London Borough of Harrow (Appellants) v. Qazi (FC) (Respondent)
24. For these reasons and those given by Lord Steyn I would uphold the decision of the Court of Appeal and affirm its order that the issue of justification raised under article 8(2) be remitted to the county court.
25. Mr Arden submitted that this outcome would impose a large burden of expense and delay on housing authorities. I do not accept this. The House has made it very plain, most recently in Runa Begum v Tower Hamlets London Borough Council  UKHL 5,  2 WLR 388, particularly in paragraphs 9 and 49, that the administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification. Counsel were agreed that even if the argument for Mr Qazi were accepted, the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional. This is so. It would not be proper to comment on the present case, since I share the Court of Appeal's view that the issue of justification should be considered by the county court. If (contrary to the ruling of the majority of the House) effect were to be given to my opinion, I am confident that housing authorities acting in good faith in implementation of schemes prescribed by statute and administered by them need apprehend no significant increase in their litigious burden.
26. Given that I am in complete agreement with the opinion of my noble and learned friend Lord Bingham of Cornhill I can explain my view shortly.
27. It would be surprising if the views of the majority on the interpretation and application of article 8 of the European Convention of Human Rights, as incorporated into our legal system by the Human Rights Act 1998, withstood European scrutiny. It is contrary to a purposive interpretation of article 8 read against the structure of the Convention. It is inconsistent with the general thrust of the decisions of the European Court of Human Rights, and of the Commission. It is contrary to the position adopted by the United Kingdom Government on more than one occasion before the European Court of Human Rights. It does not accord to individuals "the full measure of the [protection] referred to": Minister of Home Affairs v Fisher  AC 319, 328. On the contrary, it empties article 8(1) of any or virtually any meaningful content. The basic fallacy in the approach is that it allows domestic notions of title, legal and equitable rights, and interests, to colour the interpretation of article 8(1). The decision of today does not fit into the new landscape created by the Human Rights Act 1998.
28. Lord Bingham has formulated the issues as follows:
Such differences of opinion as exist in this case do not extend to this formulation of the issues.
29. The first question was the main focus of the debate below and in the House. All members of the Appellate Committee are now apparently agreed that this question can only be answered in the affirmative. Given this unanimity I have nothing to add to the reasons given by Lord Bingham, on the principal point in the case.
30. On the second question the House is divided. While I accept that according to English conceptions of stare decisis there is in the European jurisprudence no decision directly in point, the thrust of the approach in Larkos v Cyprus (1999) 30 EHRR 597 and Marzari v Italy (1999) 28 EHRR CD 175 supports the view that when proceedings to recover possession of the defendant's home were issued and possession was ordered there was an interference with Mr Qazi's right to respect for his home. If it had been sufficient to say that when an applicant has no arguable legal right to remain in a property article 8(1) is not engaged, such an obvious ground would inevitably have formed part of European exposition and reasoning.
31. Moreover, I found the trilogy of Court of Appeal decisions which Lord Bingham discussed in paragraphs 21, 22 and 23 of his speech instructive.
32. In Sheffield City Council v Smart  EWCA Civ 04,  HLR 639, Laws LJ (speaking for a united Court of Appeal) analysed the position as follows (p 655, paras 26-27):
This statement admirably reflects the meaning of article 8 and the European approach to its application. It is in accord with the new landscape created by the Human Rights Act 1998.
33. In agreement with the reasoning of Arden LJ in the Court of Appeal I would make the order proposed by Lord Bingham of Cornhill.
LORD HOPE OF CRAIGHEAD
34. The issues which have been raised in this case relate to the impact of the Human Rights Act 1998 on the procedure by which a public authority landlord recovers possession of residential accommodation from a former tenant whose tenancy has come to an end by operation of law. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It follows that any procedure by which a public authority recovers possession of the accommodation must be compatible with the former tenant's Convention rights. That essential point is not in dispute. What is in dispute is whether the procedure by which the appellants, the local housing authority, seek to recover possession from the respondent, Mr Qazi, satisfies this requirement.
35. The Convention right which has been invoked in this case is set out in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It provides:
36. The question which lies at the heart of the case is whether, having regard to the provisions of article 8(1) of the Convention, it is unlawful for a public authority to recover possession from a former tenant by a procedure which leads to possession being granted automatically, or whether the court must always be given an opportunity to consider whether the making of an order for possession would be proportionate. If the answer to that question is that the court must always be given that opportunity, it will be in the discretion of the court in all cases to decide whether or not an order for possession should be made. This will be so not only in those cases where there are statutory safeguards that must be satisfied. The court will have a discretion to exercise even in those cases where the tenancy has come to an end by the operation of law, there is an absolute right to possession and there are no statutory safeguards other than the basic rule that possession cannot be taken without an order from the court: see the Protection from Eviction Act 1977, section 3.
37. It has not been easy to grasp the true significance of this issue from the way in which the argument has been developed in the Court of Appeal and in the appeal to your Lordships. But the background to it has been carefully and tactfully set out in the Law Commission's Consultation Paper Renting Homes 1: Status and Security (Consultation Paper No 162), Part V, The Impact of Human Rights Law. As the author explains in para 5.1, none of the challenges to substantive housing provisions that have been made since the coming into force of the Human Rights Act 1998 have been successful in the sense that the provisions in question have been declared incompatible or have required the deployment of the special interpretative obligation under section 3(1) of the Act. But a series of cases have raised important issues about the procedures within which housing laws must operate. Among these are the issues raised by article 8 of the Convention with which this case is concerned.
38. As the author explains in para 5.76 of the consultation paper, the approach which has been taken up to the Court of Appeal is based on the conclusion that article 8(1) is always "engaged" by an eviction. The implication of this conclusion in practice, he suggests, is that a procedure which enables the court to consider the issue of proportionality will become a necessity in respect of any use by a public authority landlord of a procedure under which, by the operation of law, it would previously have been entitled to recover possession automatically: see para 5.74. If so, this result will affect housing associations and other registered social landlords as well as local housing authorities. The point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants whose leases have by the operation of law been terminated. A procedure which gives a discretion to the court by requiring it to consider whether having regard to article 8(2) the making of the order would be proportionate is inimical to that purpose, as para 5.74 of the consultation paper points out. Therein lies the importance in domestic law of the issues which your Lordships have been asked to consider in this appeal.
39. These issues fall naturally into two parts. The first is whether residential accommodation occupied by a former tenant whose tenancy has come to an end by the operation of law is that person's "home" within the meaning of article 8(1). The second is whether every claim by a public authority for possession of such residential accommodation "engages" article 8, as it is put in paragraph B 3 of the statement of facts and issues. I shall have something to say later about the use of the word "engage" in this context (see para 47 below), and about the significance of its use in regard to article 8 when read as a whole.
40. The appellants seek possession in these proceedings of a two-bedroom dwelling house of which they are and have been at all material times the freehold owners. On 15 January 1992 the premises were let to the respondent and his then wife, Saman Qazi, as joint tenants with effect from 20 January 1992. By the operation of Part IV of the Housing Act 1985 this was a joint secure tenancy: see sections 79 and 81. As it was a joint tenancy it was capable of being terminated by either one of the joint tenants by a notice to quit served on the landlord. It is to be noted that section 82 of the 1985 Act, which provides for security of tenure, only prevents termination of the tenancy by the landlord. A secure tenancy cannot be brought to an end by the landlord until a date when the tenant is ordered to give up possession by the court. But the tenant may terminate the tenancy in the usual way by serving a notice to quit or by surrender.
41. The respondent and his wife lived in the house together with their daughter until 1998. In that year Saman Qazi moved out with their daughter and went to stay with her mother. The tenancy agreement provided that either tenant could terminate the tenancy by serving a written notice to quit on the appellants giving four weeks' notice and expiring on a Monday which was the start of a new period of the tenancy. On 19 February 1999 Saman Qazi served on the appellants a valid written notice to quit which expired on 22 March 1999: see the Protection from Eviction Act 1977, section 5. This had the effect in law of bringing the tenancy to an end on that date.
42. On 26 May 1999 a housing management officer of the appellants informed the respondent by letter that the tenancy had come to an end. She enclosed an application form for the respondent to complete if he wished to apply for a sole tenancy of the house. She told him that if he applied a decision would be taken as soon as possible, but she also told him that she could not guarantee that he would be granted a tenancy of it or of any other premises. The respondent completed and returned the application form. On 16 July 1999 he was informed by the housing management officer that his application had been refused because, as he was a single person, he was not entitled to family sized accommodation.
43. On 16 November 1999 the appellants' housing manager wrote to the respondent confirming that it had been decided that he should not be granted a tenancy of the house and that possession proceedings would be commenced against him. He also informed the respondent that he was entitled to apply for accommodation through the housing register. He asked him to vacate the premises immediately and return the keys to the housing department. The respondent did not do so. The appellants commenced these proceedings against him on 13 March 2000.
44. Events did not then stand still. At a preliminary court hearing on 6 June 2000 the respondent told the appellants that he had remarried in October 1999 and that he was now living in the house with his new wife, Abida Qazi, and her five-year old child. In October 2000 he applied for accommodation through the housing register. He was told that no action would be taken on his application as the number of households on the register was already far in excess of the houses with two bedrooms which were available. On 17 November 2000 Mrs Abida Qazi, who was now expecting another child, applied for a new joint tenancy to be granted to herself and the respondent if his application was unsuccessful. No action was taken on her application either. On 23 December 2000 she gave birth to her child. The respondent, Mrs Abida Qazi and her two children were still living in the premises when the appellants' action for possession came to trial.
45. On 8 June 2001, following a trial in Luton County Court, Mr Recorder Williamson held that a notice to quit by one tenant was sufficient in law to determine the joint tenancy and that since 22 March 1999 the respondent no longer had any legal or equitable right in the premises. He also held that the premises did not constitute the respondent's "home" within the meaning of article 8(1) and that article 8 was not "engaged". He ordered the respondent to give up possession of the premises on 11 July 2001. On 3 December 2001 the respondent was given permission to appeal against this decision on the basis that the recorder had adopted too restrictive a definition of the word "home". There was and is no challenge to the recorder's decision that the respondent no longer had any legal or equitable right or interest in the premises. On 3 December 2001 the Court of Appeal (Peter Gibson, Mantell and Arden LJJ) allowed the appeal and remitted the case to the county court to determine whether interference with the respondent's "right to a home", as Arden LJ put it in para 58 of her judgment, was permitted by article 8(2) of the Convention.
Article 8: what it protects
46. In Marckx v Belgium (1979) 2 EHRR 330 the European Court of Human Rights took the opportunity, in a case where the complaint was about the effect on family life of certain aspects of the Belgian illegitimacy laws, to make some general observations about article 8 of the Convention. At p 342 the Court said:
47. Sir Gerald Fitzmaurice, in a dissenting opinion, also made some helpful observations on the scope of article 8. Two passages in his opinion are worth mentioning in the present context. The first is his discussion of what he described as the issue of "applicability" in general. As he put it in paragraph 2 of his opinion at p 364, this issue relates to the applicability or relevance in any way at all to the particular complaints that the applicants have made. It has become the practice in our jurisdiction to use the verb "engage" to describe this concept. This word does not form part of the vocabulary of the European Commission or of European Court, and as Laws LJ observed in Sheffield City Council v Smart  EWCA Civ 04,  HLR 639, 653, para 22 its use is liable to be misleading and unhelpful. But I would not for my part regard its use as objectionable, so long as there is no doubt as to what it means in this context. In my opinion the issue to which it is directed is whether, in the words of Sir Gerald Fitzmaurice, the provision in question is "applicable". What he had to say about this appears in paragraph 3 of his opinion at p 364:
48. The second passage in his opinion which is worth mentioning appears in paragraph 7 of his opinion at p 366, where he said this:
49. Most international human rights instruments recognise a right to privacy. That is the concept which underlies article 8 of the Convention, as the language of article 8(1) shows. But, as Professor David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 524, has explained, article 8 is unique in the way in which the rights that are expressed in it are conceived in relation to private life. Instead of giving a right to be free of arbitrary or unlawful interference with privacy, it provides for a right to "respect" for it. It has been suggested that the move from a right to freedom from interference with privacy to respect for it tends to weaken the right: J E S Fawcett, The Application of the European Convention on Human Rights, 2nd ed (1987), p 211. But I believe that Professor Feldman was right to point out, at pp 524-525, that this potential limitation on the negative aspects of the right to privacy should not blind us to the considerable extension of the right which the notion of respect may entail, bearing in mind the fact that a right to respect is capable of imposing positive duties on public authorities.
50. It seems to me that the following conclusions can be drawn from the language of article 8(1) in the light of the observations in Marckx v Belgium. The right to respect referred to in this paragraph extends to the person's home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person's right to privacy. The context in which the reference to the person's "home" must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person's home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person's right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by article 1 of the First Protocol.
51. The article must be read as a whole, and the wording of article 8(2) helps to explain article 8(1). It refers to "interference" by a public authority "with the exercise of" the right described in article 8(1). The circumstances in which such interference is permissible indicate the limits within which the article as a whole was designed to operate. Any interference with the right to respect for the person's privacy has to be measured against what is in accordance with the law and, in certain strictly defined respects, is necessary in a democratic society. Here too the emphasis is on the balance between the right to privacy on the one hand and the wider interests of the community in a democratic society on the other, rather than with issues about a person's right to own or occupy his home as an item of property.
52. The right described in article 8 is not isolated from the other rights guaranteed by the Convention. As I have already mentioned, article 1 of the First Protocol guarantees a right to property. For example, in Stretch v United Kingdom, Application No 44277/98, 24 June 2003 (The Times, 3 July 2003) the European Court held that there had been a violation of article 1 of the First Protocol where the applicant had been deprived of the benefit of a renewal of a lease granted to him by a local authority. The protection extends to rights of occupation as well as rights of ownership. Then there is article 6, which may be described as the key procedural provision of the Convention: Law Commission Consultation Paper, para 5.17. Article 6(1) guarantees to everyone in the determination of his civil rights and obligations a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The protection extends to the procedure by which landlords can recover possession of residential property, as possession cannot be taken without an order from the court. But neither article 6 nor article 1 of the First Protocol are in issue in this case. We are concerned only with article 8.
53. As the jurisprudence of the European Court of Human Rights and of the European Commission of Human Rights has developed, it has tended to reinforce the impression which is conveyed by Marckx v Belgium that the object of article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or to occupy property.