Just when, post Kay v Lambeth in the Lords, it looked like the issue of human rights defences to possession claims was pretty much settled (i.e. there pretty much weren’t any), the ECtHR has decided to put a large stick in the spokes.
As many people have already emailed me to tell me (alright, four people, all of them lovely), McCann v United Kingdom 19009/04 was handed down today. This is a first hurried look, but this one is going to be big. I can’t link to the case directly. It is on the ECtHR site as a recent case. A word copy of the judgment is downloadable here case-of-mc-cann-v2-the-united-kingdom.
The facts can be dealt with quickly, as they are not, in the end, that important. The applicant and his then wife were joint tenants of Birmingham. The wife made accusations of domestic violence and the applicant was removed by ouster order. The wife and children were rehoused by Birmingham. The applicant moved back into the property. When Birmingham found out, they got the wife to sign a Notice to Quit, ending the joint tenancy. The wife claimed she was not told that this would mean ending the applicant’s tenancy as well. Birmingham then brought a claim for possession against the applicant. The County Court held that there was a breach of Art.8 ECHR in that the applicant’s Art.8 rights had not been properly considered and that Birmingham had apparently induced Mrs McCann to sign the NTQ. Brimingham appealed. The Court of Appeal held - after the decision on Qazi v Harrow [2003] UKHL 43 - that there was no Art 8 defence to the lawful possession proceedings. An attempt at a Judicial Review of the decision to procure an NTQ from Mrs McCann failed as there was no unlawfulness and the decision was properly open to Birmingham. The rest of the issue had already been decided by the Court of Appeal. Permission to appeal refused. The applicant was evicted and brought an application to the ECtHR.
The applicant raised Art 6 - the LA was not an independent tribunal when it brought about the termination of the tenancy. Rejected on the obvious ground that the County Court was the determining tribunal.
The applicant also raised Art 14 discrimination, comparing the LA’s relationship breakdown policy with the policy on domestic violence. Rejected on the obvious ground that DV and relationship breakdown are not the same thing, so different treatment cannot be discriminatory.
But the Art 8 issue went very differently.
It was common ground between the applicant and the Government that:
- the property was the applicant’s home (home takes a wide definition, not reliant on lawful tenancy).
- the applicant’s Art 8 rights were engaged.
The Government argued that any interference with Art 8.1 rights was justified under Art 8.2. The LA was pursuing legitimate aims, the absolute right to possession was legitimate in a democratic society. The case was distinguishable from Connors v UK (66746/01) as the key features of Connors were i) the vulnerable position of gypsies; ii) the absence of procedural protection - no scrutiny by the courts; and iii) discrimination of domestic law between those residing in private and in LA sites. The LA had merely been seking to regularise the situation in asking Mrs McCann to sign the NTQ. If this was improper behaviour, then Judicial Review was the appropriate course. And, post Kay, public law issues could be raised in the County Court possession proceedings.
The applicant argued that the manner in which the NTQ was obtained was a violation of his Art 8 rights, effectively ending his tenancy with no possibility of challenge.
The ECtHR found something completely different from both. Having reviewed the House of Lords decisions in Qazi and in Kay (and quoting Lord Bingham’s minority judgments in both with evident approval), the Court found that:
- the interference with the applicant’s Art. 8 rights was lawful
- the interference was in pursuit of a legitimate aim
- but the issue was whether the interference was proportionate.
Proportionality is both a factual issue and an issue of procedure. The Court quotes Connors at 81-83 on proportionality and procedural safeguards. It states that it does not accept the limitation of Connors to cases concerning the eviction of gypsies, or to cases where there was a challenge to the law itself. Any person facing the loss of his/her home should, in principle be able to have the proptionality of the measure determined by an independent tribunal, regardless of whether there is a continued right of occupation.
HA 1985 s.84 provides this under reasonableness, but here the NTQ allowed the LA to bypass the HA 1985 procedure, and bring summary possession proceedings under common law. Apparently the LA did this without consideration of the applicant’s Art 8 rights.
The decisions in Qazi and Kay meant that it was not open to the County Court to consider proportionality, save in the exceptional case where ’something has happened since the service of the NTQ, which has fundamentally altered the rights and wrongs of the proposed eviction’ (Court of Appeal decision in Birmingham v McCann).
Judicial review, and by extension public law defences in the County Court did not permit of a consideration of proportionality as JR can only address issues of lawfulness and reasonableness of the LA’s decision. This is not the same as the balancing act of proportionality. There was, in any case, no doubt that the LA had acted lawfully.
There was therefore a procedural breach of Art 8 in that there was no procedural mechanism for the issue of whether possession was proportionate to be considered in the summary possession hearing.
The Court did not accept that a consideration of proportionality under Art 8.2 would be a hardship for the functioning of the system. It would be exceptional for an arguable case to be raised that would require the issue to be considered.
Whether Mrs McCann had understood the import of the NTQ was immaterial. The issue was the lack of any possible consideration of proportionality under summary possession where one joint tenant has served NTQ.
In the Applicant’s case, the Court felt it was doubtful that he would have been any more successful, even if he had had an Art 8 defence. But there was a violation of Art 8 in its procedural aspect.
Well, blimey.
As far as I can see this amounts to a statement that common law summary possession proceedings (at least brought by public bodies) require that a defence of lack of proportionality under Art 8.2 be available.
Clearly this extends beyond the specific facts of this case (end of joint tenancy by NTQ to summary possession claim) to include any common law possession claim brought by a body subject to the Human Rights Act.
Does it go any further?
For the common law, the courts have an obligation as public bodies to behave in accordance with the ECHR, so there is now arguably a duty on them to consider proportionality in common law possessions where the issue is arguably raised. This might include, for instance: possession claims against those in occupation after the death of a tolerated trespasser, who would otherwise have succeeded to the tenancy; or those whose secure tenancy has ended by operation of law (e.g. Malcolm in Lewisham v Malcolm). It would presumably also include possession claims brought against entrenched tolerated trespassers as trespassers (so under common law).
What about other forms of possession against limited or no security tenancies? Possession claims for introductory or demoted tenancies? Temporary accommodation after discharge of duty under Part VII? The effectively summary nature of the possession claims in these cases is given in statute to some degree.
Arguing for the duty to hear an Art 8.2 proportionality defence where there is no provision for a defence at all in statute is going to be a strain on the Court’s HRA duty to interpret statute as in accordance with the ECHR wherever possible. I can see a lot of argument about this. But the direction of the judgment does seem clear - any possession hearing should include the possibility of a proportionality defence being raised, if arguable, at least against a public body landlord.
It is worth noting the the ECtHR takes the s.84 HA 1985 as affording sufficient procedural safeguard for secure possession claims.
But I really need to think about this for longer. Anybody else’s thoughts welcome.
By the way, Garden Court North have a briefing paper on this case now out at their news page - the May bulletin. And Garden Court (south) sent out a press release a day later (14 May) on the ‘decade altering decision‘ and pointing out it was their Stephen Cottle who acted for Mr McCann.
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