Manchester City Council v Pinnock [2010] UKSC 45

, Kay v Lambeth London Borough Council

[2006] UKHL 10

;

, and Doherty v Birmingham City Council

[2008] UKHL 57

;

. In each of them the defendants were residential occupiers of properties owned by a local authority, but, for one reason or another, they were not secure tenants, and, having had any right to continue to occupy the respective properties brought to an end in accordance with domestic law, they were trespassers. So, in accordance with domestic law, the defendants could raise no defence to the local authority’s claim for possession. In each case, however, the defendants contended that they should be able to rely on the argument that, even though they were trespassers with no defence to a claim for possession under domestic law, they had the right to have the proportionality of the loss of their home taken into account by virtue of their

article 8 Convention

rights. No disrespect is intended to the impressive and careful reasoning in those three decisions when we say that, for present purposes, it is unnecessary to consider them in any detail.

[27]In Harrow v Qazi

and in Kay v Lambeth

, albeit in each case by a bare majority, the House decided that, “a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out”: Kay v Lambeth

, 516-517, para 110, per Lord Hope of Craighead, with whom Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood agreed. This observation applied to claims against trespassers, just as much as to claims against current or former tenants or licensees. At the end of the same paragraph Lord Hope explained that, following Wandsworth London Borough Council v Winder

[1985] AC 461

, in principle, it would be open to a defendant “to challenge the decision of a local authority to recover possession as an improper exercise of its powers at common law” on the traditional judicial review ground “that it was a decision that no reasonable person would consider justifiable”.

[28]In Doherty v Birmingham

the law as stated in para 110 of Kay was substantially reaffirmed. On the article 8 point Lord Mance, however, dissented, at para 132, and Lord Walker of Gestingthorpe displayed less than whole-hearted enthusiasm, at paras 107-108. The law on the judicial review point was affirmed by Lord Hope, Lord Walker, and Lord Mance, at paras 56, 123 and 157 respectively. Nevertheless, in the light of the developments in the Strasbourg jurisprudence which we describe below, the House developed the law by acknowledging that the traditional approach to judicial review would have to be expanded, particularly to permit the court to make its own assessment of the relevant facts:

, especially at p 416, para 68, per Lord Scott, and at p 443, para 138, per Lord Mance.

[29]In both Harrow v Qazi

and Kay v Lambeth

, Lord Bingham of Cornhill (dissenting along with Lord Steyn in the former case, and with Lord Nicholls of Birkenhead and Lord Walker in the latter) accepted that it should be open, as a matter of principle, to a residential occupier, against whom a local authority is seeking possession, to raise an article 8 proportionality argument based on the facts of the particular case. However, in Qazi,

, at para 25, Lord Bingham said that, if this was right, “the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional”. He effectively repeated this view in Kay v Lambeth

, 491-492, para 29, where he suggested that only in “rare and exceptional cases” would an article 8 proportionality challenge “not be futile”.

The Strasbourg Jurisprudence

[30]Mr Pinnock contends that, exceptionally, it is appropriate for this nine-judge court to depart from the majority view in these cases because there is now a consistent series of decisions of the EurCtHR which unambiguously supports the minority view in the earlier House of Lords decisions, and there is no good reason not to follow that series of decisions. We must therefore examine them.

[31]In Connors v United Kingdom (App no 66746/01), 27 May 2004

(2004) 40 EHRR 189

, gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a nuisance. The local authority then successfully brought summary proceedings for possession, on the ground that they were trespassers and had no right to remain in occupation of the land. Before the First Section of the EurCtHR the gypsies successfully contended that the proceedings violated their rights under article 8.

[32]Although the local authority’s decision to evict the gypsies was susceptible to judicial review, the EurCtHR considered, 40 EHRR 189, para 92, that this procedure was insufficient to satisfy the requirements of article 8 because “the local authority was not required to establish any substantive justification for evicting [the gypsies], and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties.”

[33]In a passage, 40 EHRR 189, paras 81-83, which has often been quoted verbatim in subsequent decisions, the EurCtHR said:

“81. An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention. 82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities …. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions .... Where general social and economic policy considerations have arisen in the context of article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant. 83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by article 8.”

[34]In Blečić v Croatia (App no 59532/00), 29 July 2004

(2004) 41 EHRR 185

, the First Section of the EurCtHR held that there had been no violation of the applicant’s article 8 rights in circumstances where her protected tenancy of her home had been terminated by the Croatian court on the ground that she had ceased to occupy it for 10 months during 1991-1992. Her case was that it had been her home since 1953, and that her absence had been attributable to armed conflict in Dalmatia, but it was held that it had been her “personal decision … to leave”. The EurCtHR said, at 41 EHRR 185, para 65:

“State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to the State in implementing social and economic policies is necessarily a wide one. The domestic authorities’ judgment as to what is necessary to achieve the objectives of those policies should be respected unless that judgment is manifestly without reasonable foundation. Although this principle was originally set forth in the context of complaints under article 1 of Protocol No 1 … the State enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of article 8. Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued.”

The case then went to the Grand Chamber, which held that, ratione temporis, the court had had no jurisdiction to hear it. The Grand Chamber said nothing, however, to cast doubt on what the First Section had said in the passage which we have quoted:

[2006] ECHR 207

[35]In McCann v United Kingdom (App no 19009/04), 13 May 2008

(2008) 47 EHRR 913

the County Court made an order for possession against a man who occupied his home as a joint tenant with his estranged wife, on the ground that the tenancy had been determined by a notice to quit which she had served at the request of the local authority landlord and without reference to her husband. The EurCtHR (Fourth Section) rejected the contention that the reasoning in Connors v UK 40 EHRR 189, paras 81-83, was “confined only to cases involving the eviction of gypsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case”: 47 EHRR 913, para 50. The court continued:

“The loss of one’s home is the most extreme form of interference with the right for respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under [article 8], notwithstanding that, under domestic law, his right of occupation has come to an end.”

[36]At para 54, the EurCtHR considered and rejected the contention that “the grant of the right to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant”, citing and confirming the view of Lord Bingham in Kay v Lambeth

, 491-492, para 29, to the effect that “only in very exceptional cases” could “an applicant … succeed in raising an arguable case which would require a court to examine the issue”. The court also said that “in the great majority of cases, an order for possession could continue to be made in summary proceedings.”

[37]In Ćosić v Croatia (App no 28261/06), 15 January 2009 the Croatian state had obtained an order evicting the applicant from her home, which she had ceased to have any right to occupy as a matter of domestic law. After quoting and considering Connors v UK 40 EHRR 189, paras 81-83, the EurCtHR (First Section) pointed out, at para 21, that the national courts had based their decision “exclusively on the [domestic] applicable laws” and had “thus confined themselves to finding that occupation by the appellant was without legal basis [and] made no further analysis as to the proportionality of the measure to be applied against the applicant”. The court immediately went on to say that the Convention required that the eviction order was “proportionate … to the legitimate aim pursued”, and that “no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia’s obligations under the Convention”.

[38]In paras 22 and 23, the EurCtHR concluded that article 8 had been violated since “the applicant [had not been] afforded [the] possibility” of having “the proportionality and reasonableness of the measure [viz, an order of court evicting her from her home] determined by an independent tribunal in the light of the relevant principles under article 8 …”.

[39]In Zehentner v Austria (App no 20082/02), 16 July 2009 the EurCtHR (First Section) had to consider the effect of article 8 in the context of an order evicting the applicant from her home following a “judicial sale”, after the making of the Austrian equivalent of a charging order. The procedural circumstances were rather unusual, but the court held, at para 54, that “the judicial sale and the applicant’s eviction are to be seen as a whole.” Importantly, for present purposes, at paras 52-59, the court reaffirmed the approach in Connors v UK 40 EHRR 189 and McCann v UK 47 EHRR 913. In particular, the court also stated, at para 59, that a person at risk of eviction from their home should “be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under article 8.”

[40]In Paulić v Croatia (App no 3572/06), 22 October 2009 the EurCtHR (First Section) cited McCann v UK 47 EHRR 913 and reiterated, at para 43, “that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal … notwithstanding that, under domestic law, he or she has no right to occupy a flat.” The court went on to explain that this right “does not arise automatically”, but only if the issue is raised with the court by the person concerned.

[41]Finally, there is Kay v United Kingdom (App no 37341/06), 21 September 2010 in which the EurCtHR (Fourth Section) gave its judgment after the conclusion of the oral argument in this case. We then received written submissions on the decision from the parties. In that case the application was made to the Strasbourg court by the unsuccessful appellants in Kay v Lambeth

. They had no security of tenure in their homes and their defences to claims for possession brought by the local authority – based on the contention that it was disproportionate to deprive them of their homes in the light of article 8 – had been struck out. After carefully considering the various views expressed in the House of Lords in Kay v Lambeth

and Doherty v Birmingham

, and the relevant decisions of the Court of Appeal, the EurCtHR stated, at paras 65-68, that the principles laid down in Connors v UK 40 EHRR 189 and McCann v UK 47 EHRR 913 applied.

[42]The EurCtHR then stated, at para 73:

“The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8. A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants’ to encompass more than just traditional Wednesbury grounds (see Lord Hope at para 55; Lord Scott at paras 70 and 84 to 85; and Lord Mance at paras 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the Court considers that at the time that the applicants’ cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann, the Court agreed with the minority approach [in Kay v Lambeth [2006] 2 AC 465] although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue.”

[43]Accordingly, in the next paragraph of its judgment, the EurCtHR concluded:

“In conclusion, the Kay applicants’ challenge to the decision to strike out their article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s article 8 defences meant that the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of article 8 of the Convention in the instant case.”

[44]The EurCtHR was therefore saying that, in so far as the law had subsequently been developed in Doherty v Birmingham

, this development could not be relied on by the United Kingdom in Kay v UK (App no 37341/06).

Conclusion on the first issue

[45]From these cases, it is clear that the following propositions are now well established in the jurisprudence of the EurCtHR:(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v UK 47 EHRR 913,para 50; Ćosić v Croatia (App no 28261/06), para 22; Zehentner v Austria (App no 20082/02), para 59; Paulić v Croatia (App no 3572/06), para 43, and Kay v UK (App no 37341/06), paras 73-4.

(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (ie, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v UK 40 EHRR 189, para 92; McCann v UK 47 EHRR 913, para 53; Kay v UK (App no 37341/06), paras 72-73.

(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria (App no 20082/02), para 54.

(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.

[46]We have referred in a little detail to the EurCtHR jurisprudence. This is because it is important for the Court to emphasise what is now the unambiguous and consistent approach of the EurCtHR, when we have to consider whether it is appropriate for this Court to depart from the three decisions of the House of Lords.

[47]As we have already explained, the House of Lords decisions have to be seen against the backdrop of the evolving Strasbourg jurisprudence. So, for instance, the first of the House of Lords decisions, Harrow v Qazi

, came before any of the EurCtHR judgments. Kay v Lambeth

was decided after Connors v UK 40 EHRR 189. But, viewed without the benefit of subsequent EurCtHR jurisprudence, the reasoning in Connors could have been interpreted as applying only to gypsies. Indeed one point made on the applicant’s behalf was that gypsies occupying sites owned by local authorities were not given any rights of security of tenure, unlike occupiers of flats or houses owned by local authorities, who were secure tenants. Although McCann v UK 47 EHRR 913 had been decided by the time of Doherty v Birmingham

, it would have been inappropriate for a five-judge court, at least in the particular circumstances, to depart substantially from the decision of the seven-judge court in Kay. Importantly, the judgments in Ćosić v Croatia (App no 28261/06), Zehentner v Austria (App no 20082/02), Paulić v Croatia (App no 3572/06) and Kay v UK (App no 37341/06) were all given after the last of the three House of Lords decisions.

[48]This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle

[2009] UKSC 14

;

[2010] 2 WLR 47

). Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator

[2004] UKHL 26

;

[2004] 2 AC 323

. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham

, para 126, section 2 of the HRA requires our courts to “take into account” EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.

[49]In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. That is clear from the minority opinions in Harrow v Qazi

and Kay v Lambeth

, and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham

. Even before the decision in Kay v UK (App no 37341/06), we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay, that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.

[50]We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out at para 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow v Qazi

the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at para 52. In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (App no 11949/86)

(1986) 10 EHRR 149

, 155-156, the Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this Court to express no view on the issue until it arises and has to be determined.

Exceptionality

[51]It is necessary to address the proposition that it will only be in “very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument. Such a proposition undoubtedly derives support from the views expressed by Lord Bingham, and has been referred to with apparent approval by the EurCtHR in more than one case. Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v Birmingham

, para 122, there may be more cases than the EurCtHR or Lord Bingham supposed where article 8 could reasonably be invoked by a residential tenant.

[52]We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.

[53]In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority’s aim in wanting possession should be a “given”, which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers’ personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham’s comment in Kay v Lambeth

, 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession – for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it.

[54]Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow v Qazi

, 997, para 25:

“[T]he 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.”

Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.

Second issue: the application of this conclusion in general

[55]The conclusion that, before making an order for possession, the court must be able to decide not only that the order would be justified under domestic law, but also that it would be proportionate under article 8(2) to make the order, presents no difficulties of principle or practice in relation to secure tenancies. As explained above, no order for possession can be made against a secure tenant unless, inter alia, it is reasonable to make the order. Any factor which has to be taken into account, or any dispute of fact which has to be resolved, for the purpose of assessing proportionality under article 8(2), would have to be taken into account or resolved for the purpose of assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that section, like proportionality under article 8(2), requires the court to consider whether to order possession at all, and, if so, whether to make an outright order rather than a suspended order, and, if so, whether to direct that the outright order should not take effect for a significant time.

[56]Moreover, reasonableness involves the trial judge “tak[ing] into account all the relevant circumstances … in … a broad common-sense way”: Cumming v Danson

[1942] 2 All ER 653

, 655, per Lord Greene MR. It therefore seems highly unlikely, as a practical matter, that it could be reasonable for a court to make an order for possession in circumstances in which it would be disproportionate to do so under article 8.

[57]The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person’s home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.

[58]The present appeal involves a type of case which arises relatively rarely, namely a claim for possession against a demoted tenant, and we heard relatively little in the submissions about other types of case. When it comes to possession proceedings, a demoted tenant is unusual in two respects:(a) he has already been the subject of proceedings which have resulted in the loss of statutory protection, and

(b) he will have been given notice of the grounds on which possession is being sought, and an opportunity to challenge those grounds.

[59]The conjoined appeals in Salford City Council v Mullen

[2010] EWCA Civ 336

, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances, namely the introductory tenancy regime (under Chapter 1 of Part V of the 1996 Act) and the homelessness regime (under Part VII of the 1996 Act). Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance. Moreover, in relation to the homelessness regime, this Court will be able to consider whether any guidance can usefully be given to local authorities as to what course to take before seeking possession in cases where there is no provision for the kind of procedure envisaged in sections 143E and 143F of the 1996 Act. In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.

[60]Nevertheless, certain general points can be made, even at this stage.

[61]First, it is only where a person’s “home” is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant’s home (e g where very short-term accommodation has been provided). Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.

[62]Fourthly, if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.

[63]Fifthly, the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited. For example, section 89 of the 1980 Act limits the period for which a possession order can be postponed to 14 days, or, in cases of “exceptional hardship”, 42 days. And some of the provisions of CPR 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies which we are about to discuss under the third issue.

[64]Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”, and that “the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases” seem to us well made. Third issue: the application of this conclusion to demoted tenancies Introductory

Third issue: the application of this conclusion to demoted tenancies

[65]As explained above, where an order for possession is made against a demoted tenant, such as Mr Pinnock, the court is involved at two different stages. The first stage, which arises if the landlord decides to apply for a demotion order, requires the court to decide whether to make such an order. The second stage, which arises if the landlord decides to make an application for an order for possession while the demotion order applies, requires the court to decide whether to make an order for possession. Each stage involves a significant and direct assault on the tenant’s right to occupy his home, and therefore engages article 8.

[66]So far as the first stage is concerned, before making a demotion order, the court must consider for itself the factual basis for making such an order. Moreover, the court can only make such an order once it is satisfied(a) that the facts which it investigates and determines justify the order under section 82A(4)(a), and

(b) that it is reasonable to make the order under section 82A(4)(b). I therefore find it impossible to conceive of circumstances where the requirements of article 8 would not be satisfied by the plain words of the relevant statutory provisions.

[67]Greater problems arise, however, when one turns to the second stage where, as in this case, the court is asked to make an order for possession against a demoted tenant.

The proper interpretation of section 143D(2) of the 1996 Act

[68]The first argument raised against the conclusion that the County Court judge who is asked to make an order for possession under section 143D(2) can carry out his own article 8 assessment of the proportionality of making such an order arises from the wording of the sub-section. We have quoted it at para 10 above. The provision requires the court to make an order for possession, “unless it thinks that the procedure under sections 143E and 143F has not been followed.” If one construes that section in accordance with the traditional approach to interpretation, it is hard to see how the court could have the power either to investigate for itself the facts relied on to justify the decision to seek possession, or to refuse to make an order for possession if it considered that it would be disproportionate to do so.

[69]Therefore there is obvious force in the point that, in the absence of any

article 8 Convention

right, section 143D(2) would limit the court to satisfying itself that the procedural requirements of sections 143E and 143F had been complied with. Stanley Burnton LJ took that view in the Court of Appeal. At any rate, absent the HRA, the purpose of section 143D appears to be to deprive the courts of almost any ability to stand in the way of a landlord who had decided to seek possession against a demoted tenant.

[70]However, as the Convention requires the court to have the power to consider the proportionality under article 8 of making a possession order at the instance of a local authority in respect of a person’s home, the effect of section 3(1) of the HRA is that section 143D(2) should be read as not excluding that power, if at all possible. Accordingly, it is necessary to examine the issue rather more critically.

[71]Clearly, the local authority, when deciding to bring possession proceedings against a demoted tenant under section 143E, and any Panel reviewing that decision under section 143F have a duty in domestic law to act rationally and to investigate the relevant facts fairly, as well as a duty under article 8 to consider proportionality, which includes investigating the relevant facts.

[72]Rightly, in our view, it is common ground that a court has jurisdiction, under normal judicial review principles, to satisfy itself that the local authority and Panel have indeed acted reasonably and have investigated the relevant facts fairly, when deciding to bring possession proceedings. From this it must follow that any decision by the local authority to continue possession proceedings is similarly susceptible to judicial review. At the same time, it is right to emphasise that it would almost always require a marked change of circumstances following a Panel’s decision to approve the proceedings, before an attempt could properly be made to judicially review the continuance of proceedings which were initially justified.

[73]In our judgment, once it is accepted that it is open to a demoted tenant to seek judicial review of a landlord’s decision to bring and continue possession proceedings, then it inevitably follows that, as a generality, it is open to a tenant to challenge that decision on the ground that it would be disproportionate and therefore contrary to article 8. Further, as we saw at paras 31 to 43 above, the EurCtHR jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute. We have already pointed out, at para 28 above, that Lord Scott and Lord Mance, in particular, reached this conclusion in Doherty v Birmingham

, paras, 68 and 138. The EurCtHR acknowledged this development in Kay v UK (App no 37341/06), para 73. In these circumstances we are satisfied that, wherever possible, the traditional review powers of the court should be expanded so as to permit it to carry out that exercise.

[74]In summary. Where it is required in order to give effect to an occupier’s

article 8 Convention

rights, the court’s powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view.

[75]Much the more difficult question, however, is whether it is possible to read and give effect to section 143D(2) in a way that would permit the County Court judge to carry out this exercise. As we have pointed out at para 69 above, the purpose of the subsection appears to be to ensure that the court makes an order for possession in all cases except where it thinks that the procedure under sections 143E and 143F has not been followed. In other words, the purpose is to ensure that the court does nothing more than check whether the procedure has been followed. It could therefore be argued that holding that the court could assess the proportionality of the local authority’s decision to bring and to continue the possession proceedings would go against the whole import of the section and would amount to amending rather than interpreting it.

[76]We have come to the conclusion that we should reject that argument.

[77]In our view, if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2). After all, the tenant’s argument in such circumstances would be within the scope of the ambit of section 143D(2), namely that “the procedure under sections 143E and 143F has not been [lawfully] followed”, since lawfulness must be an inherent requirement of the procedure. It must equally be open to the court to consider whether the procedure has been lawfully followed, having regard to the defendant’s

article 8 Convention

rights and section 6 of the HRA.

[78]This approach is borne out by section 7(1) of the HRA which, so far as relevant, provides:

“A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— … (b) rely on the Convention right or rights concerned in any legal proceedings….”

By virtue of this provision, an occupier who is the defendant in possession proceedings in the County Court and who claims that it would be incompatible with his

article 8 Convention

rights for him to be put out of his home must be able to rely on those rights in defending those proceedings. This approach fits with the observation of the EurCtHR in Paulić v Croatia (App no 3572/06), para 43, that the court need consider proportionality only if it is raised by the person whose article 8 rights are said to be infringed. … (b) rely on the Convention right or rights concerned in any legal proceedings….”

[79]We therefore consider that section 143D(2) should be read as allowing the court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in the possession proceedings.

[80]This approach to the interpretation of section 143D(2) also goes a long way towards disposing of Mr Arden’s argument that, even if article 8 required this kind of review, the County Court does not have jurisdiction to carry it out. So, he suggested, the issue would have to be referred to the High Court, where it would presumably be assigned to the Administrative Court. In effect, section 7(1)(b) confers the necessary jurisdiction on County Court judges when it is necessary for them to deal with a defence which relies on an alleged breach of the defendant’s

article 8 Convention

rights.

[81]The same conclusion can be justified on the rather wider basis that, where a tenant contends that the decision of a local authority landlord to issue, or indeed to continue, possession proceedings can in some way be impugned, the tenant should be entitled to raise that contention in the possession proceedings themselves, even if they are in the County Court. This seems to us to follow from the decision of the House of Lords in Wandsworth v Winder

[1985] AC 461

, as cited and approved in the present context in Kay v Lambeth

, para 110, and again in Doherty v Birmingham

, paras 56, 123 and 157 (see para 28 above). This approach also derives strong support from the observations of Lord Bingham in Kay v Lambeth

, para 30.

[82]This second reason involves disapproving part of the reasoning of the Court of Appeal in Manchester City Council v Cochrane

[1999] 1 WLR 809

, by which, understandably, the Court of Appeal in this case appears to have regarded itself as bound. In Manchester City the Court of Appeal held that an introductory tenant could not raise a defence to a claim for possession when that defence was based on the contentions that(a) there had been no breaches of the tenancy agreement (the substantive ground relied on by the Council for bringing the instant proceedings),

(b) the relevant Regulations had not been complied with, and

[83]As a result of our conclusion on the first issue on this appeal, article 8 would require the court to be able to consider the facts, as well as proportionality, for itself. However, even in the absence of article 8, a court would have had power to consider whether a reasonable local authority and panel could have reached the conclusion that such breaches existed. Similarly, a court would have had power to consider whether the relevant Regulations had been followed, and whether the rules of natural justice had been followed. The question is whether that court could be the court hearing the possession claim, given that it is (virtually always) the County Court.

[84]In Manchester City

[1999] 1 WLR 809

, three reasons were given for concluding that the defences sought to be raised could not be pursued in the County Court. The first was that section 127(2) of the 1996 Act, which is in similar terms to section 143D(2), required the court to make an order for possession:

[1999] 1 WLR 809

, 818G-820B. That is, in substance, the view which we have rejected in paras 76-79 above.

[85]The second reason for the Court of Appeal’s conclusion in Manchester City was based on the contrast between section 127(2) and section 204 of the 1996 Act, in Part VII of the 1996 Act which is concerned with homelessness:

[1999] 1 WLR 809

, 820B-C, 821H-822A.

[86]However, like Lord Fraser of Tullybelton in Wandsworth v Winder

[1985] AC 461

, 510A-B, we would adopt the principle stated by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government

[1960] AC 260

, 286, that a citizen’s “recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”

[87]The third reason for the Court of Appeal’s decision in Manchester City is discussed at

[1999] 1 WLR 809

, 820C-821E, and relies on the presumption that possession claims against demoted tenants could be procedurally derailed if tenants could raise public law points in the course of the possession proceedings. We do not consider that this presumption is correct. Indeed, the ability of a tenant to delay possession proceedings by raising a public law point would be greater if such points had to be taken in separate proceedings in the High Court.

[88]For these reasons we are satisfied that we should apply the approach of the House of Lords in Wandsworth v Winder

[1985] AC 461

. This permits us to confirm our earlier conclusion that section 143D(2) should be read as allowing the County Court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in possession proceedings brought in that court.

Section 17(1)(a) of the Crime and Disorder Act 1998

(a) of the Crime and Disorder Act 1998

[89]A further difficulty which is said to stand in the way of the conclusion that the County Court judge can carry out a proportionality exercise is based on section 17(1)(a) of the Crime and Disorder Act 1998 (“section 17”), which provides “Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent (a) crime and disorder in its area…”

[90]This section, Mr Arden rightly submitted on behalf of the Council, applied when, inter alia, a local authority was exercising its function as the landlord of its housing stock. He then went on to submit that the Council’s duty under section 17 could conflict with its duty, by virtue of the occupier’s

article 8 Convention

rights, to consider whether it would be proportionate to bring or continue possession proceedings against him. For instance, bringing such proceedings might be a reasonable way of preventing crime and disorder in the authority’s area, even though bringing those proceedings would be disproportionate when viewed in the particular context of the individual concerned.

[91]In our view, this argument is devoid of substance. In the first place, section 17 begins with the qualifying words “Without prejudice to any other obligation imposed on it…”. Therefore, if the effect of the HRA is to impose an obligation on a local authority landlord to consider proportionality under article 8 before embarking on possession proceedings against a demoted tenant, section 17 is not inconsistent with, and does not undermine, that obligation. As far as the County Court is concerned, insofar as it is to be treated as reviewing the local authority’s decision to bring proceedings, the same point applies, and, insofar as it is to be treated as carrying out its own assessment, nothing in section 17 impinges on it.

[92]Secondly, section 17 requires a local authority to exercise its functions, paying “due regard” to the need to prevent crime and disorder. The section imposes no absolute obligation on an authority to do everything to reduce crime and disorder, irrespective of other persons’ rights or of its own other duties – and it would be very surprising if it did. Accordingly, the furthest this point goes is to suggest that a local authority, when deciding to bring possession proceedings against a demoted tenant, should take into account its duty under section 17, as well as the

article 8 Convention

rights of the tenant and any other Convention rights that may be in play. That would also be a factor to be taken into account by the Panel when reviewing the local authority’s decision. Similarly, it would be a factor for the County Court judge to take into account when considering whether the local authority had acted proportionately.

Section 6(2) of the Human Rights Act

[93]We have concluded that section 143D(2) of the 1996 Act can be read and given effect compatibly with the

article 8 Convention

rights of any occupiers of local authority housing. So no question of the application of section 6(2) of the HRA arises in that respect.

[94]Nor, indeed, did Mr Arden argue that section 6(2) would make it lawful for the local authority to disregard the occupier’s

article 8 Convention

rights when deciding whether to bring possession proceedings against him. On the contrary, it was, rightly, common ground that a local authority must take into account a demoted tenant’s article 8 rights when taking possession proceedings under the 1996 Act. The same applied to a Panel reviewing that decision.

[95]But, as is plain from the speeches of Lord Walker and Lord Mance in Doherty v Birmingham City Council

, at paras 110-113 and 141-153, respectively, two passages at paras 86 and 114 in the speech of Lord Hope in Kay v Lambeth

, could be interpreted as indicating that section 6(2) did apply to the local authority’s decision as to whether to bring possession proceedings in the circumstances of those cases so as to make it lawful for the authority to disregard the occupiers’

article 8 Convention

rights.

[96]The absence of any real debate on the point makes the present case an unsuitable vehicle for any wide-ranging discussion of section 6(2). Nevertheless, we think it right to confirm that, in our view, the subsection has no application to the decision of a local authority as to whether to bring or continue possession proceedings against demoted tenants.

[97]Section 6 of the HRA provides:

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.” (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

[98]Plainly, subsection (2)(a) applies only where legislation imposes a duty to act. That provision is not relevant for present purposes since the local authority is under no statutory duty which would compel it to take possession proceedings against a demoted tenant.

[99]The statutory provision which relates to the bringing of possession proceedings against demoted tenants is section 143D(1) of the 1996 Act. It provides:

“(1) The landlord may only bring a demoted tenancy to an end by obtaining— (a) an order of the court for the possession of the dwelling-house, and (b) the execution of the order.”

In addition, as already explained, section 143E provides for the local authority to give notice of its decision to apply for an order for possession of the tenant’s house. Section 143F provides for the Panel to review that decision at the request of the tenant. (a) an order of the court for the possession of the dwelling-house, and (b) the execution of the order.”

[100]It does not particularly matter on which of these provisions we choose to concentrate. But it can be assumed, for the purposes of the argument, that, when a local authority landlord decides to bring possession proceedings against a demoted tenant, the authority is “acting so as to give effect to” section 143D(1) within the meaning of section 6(2) of the HRA.

[101]Then the only question is whether section 143D(1) can be given effect in a way that is compatible with the demoted tenant’s

article 8 Convention

rights. If so, section 6(2) does not apply. For the reasons which we have already set out in detail, the answer is that section 143D(1) can unquestionably be given effect in a way that is compatible with the demoted tenant’s

article 8 Convention

rights. Most obviously, the local authority will give effect to section 143D(1) in a way that is compatible with those rights when it brings proceedings that are proportionate because the demoted tenant has, for instance, continued to act in a manner that causes a nuisance to his neighbours. That being so, section 6(2) of the HRA has no application to the decision of a local authority to bring or continue possession proceedings against a demoted tenant.

[102]In these circumstances, mutatis mutandis, the conclusion of Lord Mance in Doherty v Birmingham City Council