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09/03/2009

The Irish Doherty?

This is well outside our usual beat, not to say our jurisdiction, but in an interesting case, the Irish High Court in Dublin City Council v Gallagherr [2008] IEHC 354 has found, for a second time, that summary possession proceedings, infringed Art. 8 rights and made a declaration of incompatibility in regard to s.62 Housing Act 1966, despite the availability of judicial review. Hat-tip to Garden Court for pointing the case out.

S.62 provides for summary possession procedures for unauthorised occupiers of housing authorities, with no hearing of facts or reasonableness. Mr Gallagher had had has application to succeed to his late mother’s tenancy refused – the Council stating that he had not occupied and/or been ‘on the tenancy’ for the required two years prior to his mother’s death. This finding was disputed, but the Council served notice to quit and the Demand, and then began proceedings under s.62. The proceedings were defended on the basis that:

the entry into force of the European Convention on Human Rights Act 2003 (the Act of 2003) required the District Court to impose an evidentiary and fair procedures requirement on a housing authority seeking a warrant for the possession of a dwelling under s. 62 of the Act of 1966

The High Court was posed the following questions by the District Judge.

Was there an obligation under section 2 of the European Convention on Human Rights Act, 2003 [Irish equivalent of the HRA 1998] to interpret s.62 in a manner compatible with ECHR?

If yes, did the Court have the discretion to explore the merits of the matter and consider Convention rights in doing so.

If yes, did the Defendant have an entitlement to address the merits of the procedure and rely on Convention rights.

Is the effect of s.2 to require the housing authority to adduce evidence justifying the decision to seek possession.

The High Court considered Connors v UK and McCann v UK on the lack of procedural safeguard. But the submission that s.62 should be interpreted in a compatible manner failed. There was clear Irish precedent law in Dublin Corporation v. McDonnell [1946] Ir. Jur. Rep. 18. to say that defences to s.62 were limited to those available at law. In what English housing lawyer might regard as a a dark irony, the Court considered that it did not have the interpretative flexibility of an english court under the HRA:

there is a significant difference between s.2 of the Act of 2003 and s.3 of the U.K. Human Rights Act 1998. The difference is the inclusion in s.2 of the Act of 2003 of the phrase “subject to the rules of law relating to such interpretation”. A similar provision is not included in the s.3 (1) of the U.K. Act, which reads as follows;
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”
The consequences of this difference are important, because it means that in this jurisdiction a Court, when attempting to construe a law in a Convention compatible way, is still bound by the rules of law which heretofore have governed such interpretation, whereas in the U.K. no such restriction is imposed by Parliament. The range of manoeuvre available to a U.K. court, as illustrated in the above passages from the opinions of Lord Hope and Lord Steyn, is not available to an Irish Court.

So an Irish court could not overturn established case law on the basis of the 2003 Act.

A previous case, Leonard v. Dublin City Council and Others [2008] I.E.H.C. 79, had held that the absence of merits hearing under .s62 did not breach Art 6 or indeed Art 8 rights, given the availability of judicial review. But Connors and McCann held that the lack of procedural safeguards were an Art 8 issue and judicial review not sufficient. In Donegan v. Dublin City Council and Others [2008] I.E.H.C. 288, the issue was Art 8 and the lack of ability for the Court to consider disputed facts. A declaration of incompatibility was made:

the Court found that there was no adequate procedural safeguard built into s.62 of the Act of 1966 to allow a person to make a case on the merits before an independent tribunal that he or she was not in breach of the tenancy agreement. Accordingly, a declaration of incompatibility was made under s.5 of the Act of 2003 that s.62 of the Act of 1966 violated Article 8 of the Convention.

There was a comparable issue of disputed fact in this case. Judicial review would not suffice as a procedural safeguard as, even if the disputed issues of fact were resolved there would have to be a further determination of whether the decision to bring proceedings was proportionate, including the personal circumstances, the circumstances of the decision and the broader issues of ‘the Scheme for Priorities of Lettings’ for example. In view of that, if the Defendant had made a JR application

Even if successful in such an application, the process of judicial review would not have given him a hearing on the merits of his case against the complainant. It would, in all probability, have led to a decision by this Court to remit the matter back to the complainant so that a proper hearing on the relevant issues could be conducted.

The opportunity to have the matter merely remitted back to the housing authority for a further decision on the decided facts did not constitute a proper procedural safeguard for s.62 proceedings and did not address the proportionality of the interference with the Defendant’s Art 8 rights. Therefore a declaration of incompatibility of s.62 was made.

This is all interesting stuff. There are distinct similarities in statute and procedure to summary possession cases in England. English case law is considered – although not the line of cases from Kay v Lambeth to Doherty. But there are some key differences. In particular, there appears to be no form of public law defence to possession in the lower courts and no question of a Judicial Review dealing with the circumstances involved in the decision, including those beyond disputed fact. The upshot seems to be that the procedural failures condemned in Connors and McCann presented themselves in a more clear cut and defined manner than in the English situation after their Lordships had taken a few stabs at it.

But the different situation in Ireland does highlight the question in England of whether a public law defence can be said to be sufficient to fulfill the role of ‘procedural safeguard’ for Art 8 rights when proportionality of the housing authority’s decision is still excluded from consideration, post Doherty. No doubt we will be returning to this again before long.

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.

5 Comments

  1. Michael

    “The Irish Doherty?” Bit like “The Welsh Llewellyn”, “The Scottish MacTaggart”, “The German Schmidt”…

    Reply
    • NL

      Quite, and I thought it was funnier if the sledgehammer wasn’t used. Obviously tastes vary…

      Reply
  2. Michael

    Tips on humour delivered in its lowest form, thanks.

    Reply
  3. house

    Is there any love left in this love / hate relationship? :)

    Reply
  4. Michael

    Ne’er the twain I fear

    Reply

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