Local authority — Housing – Possession proceedings — Applicants defending proceedings on basis of Article 8 of European Convention on Human Rights – Courts dismissing appeals and making possession orders against applicants — Whether interference by local authority with applicants’ human rights proportionate to aim pursued of protecting right to regain possession of property – Applications upheld
The local authority and a housing trust had an arrangement under which the applicants occupied “short–life” premises owned by the authority. The latter terminated the arrangement and sought possession of the properties. They sought possession orders against the applicants who relied on their rights under Article 8 of the European Convention on Human Rights.
The court found that although the trust had granted leases to the appellants (see Bruton v London & Quadrant Housing Trust [1999] 2 EGLR 59; [1999] 30 EG 91), they had no continuing right to occupy: see [2004] EWCA Civ 926; [2004] 3 WLR 1396.
The court considered itself bound by Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109, so that the Article 8 claims would fail in the light of the local authority’s right to possession under the general law.
The House of Lords granted leave to appeal and the UK government intervened in support of the applicants’ Article 8 argument. The House of Lords dismissed the appeal: see [2006] UKHL 10; [2006] 2 AC 465. The county court subsequently granted possession orders against each of the applicants.
The applicants lodged an application with the European Court of Human Rights (ECtHR) under Article 34 of the Convention, contending that their rights under Article 8had been breached. The parties agreed, in the context of Article 8(2), that the applicants’ rightshad been interfered with in accordance with the law. That law aimed to protect the rights and freedoms of others in that it protected the right of local authorities to regain possession of the property from an individual who had no contractual or other right of occupation and ensured that the statutory scheme for housing provision was properly applied.
Accordingly, the question for the court was whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”.
Held: The application was upheld.
The applicants’ challenge to the decision to strike out their Article 8 defences had failed because it had not been possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in the light of personal circumstances. In those circumstances, the decision by the county court to strike out the applicants’ Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference had not been observed. As a result, the applicants had been dispossessed of their homes without any possibility of having the proportionality of the measure determined by an independent tribunal. It followed that Article 8 had been violated: McCann v United Kingdom 19009/04 [2008] 2 EGLR 45; [2008] 28 EG 114 applied.
In a democratic society, an interference would be considered necessary for a legitimate aim if it answered a pressing social need and, in particular, if it was proportionate to the legitimate aim pursued. Although it was for national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference were relevant and sufficient remained subject to review by the ECtHR for conformity with the requirements of the Convention.
In making their initial assessment of the necessity of the measure, national authorities enjoyed a margin of appreciation in recognition of the fact that they were better placed than international courts to evaluate local needs and conditions. The margin afforded to national authorities would vary depending on the Convention right in issue and its importance for the individual in question.
The margin would be narrower where the right at stake was crucial to the individual’s effective enjoyment of intimate or key rights. On the other hand, in spheres involving the application of social or economic policies, the margin of appreciation was wide, as in the planning context, where the court had found that in so far as the exercise of discretion involving many local factors was inherent in the choice and implementation of planning policies, the national authorities enjoyed a wide margin of appreciation. Further, in spheres such as housing, which played a central role in the welfare and economic policies of modern societies, the court would respect the legislature’s judgment as to what was in the general interest, unless that judgment was unreasonable: Connors v United Kingdom 66746/01 [2004] 4 PLR 16 applied.
Where general social and economic policy considerations had arisen in the context of Article 8, the scope of the margin of appreciation depended on the context of the case, with particular significance attaching to the extent of the intrusion into the applicant’s personal sphere. Moreover, the requirement under Article 8(2) that the interference be “necessary in a democratic society” raised a question of procedure and substance. The procedural safeguards available to the individual would be especially material in determining whether the respondent state had, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the court had to examine whether the decision-making process leading to interference was fair and afforded due respect to the interests safeguarded to the individual by Article 8. The loss of one’s home was the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of that magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, his right to occupation had come to an end.
In the instant case, making an assessment on an equitable basis, the applicants would each be awarded €2,000 in respect of non-pecuniary damage
Thomas & Co, solicitors, appeared for the applicants; J Grainger, of the Foreign and Commonwealth Office, appeared for the UK government.
Eileen O’Grady, barrister