Hillingdon v Collins & Anor [2008] EWHC 3016 (Admin)

"The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation.... The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (para 84)." 15. In applying those principles to the particular case, the ECtHR held: "85. … While it was variously alleged by Council officers that the applicant's licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights. 86. … The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons." 16. Having considered various policy reasons put forward by the United Kingdom Government for the lack of security accorded to gypsies living on local authority sites, the ECtHR set out its conclusions on the article 8 issues in these terms: "92. The existence of other procedural safeguards is however a crucial consideration in this Court's assessment of the proportionality of the interference … a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court's attention to the Court of Appeal's decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law. … 94. However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to 'flexibility' and 'administrative burden' have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid … 95. In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a 'pressing social need' or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention." 17. Subsequent to the decision in Connors, the House of Lords heard the conjoined appeals in Kay v Lambeth London Borough Council and Price v Leeds City Council [2006] UKHL 10 [2006] 2 AC 465. The appellants in both cases contended that, in the light of the decision in Connors, they should be permitted, at least in principle, to raise a defence to the possession proceedings brought against them pursuant to article 8 of the Convention. The House of Lords rejected their appeals. 18. Lord Hope of Craighead said at para 110, in a passage specifically approved by Lord Scott at para 174, Baroness Hale at para 192 and Lord Brown at para 212: "

"208. I should perhaps just add this. These appeals were brought on the basis that it is for the trial judge, pursuant to his section 6 duty, to consider for himself the issue of justification under article 8 (2) in any contested possession action. There is, however, a quite different basis upon which an occupier could challenge a public authority's claim for possession, namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful. Such a defence can clearly be advanced in the county court—see the decision of the House of Lords in Wandsworth London Borough Council v Winder [1985] AC 461. 209. 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. 210. 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 (see para 25) followed rather than preceded the failed judicial review challenge. 211. It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself. Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced." 40. This defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it or that it was unlawful for some other public law reason: see Kay at paras 110,118-190 and 207-212 and Doherty at paras 22(iii)(b), 37-40 and 61. 41. Mr Andrew Keyser QC rightly accepts that the length of a person's occupation of the site and his or her behaviour as an occupant are capable of being relevant to a consideration of this defence. I accept his submission, however, that the legislative and procedural framework is fundamental to any consideration of whether the authority was acting in a manner in which no reasonable authority could have acted. Connors involved a misuse of position in that the authority used its power to evict summarily by unilateral decision, bypassing any procedures for scrutinising the factual basis on which it had made its decision. Since the amendment to section 4 of the 1968 Act, that is no longer possible, at any rate if the occupier applies to the court for a suspension of the possession order. A local authority can obtain a possession order, but cannot recover possession if an application is made to suspend enforcement unless the court considers that it is not appropriate to exercise its discretion to suspend enforcement having regard to all the circumstances, including in particular those set out in section 4(4)(a) to (c) of the 1968 Act. The amendment introduced by the 2004 Act has changed the legislative landscape. Whether the change is sufficient to meet the requirements of article 8 is the issue raised by the amendment ground of appeal. But for the purposes of deciding whether in a particular case the public law defence is seriously arguable, let alone that it is made out on the facts, it is highly material that section 4 has been amended in this way. 42. The significance of the amendment is that a claimant's decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant's complaints about the defendant's behaviour. 43. The appellant can draw no comfort from the observations of Lord Brown in Kay to which I have referred. It may be that, for the reasons given by Lord Brown, a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence "without the need to make good any underlying reason for taking such precipitate action"

"there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council [2006] 2 AC 465."

"In conclusion, the court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights, and consequently cannot be regarded as justified by a 'pressing social need' or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of article 8 of the Convention." 33 The procedural safeguard that was lacking in Connors was an ability to challenge in court, by way of a defence, the allegations of misconduct that were the basis for the authority's decision to seek the possession order against the applicant. Applied to this case, special consideration to the needs of gipsies and their different lifestyle requires that the first defendant must be able to insist, by way of a defence to the claim, that it be shown there is a proper justification for the decision to seek a possession order. It must be shown that the claimant's decision to evict him and his family from the site was justified by a pressing social need and was proportionate. If that cannot be done, there is a risk that the first defendant's rights under article 8 will have been violated.” "

“36 The decision of the majority, as summarised in para 110 of my speech, went as far as it was necessary to go to provide answers to the two cases that were before the House in Kay. But the facts in those two cases were very different from those in the present case and from those in McCann. The appellants in Kay v Lambeth London Borough Council never had any rights of occupation granted to them by the landowner. The appellants in Leeds City Council v Price were gipsies, but they had been present on the recreation ground for only two days when proceedings were taken against them for the making of a possession order. In both cases it was held the appellants' interests were sufficiently protected by requiring proof by the local authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. Neither of them was close on its facts, as this case is, to Connors. For reasons that I shall seek to show, I believe that the answer to the article 8 issue in this case can be found in the formula that is set out in para 110. But I would be the first to acknowledge that the way that the formula works in a case of this kind requires further explanation. To some extent too it needs to be modified.”

"It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council [2006] EWHC 301 (Admin)."

". . . local authorities should not use their powers to evict gypsies needlessly. They should use the 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."

". . .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 human needs, the need for shelter with at least a modicum of security."

"The central legislative purpose [of the HRA] is that of bringing the Convention rights home, that is, of domesticating them so that they are not regarded as alien rights protected exclusively by a 'foreign' European Court. To change the metaphor yet again, Convention rights must be woven into the fabric of domestic law. In the absence of a written British constitution, it is especially important to weave the Convention rights into the principles of the common law and of equity so that they strengthen rather than undermine those principles, including the principle of legal certainty."

"But section 6(2)(b) says nothing about a decision having to be necessary for any particular purpose. If the 1992 or 1999 Acts had made it necessary not to make extra-statutory payments, the case would have fallen under section 6(2)(a). The Secretary of State could not have acted differently. Clearly, section 6(2)(b) has a different purpose. It assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant in accordance with section 3. It follows that section 6(1) does not apply if the Secretary of State was acting incompatibly with Convention rights because he was giving effect to sections 36 and 37 of the 1992 Act . . . This reasoning is in my opinion supported by the evident purpose of section 6(2), which was to preserve the sovereignty of Parliament: see Lord Nicholls of Birkenhead in Aston Cantlow and WilmcotewithBillesley Parochial Church Council v Wallbank [2004] 1 AC 546, para 19. If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation." 113. Lord Hope, as well as agreeing with Lord Hoffmann, added some further reasons of his own, including the following (para 73): "