession after a Notice to Quit from a site that they had occupied for many years – were distinct from those of Connors v UK, Kay and indeed McCann, although most similar to Connors.
Here too was a unqualified right to possession by the local authority, where the decision to exercise that right was unchallengable under s.6(1) HRA 1998 as it was acting to give effect to the provisions of statute – s.6(2)(b). (Both Jan Luba QC for Doherty and Philip Sales QC for the Secretary of State challenged this point and it was not uniformly accepted – see below).
This was not a common law possession issue, but, because of the specific exception of local authority caravan sites from the Caravan Sites Act 1968 and the Mobile Homes Act 1998, an exercise of a specific right to common law possession given by statutary enactment – such that common law rights are effectively permitted by statute. (Again, not uniformly accepted).
Given this, and the Dohertys’ position as gypsies, the Connors issue of gateway (a) incompatibility applies – unjustifiably discriminatory statute. Because s.6(2)(b) applied, there was no possibility for the Courts to interpret the statute in accordance with the HRA (s.3(1)), leaving a declaration of incompatibility as the gateway (a) resort. As a result of the passing of the Housing and Regeneration Act, which corrects the issue, a declaration is not neccessary.
But gateway (b) could also apply. In Kay, the defence on public law grounds was limited to whether the decision to claim possession was ‘one that no reasonable person would consider justifiable’. Lord Hope points to his own comment at para 114 of Kay that the grounds of challenge to a decision to bring a claim were whether it was ‘arbitrary, unreasonable or disproportionate’. So gateway (a) and (b) work together to address the incompatibility of lack of procedural safeguard. If the statutes can be effected by the court in accordance with article 8 under gateway (a), fine. if not then it is open to the defendant to argue that that court must be satisfied that, on the basis of the grounds the claimant gives for its decision to seek possession, the decision is not Wednesbury unreasonable [para 53] (What grounds given for the decision? – this is summary possession!)
On the facts of this case, gateway (b) might have give an effective defence to the appellant. Gateway (b) provides an effective procedural protection. But, at para 55. Lord Hope says:
I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.
Lord Hope’s address to McCann, at paras 15-21, is solely in terms of the issue of incompatibility and ‘objective standards’ of an arguable case. There is no address to the issue of whether domestic judicial review grounds and a consideration or proportionality are commensurate, despite McCann‘s express view on this. But Lord Hope’s suggestion that judicial review grounds could address disproportionate decisions [para 52] and the hints at para 55 may indicate a broader set of grounds for public law defence to unqualified possession claims than just Wednesbury unreasonableness.
Lord Walker’s judgment broadly ends up at the same point. However, Lord Walker spends some time to point out that the statute/common law distinction was not at issue in Kay, in order to support the view that s.6(2)(b) applies in the present case – implementation of statute not common law is at issue. Accordingly, Lord Walker agrees on a declaration of incompatibility via gateway (a) and also that it is not now required.
On gateway (b) Lord Walker, who was in the minority in Kay, is not happy about the distinction between HRA grounds and ‘traditional public law grounds’ [paras 108 -110]. He remains unsure that s.6(2)(b) applies to what are common law possessions. In view of McCann, he is even more concerned about the separation of HRA and JR grounds [para 116]. In fact, the circumstances where a viable defence appears may not be as exceptional as he thought in Kay, in view of Local Authorities looking to avoid contested possession claims via ‘relinquishing notices’ as in McCann (Birmingham and others should rethink their policy).[para 121-122]. The Court’s consideration of any gateway (b) defence should be focussed on the Local Authorities’ decision making process.
Lord Rodger agrees with Lords Hope and Walker, with nothing further.
Lord Scott’s judgment suggests that traditional judicial review procedure should be amended to allow considerations of disputed fact [para 68] as a part of gateway (b), and also that the defendant’s personal circumstances might well be a factor to which the local authority should have regard in making the decision on a possession claim, and therefore open to an examination by the court of whether the decision was unreasonable and disproportionate.[para 70]
Lord Scott did not see the need for a declaration of incompatibility in the present case, Kay having removed any Art 8 incompatibility found in Connors [para 80]. There is also a spectacularly ill-humoured and, in my immensely humble opinion mistaken attack on McCann at paras 82 – 88.
Lord Mance agrees on remitting the case to the High Court for gateway (b) consideration, but does not agree on an (abortive) declaration of incompatibility. Although the possession claim was a statutory matter [ para 132], the availability of gateway (b) means that the statute is not incompatible with Art 8, although the statute may well have been incompatible per se. In any case, the challenge in Doherty was that if Art 8 was not available to him to rely on in one form or another, this was incompatible with convention rights. No incompatibility of specific statute was raised [para 154].
On gateway (b) Kay excluded convention grounds [para 136] but this case was not the same as Kay. In Kay, the challenge was to the local authority’s decision to enforce its undoubted right to possession. In Doherty, the challenge was to the validity of the decision to give a notice to quit, which is a pre-condition to any right to possession [para 157].
In Qazi, Connors, Kay and McCann situations, a Local Authority has discretion as to whether it undertakes the steps necessary to resume possession, or whether to bring proceedings. It arguably cannot be described as action ‘to give effect to’ or ‘enforce’ a statutory provision which may be considered incompatible with Convention rights. The Council is giving effect to its own evaluation of the position and in doing so is obliged to respect Convention values. Non-compliant decisions should therefore be challengeable under the Wandsworth LBC v Winder principle [para 158]
In the present case, the decision to bring possession proceedings could not be considered as ‘giving effect’ to statute, so s.6(2)(b) did not apply and would not hinder a challenge on Art 8 grounds to the validity of the notice to quit and thus a defence to the possession claim [para 159].
Kay is distinguishable on the basis that this case was a challenge to the validity of the notice to quit [para 160-161]. This case should be remitted to the High Court to consider an Art 8 challenge to the validity of the notice to quit – a challenge on Convention as well as conventional judicial review grounds. Thus any incompatibility with statute is removed [para 161]. Lord Mance regrets that it was not possible to vary Lord Hope’s ‘para 110’ (above) to enable Convention grounds for challenge.
And there we are. A majority which isn’t, as Lords Hope and Walker have significant differences in their views, with Lord Rodger agreeing with both. Judgments which suggest that the Kay formulation of judicial review grounds for defence have been extended, or not, or maybe should be taken with a bit more latitude than Kay apparently decided, but not so far as full Convention grounds, unless they should be considered.
I’ve no time for a properly considered, critical view, but at the very least, a defence on grounds of unreasonableness of the decision to bring proceedings on a summary possession claim has been acknowledged to be available, to supposedly address proportionality and that it is more likely to be raised and indeed justified than Kay apparently permitted.
A few quick points.
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.
The gateway (b) defence only applies to summary possession proceedings brought by public bodies (now potentially including RSLs after Weaver).
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.
Where statute provides specifically for a mandatory procedure, it is likely that a full challenge to compatibility is the only option – and extremely unlikely to be successful.
There is much else to digest, whether obiter or not part of the ratio decendi. I may well return to this shortly. For the moment, I going to start work on the public law defence for a summary possession case that has just dropped into my lap, and I’m grateful that Doherty at least gave some wriggle room on that.
Any CLP people care to contribute views?
Yup, Nearly, that’s a big ball of gristle to digest for a “unanimous” opinion. You’ve done really well to get the gist of it there, but it seems to me too that there’s loose ends all over the shop.
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.
My heart sinks when I see one of my finely honed public law defences listed before a deputy DJ. The obvious thing to do is to ask (at case management stage)that every such case be listed before the DCJ or at least a CJ with experience of s204 appeals. Raising the issue with the court users group in your area is probably a good idea until such time as somebody can be persuaded to amend the CPR or introduce a practice direction or protocol.
Yes, Ben. But since when have sensible Case Management requests always been listened to, assuming even that they’re dealt with at a hearing? It took years before s.204s got listed only before Circuit Judges, even after the CA pronounced on the issue.Even now the odd one winds up in front of a (fortunately not always baffled) Recorder. My heart sinks when advocates have to explain to the judge that a public law challenge is more than just “Isn’t this proving on the balance of probabilities that the decision is so perverse no reasonable body could have made it?”
Agreed. I’m being hopelessly optimistic. But in cases where you do get to express an opinion I would suspect most DJs would run mile from dealing with the kind of JR points we are now to routinely raise before them.
Another issue is of course that of the circuit bench’s capacity – the forthcoming regionalisation of the Admin Court is going to mean (I think) that more and more CJs are sitting as Deputy High Court Judges – thus taking them away from the important business of trying public law defences to possession claims…
NL said – “In particular, I think it is safe to say that there has been some movement on Kay v Lambeth, enough to make the situation not quite so bleak as it then appeared”
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).
Rudy: What do you want? Blood? Sure, I’ll deal with all the ramifications while trying to get a coherent report of a 79 page judgment together, after work on the day of the judgment…
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.
“Gateway a”
I agree it is likely to be the least useful defence – a declaration is of no practical use to man nor beast. Query, though, the extent to which we might be able to squeeze some use out of Gateway (a))(i) by relying on the interpretative obligations.
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!
On Doherty, for a formal case note see September Legal Action
A few comments here:
Welcome to the world of the JR based on facts and oral evidence
For the scientifically minded, try and work out the amount of daylight (see Lord Mance’s judgment) between this new territory beyond conventional judicial review and full blooded proportionality merits review. Or is there any?
And only Lord Scott actually disagrees with McCann
And what about the elephant in the room that they all skirt around – Qazi (who lost) is right they say (somehow) but Mr Qazi’s case had very good facts and McCann (who won) is right too (they have to say with the exception of one) but that had, shall we say, difficult facts(?!?)
And surely Buckland v Smith can’t survive Doherty?
@Chris Johnson: I shall be testing the ‘expanded JR’ remit shortly, unless we settle. I agree with you on the stresses and strains of this judgment. However, absent the availability of a full blown McCann proportionality review, for practical reasons I’m glad that the gap with JR is narrowing to the point of invisibility (if it is, of course, if it is. We’ll see).
Dear NL
We await your ‘trial run’ with interest!