Kay & Ors v United Kingdom  ECHR 1322 (21 September 2010)
This decision concerned the right to respect for home under art 8 of the European Convention of Human Rights. The European Court of Human Rights decided that the decision of the UK County Court to strike out the applicants’ art 8 defences meant that ‘procedural safeguards’ for the assessment of proportionality of the interference with the right were not observed. Accordingly, it was held that there had been a violation of art 8 of the Convention.
In this case the applicants were living in premises owned by the London Borough of Lambeth (‘Lambeth’). These premises were known as ‘short life’ premises as they were due for demolition, development or works. In 1979, Lambeth started passing these properties to the London and Quadrant Housing Trust (‘LQHT’) and other organizations for housing people to whom no statutory duty was owed, including provision of temporary accommodation for homeless people. The applicants were all provided with housing under this initiative which was referred to as the ‘singles scheme’.
In 1995 the informal licence arrangements between Lambeth and LQHT were replaced by individual ten-year leases of each property. These leases were subject to a break clause allowing either Lambeth or LQHT to terminate the lease on 6 months notice. One purpose of such an arrangement was to provide the applicants with assured shorthold tenancies rather than licences. This arrangement was said to prevent the applicants from acquiring security of tenure under the Housing Act 1985.
In 1999, Lambeth attempted to terminate its leases with LQHT who in turn advised the applicants that the head leases had been terminated. In subsequent proceedings, the applicants argued they were tenants with security of tenure under the Housing Act and in the alternative they sought to argue that eviction would be a disproportionate measure (the ‘proportionality argument’) under art 8 of the Convention.
Article 8 of the Convention specifies:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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.
In late 2002, a judge ruled that the applicants had no security of tenure under the Housing Act and in late 2003 (following the decision of the House of Lords in London Borough of Harrow v Qazi  UKHL 43) the proportionality argument was rejected by the court. An appeal against these rulings was unsuccessful and an appeal to the House of Lords was also dismissed. In April 2006, possession orders were made against the applicants. An application was made to the European Court of Human Rights in September 2006.
Relevant UK decisions preceding the European Court decision in Kay
In considering this matter, the European Court considered a number of previous UK decisions in which the scope, application and relationship between domestic judicial review processes and art 8 of the Convention were raised.
In 2003, London Borough of Harrow v Qazi was decided. In this case it was held that premises continued to be Mr Qazi’s home even though his domestic law entitlement to remain in the premises had ended. Despite this finding, the House of Lords decided that a local authority’s contractual or proprietary right to possession could not be defeated by an art 8 defence.
In 2006, the House of Lords in Kay v Lambeth Borough Council  UKHL 10 considered the circumstances in which a proportionality argument might be raised. Lord Hope of the majority stated that where all legal requirements for a possession order had been satisfied, the only defence open to an occupier would be:
(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8 [‘gateway (a)’]…
(b) if the defendant wishes to challenge the decision of a public authority to recover possession 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 [‘gateway (b)’], he should be permitted to do this provided again that the point is seriously arguable…
In the 2008 decision of Doherty v Birmingham City Council  UKHL 57, the House of Lords held that domestic public law grounds (judicial review) were sufficiently broad to enable consideration of the proportionality of a decision under art 8 of the Convention.
In 2009 the Court of Appeal considered the ‘gateway b’ defence in the matter of Doran v Liverpool City Council  EWCA Civ 146 and Lord Justice Toulson stated:
the question whether the council’s decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen… It is now a well recognized fact that the Convention is influencing the shape and development of our domestic public law principles.
The applicants argued that they had been denied the opportunity to argue the proportionality of the possession proceedings under art 8(2) of the Convention. The European Court noted the applicants ‘contended that in their cases, the proportionality issue should have been determined by the court hearing the possession proceedings after it had carried out a fact finding exercise...’ and ‘emphasised the ambiguity of the scope of conventional judicial review grounds.’ Along similar lines, the Equality and Human Rights Commission (intervening) argued that existing public law remedies did not adequately enable courts to determine the proportionality of a proposed eviction.
By contrast the Government argued that the applicants had failed to articulate any personal circumstances and had all been offered alternative premises. These claims were disputed by the applicants. The Government also sought to argue that the public law option of judicial review were broader than traditional Wednesbury grounds and ‘could include a challenge based on alleged disproportionality.’ The Government also referred to the ‘wide margin of appreciation afforded to member States.’
The European Court held the central question was whether the interference with art 8 was ‘necessary in a democratic society’. In discussing these words, the European Court noted that ‘procedural safeguards’ were relevant and that ‘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 by Article 8.’ The European Court emphasised that:
the loss of one’s home is the most extreme form of interference with the right to 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 light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, this right to occupation has come to an end.
The European Court welcomed the tendency of domestic courts to expand conventional judicial review grounds in light of art 8 but noted the applicants’ matters were dealt with prior to these developments which were encapsulated by the Doherty decision.
Ultimately the European Court decided that the decision of the County Court to strike out the applicants’ art 8 defences meant that ‘procedural safeguards’ for the assessment of proportionality of the interference were not observed. Accordingly, it was held that there had been a violation of art 8 of the Convention.
This decision of the European Court has not resolved the issue of how art 8 and proportionality arguments can be raised in UK courts. Commentary following this judgment has emphasised that in the UK, domestic courts are only bound by decisions of the highest UK appellate court and are therefore judges continue to be bound by the ‘gateways’ set out by Lord Hope in the 2006 Kay decision. Furthermore, the issue of ‘gateways’ is again before the UK courts in Pinnock v Manchester City Corporation. Although oral argument has been heard, no decision has been handed down and the court has called for written submissions on the European Court decision in Kay.
Essentially, decisions from Qazi to Conners to Doherty demonstrate the ways in which courts are dealing with obligations to undertake a proportionality review under art 8. In a similar fashion, Victorian courts are currently grappling with jurisdictional issues surrounding the Charter of Human Rights and Responsibilities Act 2006 and the analogous s 13 right. In the Director of Housing v Sudi  VCAT 328, Bell J noted that if the Victorian Civil and Administrative Tribunal did not have jurisdiction to consider Charter issues, the tenant would need to proceed to the Supreme Court by way of judicial review. It is hard not to agree that ‘[f]rom the point of view of ensuring equal access to justice, which is an important value and purpose of the Charter, this would be a bad outcome.’ (Sudi at 143).
The decision is at www.bailii.org/eu/cases/ECHR/2010/1322.html.
Chris Povey is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic