Doherty v Birmingham City Council & Anor

This is the judgment of the Court

The question in this appeal is whether the local authority can obtain a summary order for possession of a site which it owns and wishes to use for public purposes, in this case to provide temporary accommodation for travellers. The defendant is himself a traveller, who has been living on the site with his family for many years. He has no enforceable right to remain under English property law, but relies on the protection of Article 8 of the Human Rights Convention (right to respect for his home).

This apparently mundane area of the law has been the subject of intense scrutiny at the highest level in recent years. It was considered by the House of Lords in Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983, then by the Strasbourg court in Connors v United Kingdom (2005) 40 EHRR 9 189, and most recently by a seven-member House of Lords in the conjoined cases of Kay and Others v Lambeth London Borough Council and Leeds City Council v Price and Others [2006] UKHL 10; [2006] 2 AC 465.

We are called upon to distil the essence from the six fully reasoned speeches in the last case (running to some 60 pages of the Law Reports), and apply it to the facts of this case. We have been much helped by the submissions of three of the advocates who appeared in the House of Lords. Without their assistance, we would have found the task almost impossible. We will return to this issue at the end of this judgment.

We will start by summarising the facts of the present case, and comparing them to those of the other principal authorities.

Since 1987 Mr Doherty and his family have occupied the site as their home under a licence agreement with Birmingham City Council. On 4 March 2004 the council served notice to quit, which expired on 10 May 2004. On 27 May 2004 the council commenced proceedings for possession in the Birmingham County Court.

In the particulars of claim the council asserted that the family’s occupation was not protected under the relevant legislation; that possession was required to carry out essential improvements; and that the site would then be managed as temporary accommodation for travellers coming to the city as recommended by central government. It was said that the family’s presence on the site “deterred” other travellers from going there, that it was “severely under-utilised”, and that this caused unauthorised encampments elsewhere in the city. The defence asserted that the council’s action was unlawful under the Human Rights Act 1998, and that the grant of summary possession would not be reasonable or proportionate. In particular, it was claimed that the works could be done with the family on site, or they should be given temporary accommodation while the work was carried out; and it was denied that their presence deterred others, or that they had been guilty of anti-social behaviour.

At the time the proceedings were launched, the law appeared to have been established by the House of Lords in Qazi (decided in July 2003), to the effect that a defendant without any extant proprietary or contractual right had no human rights defence to a claim for possession by the owner. However, in May 2004 that proposition was thrown into some doubt by the Strasbourg court’s decision in Connors. Accordingly, in the present case it was ordered that there should be a preliminary determination under CPR Part 24. The case was transferred to the High Court, apparently to allow for the possibility of an appeal from there direct to the House of Lords under the Administration of Justice Act 1969 (sections 12-15). On 20th December 2004 HH Judge McKenna gave summary judgment for the council, and made an order for possession. In the course of his judgment he indicated that the appropriate route to challenge the council’s decision to seek possession would have been by way of an application for judicial review, rather than defence to the possession proceedings. Initially, he stayed the order for fourteen days to allow for the possibility of such an application being made out of time. Subsequently he gave permission for the present appeal, certified the case as suitable for an appeal direct to the House of Lords, and suspended execution of the judgment until the conclusion of the appeal proceedings.

However, in the meantime this case was overtaken by the appeals in Kay and Price. On 20^th June 2005, the House (Lords Nicholls, Hope and Scott) refused leave to appeal under the Administration of Justice Act 1969 (sections 12-15), on the grounds that –

“the point of law raised by this petition will be decided by the House of Lords in the cases of [Kay and Price]. There is thus no need for this case to come to the House of Lords. The Court of Appeal will be able to give effect to the decision of the House of Lords in due course…”

The appeals in Kay and Price were heard in December 2005, and judgment was given on 8^th March 2006. In the meantime the family has remained in occupation of the site, and the council’s plans have had to remain on hold.

Mr and Mrs Qazi were joint tenants of a council house. As joint tenants, either could terminate the lease by serving the council with notice. Under the tenancy agreement four weeks’ notice was required. Mr and Mrs Qazi’s marriage broke down, and Mrs Qazi served a valid notice terminating the lease. Mr Qazi applied for a tenancy in his sole name, but the council refused on the ground that a single person should not have family-sized accommodation. Before the commencement of proceedings, he had married again, and he continued to live in the house with his new wife and her five year-old son. The council then brought proceedings for possession of the house. The defence relied on Article 8.

On 31^st July 2003 the House of Lords held, by a majority of three to two (Lord Bingham and Lord Steyn dissenting), that Article 8 could not be relied upon to defeat proprietary or contractual rights to possession, and that the council were entitled to a possession order. On 24^th March 2004, a committee of three judges (none of them involved in Connors) of the Strasbourg court dismissed a challenge to this decision as inadmissible, on the grounds that it “did not disclose any appearance of a violation”.

Like the present case, Connors involved a gipsy family. Mr Connors and his family had lived on a local authority gipsy site for some 16 years under a licence, which prohibited them from causing a nuisance to other occupiers. In December 1998 the council gave Mr Connors a written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Shortly after, the council served notice to quit on the family, but without giving any reasons. They then issued proceedings for summary possession. These proceedings were adjourned pending an application for judicial review. The judicial review application failed and a possession order was granted.

On 27^th May 2004 the Strasbourg court gave judgment upholding the claim for breach of Article 8, but rejecting a claim under Article 13. It awarded €14,000 in respect of non-pecuniary damages. It made no comment on Qazi. We will return to the reasoning in more detail below.

In Kay the council had an informal arrangement with a housing trust. This allowed the trust to accommodate homeless people, otherwise ineligible for housing, in premises which the council could not afford to make suitable for normal housing use. This informal arrangement was later converted into a formal lease. The housing trust then purported to grant a licence to those that stayed in the accommodation. In another case the House of Lords found that such occupants were secure tenants and not licensees. Accordingly the council terminated its lease to the housing trust and brought possession proceedings against the occupants.

In Price a family of travellers settled on a recreation ground without permission from the council. Two days later the council issued possession proceedings.

In both cases, the House of Lords rejected defences based on Article 8, and upheld orders for possession.

It will be noticed that the facts of the present case are closest to those of Connors. As in that case the Doherty family were travellers and came to the site lawfully, and it has been their home for many years. Price is distinguishable because the family were trespassers from the outset. (Lord Scott thought it a “very bad” test case for this reason ([2006] 2 AC 465, at paras 129-130). Kay and Qazi did not concern travellers.

In retrospect, perhaps, it is a pity that the present case was not included in those before the House, so that the House could address specifically the question of how a case like Connors should have been handled in the domestic courts. We will need to consider later whether there are any material differences between the two cases.

Before considering the speeches in more detail, it is necessary to refer to the somewhat complex statutory scheme. For this purpose we gratefully adopt Mr Stilitz’s summary, which we do not understand to be contentious:

“Part I of the Caravan Sites Act 1968 (“the 1968 Act”) provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least 4 weeks notice of termination of a licence to occupy a caravan site must be given.

Section 4(1) provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to 12 months at a time. The power to suspend the enforcement for such an order is expressed to be “without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section”.

Prior to its amendment by section 211(1) of the Housing Act 2004 (“the 2004 Act”), section 4(6) of the 1968 Act excluded the court’s power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. The exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed with effect from 18^th January 2005 in respect of proceedings begun on or after that date: see sections 211(2) and 270(3) of the 2004 Act.

The Mobile Homes Act 1983 (“the 1983 Act”) applies to any agreement under which a person is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence: see section 1(1). The 1983 Act provides a degree of security of tenure to occupiers of caravan sites by implying into licence agreements falling within the ambit of its provisions various protective terms. In particular, by section 2(1) of and paragraph 4 of Schedule 1 to the 1983 Act, the owner of a relevant site is entitled to terminate the licence only if: (a) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (b) the court considers it reasonable for the agreement to be terminated.

However, the protection provided by the 1983 Act does not avail the Appellants in the present case because section 5(1) excludes from the definition of “protected sites” any land occupied by a local authority as a caravan site providing accommodation for Gypsies.

The provisions of Part IV of the Housing Act 1985 (“the 1985 Act”) confer security of tenure on occupiers of accommodation let or licensed to them by local authorities. However, these rights are confined to tenancies or licences for occupation of “dwelling houses”: see sections 79(1) and 112 of the 1985 Act. It follows that occupiers of mobile homes or Gypsy caravan sites do not enjoy the rights associated with security of tenure under Part IV of the 1985 Act.

It follows that, subject to the right to 4 weeks’ notice conferred by section 2 of the 1968 Act, the Appellants had no rights to security of tenure in respect of the Site.”

It will be seen from that summary that, no doubt in response to Connors, the law was changed in respect of proceedings begun on or after 18^th January 2005. As to whether that has overcome the Article 8 objection, there is a difference between Mr Luba (for the Doherty family) and Mr Stilitz (for the Secretary of State), but that cannot be resolved in the context of this appeal.

All seven members of the House agreed that the defences in both cases failed on the facts. There was less harmony on the law. It is convenient to begin by summarising the propositions which can, we think, be found in (or teased out of) the speeches, before discussing the issues in more detail (in the paragraphs indicated):

The six points identified above can be grouped into three categories: first, those where there was unanimity in the House ((i), (ii) and (vi)); secondly, those where there was a clear majority view ((iii) and probably (iv)); thirdly, those where there was no obvious majority view, and it is necessary to search for a solution ((v)(a) and (b)). We shall consider the issues broadly in those groupings.

There was unanimity on issues (i) and (ii), which were regarded as the most important (see e.g. Baroness Hale (paras 178-184); Lord Brown (para 195)). It was accepted that it was necessary to avoid a result which might –

“… dislocate the conduct of housing claims in the county court, distort local authority housing policies and budgets, and upset the important compromises inherent in our property law and housing legislation.” (Lord Bingham (para 31))

Accordingly, although it was agreed that there must be an exception to Qazi, all thought that it should be narrowly defined.

There was also, we think, in effect unanimity that, whatever the precise scope of the exception to the Qazi principle, the two cases before the House would fail on the facts: Kay because the defendants had not “pleaded or alleged facts which give them a special claim to remain”; Price because it was “all but unarguable” that the site had become their home in the two days before proceedings were started, and there was no ground for regarding the authority’s action as disproportionate (Lord Bingham (paras 47-48); cf Lord Hope (para 115-6), Lady Hale (para 193)).

The scope of the exception – paragraph [110]

On issue (iii), paragraph 110 of Lord Hope’s speech embodies the majority’s conclusion on the scope of the exception to the Qazi principle. It was expressly adopted by the other members of the majority (Lords Scott and Brown, and Baroness Hale).

It is best read against the background of the position taken by the minority (Lords Bingham, Nichols and Walker), which had been conveniently summarised by Lord Bingham at paragraph 39:

“(2)

If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds.

(3)

The two grounds are:

(a)

that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and

(b)

that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6.”

Paragraph 110 represents the majority’s alternative definition of gateways (a) and (b). It is appropriate to set it out in full. Having expressed agreement with Lord Bingham and Lord Nicholls that the first instance judge should proceed on the assumption that –

“… domestic law provides a fair balance and is compatible with the occupier’s Convention rights”,

Lord Hope continued:

“But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown [1973] Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:

(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. The common law as explained in that case is, of course, compatible with Article 8. It provides an additional safeguard.”

(We have inserted breaks to highlight the contrast between the two “gateways”)

The key to paragraph 110 is the definition of the gateways (a) and (b), to which we shall return. Before doing so, it will be helpful to comment, first, on the two cases referred to in that passage, and, secondly and more importantly, on the significance of the term “common law” as used with reference to a challenge to the improper use of an authority’s powers, and in contrast to a challenge under the Human Rights Act.

At first sight, the reference to McPhail seems out of place. It was a case about a private land-owner seeking to evict squatters who had come on to his land illegally (“without any colour of title at all”: Lord Denning MR at p 458H). It was held that the court had no power to suspend an order for possession in such a case. The facts of McPhail were very different to those of Connors itself, and of the present case, both being concerned with public authority claimants and defendants whose possession was originally lawful.

Lord Hope’s reference to the case, as part of this defining passage, seems intended principally to answer Lord Bingham’s earlier expression of view that “the rule in McPhail” required to be “relaxed” (para 37). That was in a passage referring to the rules relating to removal of squatters, and seems therefore to have been directed principally at the facts of Price. In paragraph 110 and elsewhere that proposition was decisively rejected by the majority, even in the context of Price.

For present purposes we think it unnecessary to dwell on this aspect. We are not concerned with private landowners, to whom the application of Article 8 raises quite different issues, on which Strasbourg has not yet ruled (see Lord Nicholls (para 61), Baroness Hale (para 192)). Nor does the authority need to rely on a special rule relating to squatters. There is no dispute that under domestic property law, having terminated Mr Doherty’s licence, it has an unanswerable claim to possession.

The short reference to this case masks a long-running controversy over the use of public law principles to defeat or delay local authority possession actions in the county court.

Since at least the early 1970s, and well before the development of the modern judicial review procedure, battle had been drawn on this issue between public authorities, and those championing the rights of the disadvantaged, such as gipsies and the homeless. The fortunes of the two sides have fluctuated. The introduction of judicial review opened the way for a new line of argument. Authorities contended that it was an abuse of process to use any other procedure than judicial review to challenge local authority decisions. This argument was rejected in 1985 by the House in Wandsworth. This decision appeared to establish the right of defendants in the county court to use any available legal weapons, public or private.

In 1988 the pendulum began to swing the other way, with the impetus of two cases: Waverley Borough Council v Hilden [1988] 1 WLR 246 (Scott J), and Avon County Council v Buscott [1988] QB 656 CA. Both concerned local authority proceedings against gipsies: the former to enforce planning restrictions against gipsies developing their own land; the latter to seek possession against squatters on the local authority’s land. In both cases, Wandsworth was held not to apply to a challenge to the authority’s decision to commence proceedings. In Avon Lord Donaldson MR explained the distinction:

“There is a fundamental difference between this case and Winder’s case. Mr Winder was seeking to raise a true defence. He was saying that he had a valid tenancy, that he did not owe any rent and accordingly was not liable to eviction. It was a defence on the merits. In the present case the defendants do not allege any right to occupy the land and accordingly do not deny that they are liable to be evicted. They do not suggest that they have any defence on the merits. What they say is quite different, namely, that the council is not entitled to enforce its rights. It is not entitled to come to the court to enforce an eviction order.” (p 663)

The distinction was not without its critics. Wade & Forsyth Administrative Law (9^th Ed) commented that “it seems impossible to draw any logical line” between Avon and Wandsworth (p 671). It has not always been consistently applied (see, for example, Rhondda Cynnon Taff County Borough Council v Watkins [2003] EWCA Civ 129; [2003] 1 WLR 1864).

That whole area of controversy has now apparently been swept aside by the House without further ado. All seem to have accepted it as settled law under Wandsworth that “conventional” judicial review grounds can be raised by way of defence to possession proceedings in the county court. Lord Hope said simply:

“A defendant has the right to contend in his defence that the decision of a public authority to recover possession was one which no reasonable person could consider justifiable, as Lord Fraser of Tullybelton explained in Wandsworth…” (para 86)

Mr Underwood realistically did not suggest otherwise. Indeed, from an authority’s point of view, once it is accepted that its decision is in principle open to challenge on judicial review grounds, there seems every advantage in those grounds being considered in the county court. As Lord Hope said in the same paragraph:

“It is preferable, wherever possible, that the matter should be dealt with in the county court, rather than by adjourning the proceedings to enable the defendant to apply in the High Court for permission for judicial review of the decision to apply for the possession order.”

Furthermore, in contrast to the position in 1988, and at least since the Housing Act 1996, the legal issues are no different in kind from those regularly dealt with by county court judges under its housing jurisdiction.

The distinction between a “common law” challenge and a challenge under the Human Rights Act is important to the reasoning of paragraph 110. Since this distinction is also at the core of the difference between the majority and the minority, it requires some elaboration. Lord Hope’s use in this context of the term “common law” may seem surprising at first sight. A local authority is a creature of statute. In one sense, any challenge to the exercise of its powers must rest on a statutory, rather than a common law, foundation. However, as used by Lord Hope in this context, the term “common law” seems to be used in a special sense, equivalent to “conventional” as used by other members of the majority.

Lord Bingham had referred to Human Rights Act 1998 section 7(1)(b), which provides:

“(1)

a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. in a way which is incompatible with a Convention right] may …

(b)

rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.”

Lord Bingham commented that this was –

“… express authority entitling the occupier to raise his article 8 challenge to the possession order sought against him in those proceedings.” (para30)

The majority did not accept this simple view of the section. Their position was explained more fully by Baroness Hale (para 188-190). She noted, first, agreement that section 7(1) provided the “procedural route” for a challenge:

“… section 7(1) provides that a person who wishes to rely upon his Convention rights may do so either in a free-standing action or by defending an action brought against him by a public authority. In those very rare cases where a person may be evicted from his home without any court order at all, a challenge would have to be raised by way of a free-standing action or judicial review. Otherwise, a defence can be raised in the possession action itself.”

However, in some cases the county court would be unable to supply a remedy, because the statute was not “sufficiently flexible” to allow the argument to be accommodated; in such cases -

“The very source of the complaint of incompatibility will be the inflexibility of the statutory scheme, leaving no discretion to the county court. The court will then have to decide whether the interpretative obligation in section 3 of the 1998 Act will enable it to solve the problem. If not, the matter could only be resolved by a declaration of incompatibility in the High Court, which would have no effect upon the outcome of the individual case.”

Thus far she thought there was no difference between the majority and the minority. She continued:

“But, as I understand it, some of your Lordships would go further and accept that there may be highly exceptional cases in which the occupier could argue that his individual personal circumstances made the application of the general law disproportionate in his case. When, if at all, should the court be able to say that, even though there is no obligation to continue to provide housing in these circumstances, it is not "necessary in a democratic society" to permit the landowner to assert its property rights?

 My Lords, I myself do not think that the purpose of article 8 was to oblige a social landlord to continue to supply housing to a person who has no right in domestic law to continue to be supplied with that housing, assuming that the general balance struck by domestic law was not amenable to attack and that the authority's decision to invoke that law was not open to judicial review on conventional grounds….” (emphasis added)

The expression “individual personal circumstances” in the first paragraph signals a direct response to Lord Bingham’s reference to personal circumstances in his own description of the two gateways (see above). Similarly, the emphasised words in the second paragraph reflect the majority’s formulation of the two gateways. Thus, “common law” in paragraph 110 and “conventional” are intended in the same sense, and refer to grounds available apart from the Human Rights Act.

The same distinction was also drawn by Lord Nicholls and Lord Brown, although on opposite sides of the debate. Having expressed his agreement with Lord Bingham’s definition of the two gateways, Lord Nicholls said:

“For completeness I mention a third possibility which has nothing to do with the Human Rights Act. A defendant may seek to challenge the lawfulness of the local authority's decision to pursue possession proceedings as an improper exercise of its powers quite apart from its obligations under section 6. Here again, this issue can be treated as a defence in the proceedings, in accordance with the principle enunciated in the well known decision of Wandsworth London Borough Council v Winder [1985] AC 461.” (para 60, emphasis added)

On the majority side, Lord Brown emphatically rejected the possibility of a “freestanding” human rights challenge:

“These appellants' defences must fail, not because they disclose no sufficient (highly exceptional) personal merit but because they depend upon establishing a freestanding article 8 right to remain in possession incompatible with the respective claimants’ clear entitlement to possession under domestic property law. I would hold that no such freestanding right exists.”

He contrasted this with the “quite different basis of challenge” on the “conventional” public law grounds that “the decision to bring the claim was itself so unreasonable as to be unlawful” (paras 207-8). Here again, therefore, one finds the emphasis on conventional, rather than Human Rights Act grounds, as being needed to open gateway (b).

The basis of decision in Connors

On this issue we have based our proposition (para 22(iv) above) on the speech of Lord Scott, who summarised the three “features” which contributed to the conclusion that eviction of the Connors family was a breach of Article 8 (paras 158-160). In the other majority speeches there are differences of emphasis, but not we think of substance.

His third feature was the importance placed by the Strasbourg court on “procedural safeguards”. The court itself had described the case as concerned, not with general policy issues, but “with the much narrower issue of procedural protection for a particular category of persons” (Connors para 86); and had described that as “a crucial consideration in this Court’s consideration of the proportionality of the interference” (para 92). Lord Scott summarised the complaint:

“Under the applicable domestic law the local authority did not have to justify their decision to terminate his licence but in fact their reason had been that they thought Mr Connors and his family had been making a nuisance of themselves on the site. Mr Connors denied that that was so but, his attempt to seek judicial review of the decision having foundered, the issue was never judicially tested.” ([160])

Similarly, Lord Hope noted the court’s emphasis on the fact that–

“… the respective merits of the arguments as to whether there had been a breach of the licence conditions were not examined in the county court proceedings.”

The “central issue”, as he understood it, was whether the legal framework provided the applicant with sufficient procedural protection of his rights” (paras 97-98).

We respectfully agree with that interpretation of Connors (notwithstanding some apparently wider comments in the judgment, on which Mr Luba relied). In the view of the Strasbourg court, the authority was misusing its privileged position under the statute to bypass the ordinary procedures for alleging and proving breach of licence conditions. The case was thus analogous to a private law claim for breach of covenant, rather than a public law exercise of administrative discretion. It may be open to debate whether the Strasbourg Court’s assessment of the procedural safeguards was correct, as Lord Scott thought (para 172). However, viewed in that way, its effect is relatively narrow.

Such an approach is also in line with the approach adopted by the Strasbourg court (before and since) to the adequacy of procedural safeguards under Article 6, and by domestic authorities such as Alconbury [2002] 2 AC 295, [2001] UKHL 23 and Runa Begum [2003] 2AC 430, [2003] UKHL 5. The distinction was summarised recently in Tsfayo v UK (Application 60860/00-14/11/06), in which (among other defects) the internal review procedures of a housing authority were held incompatible with Article 6 in relation to factual issues:

“… In Bryan, Runa Begum and the other cases cited…, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the (review board) was deciding a simple question of fact, namely whether there was ‘good cause’ for the applicant’s delay in making a claim.” (para 45)

The contrast is between decisions based on “administrative discretion” and those based on “a simple question of fact”. The division may not always be clearcut, as appears from cases like Bryan v UK (1995) 21 EHRR 342 (a case on planning enforcement powers). But Connors can readily be explained as falling on the factual side of the divide.

Gateway (a): Statute or common law?

The correct interpretation of the House of Lords speeches on this issue (para 22(v)(a) above) was the principal area of dispute before us. Mr Underwood submitted that, according to the majority, gateway (a) was closed because the authority’s claim to possession was in accordance with a statutory scheme, which, whether compatible or not with the Convention, had to be applied by the county court as it stood.

Mr Luba and Mr Stilitz accept that this was the position taken by Lord Hope and (probably) Lord Brown, but not by the other members of the majority. They argue that they were both mistaken. They submit that the authority’s claim to possession depended on its common law rights, not on any statutory entitlement. They accept that there is a statutory framework, but in this instance it merely exempts the case from the restrictions of the statute, thereby leaving the way free for the operation of the common law. Accordingly, it was open to the county court, under gateway (a), to modify the law so far as necessary to ensure that it was compliant with Article 8.

The submission that Lord Hope and Lord Brown “nodded” on this issue is a bold one, particularly given its importance, and the care which clearly went into all the speeches. Nor do we think it realistic to drive a wedge between the members of the majority. The speeches had been circulated and studied by all. Having taken the trouble to express their unanimity on Lord Hope’s crucial paragraph 110, we are entitled to start from the assumption that, unless otherwise stated, the other members of the majority also agreed broadly with the related reasoning, at least on the main issues. Indeed, Lord Scott felt able to agree in terms with the reasoning of all the other majority speeches (para 174). In any event, we agree with Mr Underwood that the tenor of all the speeches on this aspect is to the same effect.

Lord Hope clearly saw this as a critical aspect, since he returned to it on several occasions. Having referred to various categories of occupant who, exceptionally, are excluded from any form of statutory protection, he said:

“The absence of any statutory protection in these cases is the result of a deliberate decision by Parliament that the owner's right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier. That was the position in Connors under the legislation that was then in force….” (para 75)

Again, at paragraph 86, having referred to Wandsworth, he said:

“But it has to be borne in mind that it would not have been open to the county court to hold that the claim by the public authority in Connors to seek to recover possession was unlawful as it was invoking a right to possession that was provided by statute: see section 6(2)(b) of the Human Rights Act 1998, which provides that section 6(1) does not apply to an act if the authority was acting so as to give effect to or enforce provisions under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights.”

Finally, having defined the two gateways he said at paragraph 114:

“There may, however, be cases like Connors where the incompatibility with the article 8 Convention right lies in primary legislation which the county court is being asked to apply to the case by the public authority: see para 86, above. In such a case it would be open to the High Court to make a declaration of incompatibility, if it was not possible to read or give effect to the legislation under section 3 of the Human Rights Act 1998 in a way which was compatible with the Convention right. But the legislation would nevertheless still have to be enforced, unless the decision of the public authority to seek to enforce it when faced with that incompatibility could be said, when judicially reviewed, to be arbitrary, unreasonable or disproportionate. The decision could not be held in the county court to be an unlawful act within the meaning of section 6 of the 1998 Act: see section 6(2)(b). The fact that the question of incompatibility that was raised in Connors was not capable, under the domestic system, of being dealt with effectively in the county court because of the limits on its jurisdiction reinforces, rather than detracts from, the proposition that a defence which is raised in that court under article 8 should be struck out unless the legislation can be read and given effect in a way that is compatible or it raises an issue as to its incompatibility that ought to be considered in the High Court.” (emphasis added)

We do not read the other majority speeches as adopting a different approach. Thus Baroness Hale referred to cases where the “very source of the complaint of incompatibility (is) the inflexibility of the statutory scheme, leaving no discretion to the county court” (para 188). By contrast, she said –

“There might be more scope for argument where the claim lies in common law unregulated by legislation, but in such cases the landowner is likely to be a private person, upon whom no such positive obligation could be laid, or the occupiers are likely to be squatters who have never had a right to occupy the premises.” (para 192)

We think it fanciful to read the latter comment as intended to be applicable to Connors. If Baroness Hale had been in disagreement with Lord Hope on this critical issue, we are confident that she would not have been shy in saying so.

We think therefore that this issue is determined by the majority. We would add that we see nothing particularly novel in Lord Hope’s approach (except possibly in its application specifically to section 6(2)(b)). It simply recognises that Parliament may express its policy intentions in a particular statutory scheme equally by means of exclusion or by inclusion. In Connors (para 44) the Strasbourg court itself referred to Greenwich LBC v Powell (2005) 21 HLR 218, where the House of Lords had referred to the clear “intention of the legislature” shown by the 1983 Act to exclude local authority sites from protection. In our view, in respectful agreement with Lord Hope, it is artificial to draw a distinction between the two means. We would reject the submissions of Mr Luba and Mr Stilitz on this point.

It was not clear to us, in any event, how they thought the county court should have modified the common law. We referred Mr Stilitz to Huang v Secretary of State [2006] 1 QB 1, which described the duty of an asylum adjudicator to consider for himself the proportionality of removal under Article 8, rather than simply review the reasonableness of the decision of the Secretary of State. Mr Stilitz accepted the analogy, and was content to adopt the suggestion that the county court judge would have to conduct a similar exercise. This surprised us, particularly coming from the government side. An asylum adjudicator is operating a highly specialised form of jurisdiction, in which policy judgments may not be out of place. Even in that special context, the Home Secretary had submitted that the adjudicator’s task was much narrower: not to make its own judgment on proportionality, but simply to ask whether the Home Secretary’s decision “could reasonably be regarded as proportionate…” (ibid p.7). That submission was rejected by this court, but is we understand being pursued on appeal to the House of Lords. It seemed odd to find, in the present context, another Secretary of State proposing that the county court should have to make the judgment of proportionality for itself, rather than simply to review the reasonableness of the authority’s judgment. On the view we have taken the problem does not arise.

Gateway (b): Conventional judicial review

The issue is whether a challenge on “conventional” grounds might have succeeded in Connors (para 22(v)(b) above). The availability of judicial review was not regarded by the Strasbourg court as sufficient to secure compliance with Article 8. According to the report, the application for judicial review had been rejected, because it was accepted that “the necessary investigations had been carried out by the Council” and the complaint of procedural unfairness was “unarguable” (para 23). The reference to “necessary investigations” was not explained. However, it may be connected to the court’s later reference to the Atkinson case (R v Lincolnshire County Council, ex p Atkinson (1995) 8 Admin LR 529). That case was also mentioned by Baroness Hale in Kay, as an illustration of the potential scope of a conventional challenge (para 190).

We should refer briefly to the significance of Atkinson. In an often cited passage, Sedley J noted government advice that -

“… local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” (p 534 f)

Local authorities were required also to consider their obligations under other legislation before taking any decisions to evict, including obligations concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. Sedley J held that it would be an error of law for the authority to leave such matters out of account, adding –

“… those considerations in the material paragraphs which are not statutory are considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental of human needs, the need for shelter with at least a modicum of security”. (p 535 h)

Baroness Hale’s reference to this case in the context of gateway (b) seems to have been designed to show that, even if Article 8 grounds are not strictly relevant, conventional judicial review grounds may cover much of the same ground. It is noteworthy, however, that even the breadth of considerations which could be taken into account under Atkinson did not persuade the Strasbourg court in Connors of the adequacy of judicial review. This tends to reinforce our view that the critical issue was the authority’s reliance on factual matters to justify eviction, rather than the exercise of an administrative discretion, for which judicial review might have been a sufficient procedural safeguard.

Lord Brown (paras 208-210) went a little further, by suggesting that a differently formulated judicial review challenge in Connors might have succeeded. He noted that the cases before the House had been founded on Article 8, rather than on “the conventional public law ground” of Wednesbury unreasonableness, a defence which, on the basis of Wandsworth, could “clearly be advanced in the county court”. He continued:

“ The difficulty with such a defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court, as the appellants assert, under a primary duty to reach its own judgment on the justifiability of making a possession order.”

He might have added that any one seeking to raise such a challenge would have to overcome the ordinary “presumption of regularity”, a point emphasised by him in a more recent case (Standard Property Co v Glasgow City Council [2006] UKHL 50 para 74).

Even judged by the “more stringent” test, he thought that a case might have been mounted on the special facts of Connors.

“For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That was not, be it noted, the basis of the actual judicial review application for which permission in that case was sought and refused. Indeed the council's decision there to drop the allegations of breach of licence and to assert instead a right to summary possession on the bald ground that the family were trespassers... followed rather than preceded the failed judicial review challenge.”

That view of the facts of Connors was not in terms adopted by the other members of the majority, but it was not excluded. Lord Hope hinted at the possibility of a challenge on the grounds that the decision to seek possession was “arbitrary, unreasonable and disproportionate” (para 100). However, such a challenge in itself would not necessarily have been enough to solve the Article 8 problem, assuming, as we have seen, that it turned on the lack of a procedure to test the authority’s factual assertions, rather than the reasonableness of its administrative decisions.

Finally we attempt to apply those principles to the present case. We can do so shortly. In our view this case is distinguishable from Connors because the authority’s decision depended, not on a factual allegation of nuisance or misconduct, or “the bald ground that the family were trespassers” (in Lord Brown’s words), but on an administrative judgment about the appropriate use of its land in the public interest. It is true that one aspect was an issue about whether the Doherty’s presence “deterred” others. However, this was not in the context, as in Connors, of an allegation of breach of a licence condition (analogous to a private law cause of action), but simply one part of its overall assessment of the various factors in play. That seems to us well within the margin of appreciation allowed by the Strasbourg jurisprudence in the exercise of an administrative discretion (see Tsfayo above). Under gateway (b) the council’s action was open to challenge on conventional judicial review grounds, but not on the grounds that it was contrary to Article 8. We recognise that the judge did not rule out the possibility of a successful judicial review challenge, and that he was wrong in any event to hold that such a defence could not be taken in the county court. However, we see no purpose in remitting the matter for him to redetermine that issue. On the pleadings, we can see no arguable basis for asserting that the decision could have been successfully challenged under gateway (a). Accordingly, the appeal must fail.

Before leaving this appeal we feel it right to comment on an issue of more general concern. Was it necessary for the opinions of the House to have come to us in the form of six substantive speeches, which we have had to subject to laborious comparative analysis to arrive at a conclusion? Could not a single majority speech have provided clear and straightforward guidance, which we could then have applied directly to the case before us?

Although we would not normally think it appropriate to comment on the working practices of a higher court, this case seems to us exceptional. Furthermore, the issue has been highlighted in a recent speech by Lord Bingham himself (“The Rule of Law”: Cambridge Centre for Public Law 16^th November 2006). He emphasised (as his first “sub-rule” of the Rule of Law) that –

“the law must be accessible and so far as possible intelligible, clear and predictable.”

He saw the obstacles to accessibility as both legislative (“the sheer volume of current legislation”) and judicial (“the length, complexity and sometimes prolixity of modern common law judgments, particularly at the highest level…”). He accepted that the latter problems might “at least in theory be mitigated if the House of Lords were to give a single opinion”. But he rejected that approach, adopting the reasons given by his predecessor, Lord Reid, in a 1971 speech:

“I agree with Lord Reid that the quality of single Privy Council judgments has on the whole been inferior from the point of view of developing the law to the more diverse opinions of the House.

A single lapidary judgment buttressed by four brief concurrences can give rise to continuing problems of interpretation which would have been at least reduced if the other members had summarised, however briefly, their reasons for agreeing. And a well-constituted committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law.”

This view was, however, subject to “caveats”: in particular, that there needed in any event to be a “clear majority ratio”; and that a different approach might be needed to cope with the special problems of “assimilation” created by the “torrent of criminal legislation” in recent years.

The caveats seem to us very important, and we wonder, with respect, whether they go far enough. It may be that the balance of priorities has changed since 1971, when Lord Reid was speaking. To take the most obvious point, in those days the domestic statutes for a single year fitted comfortably into a single volume, and there was no European legislation or case-law to muddy the waters. We live in a very different legal world today. The overriding problems, not just in the criminal field, are the sheer volume of new legal material, legislation and case-law (domestic and European), and the pace of change. The main challenge for the new Supreme Court may be, not to develop the law, but to consolidate, clarify and make accessible what is already there. A trip to the highest appellate court is likely to remain an expensive luxury for all litigants (public or private), and it needs to be used to the best advantage. For most lower courts, and probably most litigants, the first priority is clear and straightforward guidance through the labyrinth.

We do not offer a general conclusion on this issue, and we do not necessarily share the same views on it, even among the three members of this court. We are all agreed, however, that in this particular case we and the parties would have been much assisted by a single majority judgment, or at least a single judgment on those issues where there appears to have been no material difference within the majority. We also express the hope that Lord Bingham’s comments will provide the stimulus for a wider debate on this and other similar issues, in the process of transition to the new Supreme Court.

For the reasons given above, we have reached the clear and unanimous conclusion that the judge was right to make an order for possession. That result in our view was consistent with both domestic and Convention law. The issue of a declaration of incompatibility therefore does not arise. We accordingly dismiss the appeal.