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> The Relevance of Human Rights
The relevance of Human Rights
It was thought that a Gypsy or Traveller could challenge a decision to take possession proceedings by arguing that the eviction would amount to a disproportionate interference with his or her rights protected by Article 8 of the Convention. Following the cases of Kay v Lambeth LBC, Price v Leeds CC (2006) and Doherty v Birmingham CC (2006) (for a full discussion of these cases see ‘Official Sites’ ), it remains to be seen to what extent Article 8 can still be relied on by a Gypsy or Traveller when raising a public law challenge by way of defence.
In Kay and Price there was some disagreement as to whether Article 8 (in relation to respect for the home) might be engaged at all. The Travellers who had appealed to the House of Lords in the case had only been camping on the recreation ground in question for some 2 days when a possession action was commenced (albeit that they had been evicted some 50 times or more in the previous year). Lord Hope referred to the caselaw of the ECtHR from which he derived the principle that:
‘Sufficient and continuous links are required for a house to be considered a’home’ for the purposes of article 8 …’
Lord Hope concluded that the applicants in this case had not established such sufficient links. Lord Scott agreed with that conclusion but, importantly, he also stated:
‘It is clearly possible for a trespasser to establish a ‘home’ in property that belongs to someone else but whether and when he has done so must be matters of degree.’
It seems, therefore, that one can conclude from this case that it is possible to argue that the right to respect for one’s home is engaged in cases involving the eviction of Gypsies and Travellers from unauthorised encampments but whether it is engaged in any case will be a matter of fact and degree.
However, even the eviction does not engage the right to respect for the home, because the links with the site are not sufficiently established, it will almost certainly engage the right to respect for private or family life. Thus Stanley Burnton J in R v Hillingdon LBC ex p Ward (2001) stated that:
‘So far as Article 8 is concerned, I do not think that plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be ‘his home’, but his private and family life are affected by the Council’s decision. It is therefore necessary to consider whether the Council’s decision satisfies the requirements of Article 8.2.’
In Kay and Price there was some disagreement as to whether Article 8 (in relation to respect for the home) might be engaged at all. The Travellers who had appealed to the House of Lords in the case had only been camping on the recreation ground in question for some 2 days when a possession action was commenced (albeit that they had been evicted some 50 times or more in the previous year). Lord Hope referred to the caselaw of the ECtHR from which he derived the principle that:
‘Sufficient and continuous links are required for a house to be considered a’home’ for the purposes of article 8 …’
Lord Hope concluded that the applicants in this case had not established such sufficient links. Lord Scott agreed with that conclusion but, importantly, he also stated:
‘It is clearly possible for a trespasser to establish a ‘home’ in property that belongs to someone else but whether and when he has done so must be matters of degree.’
It seems, therefore, that one can conclude from this case that it is possible to argue that the right to respect for one’s home is engaged in cases involving the eviction of Gypsies and Travellers from unauthorised encampments but whether it is engaged in any case will be a matter of fact and degree.
However, even the eviction does not engage the right to respect for the home, because the links with the site are not sufficiently established, it will almost certainly engage the right to respect for private or family life. Thus Stanley Burnton J in R v Hillingdon LBC ex p Ward (2001) stated that:
‘So far as Article 8 is concerned, I do not think that plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be ‘his home’, but his private and family life are affected by the Council’s decision. It is therefore necessary to consider whether the Council’s decision satisfies the requirements of Article 8.2.’
