London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent) [2003] UKHL 43

House of Lords
[2003] UKHL 43
Between
London Borough of HarrowAppellantQaziRespondent
Before
Lord Bingham of CornhillLord SteynLord Hope of CraigheadLord MillettLord Scott of FoscoteDate 31 July 2003
[1]By article 8(1) of the European Convention on Human Rights "Everyone has the right to respect for . . . his home . . .". This appeal concerns the meaning of that provision and its application to the facts of this case.[2]Those facts are simple. The respondent, Mr Qazi, lived with his then wife Mrs Saman Qazi and their daughter in a two-bedroomed house at 31 Hutton Lane, Harrow Weald, Middlesex. The London Borough of Harrow, the appellants, were (as they still are) freehold owners of the house, and let it to Mr Qazi and Mrs Saman Qazi as joint tenants under a secure tenancy beginning in January 1992. In 1998 Mrs Saman Qazi and their daughter went to live elsewhere, and in February 1999 Mrs Qazi gave the council four weeks' written notice to quit in accordance with the express terms of the tenancy agreement. This notice, it is common ground, had the effect of bringing the tenancy to an end on 22 March 1999. The council informed Mr Qazi that the tenancy had come to an end and invited him, if he wished, to apply for a sole tenancy of the house, making it clear that the application might not succeed. He did apply, but his application was refused by the council in July 1999 on the ground that he was not, as a single person, entitled to family-sized accommodation. In November 1999 the council again told Mr Qazi that he would not be granted a tenancy of the house, and he was further told that possession proceedings would be begun if he failed to vacate the house.[3]Mr Qazi did not vacate the house and in March 2000 the council issued proceedings seeking possession. In the course of the proceedings Mr Qazi made it known that he had lived in the house with Mrs Abida Qazi and her five-year old son since June or July 2000, that they had been married in an Islamic ceremony in October 1999 and that the marriage had been solemnised in a civil ceremony in July 2000. Mr Qazi sought a review by the council of its decision not to grant him a sole tenancy of the house, but unsuccessfully. Mrs Abida Qazi, pregnant with another child born in December 2000, applied to the council for the grant of a new tenancy to herself and Mr Qazi, but no such grant was made.[4]In the possession proceedings Mr Qazi based his defence (so far as now relevant) on the contentions that(a) in seeking a possession order the council had failed to give effect to his right to respect for his home as required by article 8 of the Convention;(b) the council's interference with his right was not justified under article 8(2) of the Convention; and(c) the making of a possession order would be a breach of article 8. The action came on for trial in the Watford County Court sitting at Luton before Mr Recorder Williamson. He held that the effect of Mrs Saman Qazi's notice to quit had been to determine the whole of the previous joint tenancy; that the tenancy had not come to an end because of any decision made by a public authority but by the act of one of the joint tenants; that since expiry of the notice Mr Qazi had had no legal or equitable right or interest in the house and thus had none at the time when action had been brought; and that accordingly the house was not Mr Qazi's home within the meaning of article 8(1) of the Convention and that article was not engaged. The recorder did not therefore consider the issue of justification raised under article 8(2) of the Convention and made the possession order sought.[5]Mr Qazi challenged the recorder's decision successfully in the Court of Appeal, where Arden LJ gave the leading judgment, Peter Gibson LJ agreed giving brief reasons of his own and Mantell LJ concurred: [2001] EWCA Civ 1834; [2002] HLR 276. In paragraph 47 of her judgment, Arden LJ defined the question of law before the court as being "whether a former tenant whose tenancy has come to an end by operation of law can, after that time, have a right to a home for the purposes of Article 8 of the Convention". After a close examination of the Strasbourg jurisprudence she gave an affirmative answer to that question, rejecting the argument that article 8 is not engaged where a former tenant lacks any legal or equitable right or interest in the house. In paragraph 57 she concluded that Mr Qazi "did have a right to a home for the purposes of Article 8 when the possession proceedings were served on him".[6]I would respectfully question whether Arden LJ was quite right to define the issue in terms of "a right to a home", since the European Court of Human Rights has made clear that article 8 does not in terms give a right to be provided with a home and does not guarantee the right to have one's housing problem solved by the authorities: see Chapman v United Kingdom (2001) 33 EHRR 399, paragraph 99; Marzari v Italy (1999) 28 EHRR CD 175, 179; O'Rourke v United Kingdom (26 June 2001, Application No 39022/97). Thus in the present case the two questions which in my opinion arise are(1) whether (when proceedings were issued and possession was ordered) the house at 31 Hutton Lane was Mr Qazi's home within the meaning of that expression as used in article 8 of the Convention; and, if so,(2) whether what the council or the court did or proposed to do infringed his right to respect for his home. If both questions are answered in Mr Qazi's favour there arises the issue of justification, which the recorder did not have to address and which the Court of Appeal remitted to the county court. If that stage is reached, the issue of justification turns on the application of article 8(2) of the Convention:
"There shall be no interference by a public authority with the exercise of this right [here, the right to respect for one's home] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[7]It is convenient to begin by considering the two questions as formulated above. The first question[8]The European Convention for the Protection of Human Rights and Fundamental Freedoms was an attempt to identify the rights and freedoms most central to the enjoyment of human life in civil society and to give those rights and freedoms an appropriate measure of protection among member states of the Council of Europe. Not surprisingly, the need for some protection of the home was recognised in the Convention, since few things are more central to the enjoyment of human life than having somewhere to live. On a straightforward reading of the Convention, its use of the expression "home" appears to invite a down-to-earth and pragmatic consideration whether (as Lord Millett put it in Uratemp Ventures Ltd v Collins [2001] UKHL 43, [2002] 1 AC 301, paragraph 31) the place in question is that where a person "lives and to which he returns and which forms the centre of his existence", since "home" is not a legal term of art and article 8 is not directed to the protection of property interests or contractual rights.[9]This approach to the meaning of "home" is, I think, fortified by consideration of article 8(1) as expressed in other languages:
"son domicile", "proprio domicilio", "su domicilio" and "seiner Wohnung", for example, all direct attention to the place where a person lives. Save in one case mentioned below (paragraph 10) this has been the approach of the Strasbourg institutions also. In Gillow v United Kingdom (1986) 11 EHRR 335, paragraph 46, the Court held that the house in question was the applicants' home because although they had been absent from Guernsey for many years they had not established any other home elsewhere in the United Kingdom and had retained "sufficient continuing links" with the house for it to be considered their home for the purposes of article 8. This test was repeated and elaborated by the Commission in Buckley v United Kingdom (1996) 23 EHRR 101 at 115, paragraph 63: "
'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. The factor of 'unlawfulness' is relevant rather to considerations under paragraph 2 of that provision of 'in accordance with law' and to the balancing exercise undertaken between the interests of the community and those of the individual in assessing the necessity of any interference". The Commission repeated the substance of this passage in Mabey v United Kingdom (1996) 22 EHRR CD123, 124, and in O' Rourke v United Kingdom (26 June 2001, Application No 39022/97) the Court once again insisted on an individual's need to show sufficient and continuing links with a place in order to establish that it is his home for purposes of article 8.[10]In none of these cases, as Mr Arden QC for the council correctly submitted, were the facts indistinguishable from those of this case. In some the applicant had a proprietary interest in a house ( Gillow ) or land ( Buckley, Mabey ), but could not lawfully live in the house or on the land. In O'Rourke the applicant claimed as his home a hotel room which he had occupied for less than a month at the discretion of the proprietors before being evicted: in this case the Court had "significant doubts over whether or not the applicant's links with the hotel room were sufficient and continuous enough to make it his 'home' at the time of his eviction". The general approach of the Strasbourg institutions has however been to apply a simple, factual and untechnical test, taking full account of the factual circumstances but very little of legal niceties. The exception, properly relied on by the council, is S v United Kingdom (1986) 47 DR 274. In this case, where the applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner, the Commission attached importance to this fact and ruled in paragraph 4 of its opinion:
"The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as 'home' for the applicant within the meaning of Article 8."
It is, however, noteworthy that this ruling was made before formulation of the sufficient continuing links test in Gillow , that it has not been relied on by the Court or the Commission in any of the later cases I have cited, and that after the passage quoted above the Commission went on to review the issue of justification under article 8(2) on the assumption that the applicant's right to respect for her home had been the subject of interference. In paragraph 55 of her judgment Arden LJ concluded that S v United Kingdom no longer offered guidance to be taken into account in deciding the issue before the Court of Appeal.[11]I agree with that conclusion. When the possession proceedings were issued Mr Qazi had lived at 31 Hutton Lane continuously for eight years. The house had been his home and he had no other. The expiry of his wife's notice to quit brought his right to occupy the house as a tenant to an end, but it did not bring his occupation to an end. The house continued to be the place where he lived and so his home. Any other conclusion would not, in my opinion, reflect the clear thrust of Strasbourg authority. I would accordingly give an affirmative answer to this first question. The second question[12]Mr Arden submitted, in a written summary of his argument, that "article 8 is not engaged at all [where rights either have never existed at all (ie squatters) or have ended other than by the action of the public authority (eg notice to quit by tenant)] and when the landlord asks the tenant to leave what was let as a qualified or limited home, whether for an identified period or in some other way, eg employment-related, short life use pending development, homelessness accommodation, sub-leasing arrangements, accommodation during works, ie there is no disrespect inherent in declining to grant, continue or extend what was not let as an indefinite or unqualified right to use premises as a home (as opposed to taking away what would otherwise be an indefinite or unqualified right, such as that enjoyed by a secure tenant)." My initial reaction to this submission is, I must acknowledge, one of resistance. The simple, untechnical test of "home" which I have described above is easily understood and easily applied to facts arising in the different member states. I would expect a similarly simple and untechnical test to be applied to "respect" and "interference". Details of the bargain made between owner and occupier, and the provisions of national law governing that bargain, are likely to be crucial in deciding the issue of justification under article 8(2) if that stage is reached, but it would seem to me to undermine the broad international application at which the Convention aims if matters of this kind are treated as determinative when considering whether there has been interference or a lack of respect.[13]Initial reactions are not however a safe guide to resolution of an important issue such as this, and regard must be paid to the Strasbourg jurisprudence for such help as it can give. Both parties to the appeal accept (as is indeed clear) that no conclusive answer is to be found. But both seek to derive support from it.[14]In Di Palma v United Kingdom (1986) 10 EHRR 149 the applicant's lease was forfeited on her non-payment of a service charge and possession was ordered. Her primary claim was made (unsuccessfully) under article 1 of the First Protocol to the Convention. But she also complained that her eviction from her home constituted an unjustified interference with the right to respect for her home protected by article 8. The Commission held this complaint to be manifestly ill-founded because (page 155) "any interference with [her] right to respect for her home which the forfeiture of her lease engendered was in conformity with Article 8(2) . . .". The Commission did not expressly rule whether the forfeiture or eviction were an interference.[15]In P v United Kingdom (12 December 1990, Application No 14751/89) the applicants had been evicted, following the service of notice to quit, from a caravan site where they had lived for many years. Her Majesty's Government admitted that the eviction constituted an interference with the applicants' right to respect for their home (although they had by that stage no rights in relation to it) but the Commission made no ruling:
"The Commission has considered whether the termination of the applicants' occupation of the site in accordance with the tenancy agreement can be considered as an interference with their rights under Article 8 para 1 . . . of the Convention. Even assuming that it could constitute an interference, however, the Commission finds that it would be justified under Article 8 para 2 . . . of the Convention . . ."
. The Commission pointed out that the applicants could not derive from article 8 an unconditional right to remain on the site.[16]The application in Ure v United Kingdom (27 November 1996, Application No 28027/95) was founded on facts legally indistinguishable from the present. The applicant's tenancy came to an end on expiry of a notice to quit given by his wife, formerly a joint tenant with him, and possession was ordered. The Commission held that his complaint under article 8 was manifestly ill-founded because the alleged interference with the applicant's rights under the article was justified under paragraph (2) of the article.[17]Wood v United Kingdom (1997) 24 EHRR CD 69 arose from the repossession of the applicant's house by a mortgagee when she defaulted on her payments due under the mortgage. The Commission held the application to be manifestly ill-founded, observing (at 70-71):
"In so far as the repossession constituted an interference with the applicant's home, the Commission finds that this was in accordance with the terms of the loan and the domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender. To the extent that the applicant is deprived of her possessions by the repossession, the Commission considers that this deprivation is in the public interest, that is the public interest in ensuring payment of contractual debts, and is also in accordance with the rules provided for by law."
[18]In Larkos v Cyprus (1999) 30 EHRR 597 a tenant who had lived for many years in a house rented from the government was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would have enjoyed against a private landlord. His complaint was made under article 14 of the Convention in conjunction with article 8, not under article 8 alone: it related to the manner in which the alleged difference in treatment adversely affected the enjoyment of his right to respect for his home guaranteed under article 8. The Court observed (at 608):
"Mr Larkos has not contended that there has been a breach of Article 8 on account of the fact that, being a government tenant, he is faced with the threat of eviction from his home. However, it suffices for the purposes of the application of Article 14 that the facts relied on in the instant case fall within the ambit of Article 8 and the relevance of that Article cannot be denied in view of the judgment of the District Court of Nicosia ordering Mr Larkos to leave his home."
It was, it seems, that order, which under domestic law the national court was bound to make, which constituted the required interference or lack of respect.[19]The applicant in Marzari v Italy (1999) 28 EHRR CD 175 was evicted by court order on the application of his public authority landlord following his failure to pay rent. It appears that his complaint under article 8 may well have been based on lack of respect for his private life, but it is not clear that such was his only complaint under the article. At 180 the Court ruled "that the applicant's eviction from his apartment interfered with his rights under Article 8(1). The Court therefore has to examine whether the interference was justified under the terms of paragraph 2 of Article 8." In the result, the Court did not find "any appearance of a breach" of article 8 on account of the authorities' decision to proceed with the applicant's eviction from his apartment.[20]It seems to me that these authorities, although inconclusive, give somewhat more help to Mr Qazi than to the council. They reveal a tendency to assume an interference or lack of respect and then to consider justification, an issue decided against the applicant in all the cases except Larkos , where the complaint was of discrimination in conjunction with article 8. It is noteworthy that although, in all the five cases held to be manifestly ill-founded, the applicant had, under domestic law, no arguable legal right to remain in the property from which he or she had been evicted, the adverse decision was never based on that short (and, if correct, obvious) ground.[21]Strasbourg authority is of course the primary source of guidance on the interpretation and application of the Convention. But the House was helpfully referred to three recent decisions of the Court of Appeal of which mention should be made. Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48 concerned a possession order made against an assured shorthold tenant. Under the Housing Act 1988 the landlord could not obtain possession without an order of the court, but the court was bound to make an order if the tenancy was subject to section 21(4) of that Act and proper notice had been served. Both these conditions were satisfied. The argument turned on article 8, coupled with article 6, of the Convention. The Secretary of State for the Environment, Transport and the Regions exercised his right to intervene, and counsel instructed on his behalf submitted that although the possession proceedings constituted an interference with the tenant's home, the interference was justified under article 8(2). The court (Lord Woolf CJ, May and Jonathan Parker LJJ) held in paragraph 67 that eviction from her home would impact on the tenant's family life. But it found (paragraphs 67-72) that the interference was justified.[22]R (McLellan) v Bracknell Forest Borough Council; Reigate and Banstead Borough Council v Benfield [2001] EWCA Civ 1510, [2002] QB 1129 concerned the termination of introductory tenancies in accordance with procedures introduced under the Housing Act 1996. In both of these appeals, heard together, the Secretary of State was again represented by counsel who asserted that article 8 was engaged (see paragraph 36). The submission made by Mr Arden QC, then representing the Reigate and Banstead Borough Council, was recorded in the leading judgment of Waller LJ (with whom Latham and Kay LJJ agreed) in paragraph 37:
"Mr Arden's argument in short was this. He suggested that since a tenant would know the basis on which he or she had become a tenant, ie on the basis that the statutory provisions and procedures of the introductory tenancy scheme applied to it, the rights of the tenant to occupy the premises were simply in accordance with that scheme. Thus if the council complied with the provisions of the introductory tenancy scheme in order to bring the tenancy to an end, that involved no want of respect for the tenant's home. So it is argued the question whether the scheme had been complied with would be the first question which, if answered in favour of the council, would lead to the conclusion that article 8(1) was not engaged. It would then follow that the question whether the eviction could be justified under article 8(2) would not arise."
The argument was rejected: "42 In my view the terms of article 8(2) demonstrate that Mr Arden's approach is not a proper approach to article 8. It is not a preliminary question whether the tenancy has been properly terminated in accordance with its terms. It is under article 8(2) that the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others. In Poplar Housing and Regeneration Community Association Ltd v Donoghue the Court of Appeal decided that Poplar was a public authority and thus that article 8(2) was directly applicable, but it seems to me that even if it had been a private landlord seeking to evict a tenant under an assured shorthold tenancy, the court as a public authority would have had to approach section 21(4) of the Housing Act 1988 (the section under consideration in that case) in much the same way. It would have concluded that section 21(4) did not infringe any article 8 right but not because article 8 did not apply at all, but because the eviction was in accordance with the law and because it was not disproportionate to allow the tenancy to be brought to an end in accordance with the rights of the landlord. The wording of article 8(2) is apposite to allow consideration not only of the tenant's rights, and not only the rights of persons other than the landlord and the tenant, i.e. other tenants for example, but the rights of the landlord as well. In S v United Kingdom 47 DR 274, 278 the Commissio[23]The third decision of the Court of Appeal, in Sheffield City Council v Smart; Central Sunderland Housing Company Ltd v Wilson [2002] EWCA Civ 04, [2002] HLR 639, was made after, and followed, the decision now under appeal. The appeals arose from possession orders made on the application of housing authorities following the termination of non-secure tenancies. Laws LJ, giving the leading judgment with which Thorpe and Kay LJJ agreed, did not accept the argument advanced by counsel for the housing authorities summarised in this way:
"Mr Underwood submitted that there is no prima facie violation of Article 8(1) by action taken for possession in cases such as these. Essentially the argument (if I may venture to summarise it in my own words) runs as follows. The Convention recognises that there is a balance to be struck between public interest and private right; and all these considerations which I have enumerated, taken together, lead to the conclusion that the statutory regime for the accommodation of homeless persons, including the right of the local authority to serve and act on a notice to quit relating to such a person's non-secure tenancy, involves no actual or potential violation of Article 8(1) because the necessary balance has effectively been struck by the legislation itself. So long as the council's decision to seek possession, and the decision's implementation, comply with conventional public law standards, and the legal process undertaken to obtain possession complies with the relevant private law requirements, there can be no interference with the tenant's Article 8(1) right to respect for his or her home."
Having referred to the Commission's ruling on the meaning of "home" in paragraph 63 of the decision in Buckley v United Kingdom (1996) 23 EHRR 101 and to the Court of Appeal's decision in this case, Laws LJ continued in paragraphs 26-27: "Clearly the present cases are not concerned with any issues of legal or equitable interest. But the approach taken in Buckley, and approved as a matter of domestic human rights law in Qazi goes some distance to support my view that there is prima facie a violation of Article 8(1) in these cases. 'Home' is an autonomous concept for the purpose of ECHR, and does not depend on any legal status as owner. Thus in these cases, the premises in Sheffield and Sunderland were without question the women's homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants' right of respect of their homes. I have said that the case is all about Article 8; more precisely, it is all about Article 8(2). Before proceeding to the issues arising under Article 8(2), I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of Article 8(1). It concerns the relationship between the two paragraphs of Article 8. I have held th[24]For these reasons and those given by Lord Steyn I would uphold the decision of the Court of Appeal and affirm its order that the issue of justification raised under article 8(2) be remitted to the county court.[25]Mr Arden submitted that this outcome would impose a large burden of expense and delay on housing authorities. I do not accept this. The House has made it very plain, most recently in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 WLR 388, particularly in paragraphs 9 and 49, that the administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification. Counsel were agreed that even if the argument for Mr Qazi were accepted, the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional. This is so. It would not be proper to comment on the present case, since I share the Court of Appeal's view that the issue of justification should be considered by the county court. If (contrary to the ruling of the majority of the House) effect were to be given to my opinion, I am confident that housing authorities acting in good faith in implementation of schemes prescribed by statute and administered by them need apprehend no significant increase in their litigious burden. LORD STEYN My Lords,[26]Given that I am in complete agreement with the opinion of my noble and learned friend Lord Bingham of Cornhill I can explain my view shortly.[27]It would be surprising if the views of the majority on the interpretation and application of article 8 of the European Convention of Human Rights, as incorporated into our legal system by the Human Rights Act 1998, withstood European scrutiny. It is contrary to a purposive interpretation of article 8 read against the structure of the Convention. It is inconsistent with the general thrust of the decisions of the European Court of Human Rights, and of the Commission. It is contrary to the position adopted by the United Kingdom Government on more than one occasion before the European Court of Human Rights. It does not accord to individuals "the full measure of the [protection] referred to": Minister of Home Affairs v Fisher [1980] AC 319, 328. On the contrary, it empties article 8(1) of any or virtually any meaningful content. The basic fallacy in the approach is that it allows domestic notions of title, legal and equitable rights, and interests, to colour the interpretation of article 8(1). The decision of today does not fit into the new landscape created by the Human Rights Act 1998.

Lord Bingham has formulated the issues as follows: (a) whether (when proceedings were issued and possession was ordered) the house at 31 Hutton Lane was Mr Qazi's home within the meaning of that expression as used in article 8 of the Convention; and, if so, (b) whether what the council or the court did or proposed to do infringed his right to respect for his home. Such differences of opinion as exist in this case do not extend to this formulation of the issues.

[29]The first question was the main focus of the debate below and in the House. All members of the Appellate Committee are now apparently agreed that this question can only be answered in the affirmative. Given this unanimity I have nothing to add to the reasons given by Lord Bingham, on the principal point in the case.[30]On the second question the House is divided. While I accept that according to English conceptions of stare decisis there is in the European jurisprudence no decision directly in point, the thrust of the approach in Larkos v Cyprus (1999) 30 EHRR 597 and Marzari v Italy (1999) 28 EHRR CD 175 supports the view that when proceedings to recover possession of the defendant's home were issued and possession was ordered there was an interference with Mr Qazi's right to respect for his home. If it had been sufficient to say that when an applicant has no arguable legal right to remain in a property article 8(1) is not engaged, such an obvious ground would inevitably have formed part of European exposition and reasoning.[31]Moreover, I found the trilogy of Court of Appeal decisions which Lord Bingham discussed in paragraphs 21, 22 and 23 of his speech instructive.[32]In Sheffield City Council v Smart [2002] EWCA Civ 04, [2002] HLR 639, Laws LJ (speaking for a united Court of Appeal) analysed the position as follows (p 655, paras 26-27):
". . . in these cases, the premises in Sheffield and Sunderland were without question the women's homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants' right of respect of their homes I have said that the case is all about article 8; more precisely, it is all about article 8(2). Before proceeding to the issues arising under article 8(2), I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of article 8(1). It concerns the relationship between the two paragraphs of article 8. I have held that eviction of these appellants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute's correct construction (here, article 8(1)) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation's words mean. The first choice . . . would entail a judgment that the Convention requirement was met at the article 8(1) stage: . . . The second choice (accepting a prima facie violation of article 8(1)), which I prefer, entails a judgment that the more rigorous and specific standards set out in article 8(2) have to be met if the court is to hold that the evictions are compatible with the appellants' Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court's task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in article 8(1). I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose HRA was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the article 8(2) standards. Such a process is demanded by the fullness of our municipal law of human rights."
This statement admirably reflects the meaning of article 8 and the European approach to its application. It is in accord with the new landscape created by the Human Rights Act 1998.[33]In agreement with the reasoning of Arden LJ in the Court of Appeal I would make the order proposed by Lord Bingham of Cornhill. LORD HOPE OF CRAIGHEAD My Lords,[34]The issues which have been raised in this case relate to the impact of the Human Rights Act 1998 on the procedure by which a public authority landlord recovers possession of residential accommodation from a former tenant whose tenancy has come to an end by operation of law. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It follows that any procedure by which a public authority recovers possession of the accommodation must be compatible with the former tenant's Convention rights. That essential point is not in dispute. What is in dispute is whether the procedure by which the appellants, the local housing authority, seek to recover possession from the respondent, Mr Qazi, satisfies this requirement.[35]The Convention right which has been invoked in this case is set out in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[36]The question which lies at the heart of the case is whether, having regard to the provisions of article 8(1) of the Convention, it is unlawful for a public authority to recover possession from a former tenant by a procedure which leads to possession being granted automatically, or whether the court must always be given an opportunity to consider whether the making of an order for possession would be proportionate. If the answer to that question is that the court must always be given that opportunity, it will be in the discretion of the court in all cases to decide whether or not an order for possession should be made. This will be so not only in those cases where there are statutory safeguards that must be satisfied. The court will have a discretion to exercise even in those cases where the tenancy has come to an end by the operation of law, there is an absolute right to possession and there are no statutory safeguards other than the basic rule that possession cannot be taken without an order from the court: see the Protection from Eviction Act 1977, section 3.[37]It has not been easy to grasp the true significance of this issue from the way in which the argument has been developed in the Court of Appeal and in the appeal to your Lordships. But the background to it has been carefully and tactfully set out in the Law Commission's Consultation Paper Renting Homes 1: Status and Security (Consultation Paper No 162), Part V, The Impact of Human Rights Law. As the author explains in para 5.1, none of the challenges to substantive housing provisions that have been made since the coming into force of the Human Rights Act 1998 have been successful in the sense that the provisions in question have been declared incompatible or have required the deployment of the special interpretative obligation under section 3(1) of the Act. But a series of cases have raised important issues about the procedures within which housing laws must operate. Among these are the issues raised by article 8 of the Convention with which this case is concerned.[38]As the author explains in para 5.76 of the consultation paper, the approach which has been taken up to the Court of Appeal is based on the conclusion that article 8(1) is always "engaged" by an eviction. The implication of this conclusion in practice, he suggests, is that a procedure which enables the court to consider the issue of proportionality will become a necessity in respect of any use by a public authority landlord of a procedure under which, by the operation of law, it would previously have been entitled to recover possession automatically: see para 5.74. If so, this result will affect housing associations and other registered social landlords as well as local housing authorities. The point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants whose leases have by the operation of law been terminated. A procedure which gives a discretion to the court by requiring it to consider whether having regard to article 8(2) the making of the order would be proportionate is inimical to that purpose, as para 5.74 of the consultation paper points out. Therein lies the importance in domestic law of the issues which your Lordships have been asked to consider in this appeal.[39]These issues fall naturally into two parts. The first is whether residential accommodation occupied by a former tenant whose tenancy has come to an end by the operation of law is that person's "home" within the meaning of article 8(1). The second is whether every claim by a public authority for possession of such residential accommodation "engages" article 8, as it is put in paragraph B 3 of the statement of facts and issues. I shall have something to say later about the use of the word "engage" in this context (see para 47 below), and about the significance of its use in regard to article 8 when read as a whole. The Facts[40]The appellants seek possession in these proceedings of a two-bedroom dwelling house of which they are and have been at all material times the freehold owners. On 15 January 1992 the premises were let to the respondent and his then wife, Saman Qazi, as joint tenants with effect from 20 January 1992. By the operation of Part IV of the Housing Act 1985 this was a joint secure tenancy: see sections 79 and 81. As it was a joint tenancy it was capable of being terminated by either one of the joint tenants by a notice to quit served on the landlord. It is to be noted that section 82 of the 1985 Act, which provides for security of tenure, only prevents termination of the tenancy by the landlord. A secure tenancy cannot be brought to an end by the landlord until a date when the tenant is ordered to give up possession by the court. But the tenant may terminate the tenancy in the usual way by serving a notice to quit or by surrender.[41]The respondent and his wife lived in the house together with their daughter until 1998. In that year Saman Qazi moved out with their daughter and went to stay with her mother. The tenancy agreement provided that either tenant could terminate the tenancy by serving a written notice to quit on the appellants giving four weeks' notice and expiring on a Monday which was the start of a new period of the tenancy. On 19 February 1999 Saman Qazi served on the appellants a valid written notice to quit which expired on 22 March 1999: see the Protection from Eviction Act 1977, section 5. This had the effect in law of bringing the tenancy to an end on that date.[42]On 26 May 1999 a housing management officer of the appellants informed the respondent by letter that the tenancy had come to an end. She enclosed an application form for the respondent to complete if he wished to apply for a sole tenancy of the house. She told him that if he applied a decision would be taken as soon as possible, but she also told him that she could not guarantee that he would be granted a tenancy of it or of any other premises. The respondent completed and returned the application form. On 16 July 1999 he was informed by the housing management officer that his application had been refused because, as he was a single person, he was not entitled to family sized accommodation.[43]On 16 November 1999 the appellants' housing manager wrote to the respondent confirming that it had been decided that he should not be granted a tenancy of the house and that possession proceedings would be commenced against him. He also informed the respondent that he was entitled to apply for accommodation through the housing register. He asked him to vacate the premises immediately and return the keys to the housing department. The respondent did not do so. The appellants commenced these proceedings against him on 13 March 2000.[44]Events did not then stand still. At a preliminary court hearing on 6 June 2000 the respondent told the appellants that he had remarried in October 1999 and that he was now living in the house with his new wife, Abida Qazi, and her five-year old child. In October 2000 he applied for accommodation through the housing register. He was told that no action would be taken on his application as the number of households on the register was already far in excess of the houses with two bedrooms which were available. On 17 November 2000 Mrs Abida Qazi, who was now expecting another child, applied for a new joint tenancy to be granted to herself and the respondent if his application was unsuccessful. No action was taken on her application either. On 23 December 2000 she gave birth to her child. The respondent, Mrs Abida Qazi and her two children were still living in the premises when the appellants' action for possession came to trial.[45]On 8 June 2001, following a trial in Luton County Court, Mr Recorder Williamson held that a notice to quit by one tenant was sufficient in law to determine the joint tenancy and that since 22 March 1999 the respondent no longer had any legal or equitable right in the premises. He also held that the premises did not constitute the respondent's "home" within the meaning of article 8(1) and that article 8 was not "engaged". He ordered the respondent to give up possession of the premises on 11 July 2001. On 3 December 2001 the respondent was given permission to appeal against this decision on the basis that the recorder had adopted too restrictive a definition of the word "home". There was and is no challenge to the recorder's decision that the respondent no longer had any legal or equitable right or interest in the premises. On 3 December 2001 the Court of Appeal (Peter Gibson, Mantell and Arden LJJ) allowed the appeal and remitted the case to the county court to determine whether interference with the respondent's "right to a home", as Arden LJ put it in para 58 of her judgment, was permitted by article 8(2) of the Convention. Article 8: what it protects[46]In Marckx v Belgium (1979) 2 EHRR 330 the European Court of Human Rights took the opportunity, in a case where the complaint was about the effect on family life of certain aspects of the Belgian illegitimacy laws, to make some general observations about article 8 of the Convention. At p 342 the Court said:
"By proclaiming in paragraph 1 the right to respect for family life, article 8 signifies first that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2. As the Court stated in the Belgian Linguistic Case [(1968) 1 EHRR 252, 282, para 7], the object of the Article is 'essentially' that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective 'respect' for family life. This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by article 8, respect for family life implies in particular, in the Court's view, the existence in domestic law of legal safeguards that render possible, as from the moment of birth, the child's integration in its family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of article 8 without there being any call to examine it under paragraph 2."
[47]Sir Gerald Fitzmaurice, in a dissenting opinion, also made some helpful observations on the scope of article 8. Two passages in his opinion are worth mentioning in the present context. The first is his discussion of what he described as the issue of "applicability" in general. As he put it in paragraph 2 of his opinion at p 364, this issue relates to the applicability or relevance in any way at all to the particular complaints that the applicants have made. It has become the practice in our jurisdiction to use the verb "engage" to describe this concept. This word does not form part of the vocabulary of the European Commission or of European Court, and as Laws LJ observed in Sheffield City Council v Smart [2002] EWCA Civ 04, [2002] HLR 639, 653, para 22 its use is liable to be misleading and unhelpful. But I would not for my part regard its use as objectionable, so long as there is no doubt as to what it means in this context. In my opinion the issue to which it is directed is whether, in the words of Sir Gerald Fitzmaurice, the provision in question is "applicable". What he had to say about this appears in paragraph 3 of his opinion at p 364:
"The question of the applicability of a legal provision - it should hardly be necessary to say so - is quite distinct juridically from that of whether there has been a breach of that provision in any particular instance. Issues of applicability or scope are therefore strictly preliminary ones. A provision (rule, section, clause, article, etc) is applicable in any given case, at least prima facie, if it relates to the class, category, order, type or kind of subject-matter to which the claim or complaint itself, as made in that case, relates, and/or is concerned with the facts, events or circumstances involved in such a case. If it does not - if it deals with something different or not so comprised - then clearly it is irrelevant to the claim or complaint, and the question of a possible breach of the Convention does not arise."
[48]The second passage in his opinion which is worth mentioning appears in paragraph 7 of his opinion at p 366, where he said this:
"It is abundantly clear (at least it is to me) - and the nature of the whole background against which the idea of the European Convention on Human Rights was conceived bears out this view - that the main, if not indeed the sole, object and intended sphere of application of article 8 was that of what I will call the 'domiciliary protection' of the individual. He and his family were not longer to be subjected to the four o'clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings; to examinations, delayings and confiscation of correspondence; to the planting of listening devices (bugging); to restrictions on the use of radio and television; to telephone-tapping or disconnection; to measures of coercion such as cutting off the electricity or water supply; to such abominations as children being required to report upon the activities of their parents, and even sometimes the same for one spouse against another - in short, the whole gamut of fascist and communist inquisitorial practices such as had scarcely been known, at least in Western Europe, since the eras of religious intolerance and oppression, until (ideology replacing religion) they became prevalent again in many countries between the two world wars and subsequently."
[49]Most international human rights instruments recognise a right to privacy. That is the concept which underlies article 8 of the Convention, as the language of article 8(1) shows. But, as Professor David Feldman, Civil Liberties and Human Rights in England and Wales , 2nd ed (2002), p 524, has explained, article 8 is unique in the way in which the rights that are expressed in it are conceived in relation to private life. Instead of giving a right to be free of arbitrary or unlawful interference with privacy, it provides for a right to "respect" for it. It has been suggested that the move from a right to freedom from interference with privacy to respect for it tends to weaken the right: J E S Fawcett, The Application of the European Convention on Human Rights , 2nd ed (1987), p 211. But I believe that Professor Feldman was right to point out, at pp 524-525, that this potential limitation on the negative aspects of the right to privacy should not blind us to the considerable extension of the right which the notion of respect may entail, bearing in mind the fact that a right to respect is capable of imposing positive duties on public authorities.[50]It seems to me that the following conclusions can be drawn from the language of article 8(1) in the light of the observations in Marckx v Belgium . The right to respect referred to in this paragraph extends to the person's home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person's right to privacy. The context in which the reference to the person's "home" must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person's home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person's right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by article 1 of the First Protocol.[51]The article must be read as a whole, and the wording of article 8(2) helps to explain article 8(1). It refers to "interference" by a public authority "with the exercise of" the right described in article 8(1). The circumstances in which such interference is permissible indicate the limits within which the article as a whole was designed to operate. Any interference with the right to respect for the person's privacy has to be measured against what is in accordance with the law and, in certain strictly defined respects, is necessary in a democratic society. Here too the emphasis is on the balance between the right to privacy on the one hand and the wider interests of the community in a democratic society on the other, rather than with issues about a person's right to own or occupy his home as an item of property.[52]The right described in article 8 is not isolated from the other rights guaranteed by the Convention. As I have already mentioned, article 1 of the First Protocol guarantees a right to property. For example, in Stretch v United Kingdom, Application No 44277/98, 24 June 2003 (The Times, 3 July 2003) the European Court held that there had been a violation of article 1 of the First Protocol where the applicant had been deprived of the benefit of a renewal of a lease granted to him by a local authority. The protection extends to rights of occupation as well as rights of ownership. Then there is article 6, which may be described as the key procedural provision of the Convention: Law Commission Consultation Paper, para 5.17. Article 6(1) guarantees to everyone in the determination of his civil rights and obligations a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The protection extends to the procedure by which landlords can recover possession of residential property, as possession cannot be taken without an order from the court. But neither article 6 nor article 1 of the First Protocol are in issue in this case. We are concerned only with article 8.[53]As the jurisprudence of the European Court of Human Rights and of the European Commission of Human Rights has developed, it has tended to reinforce the impression which is conveyed by Marckx v Belgium that the object of article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or to occupy property.[54]In P v United Kingdom , Application No 14751/89, 12 December 1990, the applicants' complaint that their eviction from a municipal caravan site which had been designed for the accommodation of gypsies was a breach of their rights under article 8 was held to be manifestly unfounded. The Commission considered whether the termination of their occupation of the site in accordance with the tenancy agreement which they had entered into with the local authority, which had been held to entitle the council to obtain an order for possession, could be considered as an interference with their rights under article 8(1). Its conclusion was that, "even assuming that it could constitute an interference", it would be justified under article 8(2) of the Convention (p 7). Among the reasons given was the following (p 8):
"The Commission considers that the applicants cannot derive from article 8 of the Convention an unconditional right to remain on the Thistlebrook site."
[55]In O'Rourke v United Kingdom , Application No 39022/97, 26 June 2001, the applicant complained that, among other things, his eviction from a hotel room where he had been given temporary accommodation by the local authority was an interference with his right to respect for his home under article 8 of the Convention. In his case too the allegation was found by the Court to be manifestly ill-founded. The Court said that it had significant doubts over whether or not the applicant's links with the hotel room were sufficient and continuous enough to make it his "home" at the time of his eviction but that, "even if they were", the eviction was in accordance with law and proportionate in pursuit of the legitimate aims of preventing disorder or crime at the hotel and protecting the rights and freedoms of the proprietors, their staff and other guests: p 6. The reasons for the decision include the following: p 5:
"The Court recalls that article 8 does not in terms give a right to be provided with a home (see, for example, Chapman v United Kingdom , judgment of 18 January 2001, para 99, to be published). It considers therefore that the scope of any positive obligation to house the homeless must be limited."
[56]In Chapman v United Kingdom (2001) 33 EHRR 399 the applicant was a gypsy who lived with her family in a caravan on her own land. She was refused the planning permission which she needed if she was to be allowed to live there. When enforcement measures were taken against her she complained that her rights under articles 6, 8 and 14 and article 1 of the First Protocol had been violated. The Government accepted, adopting the language of article 8(2), that there had been "an interference by a public authority" with her right to respect for her home which had been disclosed by the refusal of planning permission to allow her to live in her caravan on her own land and the pursuit of enforcement measures against her: p 421, para 75. The Court too was satisfied on this point: p 422, para 78. It was not contested by the applicant that the measures to which she was subjected were in accordance with the law. In the course of its discussion of the question whether the interference pursued a legitimate aim and was necessary in a democratic society the Court said, at pp 427-428, para 99:
"It is important to recall that article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."
[57]Further guidance as to how the Court approaches this article is to be found in Marzari v Italy (1999) 28 EHRR CD 175, Application No 36448/97. The applicant, who was suffering from metabolic myopathy and had been recognised as 100 per cent disabled, was allocated an apartment which he considered to be inadequate to his needs. He ceased paying rent for it, demanding that certain works be carried out to make it suitable for him to live in. He was served with a notice to quit and proceedings were taken against him for his eviction. He complained that his rights under article 8 has been violated. The Court found that his eviction from his apartment interfered with his rights under article 8(1). Its reasons for doing so were explained in this passage, at pp CD 179-180:
"The Court must first examine whether the applicant's rights under article 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The Court considers that, although article 8 does not guarantee a right to have one's housing problems solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under article 8 of the Convention because of the impact of such refusal on the private life of the individual. The Court recalls in this respect that, while the essential object of article 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the State to abstain from such interference; in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A State has obligations of this type where there is a direct and immediate link between the measures sought by an applicant and the latter's private life."
[58]In Larkos v Cyprus (1999) 30 EHRR 597 the applicant complained that as a government tenant he had been unlawfully discriminated against in the enjoyment of his home as, unlike a private tenant renting from a private landlord, he was not protected from eviction on the expiry of his lease. He relied on article 14 of the Convention and article 1 of the First Protocol in conjunction with article 8 of the Convention. The Commission held that there had been a violation of article 14 taken in conjunction with article 8. In the course of its opinion the Commission said, at p 605, para 32:
"The Commission considers that, although article 8 of the Convention gives rise to positive obligations for States, it might not necessarily require States to take measures to protect tenants from expulsion after the termination of the contracts by virtue of which they occupied their 'homes'. However, Cyprus has taken such measures by enacting the Rent Control Law (Law 23/1983). Since this law regulates 'the right to respect for one's home' under article 8 of the Convention, it must apply in a non-discriminatory manner in accordance with article 14 thereof."
The Court too held that there had been a violation of article 14 taken in conjunction with article 8. Of particular interest are the following observations, at p 608, para 28:
"… the Court notes that it has not been disputed that Mr Larkos can rely on the guarantee against unlawful discrimination contained in article 14 of the Convention and it sees no reason to hold otherwise. It observes in this respect that the applicant's complaint relates to the manner in which the alleged difference in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under article 8 of the Convention. Mr Larkos has not contended that there has been a breach of article 8 on account of the fact that, being a government tenant, he is faced with the threat of eviction from his home. However, it suffices for the purposes of the application of article 14 that the facts relied on in the instant case fall within the ambit of article 8 and the relevance of that article cannot be denied in view of the judgment of the District Court of Nicosia ordering Mr Larkos to leave his home. Furthermore, even if the applicant has not yet been evicted from his home it is nevertheless the case that the Rent Control Law 1983 has actually been applied to him to his detriment since he and his family have been living under the threat of eviction ever since the instigation of the eviction proceedings and that threat has become even more real following the judgment of the Supreme Court."
[59]In the light of that background it is important to note what the respondent does and does not claim in this case. He does not base his claim that he is threatened with a violation of his Convention rights on article 1 of the First Protocol or on article 14 of the Convention read with article 8. Nor does he claim that his rights under article 6(1) have been violated. His claim is based on the proposition that the appellants acted in breach of article 8 in seeking a possession order against him. He contends that the premises where he is living have not ceased to be his "home" within the meaning of article 8(1) just because it has become unlawful for him to reside in it. He submits that article 8(1) is "engaged", so the appellants must justify their claim for possession under article 8(2).[60]It is to be noted that the respondent does not contend that there has been an interference with his right to respect for his private and family life or his correspondence. The argument is directed entirely to his right to respect for his home. So the first issue that has to be resolved is whether the house which he has been occupying continuously since 20 January 1992 is his home within the meaning of article 8(1), having regard to the fact that his tenancy of it has been terminated. "Home"[61]The word "home" in article 8(1) has an autonomous meaning in the law relating to Convention rights. Its meaning cannot be defined by reference to domestic law. This is because it has to be determined in a way that will enable the expression to be applied uniformly irrespective of the Contracting State from which the case comes. This is a concept which was already familiar in EC law, as words used in Community legislation must receive uniform application in all jurisdictions throughout the EU. But it is a necessary part of the jurisprudence relating to the Convention also. Although its provisions do not all have to be applied uniformly as a margin of appreciation is given to the Contracting States in some contexts, the meaning which they take from the words used in each article of the Convention has to be the same.[62]The critical question is whether an individual has to have a lawful interest in the premises before they can be regarded as his home within the meaning of article 8(1). The jurisprudence of the European Court and the European Commission does not appear to have been entirely consistent on this issue. In S v United Kingdom (1986) 47 DR 274 the Commission noted, at p 278, para 4 that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever:
"Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as 'home' for the applicant within the meaning of article 8. Further, even if the applicant's right to respect for her home, as guaranteed by article 8, could be regarded as having been interfered with by order of the county court for possession against her, the Commission considers that such interference was clearly in accordance with the law and was also necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy."
[63]On the other hand in Buckley v United Kingdom (1996) 23 EHRR 101, where the applicant's occupation had never been lawful because she did not have permission to station her caravans on the land which she had purchased, the following views were expressed at p 115, para 63:
"The Commission considers … that the concept of 'home' within the meaning of article 8 is not limited to those which are lawfully occupied or which have been lawfully established. 'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of article 8(1) will depend on the factual circumstances, namely the existence of sufficient and continuous links. The factor of 'unlawfulness' is relevant rather to considerations under paragraph 2 of that provision of 'in accordance with law' and to the balancing exercise undertaken between the interests of the community and those of the individual in assessing the necessity of any interference."
The Commission found that the applicant's complaint that she was prevented from living with her family in her caravans on her land fell within the scope of article 8 as relating to her right to respect for her family life, private life and home: p 115, para 65.[64]The factual test which the Commission identified in Buckley v United Kingdom had been adopted by the Court in at least one previous case. In Gillow v United Kingdom (1986) 11 EHRR 335 the Court observed at pp 348-349, para 46 that, although the applicants had been absent from the house in Guernsey of which they had retained ownership for almost nineteen years, they had not established any other home elsewhere in the United Kingdom. It held that they had in the circumstances retained sufficient continuing links with the house for it to be considered their home for the purposes of article 8. The links which they had retained were the ownership of the house, their intention always to return to it and the keeping of their furniture there. The test was essentially a factual one. Although the applicants had a legal title to the house, this factor was not identified as a necessary part of it.[65]In Khatun v United Kingdom (1998) 26 EHRR CD 212, 215, para 1 the Commission noted that in the domestic proceedings (see Hunter v Canary Wharf Ltd [1997] AC 655) a distinction had been made between those applicants with a proprietary interest in the land and those without such an interest. It added this comment:
"For the purposes of article 8 of the Convention, there is no such distinction. 'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of article 8(1) of the Convention will depend on the factual circumstances, namely the existence of sufficient and continuous links (see Gillow v United Kingdom (1986) 11 EHRR 335). Even where occupation of the property is illegal, this will not necessarily prevent that occupation from being that person's 'home' within the meaning of article 8 of the Convention (see Buckley v United Kingdom (1996) 23 EHRR 101). The Commission considers that article 8(1) applies to all the applicants in the present case whether they are the owners of the property or merely occupiers living on the property, for example the children of the owner of the property."
[66]The observations by the Commission in Khatun v United Kingdom seem to me to be conclusive on this issue. The violation of the right to respect for their homes and family and private lives which was alleged by the applicants in that case was said to have arisen because of the pollution of the area by dust caused by building works in the Docklands area. Their right to occupy the premises was not in issue, so the question whether the accommodation in which they were each living was their "home" for the purposes of article 8(1) did not have to concern itself with the question of their legal title to the premises. The approach which the Commission took is entirely consistent with the view that the object of article 8 is to protect the individual against arbitrary invasion by the public authorities of his privacy.[67]Where an individual's right to respect for his private and family life is in issue, the application of a narrow or technical test as to what this part of his life comprises would plainly be inappropriate. The same is true of the word "home" when it is used in the same context. It cannot be right that the word should take on a different meaning according to the nature of the interference which is alleged by the applicant. The fact that the European Commission had to alter its approach to this issue from that indicated by a literal reading of the first paragraph of the passage which I have quoted from S v United Kingdom underlines, if I may say so, the importance of keeping the purpose of article 8 firmly in mind when one is considering these concepts.[68]In my opinion therefore the test which was identified in Buckley v United Kingdom and applied again in Khatun v United Kingdom is the test which should be applied in this case. I think that there is no doubt that the respondent's links with the premises are sufficient and continuous, so they must be regarded as his "home" for the purposes of article 8(1). I would hold, in agreement with all your Lordships, that the fact that the respondent's tenancy has come to an end does not mean that the premises ceased to be his "home" for these purposes.[69]The more difficult question, to which I now turn, is where that conclusion leads to in the present case. The Court of Appeal held that article 8(1) is engaged by the making of an order for possession. So it remitted the case to the county court to determine whether "interference with Mr Qazi's right to a home" is permitted by article 8(2): [2002] HLR 276, 290, para 58. The description of the right in issue in this case as a "right to a home" must, I think, be taken to have been a slip of the pen. Article 8(1), as the Strasbourg Court has repeatedly said, does not guarantee a right to a home . What it guarantees to the individual is respect for his home , which is an entirely different concept. The question is whether the Court of Appeal was right to remit the case to the county court to determine whether the interference with the respondent's right to respect for his home which will result from the making of an order for possession is permitted by article 8(2). Is article 8(1) "engaged"?[70]I mention this question merely to say that I consider that it can receive only one answer in the circumstances. The effect of an order for possession will be to require the respondent to leave the premises which are his "home" for the purposes of article 8(1). Regarding the question of respect for his home as one which is directed in essence to his right to be respected by the public authorities in the enjoyment of his privacy, his removal from his home is bound to interfere with his enjoyment of that right at least to some extent. As Sedley LJ said in Lambeth London Borough Council v Howard [2001] EWCA Civ 468, (2001) 33 HLR 636, 644, para 30, any attempt to evict a person, whether directly or indirectly or by process of law, from his or her home is on the face of it a derogation from the respect to which the home is prima facie entitled. In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, 70, para 67 Lord Woolf CJ observed that to evict the defendant from her home would impact on her family life. The same might be said of the impact on the respondent in this case, although I am conscious of the fact that this was not how Mr Luba QC for the respondent has presented his argument.[71]It follows, to adopt the language of Sir Gerald Fitzmaurice in Marckx v Belgium (1979) 2 EHRR 330, 364, that article 8 is "applicable". The issue which the respondent has raised is within the scope of that article. It is not irrelevant to his case. In that sense the article is "engaged". But in my opinion it does not follow that, on the facts of this case, there is an issue which must be decided within the domestic legal order by remitting the question whether any interference is permitted by article 8(2) for decision by the county court. Is the interference permitted by article 8(2)?[72]The issue to which I now turn, as the Law Commission Consultation Paper, para 5.1, points out, raises a question of procedure as well as one of substance. It is a domestic problem. It is not one which troubles the European Court, as it has full jurisdiction to decide all the issues which are remitted to it by article 41 of the Convention. This, no doubt, is why the questions arising under article 8(1) and 8(2) are so often run together at the admissibility stage with the result that the Commission or the Court, as the case may be, is content to address article 8(2) on the assumption that the right to respect for the home has been interfered with: see, eg, S v United Kingdom (1986) 47 DR 274, 278, para 4; O'Rourke v United Kingdom , Application No 39022/97, 26 June 2001, p 6. In the domestic legal order however the county court, which is the court in which actions for possession are brought, does not have unlimited jurisdiction. It does not have jurisdiction in judicial review. The question whether, and if so to what extent, it has a discretion to make or withhold an order for possession depends on the law which has to be applied to the tenancy.[73]The legislation relating to housing which has been enacted by Parliament is complex and much of it is designed to give statutory protection to tenants. It is necessary only to mention, by way of illustration, the discretionary grounds on which possession may be given which are set out in Schedule 2 to the Housing Act 1985 and the protection which is given to introductory tenancies in Part V of the Housing Act 1996. Where provisions of that kind are in issue, their application to the case where an order for possession is sought must be determined by the county court. In these cases the reasonableness or proportionality of making the order will arise because a decision on this point is required by the statute.[74]The present case, however, is not a case of that kind. The joint tenancy has been brought to an end by the service of a tenant's notice to quit. The position in domestic law is that in these circumstances, as a result of the joint tenant's action and in terms of the lease, the whole of the joint tenancy is terminated. So neither joint tenant has any longer any right to remain in the premises. The county court has no discretion as to whether or not it should grant an order for possession in these circumstances. In domestic law the making of an order for possession follows automatically. It has not been suggested that the fact that this is what the law provides is itself a violation of article 8. That proposition would not be sustainable in view of the fundamentally subsidiary role of the Convention, which gives special weight to the role of the domestic policy maker: see Hatton and Others v United Kingdom, Application No 36022/97, 8 July 2003, para 97. The only question is whether it is a violation of the respondent's article 8 rights for the law to be applied as it stands to his case.[75]Some guidance as to what the European Court would make of this issue is provided by Ure v United Kingdom , Application No 28027/95, 27 November 1996, as the facts in that case are very similar to the facts in this appeal. The applicant had become, with his wife, a joint secure tenant of a flat belonging to the housing authority. His wife then left the flat and, having been advised that she could terminate the tenancy by serving a notice to quit, did so. The housing authority then applied for a possession order on the ground that the notice had terminated the joint tenancy. An order for possession was granted by the county court and upheld on appeal. The applicant submitted that the legislation which provided for the termination of a joint tenancy by a unilateral notice by one of the joint tenants operated in a manner which was incompatible with the other tenant's Convention rights. He invoked various articles including article 8 of the Convention, as to which his complaint was that his right to respect for his home had been breached. The Commission's response to this argument was as follows, at p 4:
"In the present case the Commission notes that the applicant and his wife were joint tenants and that, therefore, the right to use the apartment was to be exercised by them jointly. The applicant apparently was not entitled, under the tenancy agreement, to use the flat as a sole tenant. It was therefore clear at the outset that in the case one of the joint tenants decided to leave, the other could not claim a right to become the sole tenant. This was the legal situation as regards joint tenancies on all types of property, and not only on residential property. Furthermore, it does not appear that the manner in which the authorities balanced the various interests involved, such as the interest of the leaving co-tenant, of those in need of accommodation and of the applicant, was arbitrary or unreasonable. Thus, the applicant's housing need apparently changed as he was not living with his wife and child any more. Moreover, replacement housing accommodation had been obtained for the applicant."
[76]It is true, as Mr Luba pointed out, that the Commission did not base its decision in that case on the simple answer that the flat was no longer the applicant's home once the lease had been terminated. But it is plain that the legal situation in domestic law was an important factor. The observations about balancing the various interests involved were directed to a passage in the judgment of the Court of Appeal setting out its reasons for dismissing the applicant's argument that the housing authority, having allegedly instigated and assisted the wife to serve a notice to quit, was not entitled to rely on its own wrongdoing in seeking possession of the flat. They were also directed to an observation by the county court judge that there was nothing in itself either improper, unlawful or unfair in a local authority assisting a tenant in terminating a tenancy so that a person who might be entitled to other accommodation is able to obtain it. That has not formed any part of the respondent's argument in this case. It has not been suggested that there has been any wrongdoing on the appellants' part. The respondent did not seek judicial review of the decision to refuse his application in October 2000 for accommodation through the housing register.[77]In Wood v United Kingdom (1997) 24 EHRR CD69 the applicant had obtained a loan on the security of her house. It was repossessed when she was unable to meet the repayments on the loan. She complained that her rights under article 8 and article 1 of the First Protocol had been breached. The Commission's response to the complaint under article 8 is set out at pp CD70-71:
"In so far as the repossession constituted an interference with the applicant's home, the Commission finds that this was in accordance with the terms of the loan and domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender."
In this case the point which was taken in the first paragraph which I have quoted from Ure v United Kingdom was decisive. Reading these two cases together with the second paragraph of the passage which I have quoted from the decision of the Commission in S v United Kingdom, I would expect the European Court to attach much importance to the fact that it was clear from the outset of the respondent's joint tenancy that it could be terminated by a notice to quit by one of the joint tenants, that the appellants' right to immediate possession is in these circumstances unqualified in domestic law and that the premises, once recovered, will be available for letting to others who are in need of housing in their area. The conclusion which I would draw is that on these facts the proposition that there was a violation of article 8 was unarguable.[78]In Lambeth London Borough Council v Howard [2001] EWCA Civ 468, (2001) 33 HLR 636, 645, para 32 where possession was sought against a secure tenant on the grounds of nuisance under ground 2 of Part I of Schedule 2 to the Housing Act 1985, Sedley LJ said:
"A legal threat to a secure home will, in the ordinary way, engage article 8(1). In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that article 8(2) is met, but that is not the present class of case and nothing in this judgment should be taken as impinging on it."
As I have already indicated, I respectfully agree with the opinion which he has expressed in the first sentence of this quotation. But I think that the point which he makes at the outset of the second sentence can be expressed more strongly. My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated.[79]In Sheffield City Council v Smart [2002] EWCA Civ 04, [2002] HLR 639 the defendant had been granted a non-secure tenancy of a residential property as a homeless person under section 193 of the Housing Act 1996. Complaints that she was causing a nuisance were received from neighbours, so the housing authority served her with a notice to quit. When it had taken effect the authority applied for a possession order. The Court of Appeal held that there was a prima facie violation of article 8(1) but, after examining of the scheme laid down by Parliament, that there had been no breach of the defendant's article 8(1) right in that case. It was also held, following R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129 that a challenge to the decision to serve a notice to quit could be made in judicial review within the appropriate time limits, and that in the rare situation where something wholly exceptional happened after service of the notice to quit which fundamentally altered the rights and wrongs of the proposed eviction the judge in the county court who was hearing the claim for possession might be obliged to address it in deciding whether the making of a possession order could be justified: see pp 659 and 660, paras 40 and 44-45, per Laws LJ. I wish to reserve my opinion as to whether it would be open to the tenant, in a wholly exceptional case, to raise these issues in the county court where proceedings for possession were being taken following the service of a notice to quit by the housing authority, bearing in mind as Lord Millett points out that its decision to serve the notice to quit would be judicially reviewable in the High Court so long as the application was made within the relevant time limit. The situation in the present case is different, as it was a notice to quit served by one of the joint tenants that terminated the tenancy.[80]In Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617 the tenant of a secure tenancy had died. An order for possession was sought against the defendant, who had been living with the deceased but was not a member of the deceased's family as defined by the statute. In this case too it was held that there was a prima facie violation of his rights under article 8(1) but, following a consideration of the statutory scheme, that there had been no violation. As Mance LJ explained, at pp 642-643, para 82, that case belongs to a different category of case from this one as it was a statutory scheme that terminated the tenancy. He observed that the question whether there might prove in the county court to be short answers to the question raised by article 8(2) was not before the Court of Appeal in this case. That is not the position now, as your Lordships gave permission for argument to be presented on the question whether every claim for possession of a home engages article 8. In the course of that argument submissions were made as to whether, in a case of this kind, the right to respect for a home had been violated. Conclusion[81]In the second paragraph of his speech, which I have had the opportunity of reading in draft, my noble and learned friend Lord Steyn says that the approach of the majority empties article 8(1) of any or virtually any meaningful content and that it allows domestic notions of title, legal and equitable rights to colour its interpretation.[82]I hope that I have been able to show that this is not so. I believe that the key to a proper understanding of the issues in this case lies in an appreciation of the fact that article 8 regards a person's home as an aspect of his right to privacy. The interpretation which I would give to the concept of a person's home in this context is broad enough to give a full measure of protection in a wide range of circumstances that may be envisaged where a person's right to respect for his home is interfered with by the public authorities. The issue which arises in this case is, by way of contrast, a very narrow one which has much more to do with the law relating to property rights than respect for a person's privacy.[83]I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list does not violate the essence of the right to respect for the home under article 8(1). That is a conclusion which can be applied now to all cases of this type generally.[84]I agree with my noble and learned friends Lord Millett and Lord Scott of Foscote that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court. I would allow the appeal and restore the order of Mr Recorder Williamson. LORD MILLETT My Lords,[85]I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Scott of Foscote. They have subjected the case law of the Strasbourg Court to close analysis and there is no need for me to repeat the exercise. I can therefore be relatively brief in explaining the reasons why I agree with them that the appeal should be allowed. In doing so I wish to make it clear that the difference which divides the majority from the minority is a very narrow one. This should not, however, obscure the fact that it is nevertheless of great practical importance, since it goes to the question whether the county court has discretion to refuse an order for possession in a straightforward situation of daily occurrence.[86]It used to be an Englishman's proud boast that "an Englishman's home is his castle". The idea was given expression in stirring language by William Pitt the Elder (Lord Chatham) as recorded in Brougham's Statesmen in the Time of George III (First Series) (1839), pp 41-42:
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it— the storm may enter—the rain may enter—but the King of England cannot enter ! —all his force dares not cross the threshold of the ruined tenement !"
[87]Although not unrelated to his rights of property, the poor man's defiance of the King was not based on his title. The common law protects possession as well as title. A person who is in actual possession of land is entitled to remain in peaceful enjoyment of the property without disturbance by anyone except a person with a better right to possession. It does not matter that he has no title. A squatter can maintain a claim of trespass. His want of title does not justify the authorities in searching his premises without a search warrant. He cannot be evicted save at the suit of someone with a better right to possession, and even then that person must rely on the strength of his own title and not the weakness of the squatter's.[88]The same idea is now enshrined, in suitably restrained and less colourful language, in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms:
"Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others."
The reference in article 8(2) to "interference with … the exercise of this right" is somewhat clumsily expressed in relation to the right in question. It is to be interpreted as forbidding interference with the enjoyment of the right in question.[89]Rights of property are protected by the First Protocol to the European Convention, not by article 8. Although added by a later Protocol the heading to article 8 indicates its essential thrust. It is not directed to the individual's rights of property but to his right to be left alone to live a normal family life without arbitrary interference by the public authorities: see Marckx v Belgium (1979) 2 EHRR 330, 342. In article 8 an individual's "home" is not defined by the particular building which he owns or occupies. The Strasbourg Court has repeatedly stated that article 8 does not give anyone a right to a home or "an unconditional right to remain" in any particular home: see P v United Kingdom Application No 14751/1989. A person's "home" is rather the place where he and his family are entitled to be left in peace free from interference by the state or agents of the state. It is an important aspect of his dignity as a human being, and it is protected as such and not as an item of property.[90]The facts of the present case are in small compass. Mr and Mrs Qazi were council tenants. They had a joint tenancy of a two-bedroomed house and lived there with their daughter. The marriage broke up and Mrs Qazi and her daughter went to live elsewhere, leaving her husband alone in the house. She divorced him and he has remarried. She gave the council written notice to determine the tenancy in accordance with the terms of the tenancy agreement. This brought the tenancy to an end and with it Mr Qazi's right to go on living in the house. He applied to the council for a new tenancy, but his application was refused on the legitimate ground that he was now a single person and that acceding to his application would result in under-occupation of a house which should be made available to accommodate a family with greater priority need in an area of acute housing shortage.[91]Mr Qazi did not vacate the house and the council brought possession proceedings against him in the county court. The council is a public authority, and Mr Qazi could, if so minded, have challenged its decisions to refuse his application for a new tenancy and to bring proceedings to recover possession on the grounds that they were "arbitrary", that is to say not objectively justifiable but unreasonable or disproportionate. Such proceedings would have to be brought in the High Court; but the county court could have been asked to stay the possession proceedings in order to permit them to be brought, though he would have had to show that they would have at least some prospect of success.[92]Mr Qazi did not take this course. Instead he resisted the possession proceedings on the ground that by bringing them the council was interfering with the enjoyment of his right to respect for his home contrary to article 8. Absent a timely challenge to the lawfulness of the council's decisions to refuse a new tenancy and seek possession, Mr Qazi had no defence under domestic law. The question to be decided in this appeal is whether he had any arguable defence by reference to article 8.[93]The recorder held that article 8 was not "engaged", that is to say was not applicable, because the premises were not Mr Qazi's "home" within the meaning of article 8. It was not his "home" because he had no legal or equitable right or interest in the premises.[94]It is not disputed that, once his tenancy was determined, Mr Qazi no longer had any legal or equitable proprietary right in the premises. But the recorder's conclusion that Mr Qazi had no sufficient interest in the premises to support his claim to be left to enjoy them in peace was untenable even as a matter of domestic law. He was in actual possession, and this was enough to enable him to claim the protection of the law against anyone who did not have an immediate right to possession.[95]The Court of Appeal allowed Mr Qazi's appeal, and after a review of the case law of the Strasbourg Court held that the premises were Mr Qazi's "home" for the purposes of article 8. I agree with all your Lordships that they were right to do so. The word "home" has an "autonomous" meaning in the Strasbourg jurisprudence, that is to say one which is independent of any particular meaning which may be attributed to it in the law of an individual contracting state. It does not, however, bear a special legal meaning developed by the case law of the Strasbourg Court, as does the expression "civil rights" for example. It bears its natural and ordinary meaning as popularly understood throughout the contracting states. Whether premises constitute a person's "home" for the purposes of article 8 is therefore a question of fact, and the Strasbourg Court will examine the facts for itself in order to determine whether they do so.[96]Considered as a question of fact, the premises were Mr Qazi's home at all material times. They were his home when he lived there with his former wife, and they continued to be his home after she left him. They did not cease to be his home when his tenancy came to an end. The most that can be said is that he no longer had a legal right to remain in occupation which he could maintain against the council, though he could maintain it against anyone else. He was liable to be evicted at the suit of the council; but while he lived there it was still his home. It was his home when the council brought proceedings against him, and it was still his home when the recorder made a possession order against him. It would not have ceased to be his home until he left possession or was evicted by the bailiffs. This has not happened. He lives there to this day, now with his second wife and two children. It is still his home.[97]This is the approach which has been adopted by the Strasbourg Court. Its case law has been consistent in treating the question as one of fact. It is neither necessary nor sufficient that the applicant should have a proprietary interest in the premises which are alleged to constitute his "home". A person may make his home where he has no right to be; and a person may choose not to make his home where he has a right to live. I agree with my noble and learned friend Lord Scott that S v United Kingdom (1986) 47 DR 274 (EComHR) has been misinterpreted, and that properly understood it remains authority for what it decided. Although clumsily expressed, the Commission's decision was clearly based on the fact that the local authority was entitled to possession. This was the basis of the Commission's conclusion that the house could "no longer be regarded as 'home' for the applicant within the meaning of article 8." The Commission cannot have meant this literally, for it would emasculate article 8. Its protection would entirely fall away as soon as the applicant's tenancy came to an end. The police could search his house without a warrant; the applicant and his family would be liable to immediate and arbitrary eviction by anyone with or without a shadow of a legal right without the protection of the Convention. Not only is this indefensible in human rights terms, it does not follow (as the Commission thought the local authority's compliance with its obligations under article 8 did) as a logical consequence of the determination of the applicant's tenancy. I think that the Commission was saying that the house could no longer be regarded as attracting the protection of article 8 so as to afford a defence to the local authority's claim to possession. So understood the decision is both internally logical and consistent with the later jurisprudence of the Strasbourg Court.[98]The only other case to which I would refer at this stage is Gillow v United Kingdom (1986) 11 EHRR 335. This was a decision of the Strasbourg Court and was concerned with the converse case where the applicant owns the premises but does not live there. The Court held that, although the applicants had not lived in the premises for 19 years, they had not established any other home elsewhere in the United Kingdom and had "retained sufficient continuing links" with the subject premises for them to be considered their "home" for the purposes of article 8. I do not think that this undermined the decision in S v United Kingdom in any way. It did not substitute a new test of "sufficient and continuous links" for a former test of legal or equitable title, for this test, if it be one at all, was satisfied. It merely showed that, whether or not title was necessary to bring premises within the protection of article 8, it might not be sufficient.[99]Accordingly I am satisfied that, when the local authority's claim for possession came before the recorder, and contrary to his decision, the premises did constitute Mr Qazi's "home" for the purposes of article 8.[100]It necessarily follows that article 8 was applicable. But it does not follow that it was even arguably infringed. In my opinion article 8 is not ordinarily infringed by enforcing the terms on which the applicant occupies premises as his home. Article 8(1) does not give a right to a home, but only to "respect" for the home. This meaning of "respect" for the home cannot be understood in isolation; it can be understood only if article 8(1) is read together with article 8(2). This forbids interference with the right conferred by article 8(1) except in the circumstances specified. By explaining the circumstances in which there may be lawful interference with the right to "respect", article 8(2) gives meaning to that concept and limits the scope of the article.[101]Article 8(2) stipulates that interference with the right must not be arbitrary; it must be in accordance with law. This requirement is satisfied in the present case, and it need not be examined further. But this is not sufficient. The interference must also be justified. In most cases article 8(2) calls for a balance to be struck between the applicant's right to "respect" for his home and some competing public interest, such as national security, public safety, the prevention of disorder or crime, the protection of health or morals, and so on. But article 8(2) also permits interference with the right where it is necessary "for the protection of the rights and freedoms of others". Those others include but are not limited to private citizens. They include landowners whether they are private citizens or public authorities.[102]Consideration of the question whether interference with the right is "necessary for the protection of the rights and freedoms of others" may also call for a balance to be struck, but it need not do so. A person's right to respect for his home includes his right to listen to music, but not to music so loud that it disturbs his neighbour's sleep at 3.00 am. Our ordinary law of nuisance requires the court to conduct a balancing exercise between the competing rights of neighbours to enjoy their respective properties. By carrying out that exercise the court will inevitably be concluding, whether consciously or not, whether its interference with one party's right to respect for his home is necessary to protect his neighbour's rights and freedoms. Provided that it carries out the exercise properly and in accordance with the ordinary law, there is no need to give separate consideration to article 8.[103]But no such balancing exercise need be conducted where its outcome is a foregone conclusion. In the present case, as in S v United Kingdom , the local authority had an immediate right to possession. The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to "respect" Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck.[104]This conclusion too is in accordance with Strasbourg jurisprudence. I have already referred to S v United Kingdom , where in very similar circumstances the Commission declared the complaint to be manifestly ill-founded. Another such case is Wood v United Kingdom (1997) 24 EHRR CD 69 where the Commission rejected a complaint by a mortgagor who was in default that her article 8 rights had been infringed by the making of a possession order at the suit of the mortgagee. The Commission held that even if the repossession constituted an interference with the applicant's home, it was in accordance with the terms of the loan and domestic law and was necessary for the protection of the rights and freedoms of others, namely the mortgagee. There was thus no infringement of the article 8 right. There is no relevant distinction between that case and the present. It is true that the mortgagee in Wood v United Kingdom was not a public authority whereas the council in the present case is; but the council's conduct as a public authority was not challenged, as it could have been by proceedings for judicial review in the High Court, and in bringing its claim for possession it relied on its ordinary rights, shared by everyone, as the owner of the premises and not on its rights as a public authority. Its status as a public authority was simply irrelevant to its claim.[105]An instructive case which demonstrates the limits of the protection afforded by article 8 is Larkos v Cyprus (1999) 30 EHRR 597 As in the present case, the applicant was a tenant whose tenancy had come to an end and whose landlord sought possession. The applicant was a tenant of government-owned premises, and as such was not entitled to the security of tenure which he would have enjoyed if he had held his tenancy from a private landlord. He did not complain of an infringement of article 8 alone, and it is clear that neither the Commission nor the Court would have found one. They found a breach of article 14 taken in conjunction with article 8. Article 14 secures the enjoyment of Convention rights without discrimination. The Convention right in question was the right to respect for the applicant's home. That had been secured to tenants, but on a discriminatory basis which infringed article 14.[106]The Commission expressly acknowledged that article 8 does not require states to take measures to protect tenants from eviction after the termination of the contracts under which they occupy their homes. But the state concerned had done so. Since the law by which it had done so "regulates the right to respect for one's home" it must apply in a non-discriminatory manner in accordance with article 14. The importance of Larkos v Cyprus for present purposes lies in the fact that, if national law had not discriminated against government tenants by withholding the security of tenure which it granted to tenants of private landlords, the eviction would not have amounted to a breach of the applicant's article 8 rights.[107]It follows that I do not accept without qualification the suggestion of Laws LJ in Sheffield City Council v Smart [2002] HLR 639 that, once it is established that the premises in question are the applicant's home, an order for possession amounts to an interference with (and prima facie an infringement of) his article 8 right of respect for his home. The qualification, which is built into the provisions of article 8 itself, is that save in wholly exceptional circumstances (which it has not been suggested exist in the present case and with which I shall deal below) there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law.[108]I would also wish to dissociate myself from the dictum of Waller LJ in R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 that, even in a case where a private landlord is seeking possession, the court, as a public authority, must consider whether the order is justified under article 8(2) before making an order. The fact that a person cannot be evicted without a court order does not mean that the court, as a public authority, is bound in each case to consider whether an order for possession would be disproportionate and infringe article 8 rights. The court is merely the forum for the determination of the civil right in dispute between the parties: see Di Palma v United Kingdom (1986) 10 EHRR 149. Its task is to resolve the dispute according to law. In doing so it would, of course, have to consider whether the landlord was entitled to possession as a matter of our ordinary domestic law (ie. apart from the Human Rights Act 1998), taking into account the various statutory provisions which operate in this field. But once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. The order is necessary to protect the rights of the landlord; and making or enforcing it does not show a want of appropriate respect for the applicant's home.[109]I would accordingly endorse the observations of Moses J in R (Gangera) v Hounslow London Borough Council [2003] EWHC Admin 794 that in proceedings between private parties the court does not act incompatibly with article 8 by making or enforcing a possession order without considering questions of proportionality. I also agree with him that it makes no difference that the landlord is a public authority. In most cases the statutory scheme established by Parliament will provide the objective justification for the council's decision to seek possession, which need not be demonstrated on a case by case basis: see Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, 631 - 632. In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact that an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant's home.[110]In my opinion the Court of Appeal were right to determine that the premises constituted Mr Qazi's home at the material time, but wrong to remit the case to the county court for further consideration. In my opinion there was nothing further for the county court to consider. There was no arguable breach of article 8, and the Court of Appeal ought to have dismissed Mr Qazi's appeal, albeit on grounds which differ from those of the recorder. LORD SCOTT OF FOSCOTE My Lords, Introduction[111]The issue before your Lordships turns on the view to be taken of the effect of article 8 of the European Convention on Human Rights on a case where the owner of property is seeking to recover possession from the occupier whose home it has become but who has no right, as against the owner, to remain there. The facts of the case have been fully set out in the opinions given by my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead, as well as in the courts below, and I can deal with them briefly.[112]The property is a two-bedroom house at 31 Hutton Lane, Harrow. The owner is the appellant, the London Borough of Harrow ("the council"). The house forms part of the council's housing stock. The respondent, Mr Qazi and his then wife, Mrs Saman Qazi, became joint tenants of the house under a secure tenancy granted by the council in 1992. They lived there with their daughter. It was their home. In 1998 their relationship broke up. Mrs Qazi left the home with their daughter to live elsewhere and served notice to quit on the council. It may safely be assumed that the service of the notice to quit was contrary to Mr Qazi's wishes. He wanted to continue to occupy the house as his home.[113]It is accepted, however, that the effect in law of the service of a notice to quit by one joint tenant who jointly with another holds a tenancy of property terminates the tenancy. The effect, therefore, of the service by Mrs Qazi of the notice to quit terminated the secure tenancy under which Mr Qazi was occupying the house. He had, thereafter, no property right that entitled him, as against the council, to remain in occupation.[114]Mr Qazi applied to the council for a new tenancy. His application was refused in July 1999. The council took the view that, as a single occupant, the accommodation was more than he needed. They wanted to allocate the house to one of the families on their lengthy housing list. In November 1999, in response to a repeated request from Mr Qazi , the council repeated their refusal to grant him a new tenancy. They asked him to vacate the house. Mr Qazi refused to vacate the house and, in March 2000, the council commenced possession proceedings in the county court. It is those proceedings that, via the Court of Appeal, have led to this appeal to your Lordships' House.[115]Mr Qazi could have tried to challenge, by judicial review, the council's decision to refuse to grant him a new tenancy of the house. But he did not do so. It may be he took the view that, in the circumstances pertaining in July and November 1999, the challenge would have been a hopeless one.[116]In 2000, however, a change in circumstances had occurred. Mr Qazi formed a relationship with a lady whom he married in October 1999 in an Islamic ceremony. She had a five year old son. Their marriage was later solemnized in a civil ceremony. By July 2000 they were all living together as a family in the house. The family was increased when Mr Qazi's new wife, Mrs Abida Qazi, gave birth to their child in December 2000. She applied to the council for the grant of a tenancy of the house to herself and Mr Qazi. The council's previous objection to Mr Qazi's application, namely, that the accommodation was more than a single occupant required, no longer applied. But the council refused her application. They placed her and Mr Qazi on their housing list but pointed out that there were many families above them on the list. They were not willing to accord Mr and Mrs Qazi priority over those other families. This decision, too, was not challenged in any judicial review application.[117]Meanwhile the possession proceedings brought by the council were continuing. Mr Qazi's defence has been throughout, and remains, that the council's claim for possession, and any possession order made by the court acceding to that claim, would be in breach of his rights under article 8 of the Convention. On 8 June 2001 Mr Recorder Williamson, sitting in the Watford County Court, rejected this defence and made an order for possession in favour of the council. He did so because, in his view, property in which a claimant had no legal or equitable right or interest could not constitute the claimant's "home" for article 8 purposes. On appeal, the Court of Appeal disagreed with this view. They held that the factual links between the claimant and the property sufficient or necessary for it to constitute his "home" for article 8 purposes did not include a legal or equitable right or interest in the property. They held that the possession proceedings constituted an interference with Mr Qazi's "home" so that article 8, contrary to Mr Recorder Williamson's view, was applicable. They therefore allowed Mr Qazi's appeal and remitted the case to the county court in order for the county court to decide whether the interference could be justified under article 8(2).[118]There appear, therefore, to be two issues for your Lordships. The first is whether the house, 31 Hutton Lane, Harrow, constituted Mr Qazi's "home" for article 8 purposes notwithstanding that he had no legal or equitable right or interest in the property. The second issue is whether, if the house did constitute Mr Qazi's "home", Mr Qazi can raise an article 8 defence to the council's claim for possession notwithstanding that, as against the council, he has no right under the ordinary law to remain in possession. In other words, can article 8 ever constitute a defence to a claim by an owner of property to recover the property where, article 8 apart, the defendant has no right to remain there? Article 8[119]Article 8 says that "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."[120]The structure of article 8 is, in my opinion, very important. Paragraph 1 expresses a general principle, rather than a precise legal right: the words "the right to respect" are indicative of this. The object of the "right to respect" is home life in all its aspects: privacy, family, home, correspondence. Paragraph 2, on the other hand, expresses, with precision, the gateways through which a public authority that interferes, or proposes to interfere, with the paragraph 1 "right to respect" for home life must pass if the interference is to be permissible. The interference must always be in accordance with the law. But it must also be necessary in a democratic society for one or other of the specified reasons. The obviously pertinent reason for the purposes of the present case is "for the protection of the rights and freedoms of others". But, of course, one never gets to a consideration of the gateways unless the interference complained of is capable of constituting interference with the "right to respect" for home life.[121]Before turning to the Strasbourg and domestic case law relevant to the issues before the House, it is helpful to reflect on the intended purpose of the European Convention on Human Rights. It was the progeny in a European context of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948. It (the Convention) recited that "[the Universal] Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared" and that the signatory governments (to the Convention) were resolved "to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration". I have referred to these recitals as a preliminary to making the point that not one of the rights declared in the Universal Declaration and not one of the rights and freedoms enshrined in the Convention involves, in express terms at least, any diminution of (or encroachment on) the property rights of others. The reverse is the case. Article 17(2) of the Universal Declaration says that "No one shall be arbitrarily deprived of his property". This is reflected in article 1 of the First Protocol to the Convention which secures the right of every "natural or legal person" to the peaceful enjoyment of his possessions. Any interference with this right must be "in the public interest and subject to the conditions provided for by law …."[122]As to the right to respect for home life provided by article 8 of the Convention, its progenitor is article 12 of the Universal Declaration which says that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence …." Neither this language, nor the language of article 8 can, in my opinion, be read as authorising any deprivation of the property rights of others.[123]The Universal Declaration and the Convention were the product of the horrors of fascism which led to World War II and the Holocaust. One of the recitals to the former records that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind". The intention of these instruments was to enshrine fundamental rights and freedoms. It was not the intention to engage in social engineering in the housing field. It was, in 1948 and 1950, when these instruments came into being, and it still remains, the province of individual signatory states to decide for themselves what social housing legislation to introduce. Thus, if a signatory state chose not to provide any security of tenure to residential tenants, so that on the expiry of every tenancy the landlord would become entitled to recover possession, this state of affairs would offend neither article 12 of the Universal Declaration nor article 8 of the Convention. The recovery by the landlord of possession of his property, the ex-tenant having no right to remain there, would not be "arbitrary" (see article 12) nor would it be indicative of any lack of respect for the tenant's home life. It would simply be the recovery by the landlord of his property. The tenant's home life at the property would throughout have been subject to the possibility of having to move out on the expiry of the tenancy. Article 8 would not alter the position.[124]Nor would recovery by a property owner of his property from a squatter/occupier who had made it his home be in any different state. If the occupier had been in adverse possession for 12 years, he would have acquired a title by adverse possession and be entitled to remain. Article 8 would not be relevant. The disentitled owner might make a complaint under article 1 of the First Protocol but would fail. The divesting operation of the Statutes of Limitation would be justifiable as being in the public interest etc (see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 347 and, in the Court of Appeal, [2001] Ch 804). But if the home occupier had been in possession for less than 12 years he would have no right as against the owner to remain. The recovery by the owner of his property would not be arbitrary nor would it evidence any lack of respect for the occupier's home life. His home life at the property would have always been subject to the possibility of eviction by the owner.[125]It is, of course, the case that the United Kingdom, in common, I expect, with all other signatories to the Convention has enacted elaborate social housing legislation. The degree of security of tenure provided to tenants of residential property on the expiry of their tenancies is highly complex. There are assured shorthold tenancies, secure tenancies, non-secure tenancies, introductory tenancies, service tenancies, furnished tenancies and, no doubt, others. The manner in which these tenancies can be brought to an end varies and depends on the contents of the relevant legislation. The respective rights of landlord and tenant, after termination of the tenancy, similarly depend on the content of the legislation. If, under the relevant provisions of the relevant legislation, the tenant has no right to remain in possession, the case is no different from that in which there is no relevant legislation at all. If, pursuant to the provisions of the relevant legislation, the tenant is entitled to remain in possession after the termination of his tenancy, there will have been a corresponding diminution of the landlord's property rights. This diminution will put article 1 of the First Protocol into play. But social housing legislation of this character is well justifiable on the public interest grounds provided for by the article (c/f James v United Kingdom (1986) 8 EHRR 123). If, on the other hand, the tenant has no right to remain in possession as against the landlord he cannot claim such right under article 8. To hold otherwise, to hold that article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen's home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary. Strasbourg case law[126]I start with S v United Kingdom (1986) 47 DR 274 (EComHR). The case concerned a homosexual couple living together in a house of which one of them was the tenant under a secure tenancy. The tenant died. The local authority landlord sought to recover possession from the survivor. The survivor's defence in the domestic courts was that she was entitled under section 30 of the Housing Act 1980 to succeed to her deceased partner's secure tenancy. Section 30 gives a right of succession to a surviving occupier where the survivor is a spouse or member of the family of the deceased tenant. But the contention that a homosexual partner could be a spouse or a member of the family of the deceased tenant for section 30 purposes was not accepted, a possession order was made and she was evicted. She then applied to Strasbourg on the ground of a breach of her Convention rights. She claimed first, that "respect for her private and family life has been denied" and that her "eviction was not necessary on any ground enumerated within article 8(2)" (see p 277). She claimed also under article 14, that she had been discriminated against in relation to her rights under article 8. The Commission said that "any interference which there may have been with the applicant's private life falls to be considered in the context of her home" (p 278) and then said:
"The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as 'home' for the applicant within the meaning of article 8."
[127]The cited passage has been much criticised, but I think it has been misunderstood. The Commission were not, in my view, seeking to prescribe the features of occupation of premises that would enable the premises to constitute an individual's "home" for article 8 purposes. S had been lawfully occupying the house as her "home" by permission of and with her deceased partner. But after the death of the partner the local authority owner wanted to recover possession and S could not as against the owner, invoke article 8 rights. This, I think, is what the Commission meant in saying "the local authority was entitled to possession so that the house could no longer be regarded as 'home' for the applicant within the meaning of article 8". The Commission cannot be taken to have meant that the applicant could not, after the death of her partner, have asserted article 8 rights against any bugging of her telephone, any intrusion on her privacy by long range photography or any like invasions of her home life by third parties or, indeed, by the local authority itself. The Commission was commenting on a recovery of possession by an owner entitled to possession. Unless it could have been said that article 8 conferred some countervailing property rights on S and correspondingly diminished the local authority's property rights, thereby amending in favour of S the relevant housing legislation, article 8 was simply irrelevant to the local authority's right to recover possession. No such argument was addressed to the Commission. If it had been it should, in my opinion, have failed for the reasons I have already given.[128]The correctness of the Commission's approach to S's article 8 objection to the local authority's right to recover possession can be tested by considering the position if the deceased tenant in her lifetime had asked S to leave. Assume that S had no contractual or equitable rights under the ordinary law. Could she have contended that her partner's request that she leave offended her "right to respect" for her home? In my opinion, plainly not, unless it were to be said that article 8 had given S some interest in the house and correspondingly diminished the partner-tenant's proprietary interest. If article 8 can be raised against the landlord by an occupier with no proprietary or contractual right as against the landlord, it must equally be capable of being raised against the tenant by an occupier with no proprietary or contractual right against the tenant.[129]Immediately after the passage I have cited, the Commission went on, at p 278:
"Further, even if the applicant's right to respect for her home, as guaranteed by article 8, could be regarded as having been interfered with by order of the county court for possession against her, the Commission considers that such interference was clearly in accordance with the law and was also necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy."
Just so, but what the Commission was saying, in effect, was that the landlord's legal right to recover possession of its property at the end of the tenancy prevented article 8 from providing any assistance to S. A possession order was necessary in order to give effect to, "for the protection of", that right to possession. How else could it have been protected?[130]Di Palma v United Kingdom (1986) 10 EHRR 149 was a case in which the landlord (a private landlord, not a local authority) had forfeited the tenant's lease on account of her failure to pay a service charge. The landlord then brought possession proceedings in the county court. Subject to the question of relief from forfeiture the tenant had no defence to the action. The issue was whether either the county court or the High Court had jurisdiction to grant that relief. If there had been jurisdiction to grant relief, relief would, on the facts, have been granted. But the county court's jurisdiction to grant relief from forfeiture was statutory and was very limited. On the facts of the case it was not exercisable. The High Court's jurisdiction to grant relief had been removed by the statute which had conferred the limited jurisdiction on the county court (see section 191, County Courts Act 1959). So the tenant fell in a black hole, was unable to obtain relief from forfeiture and lost her flat, notwithstanding that the forfeiture was a disproportionate penalty for her failure to pay the service charge: (see Di Palma v Victoria Square Property Co Ltd [1984] Ch 346, 362A-B and 368E- 369B). The tenant applied to Strasbourg complaining, inter alia, that the possession order was in breach of her article 8 rights. She said that "her eviction from her home constitutes an unjustified interference with the right to respect for her home protected by article 8" (p 155). But the Commission held, at pp 155 - 156, that "any interference with the applicant's right to respect for her home which the forfeiture of her lease engendered was in conformity with article 8(2) as a measure which was in accordance with the law and necessary in a democratic society for the protection of the rights of others." They held her article 8 complaint to be manifestly ill-founded. It is important to notice that this was not a conclusion to which the Commission came on grounds of proportionality. Otherwise they must have found in favour of the applicant. They held in effect, as they had done in S v United Kingdom , that article 8 rights could not suffice against an owner of property with an otherwise unimpeachable right to possession.[131]It is said that the approach of the Strasbourg tribunals in cases such as Gillow v United Kingdom (1986) 11 EHRR 335, Buckley v United Kingdom (1996) 23 EHRR 101, Mabey v United Kingdom (1996) 22 EHRR CD 123 and Chapman v United Kingdom (2001) 33 EHRR 399 is inconsistent with that of the Commission in S v United Kingdom and Di Palma v United Kingdom . My Lords, I think not. None of these cases involved a claim by the owner of the premises in question against an occupier who, vis-à-vis the owner, had no right to remain. Gillow was a case in which the premises were in Guernsey and the owner, Mr Gillow, needed a licence in order to be allowed to reside there. He applied for the necessary licence but was refused. The refusal, he contended, interfered with his article 8 right to respect for his home. One of the issues was whether the premises did constitute his home. He had lived there at one time but for a long period had lived abroad. The court held that he had "retained sufficient continuing links" with the premises for it still to constitute his home for article 8 purposes (see para 46). The court found that the interference that the refusal of the licence and the consequent prosecution of Mr Gillow for unlawful occupation constituted was disproportionate to the legitimate aim pursued and consequently was not justifiable under article 8(2) (see para 58). This conclusion was reached after a careful consideration of the purposes of the Guernsey legislation requiring certain people to obtain residence licences and of the various factors taken into account by the Guernsey authorities in deciding whether or not to grant Mr Gillow a licence. There is a very striking contrast between this balancing process that the Court undertook and the absence of any such balancing process in S v United Kingdom or in Di Palma . The contrast does not indicate that the Commission's approach was wrong. It indicates that the article 8(2) balancing process is inappropriate where possession is being claimed by the owner of the property against whom the occupier has no right to remain.[132]Buckley v United Kingdom , Mabey v United Kingdom and Chapman v United Kingdom were cases where gypsies had acquired land on which to stand the caravans in which they lived. They began using the land, their own land, for that purpose, but the standing of caravans on the land was unlawful under the planning laws. The planning authorities brought proceedings to prevent these breaches of the planning laws. The land/caravan owners contended that to bring these proceedings was an interference with their article 8 rights to respect for their homes. It was contended, in answer, that because the establishing of their homes was in breach of the planning law and therefore unlawful article 8 could not apply. This contention was rejected. In Buckley the European Court quoted the Commission which said, at p 115, para 63:
"the concept of 'home' within the meaning of article 8 is not limited to those which are lawfully occupied or which have been lawfully established. 'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links."
[133]It has been suggested that this test of what constitutes a "home" for article 8 purposes invalidates what the Commission had said in S v United Kingdom . My Lords, I do not think so. In S v United Kingdom the Commission was concentrating on the question whether the recovery by a landlord of possession of premises after the expiry or determination of the tenancy under which the premises had been occupied as a home constituted an interference with the right to respect for the occupier's home guaranteed by article 8. The Commission held it did not and, in explaining why not, said, at p 278, para 4, that "…. the local authority was entitled to possession so that the house could no longer be regarded as a home …." (emphasis added). In Buckley , by way of contrast, as in the other gypsy cases, the issue was whether the unlawfulness under the planning laws of the applicant-owner's occupation of the property in question disqualified the occupation from being occupation of a "home" for article 8 purposes. The Commission formulated the test in the way it did in order to eliminate the unlawfulness of the occupation as a relevant factor, let alone a determinative factor, in deciding whether the occupation was of a "home". There was no suggestion, however, by the European Court in Buckley that the Commission's approach in S v United Kingdom needed to be re-considered or was wrong. Buckley does not constitute any authority at all for the proposition that a home-occupier can resist a possession action by the owner of the property on article 8 grounds.[134]For my part I think that the first passage I cited from the Commission's judgment in S v United Kingdom should, in the light of Buckley , be re-worded. I think the Commission should have said, simply, that the claim by the local authority landlord to recover possession of the house after the death of the tenant did not constitute an interference with S's right to respect for her home since she no longer had, vis-à-vis the landlord, any right to remain there. This, I think, is what the Commission meant.[135]In Wood v United Kingdom (1997) 24 EHRR CD 69 the Commission adopted an approach to article 8 consistent with their approach in S . The case was one in which the applicant was a mortgagor who had fallen into arrears with her mortgage payments. The mortgagee, exercising its powers under the mortgage, had taken possession of the house, the mortgaged property. The applicant complained that the repossession constituted a breach of her article 8 right to respect for her home. The Commission rejected her claim. It said, at pp 70 - 71, that the re-possession "…. was in accordance with the terms of the loan and the domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender." There is no suggestion that this decision was reached by weighing up the applicant's interest in retaining her home against the mortgagee's interest in enforcing its security. The Commission's conclusion makes it clear, in my opinion, that a mortgagor cannot invoke article 8 in order to diminish the contractual and proprietary rights of the mortgagee under the mortgage. Article 8 is simply not applicable.[136]Similarly article 8 could never be successfully prayed in aid by a vendor to prevent a contractual purchaser from obtaining specific performance of a contract for the purchase of the house which was the vendor's home. This must be so unless it be said that article 8 diminishes the contractual and proprietary rights of the mortgagee in the case of a mortgage of residential property or of a purchaser in the case of a contract to purchase residential property.[137]Marzari v Italy (1999) 28 EHRR CD 175 was, like Wood v United Kingdom and Di Palma v United Kingdom , a case where no attempt was made to strike a balance between the interests of the applicant and those of the person responsible for the eviction of the applicant from his home. The applicant, a council tenant was evicted following service of a notice to quit for non-payment of rent. The Strasbourg Court found the undoubted interference with the applicant's home that the eviction constituted to be justified under article 8(2) but without any attempt to address the proportionality of the eviction. As in Wood and Di Palma the failure of the article 8 complaint was inevitable in view of the absence of any answer under the ordinary law to the landlord's, or mortgagee's, contractual and proprietary right to possession. It could be said that in these cases article 8 is simply not applicable. Or it could be said, applying article 8(2), that the recovery of possession by the person entitled to possession is in accordance with the law and is necessary to protect that right to possession. It comes to the same thing. Article 8 does not attack the owner's legal right to possession.[138]Larkos v Cyprus (1999) 30 EHRR 597 was a decision of the Strasbourg Court. The applicant was tenant of a house. It was his home. His landlord was the government. The tenancy was terminated by the government and an eviction order was made against the tenant by the domestic court. Under the local law, the tenant would have had security of tenure if his landlord had been a private landlord; but as his landlord was the government he had had no security of tenure. His complaint to the Strasbourg Court was not that his article 8 right of respect for his home had been infringed. It was that he had suffered discrimination in that as a government tenant he had had no security of tenure. His complaint was of a breach of article 14. The eviction order, sought by the government and made by the domestic court, had certainly interfered with his home. He had been evicted. The absence in such a case of any claim by the tenant that his article 8 rights had been infringed or of any suggestion by the Strasbourg court that he might have so claimed seems to me highly significant. The reason, surely, is that the recovery of possession by a landlord entitled to possession could not have sustained such a claim. The discriminatory element, enabling a claim under article 14 to be made, was essential.[139]I have referred to these Strasbourg decisions in order to try and demonstrate the consistency with which the principle which, to my mind, underlies article 8 has been applied. In no case has article 8 been applied so as to diminish or detract from the contractual and proprietary rights of the person entitled to possession. Domestic case law[140]Your Lordships have been referred to three Court of Appeal cases in which article 8 was in issue in proceedings for possession brought by a landlord against a tenant whose tenancy had expired. In none did the landlord fail to recover possession. In each the case was decided on the ground that the interference was justified under article 8(2). In my respectful opinion, however, the approach by the court in each of these cases is open to criticism.[141]The first of these cases was Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48. The landlord sought a possession order against an assured shorthold tenant. The relevant legislation bars recovery of possession by the landlord otherwise than under an order of the court but requires the court to make the order if the requisite statutory conditions are met. In this case they had been met. But article 8 was relied on by the tenant. It was accepted, of course, that an order for possession would constitute an interference with the tenant's home. Whether it would have constituted an interference with the tenant's "right to respect" for the home was not considered. Argument centred on whether justification for the interference under article 8(2) could be shown. The Court of Appeal attributed weight to the impact that eviction would have on the tenant's family life but held, on balance, that the interference was justified. It is implicit in this approach that, if the facts had been different, the balance might have come down the other way, in favour of the tenant. This would, in effect, have amended in favour of the tenant the relevant housing legislation. It would have given the tenant possessory rights in respect of the house and correspondingly diminished the landlord's proprietary rights. It would, in my opinion, have given article 8 an effect it was never intended to have and ought not to have. It would have denied the landlord the necessary protection for its contractual and proprietary right to possession. In my respectful opinion the court, having noted that the eviction would have constituted an interference with the tenant's home, should have held that in view of the landlord's right to possession article 8 was not applicable. The case was, in my view, correctly decided but for the wrong reason.[142]R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 concerned an introductory tenancy. The tenancy had been duly terminated by the local authority landlord in accordance with the procedures prescribed by the relevant legislation. The tenant had no contractual or proprietary right, as against the landlord, to remain in possession. Counsel for the landlord submitted that "the rights of the tenant to occupy the premises were simply in accordance with [the introductory tenancy] scheme" (para 37) and that article 8 had no application. But the Court of Appeal disagreed and held that "the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others" (per Waller LJ in para 42). Waller LJ went on to say that even in a case where the landlord was a private landlord, in which case article 8(2) would appear to have no application, the court, as a "public authority", would have to consider, before making a possession order, whether an article 8(2) justification was established.[143]My Lords,[143]the remarks of Waller LJ to which I have just referred, which follow with inescapable logic from the proposition that in all cases where possession is sought of property which constitutes the defendant's home an article 8(2) justification must be shown, demonstrate, in my respectful submission, why the proposition cannot be right. Waller LJ's remarks have the effect that the words in article 8(2) "by a public authority" are deleted from the article for the purpose of its application in domestic law. A court, being a public authority, cannot, it is said, give a private owner of residential property the possession order to which under the ordinary law he would be entitled against a person occupying the property as his home but who has no contractual or proprietary right to remain there, unless the making of the order can be justified under article 8(2). If this is right, it would give article 8 a significantly broader scope in its application than its language justifies. The words "by a public authority" become otiose.[144]The error is not in Waller LJ's logic, but in the proposition itself. If article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession, the problem identified by Waller LJ does not arise. The fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer. In my opinion the McLellan case, like the Donoghue case, was correctly decided but for the wrong reason.[145]The third of these cases is Sheffield City Council v Smart [2002] HLR 639. This case concerned non-secure tenancies. The tenancies had been duly determined by the local authority landlords. Possession was sought. Laws LJ, with whose judgment the other two members of the Court of Appeal agreed, said, at p 655, para 26, that "…. the premises …. were without question the women's homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants' right of respect of their homes" and, at para 27 that "…. eviction of these appellants would constitute a prima facie violation of their right to respect for their homes." I respectfully disagree. Each home had been established on the basis of a proprietary interest in the premises obtained under the contractual tenancy granted by the landlord. How could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a "home" as something ethereal, floating in the air, unconnected to bricks and mortar and land.[146]I need not set out the whole of Laws LJ's reasoning. It has already been extensively set out in the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn. Lord Bingham comments that the reasoning, like that of Arden LJ in the present case, reflected the tenor of the Strasbourg jurisprudence. But nowhere in the Strasbourg case law is there to be found any case in which a landlord's claim to possession has failed on article 8(2) grounds. In each case, of course, the landlord has had to show that his claim is "in accordance with the [ordinary] law". So what is left? If the landlord is entitled to possession under the ordinary law, how can it be otherwise than "necessary in a democratic society" to make a possession order "for the protection of" and to give effect to his right to possession? It is true that in a number of cases the Strasbourg tribunal (whether court or Commission) has held article 8 to be prima facie applicable but has held the "interference" constituted by the claim or the order for possession to be justified under article 8(2). But there is no case in which this conclusion has been reached by considering the degree of impact on the tenant's home life of the eviction. There is no case in which a balance has been struck between the tenant's interests and the landlord's rights. In every case the landlord's success has been automatic. And so it must be unless article 8 is to be allowed to diminish or detract from the landlord's contractual and proprietary rights. In my opinion, the Strasbourg jurisprudence has shown, in effect, that article 8 has no relevance to these landlord/tenant possession cases. This case[147]As I have said, in the present case Mr Qazi failed at trial because the judge held that in order to have an article 8 home the occupier must have a legal or equitable interest in the premises. I agree with Arden LJ in the Court of Appeal and with your Lordships that that bald proposition cannot be supported. If the judge had held that an occupier with no legal or equitable interest enabling him to resist the landlord's possession claim could not resist the claim by relying on article 8 rights to respect for his "home", I would have agreed with him.[148]In the Court of Appeal, Arden LJ held, following the test prescribed in Buckley , that Mr Qazi did, for article 8 purposes, have a "home" at 31 Hutton Lane. I agree with that conclusion. But she then went on to propose that the case be remitted to the county court "to determine whether interference with Mr Qazi's right to a home is permitted by article 8(2), and the Court of Appeal made that order.[149]In my opinion, the Court of Appeal, having correctly held that Mr Qazi had an article 8 "home", should have held that his rights under article 8 could not prevail against the council's admitted and undoubted right to possession under the ordinary housing law. I would, for my part, have said that article 8 was not, in these circumstances, applicable. But it could also be said that a possession order was "in accordance with the law" and was necessary in order to protect and give effect to the council's right to possession. To express the point in that way would be to follow the Strasbourg tribunals in S , in Di Palma and in Wood . But it comes to the same thing. Article 8 cannot be raised to defeat contractual and proprietary rights to possession.[150]In arguing the case for Mr Qazi, Mr Luba QC seemed to me to be in an impossible quandary. He conceded that article 8 did not vest in the home-occupier any contractual or proprietary rights in the property. He accepted that the expectation in every case would be that the owner entitled under the ordinary law to possession would succeed in establishing an article 8(2) justification for the possession claim. But he insisted that article 8 did allow for the special case where the possession claim could be resisted or the possession order denounced on the ground that the recovery of possession by the owner otherwise entitled thereto constituted an unlawful interference with the home-occupier's right to respect for his home. The circumstances, he accepted, would have to be exceptional but the possibility had to be kept open. Naturally he said that, in due course, on the remission to the county court, he would contend that the circumstances of Mr Qazi brought the case within that exceptional category so as to prevent the council from justifying under article 8(2) their recovery of possession.[151]In my opinion, your Lordships should reject these arguments. They seem to me inconsistent. If Mr Qazi has no contractual or proprietary right under the ordinary law to resist the council's claim for possession, and it is accepted he has not, the acceptance by the court of a defence based on article 8 would give him a possessory right over 31 Hutton Lane that he would not otherwise have. It would deprive the council of its right under the ordinary law to immediate possession. It would constitute an amendment of the domestic social housing legislation. It would give article 8 an effect it was never intended to have and which it has never been given by the Strasbourg tribunals responsible for implementing the Convention.[152]If the reality of the matter is, as I believe it is, that an article 8 defence can never prevail against an owner entitled under the ordinary law to possession, your Lordships should, in my opinion, say so. Remission of the case to the county court for the county court to say so would be pointless. I would, therefore, allow the appeal. The reasons I have given for allowing the appeal are, I believe, essentially the same as those given by my noble and learned friends Lord Hope of Craighead and Lord Millett, whose opinions I have had the opportunity of reading in advance and with which I agree.

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