Doherty & Ors v Birmingham City Council  UKHL 57 (30 July 2008) The UK House of Lords has considered the procedural safeguards against eviction established by the right to respect for privacy and the home under art 8 of the European Convention on Human Rights.
The appellant had a licence to situate his caravan on a plot of land owned by the respondent, Birmingham City Council. The land was known as the ‘Traveller’s Site’ and comprised sixteen concrete slabs for caravans and four toilet blocks. On 4 March 2004, the respondent served on the appellant and his family a notice to quit. At this stage the appellant and his family had resided at the site for approximately 17 years (the first licence was granted in 1987). The respondent required vacant possession in order to conduct improvement works at the site which, when complete, would enable it to be managed as a temporary accommodation site for travellers.
The issuance of the notice to quit was not based on any allegation of misconduct on the part of the appellant or his family, nor was it alleged that the licence had been breached. Rather, the notice to quit was issued by the respondent based on its judgment as to the appropriate use of the site for travellers. The regulatory scheme for the management of caravan sites did not provide the appellant with any protection from the execution of the eviction notice (although, since 2004 the relevant legislation has been amended to improve protection of tenants’ rights). Consequently, the common law applied which gave the respondent an unqualified right to recover possession on the expiry of the period of notice. On 27 May 2004 the respondent commenced proceedings for possession.
The appellant defended the respondent’s claim for possession, arguing that the respondent was only entitled to possession if it was proportionate in all the circumstances of the case. The appellant argued that the proportionality test was not satisfied in these circumstances, having regard to his right to respect for his home under art 8 of the European Convention and based on the respondent’s duty to act in way that is compatible with a Convention right under s 6(1) of the Human Rights Act 1998 (UK).
The appellant was unsuccessful in raising the provisions of the HRA or art 8 of the European Convention, and the High Court gave summary judgment in favour of the respondent. The matter went on appeal to the Court of Appeal and was dismissed. An appeal was then heard by the House of Lords.
The Court applied its decision in Kay and others v Lambeth London Borough Council  UKHL 10, which held that where the public authority landlord’s right to recover possession is unqualified there were only two situations in which it would be open to a court to refrain from proceeding to summary judgment and making the possession order. They are:
(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with art 8 the court can, in accordance with the HRA, deal with the argument by either:
- giving effect to the law, so far as it is possible for it to do so under s 3, in a way that is compatible with art 8; or
- adjourning the proceedings to enable the issue of compatibility to be dealt with in the High Court.
(b) if a seriously arguable point is raised, the decision of a public authority to recover possession can be challenged as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable.
The court refers to these options as ‘gateways’.
Based on the circumstances of the case the court stated that ‘there was no arguable basis for asserting that the incompatibility of the respondent’s decision could be dealt with under gateway (a).’ However, their Lordships unanimously held that it may be open to the appellant to argue under gateway (b) that the possession order should not be made unless the court is satisfied upon reviewing the respondent’s decision and the grounds for seeking the order that its decision to evict was, in the Wednesbury sense, not unreasonable. There was general consensus that a defence under gateway (b) may provide the appellant with the protection he was seeking against a violation of his right to home under art 8. The court noted that it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds, indicating that the interests of the Doherty family, and any other long term occupants of plots on the site, would need to be taken into account. On this basis, the court remitted the matter to the High Court for review of the reasons that the respondent had given for serving the notice to quit.
Their Lordships also discussed the scope and application of s 6(2), particularly s 6(2)(b) of the HRA, which resulted in conflicting observations and revealed the uncertainty surrounding the proper application of s 6(2)(b). Under s 6(1) it is unlawful for a public authority to act in a way that is incompatible with a Convention right. However, the effect of s 6(2)(b) is that s 6(1) does not apply where a ‘decision to exercise or not exercise a power that is given by primary legislation would inevitably give rise to an incompatibility’. On one view, it was suggested that s 6(2)(b) extends to protect a decision to exercise or not to exercise a discretion that is available to it under statute. The application of this view to the appellant’s case would have the effect of enabling the respondent to apply for a possession order. At the opposite end of the spectrum, it was suggested that it was possible to read and give effect to the statutory scheme in a way that takes into account Convention rights. This view indicated that ‘a local authority which failed to take into account Convention values when deciding whether or not to give any and if so what length of notice to quit cannot… be said to be ‘acting as to give effect to or enforce’ statutory provisions which are incompatible with the Convention rights.’
The discussion of s 6(2)(b) was obiter and there was no clear or consistent reasoning from the views expressed. There was also a tension within the facts of this case as to the interaction of the regulatory scheme for the management of caravan sites and the common law relating to possession proceedings, which was not discussed or resolved in any sense. This shows that the scope and operation of s 6(2)(b), and the proper application of the HRA to the common law, is yet to be resolved and requires further analysis.
Relevance for the Victorian Charter
This decision is significant for the interpretation and application of s 13(a) of the Charter, which provides that ‘a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’, particularly as that provision relates to eviction notices that are issued by public authorities.
Importantly, the discussion relating to the operational provisions of the HRA also provides some guidance as to the options or ‘gateways’ that are available under the Charter for individual’s seeking redress where their rights have been violated by public authorities. Although, in considering this discussion, one must be aware of the differences between the HRA and the Charter.
The decision also suggests that the proper application of s 38(2) of the Charter may be uncertain. However, the discussion of the relevant provision in the HRA may be distinguishable from s 38(2) under the Charter, which seems relatively clear in its terms. On its face, s 38(2) applies where a provision is incompatible (and cannot be read otherwise under s 32) and the public authority has no choice but to act so as to give effect to that provision. This operation of s 38(2) requires that there must first be a finding that the relevant provision is incompatible with the Charter. If the provision is able to be read compatibly, or if a power or discretion could be reasonably exercised in a way that is compatible, with the Charter then s 38(2) would not apply.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/57.html.
Amy Barry-Macaulay is a lawyer with the PILCH Homeless Persons’ Legal Clinic