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Two domestic cases challenged the lack of security of tenure of those living on official sites under Articles 8 and 14 of the Convention (Somerset CC v Isaacs (2002) and R(Smith) v Barking & Dagenham LBC (2003)) . In each case the Courts accepted the government’s position that if residents were given security of tenure there might be less scope for Gypsies and Travellers to keep up a nomadic lifestyle and non-nomadic people might take up pitches on sites. Additionally the government argued that the lack of security was necessary in order to enable proper management of sites to be maintained.
The ECtHR addressed the issue in the case of Connors v UK (2004). Mr Connors and his family are Irish Travellers and they had lived for many years on a local authority site. Their licence to occupy the site was determined as a result of allegations of nuisance. Mr Connors disputed those allegations and applied for judicial review of the local authority’s decision to seek eviction. That application for judicial review was unsuccessful and the Connors family were duly evicted. In its judgment the ECtHR indicated that:-
The Housing Act 2004 s211 amended the CSA 1968 s4 and provided judges with a power to suspend possession orders made against Gypsies and Travellers on local authority sites for periods up to 12 months. This does not, of course, provide those same Gypsies and Travellers within any means of raising a defence to the possession action.
In a memorandum to the Council of Ministers of November 2004, in response to the Connors decision, the Government stated:-
‘Ministers have accepted during the passage of the Housing Act 2004 that tenure on local authority Gypsy and Traveller sites is out of line with tenure in bricks and mortar social housing, and that public sites have strong similarities to social housing in terms of client profile, landlord profile and management needs…Ministers have indicated that the most suitable way to take any proposals forward would be as part of future legislation on tenure reform relating to bricks and mortar housing.’
Despite this statement, no amendments to the law have yet been brought in or even proposed.
It should also be pointed out that Mobile Homes Act 1983 s5 specifically excludes local authority Gypsy/Traveller sites from the protection of that Act (yet, somewhat bizarrely, non-local authority rented Gypsy/Traveller sites will come within the protection of that Act).
Whilst we wait for the Government to change the law, Gypsies and Travellers on local authority sites seem to be in a strange state of limbo. The case of Birmingham CC v Doherty illustrates this point. The local authority, stating that they wanted to turn their official site from a permanent site into a transit site, terminated Mr Doherty’s licence and sought a possession order against him. In December 2004, Birmingham High Court granted the order sought. In so doing, McKenna J decided that he was bound to follow the House of Lords decision in Harrow LBC v Qazi (2003) rather than the ECtHR decision in Connors v UK.
The central question in Qazi was whether a trespasser could raise a defence under Article 8 of the European Convention before the court of first instance.
Article 8 of the European Convention on Human Rights states:-
’1. Everyone has the right to respect for his private and family life, his home and his correspondence;
2. 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.’
Mr Qazi had held a joint tenancy with his wife. His wife left the property and handed to the council a notice to quit. The notice to quit acted so as to (lawfully) terminate the whole joint tenancy. Mr Qazi then, effectively, became a trespasser. He pleaded Article 8 in his defence to the subsequent possession proceedings. A majority (3 to 2) of the House of Lords held that a person without any proprietary interest in the land in question would be unable to rely on such a defence (though it was accepted that such a person could potentially make a public law challenge). Lord Millet stated:-
‘[O]nce it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. The Order is necessary to protect the rights of the landlord, and making or enforcing it does not show a want of appropriate respect for the applicant’s home. In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review.’
Mr Doherty appealed the High Court decision. His appeal was stayed in the Court of Appeal pending the decision of the House of Lords in Kay and Price. The House of Lords delivered their judgment in those cases in March 2006.
The Kay case involved former tenants who had had their tenancies lawfully terminated and were now effectively trespassers. The Price case involved Irish Travellers who had been evicted more than 50 times from unauthorised encampments by the local authority in the course of the previous year. Both the former tenants and the Travellers sought to raise Article 8 as a defence to the possession actions brought against them and argued that the earlier judgment of the House of Lords in Qazi was inconsistent with the ECtHR judgment in Connors. Since they were being asked to depart from one of their own previous decisions, seven Law Lords sat to hear the case. All seven Law Lords were agreed that:
The majority of the Law Lords were all in agreement with paragraph 110 of the judgment of Lord Hope and it is, therefore, worth quoting that paragraph at length:-
‘I would hold 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…Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:-
(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, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways:
(i) By giving effect to the law, so far as it is possible for it to do so under section 3 [of the HRA], in a way that is compatible with article 8 or
(ii) By adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court.
(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, he should be permitted to do so provided again that the point is seriously arguable…’
Following the decision in Kay and Price the Court of Appeal gave its judgment in the Doherty case. It was decided by the Court of Appeal that Mr Doherty’s case could be distinguished from the case of Mr Connors since the latter involved factual issues (allegations of nuisance) and the former involved policy issues (the need to refurbish the site and turn it into a transit site). Carnwath LJ stated:
‘It is true that one aspect was an issue about whether the Doherty’s presence ‘deterred’ others. However this was not in the context, as in Connors, of an allegation of breach of a licence condition …but simply one part of its overall assessment of the various factors in play. That seems to us well within the margin of appreciation allowed by the Strasbourg jurisprudence in the exercise of an administrative discretion…’
The CA interpreted Kay and Price as saying that, where one was dealing with a Connors style ‘factual’ situation, there were two (as they put it) ‘gateways’ by which a possession action might be challenged:
The Court of Appeal’s reasoning on judicial review is, with respect, somewhat confusing given that: it accepted that Mr Connors had himself unsuccessfully attempted to take a judicial review challenge; and that the ECtHR made it clear that, in such a case, judicial review was not an adequate remedy.
Mr Doherty is seeking to appeal this decision to the House of Lords.
In 2006 the Caravan Sites (Security of Tenure) Bill was given a first reading as a Ten Minute Rule Bill. Though this Bill will go no further, it does serve to highlight the continuing failure of the government to resolve this vital issue. With great foresight, Oxfordshire County Council, when bringing in new licence agreements for their six Gypsy/Traveller sites in July 2005, decided not to wait for the government but to resolve the uncertainty by introducing their own clause dealing with security of tenure. In fact there is a strong argument that, post the Connors case, all new licence agreements ought to include such clauses (and perhaps clauses relating to succession, assignment, exchange and other issues routinely found in tenancy agreements issued to council tenants of bricks and mortar accommodation).
The ECtHR addressed the issue in the case of Connors v UK (2004). Mr Connors and his family are Irish Travellers and they had lived for many years on a local authority site. Their licence to occupy the site was determined as a result of allegations of nuisance. Mr Connors disputed those allegations and applied for judicial review of the local authority’s decision to seek eviction. That application for judicial review was unsuccessful and the Connors family were duly evicted. In its judgment the ECtHR indicated that:-
- there was a positive obligation on the UK to facilitate the Gypsy way of life;
- the eviction was a serious interference with Mr Connors’ article 8 rights and it required particularly weighty reasons of public interest by way of justification;
- it was not persuaded that there was any specific feature about local authority sites which would render their management unworkable if they were required to establish reasons for evicting long-standing occupants;
- the power to evict without the burden of giving reasons which were liable to be examined on their merits by an independent tribunal had not been convincingly shown to respond to any specific goal or to provide any particular benefit to members of the Gypsy/Traveller community.
The Housing Act 2004 s211 amended the CSA 1968 s4 and provided judges with a power to suspend possession orders made against Gypsies and Travellers on local authority sites for periods up to 12 months. This does not, of course, provide those same Gypsies and Travellers within any means of raising a defence to the possession action.
In a memorandum to the Council of Ministers of November 2004, in response to the Connors decision, the Government stated:-
‘Ministers have accepted during the passage of the Housing Act 2004 that tenure on local authority Gypsy and Traveller sites is out of line with tenure in bricks and mortar social housing, and that public sites have strong similarities to social housing in terms of client profile, landlord profile and management needs…Ministers have indicated that the most suitable way to take any proposals forward would be as part of future legislation on tenure reform relating to bricks and mortar housing.’
Despite this statement, no amendments to the law have yet been brought in or even proposed.
It should also be pointed out that Mobile Homes Act 1983 s5 specifically excludes local authority Gypsy/Traveller sites from the protection of that Act (yet, somewhat bizarrely, non-local authority rented Gypsy/Traveller sites will come within the protection of that Act).
Whilst we wait for the Government to change the law, Gypsies and Travellers on local authority sites seem to be in a strange state of limbo. The case of Birmingham CC v Doherty illustrates this point. The local authority, stating that they wanted to turn their official site from a permanent site into a transit site, terminated Mr Doherty’s licence and sought a possession order against him. In December 2004, Birmingham High Court granted the order sought. In so doing, McKenna J decided that he was bound to follow the House of Lords decision in Harrow LBC v Qazi (2003) rather than the ECtHR decision in Connors v UK.
The central question in Qazi was whether a trespasser could raise a defence under Article 8 of the European Convention before the court of first instance.
Article 8 of the European Convention on Human Rights states:-
’1. Everyone has the right to respect for his private and family life, his home and his correspondence;
2. 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.’
Mr Qazi had held a joint tenancy with his wife. His wife left the property and handed to the council a notice to quit. The notice to quit acted so as to (lawfully) terminate the whole joint tenancy. Mr Qazi then, effectively, became a trespasser. He pleaded Article 8 in his defence to the subsequent possession proceedings. A majority (3 to 2) of the House of Lords held that a person without any proprietary interest in the land in question would be unable to rely on such a defence (though it was accepted that such a person could potentially make a public law challenge). Lord Millet stated:-
‘[O]nce it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. The Order is necessary to protect the rights of the landlord, and making or enforcing it does not show a want of appropriate respect for the applicant’s home. In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review.’
Mr Doherty appealed the High Court decision. His appeal was stayed in the Court of Appeal pending the decision of the House of Lords in Kay and Price. The House of Lords delivered their judgment in those cases in March 2006.
The Kay case involved former tenants who had had their tenancies lawfully terminated and were now effectively trespassers. The Price case involved Irish Travellers who had been evicted more than 50 times from unauthorised encampments by the local authority in the course of the previous year. Both the former tenants and the Travellers sought to raise Article 8 as a defence to the possession actions brought against them and argued that the earlier judgment of the House of Lords in Qazi was inconsistent with the ECtHR judgment in Connors. Since they were being asked to depart from one of their own previous decisions, seven Law Lords sat to hear the case. All seven Law Lords were agreed that:
- in a possession action taken by a public landowner, Article 8 can be engaged;
- when commencing such a possession action, the public landowner does not have to provide justification in terms of Article 8(2) in every case;
- in the vast majority of cases, the proper application of domestic law will provide automatic justification in terms of Article 8(2).
The majority of the Law Lords were all in agreement with paragraph 110 of the judgment of Lord Hope and it is, therefore, worth quoting that paragraph at length:-
‘I would hold 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…Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:-
(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, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways:
(i) By giving effect to the law, so far as it is possible for it to do so under section 3 [of the HRA], in a way that is compatible with article 8 or
(ii) By adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court.
(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, he should be permitted to do so provided again that the point is seriously arguable…’
Following the decision in Kay and Price the Court of Appeal gave its judgment in the Doherty case. It was decided by the Court of Appeal that Mr Doherty’s case could be distinguished from the case of Mr Connors since the latter involved factual issues (allegations of nuisance) and the former involved policy issues (the need to refurbish the site and turn it into a transit site). Carnwath LJ stated:
‘It is true that one aspect was an issue about whether the Doherty’s presence ‘deterred’ others. However this was not in the context, as in Connors, of an allegation of breach of a licence condition …but simply one part of its overall assessment of the various factors in play. That seems to us well within the margin of appreciation allowed by the Strasbourg jurisprudence in the exercise of an administrative discretion…’
The CA interpreted Kay and Price as saying that, where one was dealing with a Connors style ‘factual’ situation, there were two (as they put it) ‘gateways’ by which a possession action might be challenged:
- by interpreting the statutory provision under HRA 1998 s3 or, alternatively, by seeking a declaration of incompatibility with regard to the relevant statutory provision in the High Court;
- by applying for judicial review which would now be done by way of defence in the county court.
The Court of Appeal’s reasoning on judicial review is, with respect, somewhat confusing given that: it accepted that Mr Connors had himself unsuccessfully attempted to take a judicial review challenge; and that the ECtHR made it clear that, in such a case, judicial review was not an adequate remedy.
Mr Doherty is seeking to appeal this decision to the House of Lords.
In 2006 the Caravan Sites (Security of Tenure) Bill was given a first reading as a Ten Minute Rule Bill. Though this Bill will go no further, it does serve to highlight the continuing failure of the government to resolve this vital issue. With great foresight, Oxfordshire County Council, when bringing in new licence agreements for their six Gypsy/Traveller sites in July 2005, decided not to wait for the government but to resolve the uncertainty by introducing their own clause dealing with security of tenure. In fact there is a strong argument that, post the Connors case, all new licence agreements ought to include such clauses (and perhaps clauses relating to succession, assignment, exchange and other issues routinely found in tenancy agreements issued to council tenants of bricks and mortar accommodation).
