Manchester City Council v Pinnock is the latest in a line of cases, both domestic and in the European Court of Human Rights in Strasbourg, on the issue of the protection of rights under Article 8 of the Convention in possession proceedings. Article 8 protects a person's right to respect for their home.
In this case, the occupant was subject to possession proceedings under a demoted tenancy. The tenancy was a demoted tenancy under the Housing Act 1985, following a court order, because of allegations of anti-social behaviour by the occupant's family. The possession order was sought following further allegations of a similar nature.
Before judgment was given, the European Court gave judgment in Kay v United Kingdom, and held that the United Kingdom had breached an occupant's Article 8 rights, because he had been unable to challenge the decision of a local authority to seek possession on the basis of disproportionality of the decision in light of personal circumstances.
The Supreme Court reviewed the three House of Lords cases which had evolved the domestic legal position in recent years; Harrow LBC v Qazi, Kay v Lambeth LBC and Doherty v Birmingham CC. It then reviewed the Strasbourg jurisprudence and from these, concluded that the line of jurisprudence firmly establishes the following propositions:
- Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in light of Article 8, even if his right to occupation under domestic law has ended.
- A judicial procedure which does not permit a court to make an assessment of factual issues is inadequate.
- Where the measure includes proceedings involving more than one stage, whether or not the proceedings comply with Article 8 means having regard to the proceedings taken as a whole.
- While a situation exists which leads a court to conclude that eviction would be disproportionate, even where an occupant's right to occupation under domestic law has ended, the eviction should not take place.
The Supreme Court noted that it is not bound to follow every decision of the European Court. However, where "there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental...aspect of domestic law, and whose reasoning does not misunderstand some argument or point of principle", the Supreme Court will normally follow European Court jurisprudence.
That line of jurisprudence led the Supreme Court to hold that a court undertaking possession proceedings must have the power to assess the proportionality of making the order, and, in making that assessment, the power to resolve any relevant dispute of fact. To fulfil this requirement, the minority approach from Kay v Lambeth should be adopted. The court should decide whether or not, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order was an unlawful act, in breach of Article 8. The court should not, as was the previous position, apply judicial review principles.
The Supreme Court held that it would be exceptional for a lower court to refuse to make a possession order. Its reasoning for this was that Article 8 requires a review of whether the eviction is a proportionate means of achieving a legitimate aim. In virtually every case where the occupant has no contractual or statutory protection as a matter of domestic law, there will be a strong case for saying that an order for possession would be proportionate.
When applying these principles in general, there were a number of other relevant considerations which would further limit the possibility of the possession order being refused:
- In possession proceedings, Article 8 is only relevant where a person's home is under threat.
- The court need only consider Article 8 if it is raised in proceedings by or on behalf of a residential occupier.
- Where an argument is raised on Article 8 grounds, the issue should initially be considered summarily and the court should dismiss the argument if it is satisfied that the point would not succeed (even if the argument were factually correct).
Only once the occupant has passed these requirements does the real consideration of the exercise of the local authority's power arise.
On the facts, the Supreme Court held that it was proportionate to make the possession order in the case and the appeal was dismissed.
The oral hearing in Pinnock had taken place before the judgment was given in Kay v United Kingdom. However, the judgment in Pinnock was reserved until after the Strasbourg judgment and written submissions were invited from the parties. The Supreme Court nevertheless held that the approach adopted would have been the same without the judgment in Kay.
In the last House of Lords case, Doherty v Birmingham CC, the majority of their Lordships were critical of the approach taken by Strasbourg to these cases. In Pinnock, the review of the Strasbourg jurisprudence brought the Supreme Court to the four propositions outlined above, but not to the proposition that a review of the local authority's exercise of its powers on judicial review grounds would be incompatible with the Article 8. In fact, Kay v United Kingdom appeared to welcome a review on judicial review grounds, so long as the grounds are capable of adapting to the requirements of Article 8. So it may be that Kay merely failed to dissuade their Lordships from changing the domestic position, rather than confirming the need for the change.
The Supreme Court felt perfectly comfortable departing from the three previous decisions of the House of Lords, which should each be seen in light of evolving Strasbourg jurisprudence. While the Supreme Court is entitled to take this view, the previous reluctance of the House of Lords to follow Strasbourg still shines through. The justifications given in this judgment do not fully address that reluctance. An example of this is the assertion that it would have been inappropriate for the House of Lords in Doherty to depart from its decision in Kay because it had two fewer Law Lords on the panel; not a concerned the their Lordships themselves expressed in that case.
In Pinnock, the need for a court to determine facts in dispute was a clear factor which led to the conclusion. Judicial review generally seeks to avoid contested disputes of fact. However, it was acknowledged by Lord Scott and Lord Mance in Doherty that judicial review was sufficiently flexible to allow determinations of this kind.
The Supreme Court's new approach may change the perception of the occupants' position in these cases. However, the significant limitations the Supreme Court places on when Article 8 arguments would be successful should not be understated. In practice, the judgment does not raise a real possibility of a high number of successful claims.
What the judgment does is to define an approach for possession proceedings which is, in principle, unchallengeable under the Convention. It demonstrates yet again the expansive reach of human rights law. But, in its conclusions on the sufficiency of judicial review, it is limited to the specific regime in question. This leaves wider questions as to the flexibility of judicial review to be tested on another day.