The brilliant Baroness

Yemshaw v Hounslow LBC [2011] UKSC 3

While my NL colleagues are off partying at a secret location for lunch, I’ve managed to steal a few precious minutes from an appallingly tight deadline (Sinead: if you’re reading this, it’ll be there, honest) to write a paean of praise in honour of Baroness Hale’s judgment in this case.  It is quite simply, as NL has put it, Baroness Hale at the top of her game; a brilliant, tightly argued, academic but practical, rich and deep appreciation of homelessness law and its underlying philosophy (cf the “provocative” approach taken by the Daily Mail in their, ahem, “interesting” comment on the case – more of which, possibly, later).  Her judgment in Yemshaw provides the principal justification for the reams of academic literature that now exists about her (rather than written by her).

Background

The background to Yemshaw has been covered by NL (here), which was concerned with the Court of Appeal judgment. The issue for the Supreme Court was the definition of “violence” in s 177(1), Housing Act 1996, for the purposes of the definition of homelessness.   The Court of Appeal considered themselves bound by Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404, despite the fact that the Code of Guidance had defined “violence” more broadly, but, in any event, they rather agreed with the narrow take on “violence” in Danesh.

Outcome

In the Supreme Court, the actual outcome was that violence is to take the same meaning as in the family law context: “‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm” (Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, at [2], emphasis added; Yemshaw, at [28]).  Baroness Hale (with whom Lords Hope and Walker agreed) gave the leading judgment; Lord Rodger gave a concurring judgment, out of deference to the CA; and Lord Brown doubted the result but, in the oddest final paragraph, basically said that he didn’t care enough to dissent (“At the end of the day, however, I do not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent. I am content that the views of the majority should prevail and that the appeal should be allowed”: [60]).

Baroness Hale made clear that the question for the local authority (following on from Birmingham CC v Ali – our note here) is essentially about the future, ie the probability of the acts continuing in the future (“This is the limiting factor.  Sections 177 and 198 are concerned with future risk, not with the past”: [34]).  Further:

I accept that these are not easy decisions and will involve officers in some difficult judgments. But these are no more intrinsically difficult than many of the other judgments that they have to make: …. Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider? This is not to apply a subjective test (pace the fifth reason given in Danesh). The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved. (at [36])

My suggestion is that, just as the Holmes-Moorhouse paragraphs pop up in practically all local authority skeleton arguments, this paragraph is likely to be in most appellants.  Homelessness decision-making is a difficult job, but it has to be done.

Reasoning

Although Baroness Hale made it look relatively easy, this result was rather more difficult to achieve (as is clear from Lords Rodger and Brown’s judgments). It required deft footwork, using the history of the homelessness legislation,  method of statutory interpretation adopted in Fitzpatrick v Sterling HA [2001] 1 AC 27, combined with “modern” understandings of domestic violence.  The interpretation meant that the phrase “domestic violence” in section 177(1) is left virtually redundant (a historical vestige, in essence – see the quizzical discussion at [9]-[11]) and, it is to be noted the ambit of the phrase “other violence” in section 177(1) (as amended) was unclear and left open (Baroness Hale could see both sides of the argument: [35]; note to self – one for the future).  Anyway, starting from the top …

As Baroness Hale pointed out (at [7]-[8]), the definition of   “violence” is an important question because of its “deeming” or “passporting” effect – that is, a person falling within this definition will not only be found homeless but will also be found not intentionally homeless (and will affect the ambit of the local connection provision).  Its parameters, then, are crucially important.  Baroness Hale traces the rather tawdry history of section 177(1) back to the inane distinction that used to be drawn between violence inside and outside the home; and the proviso that local authorities are entitled, in exercising their decision-making on homelessness and intentionality, in relation to reasonableness, to have regard regard “to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation” (now s 177(2)).  As regards the latter, Baroness Hale suggests that “this strongly suggests that regard may be had, not only to the quality of housing available locally, but also to the quantity” (at [5]; on which Ian Loveland’s academic work from the early 1990s is interesting by the way).

The history of the “deeming” provision enabled Baroness Hale to make a number of points about section 177, as original drafted.  She notes, first, that it expressly includes violence against other members of the household; and second, that it was not limited to violence from someone living in the same accommodation but covered violence from an “associated person” (see s 178).  Those changes, though, did not alter the underlying, fundamental purpose.

The development of policy and family law understandings about “domestic violence” were also relevant to the discussion, and Baroness Hale brilliantly interweaves that development with homelessness law.  So, after tracing the development of the family law approach, she notes that “it cannot be a coincidence” that the definition of an associated person in section 178 closely resembles that in the Family Law Act 1996 (at [22]); and

All of this indicates a consciousness in 1996 of the need to align housing, homelessness and family law remedies for victims of domestic violence, so that they could have a genuine choice between whether to stay and whether to go and the local authority or social landlord would not be obliged to continue to provide family sized accommodation to the perpetrator. There was also an explicit acknowledgement in the report which led to the Family Law Act 1996 and by the Home Affairs Committee that “violence” could have a wider meaning than physical contact. (at [23])

This tracing process led Baroness Hale to the Fitzpatrick approach to statutory interpretation.  In essence, some statutes are to be read as “living law”, ie interpreted by reference to their current meaning as opposed to the meaning which they might have had at the date on which they came into force: “The essential question … is whether an updated meaning is consistent with the statutory purpose” (at [27]).  What were the statutory purposes:

In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm.  A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere. (at [27])

Those purposes would be achieved if the court adopted the family law definition of violence.  Further, that interpretation was not inconsistent with the statutory provisions in Part 7.  Yes the Secretary of State has a power to include other forms of ill-treatment falling short of actual violence within s 177(1), but that had not been done because the SoS already believed that the word bore that wider meaning.  If there was concern that the threshold was being set too low, Baroness Hale observed (and, in doing so, drew on her family law knowledge as well as brilliantly undercut any potential dissent):

The advantage of the definition adopted by the President of the Family Division is that it deals separately with actual physical violence, putting a person in fear of such violence, and other types of harmful behaviour. It has been recognised for a long time now that it is dangerous to ignore what may appear to some to be relatively trivial forms of physical violence. In the domestic context it is common for assaults to escalate from what seems trivial at first. Once over the hurdle of striking the first blow, apologising and making up, some people find it much easier to strike the second, and the third, and go on and on. But of course, that is not every case. Isolated or minor acts of physical violence in the past will not necessarily give rise to a probability of their happening again in the future. (at [34])

It’s just brilliant stuff.  Lord Rodger’s concurring judgment looks like it could have been written 30 years ago by contrast.  Lord Brown – well, read it and see what you think.  it’s not uninteresting in terms of the value judgments he is making (see especially [57] where he draws a distinction between the urgency in actual violence cases as opposed to those “subject to psychological abuse”).

Right, back to that deadline … (oh, and hope the rest of you NLers enjoyed the long, luscious lunch – not that I’m jealous or anything)

Posted in Homeless, Housing law - All and tagged , .

10 Comments

  1. If this was the result, I’m almost glad you missed lunch.

    But I must reject any suggestion of partying. Justice never sleeps – with the result that we were depleted in both numbers and available time. While being very pleasant indeed, lunch was not remotely Dionysian. Except possibly the dessert, which was quite frisky.

    As you know, I share you view on the Baroness’ Judgment – aside from the result, which is the right one, it is technically, formally and practically superb.

    There may indeed be more on the Daily Mail article shortly…

  2. Instead of a dessert, how about the humble chip? Although not as posh as other methods of potato preparation, it always gets the job done in a brilliantly effective way. Also, it would mean that I could say I had Hale & Plaice for lunch.

    I’ll get my coat.

  3. Not so fast!

    At one point Hale states that it is not for the government and official bodies to interpret the words of parliament, but for the courts. Then she cites only one source for her interpretation – a practice direction! It doesn’t arise from case law or parliament, so I’m afraid she’s begging the question.

    And the interpretation:
    “Accordingly domestic violence included … any other forms of abuse which, directly or indirectly, might give rise to the risk of harm.”

    To me that seems incapable of sensible qualification – a licence to a housing officer to measure out justice by the length of her own foot. Hale later says this is not a subjective test, but I find that assertion unconvincing.

    I’m not clear on her approach to the “living law” concept. Doesn’t really dig into it. I wonder if she shares the views of Justice Breyer, who promotes the controversial concept of “active liberty” in interpreting US statutes.

  4. @Sgee: The point that Baroness Hale was making was that, although the homelessness Code of Guidance (written by the CLG) offers an interpretation of the law, it is by no means definitive. Only the courts can provide such an interpretation of the Act. As I look back at my notes, the whole point of the relevant provision in the 1996 Act was said by the then tory government to align homelessness and family law – a most appropriate alignment (which might have been furthered in other areas – eg Holmes-Moorhouse). It is somewhat broader than physical violence, it must be accepted, but is limited by the nature of the homelessness officer’s interpretation of the future risk in the circumstances of each individual’s application.
    The “living law” concept is borrowed out of context from Eugen Ehrlich, http://en.wikipedia.org/wiki/Eugen_Ehrlich, the famous European sociologist of law (you’ll have to forgive my occasional academicspeak, but if you want to know more there’s some excellent current research going on using his work), but it seemed appropriate to use it in this context. This is far from “active liberty”; it’s just a method of statutory interpretation derived in part from Fitzpatrick. It’s also eminently sensible, and makes not unreasonable assumptions about parliamentary intention not being fixed in time.

  5. The result was probably correct but I am less sure about the way in which Baroness Hale got there. The preservation and proper exercise of the judicial function is critical to legal certainty and the wider rule of law in any democracy. But Judicial independence is -and as this case exemplifies -also threatened by judicial legislation – the assumption of law-making powers by judges, without any means of holding them to democratic account. Judges must uphold and interpret the law but it is not their job to stretch the scope of existing ones. In the last 20 or 30 years there has been massive judicial legislation without any means of accountability. One accepts that some statutes might need to be read as ‘living law’. The question is whether it is a good thing or not. In this case the Supreme Court granted itself a wide scope to re-write legislation, in order to achieve the desired result. The effect was to ride roughshod over the will of Parliament when the 1996 Act was enacted and to falsify the linguistic meaning of other Acts of Parliament, which hitherto has depended on legislative intention at the time of enactment – giving domestic judges a broad licence to re-write British law to give effect to whatever new rights they deem appropriate in the circumstances. The ends do not always justify the means.

    • Stephen, I don’t think it is right to say that the will of Parliament in 1996 has been ridden over, let alone roughshod. That is the point made by Baroness Hale about the incorporation of the Law Commission Report into the Family Law Act 1996 and also in relation to the incorporation of the definition of ‘associated person’ into s.178 – see paras 22 and 23. You are going to have to specify and justify that accusation of ‘falsifying’ the linguistic meaning of other Acts.

      Further, the legislation has not been re-written in the sense of incorporating a meaning incompatible with its words or function.

      As for domestic judges getting a broad licence to re-write British law, the Court of Appeal in this case felt itself bound by precedent. The same would apply wherever terms have previously had their meaning contested. I’d say that the number of Judges who might have a licence to re-write law – even if your interpretation was right – would be limited to 12 (and no more than 9 at any one time…)

      The broader jurisprudence arguments, I’ll leave to those equipped for them, such as Dave. (Although I did get 92% on my jurisprudence essay on my CPE, this was probably just because I had long and extensive experience of arguing over J-F Lytoard and Jurgen Habermas in my previous life. Now, I am but a front line solicitor…)

  6. Baroness Hale gave a very clear indication as to her understanding that violence had a wide meaning in Bond -v LCC – where the ex partner hung around in the garden in an ominous fashion and threw pebbles at windows . Bond does not appear to have been cited in Danesh or Yemshaw at CA level . I argued in a case that it was per incuriam for that reason but we never got to test the argument as the LA conceded.

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