McLellan v Bracknell Forest Borough Council & Anor [2001] EWCA Civ 1510 (16 October 2001)

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McLellan v Bracknell Forest Borough Council & Anor [2001] EWCA Civ 1510 (16 October 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1510.html
Cite as: [2002] HRLR 12, [2002] BLGR 191, [2002] UKHRR 45, [2002] 1 All ER 899, [2002] ACD 54, [2001] NPC 149, [2002] QB 1129, [2001] EWCA Civ 1510, [2002] 2 WLR 1448, (2001) 33 HLR 86

[New search] [Printable RTF version] [Buy ICLR report: [2002] 2 WLR 1448] [Buy ICLR report: [2002] QB 1129] [Help]

		Neutral Citation Number: [2001] EWCA Civ 1510
		Case No: C/2001/0160

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE AND DIVISIONAL COURT)
Mr Justice Longmore
AND ON APPEAL FROM EPSOM COUNTY COURT
His Honour Judge Cook

Royal Courts of Justice
Strand,
London, WC2A 2LL
Tuesday 16 October 2001

B e f o r e :

LORD JUSTICE WALLER
LORD JUSTICE LATHAM
and
LORD JUSTICE KAY
____________________

	Nina McLellan And Bracknell Forest Borough Council And The Secretary of State for Transport Local Government and the Regions	Appellant Respondent Interested Party
	And -	B2/01/0740
	Reigate & Banstead Borough Council And Rebecca Benfield And Penelope Forrest And The Secretary of State for Transport, Local Government and the Regions	Claimant/ Respondent First Defendant Second Defendant/Appellant Interested Party

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Representation to C/2001/0160
Nigel Pleming QC and Robert Latham (instructed by Messrs Dexter Montague & Partners, Berkshire RG1 7UD for the Appellant)
Timothy Straker QC and Sarah-Jane Davies (instructed by Corporate Services – Legal Bracknell Forest Borough Council, Berkshire RG12 1AU for the Respondent)
Philip Sales and Daniel Stilitz ( instructed by Treasury Solicitor for the Interested Party)
Representation to B2/2001/0740
Andrew Arden QC and Christopher Baker (instructed by Head of Legal and Estates Services, Reigate and Banstead District Council for the Respondent)
David Watkinson and Beatrice Prevatt (instructed by John Gallagher, SHELTER, for the Second Defendant/Appellant)
Philip Sales and Daniel Stilitz (instructed by Treasury Solicitor for the Interested Party)
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE WALLER :

Introduction

These two appeals raise important questions relating to the impact of the European Convention on Human Rights (the Convention) as enacted in the Human Rights Act 1998 (the HRA) on the provisions of the Housing Act 1996 (HA) in relation to introductory tenancies for council tenants.

The first appeal, Johns and McLellan v Bracknell Forest Borough Council (McLellan) comes from a decision of Longmore J (as he then was) dated 21 December 2000. Before him it was argued that the Introductory Tenants' Scheme under the HA was incompatible with Article 6, Article 8 and Article 14 of the Convention. Longmore J ruled that the provisions of the HA were not incompatible with the Convention on any of the grounds argued. Leave to appeal that decision was given by Keene LJ but only insofar as the decision turned on Article 6.

The second appeal, Forrest v Reigate and Banstead Borough Council (Forrest), is an appeal from a decision of His Honour Judge Cook sitting in the Epsom County Court dated 11 January 2001. He granted the respondent in that case possession of the premises occupied by Forrest ruling that there was no reasonable prospect of a finding that the mandatory provisions of the HA were affected by the Convention and the HRA. The appeal against his decision was transferred to the Court of Appeal pursuant to section 57 of the Access to Justice Act 1999. The issues on this appeal relate not only to Article 6, but Article 8 and 14 of the Convention. The notice of appeal has been amended, with leave, seeking various declarations of incompatibility by reference to Articles 8 and 14. Those amendments also contain a declaration of incompatibility of section 89 of the Housing Act 1980, the relevance of which will become clear.

Introductory Tenancies

It is convenient to trace the history of introductory tenancies and to consider the proper construction of the HA which introduced them, without regard at first to the provisions of the Convention and the HRA.

The background I can take very largely from the submissions of the Secretary of State prepared by Mr Sales and Mr Stilitz.

Under the Housing Act 1985, all tenancies of dwelling-houses granted by local authorities (with certain exceptions listed in Schedule 1 to the Act) are secure tenancies. The local authority can only terminate secure tenancies by obtaining a County Court order. The grounds for terminating such tenancies are set out in Schedule 2 to the Housing Act 1985. However, under the scheme of the 1985 Act, even where an authority has satisfied the court that a ground for possession exists, the court has a discretion whether or not to order possession.

In April 1995 the Department of the Environment produced a consultation paper entitled "A consultation paper on probationary tenancies". That paper is exhibited to the witness statement of Michael Barclay Gahagan. Certain findings are recorded in that consultation paper including the following:-

"Anti-social behaviour by a small minority of tenants and others is a growing problem on council estates … the misery caused to tenants when the enjoyment of their home is spoilt by the activities of their neighbours or others can destroy their whole quality of life. Whole estates can be stigmatised by the anti-social behaviour of a few.

Such behaviour manifests itself in many different ways, including vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities, such as burglary.

Tackling the causes and consequences of such behaviour represents a major drain on the resources and time of housing managers. Research has shown that up to 20% of housing managers' time is spent in dealing with questions of neighbour nuisance, and that between 2 and 10% of tenants of any given estate have been the subject of complaint."

Mr Straker QC on behalf of the council (Bracknell) in the McLellan appeal also sought to emphasise that tenants who failed to pay their rents imposed a serious burden on other tenants. If a tenant simply will not pay the rent then the position is that that shortfall has to be shared as a burden to other tenants and that is a serious matter so far as the council and other tenants are concerned.

In the context of the above issues the above consultation paper also made the following finding:-

"the way in which the courts work results in difficulties in following through possession cases quickly because of delays in getting the cases before the court; inconsistency over what is regarded as acceptable evidence, witness intimidation exacerbated by delays in court hearings, and what authorities see as their difficulty in convincing the courts of the serious nature of the nuisance caused by the tenant."

To the above Mr Straker would add also the serious nature of the burden that is imposed on other tenants when there are arrears of rent.

Part V of the HA therefore introduced the concept of introductory tenancies into new lettings made by local authorities. The local authorities had a discretion whether or not to elect to operate an introductory tenancy regime. The purpose of the power to opt to establish such a regime was to enable authorities to deal more effectively with any tendency on the part of new tenants to engage in anti-social behaviour which emerged during the first 12 months of the tenancy. Again Mr Straker would add and stress that the option also enabled authorities to deal more effectively with tenants who got into arrears with the rent and appeared to the authority to be bad payers during that first 12 months of the tenancy.

Where a local authority has opted for introductory tenancies in relation to their tenants, the nub of the scheme is that (provided the authority followed the correct procedures as laid down in the HA for terminating an introductory tenancy), under section 127(2) of the HA, the County Court is obliged to make a possession order.

The Regime of Introductory Tenancies

The regime of introductory tenancies works as follows: section 124(1) HA gives local authorities a discretionary power to establish introductory tenancies (although they are obliged by section 105 of the Housing Act 1985 to consult with existing tenants on any such proposal). If an election to establish a scheme is made, then all new tenancies granted by an authority which would otherwise have been secure tenancies will be introductory tenancies.

Section 125 HA provides that, so long as possession proceedings have not been commenced, the introductory tenancy will automatically become a secure tenancy on the expiry of the one-year trial period.

During the period of the introductory tenancy the tenant has some but not all the safeguards of a secure tenant. In particular, like a secure tenant, the introductory tenant has: (i) the right to succession of spouse or family member, (ii) the right to repair, (iii) the right to be consulted on housing management issues, (iv) the right to assign, (v) the right to be consulted on decisions to delegate housing management and (vi) the right to participate in housing management contract monitoring. But, unlike the secure tenant, the introductory tenant does not have (i) the right to buy, (ii) the right to take in lodgers, (iii) the right to sub-let, (iv) the right to improve, (v) the right to exchange or (vi) the right to vote prior to a transfer to a new landlord.

Section 136 obliges authorities to publish and supply tenants with information that explains, amongst other things, the express terms of their introductory tenancies and the relevant provisions of the HA concerning introductory tenancies.

Guidance was issued under Circular 2/97 exhibited again to Mr Gahagan's statement. That provided, amongst other things, that an introductory tenancy will usually be brought to an end because the tenant has breached the terms of the tenancy agreement, and stated that it was therefore important that the introductory tenancy agreements clearly set out the responsibilities of both the tenant and the landlord (see paragraph 18).

To end an introductory tenancy, the authority must first serve a notice on the tenant saying that the authority will be asking the court to make an order for possession (section 128(1) HA). Section 128(3) HA states that the notice must set out the authority's reasons. The tenant has the right to a review of that decision by the authority: i.e. the tenant can require the authority to think again (section 129(2) HA).

The Introductory Tenants (Review) Regulations 1997 (The 1997 Regulations) lay down the procedures that an authority must follow when conducting a review. In particular: (i) the review must be carried out by a person who was not involved in the decision to apply for an order for possession and by a person who is more senior than the original decision-maker; (ii) the tenant can request an oral hearing; (iii) the tenant must be given not less than five days notice of any oral hearing; (iv) a tenant who has requested an oral hearing has the right to be accompanied and/or represented, to call persons to give evidence, to question any witness and to make representations in writing.

If on review the original decision is upheld, the authority may then commence proceedings for possession in the County Court. By section 127(2) HA, the court must make an order for possession unless the authority has failed to comply with the requirements of section 128 HA. Section 127 provides:

"(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house.

(2) The court shall make such an order unless the provisions of section 128 apply. "

Section 128 provides:

"(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.

(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.

(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.

(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.

The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.

(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.

(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.

(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor."

Finally, section 89(1) of the Housing Act 1980 provides that, subject to a number of exceptions, a court making a possession order, including a possession order pursuant to section 127(2) HA, may in its discretion postpone the giving up of possession for a limited period. It provides so far as material:

"Where a court makes an order for the possession of any land … the giving up of possession shall not be postponed ... to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order."

Manchester City Council v Cochrane and Another [1999] 1 WLR 809 (Cochrane)

Prior to the coming in to force of the HRA, the Court of Appeal considered the nature of the above provisions of the HA and in particular the role of the County Court when it came to consider whether to make a possession order under section 127(2). The Court of Appeal ruled that the private law right of a tenant under the introductory tenancy was no more than a right to possession until an order for possession in favour of the council was made by the court. In particular the court had no discretion not to make such an order once the requirements of section 128 regarding notice of proceedings had been complied with. It would be a clear contravention of the mandatory terms of section 127(2) for the County Court to entertain a defence based on a denial of allegations of breaches of the tenancy agreement provided for in the notice under section 128. The Court of Appeal further held that by section 38(3) of the County Courts Act 1984 a County Court was prohibited from reviewing the exercise or failure to exercise a public duty in the absence of parliamentary authority to do so, and, since Part V of the HA conferred no such authority, the County Court's powers were limited to granting an adjournment of possession proceedings pending determination of judicial review proceedings in the High Court, if the County Court formed the view there was a real chance of leave to apply for judicial review being granted. Knox J who gave the judgment of the court, put the matter this way at page 819:

"If one were to treat the provisions of section 128 as a form of Scylla and those of section 127(2) as Charybdis, the channel in between available for navigation is remarkably narrow but I see no escape from that analysis even though it does reduce the functions of the court to that of ascertaining that it does have jurisdiction to entertain the proceedings at all. Once it has done so it is required to make a possession order and that, in my view, necessarily involves that it has no discretion in the matter at all."

In relation to the power to adjourn for the purpose of enabling judicial review to take place, Knox J said this:

"It is common ground that the council's duty to comply with section 129(2) is subject to judicial review. Equally it is clear that this duty is a public law duty and the correlative right in the tenants to have it lawfully performed must be a public law right. The county court must in my view have at least jurisdiction to grant an adjournment if satisfied that there is a real chance of leave to apply for judicial review being granted."

Thus, prior to the coming in to force of the HRA, it is clear that the County Court had no power other than to consider whether it had jurisdiction. In particular it had no power to consider whether the tenant might or might not have been in breach of the introductory tenancy agreement. Only if the County Court considered that there was a real chance of leave to apply for judicial review being granted, could the court in those circumstances adjourn the matter in order to enable that challenge to take place.

The relevant provisions of the HRA

Section 3. Interpretation of legislation

"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section –

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) …

4. Declaration of incompatibility

(1) Subsection 2 applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

(4) If the court is satisfied –

(a) that the provision is incompatible with a Convention right, and

(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.

(5) In this section 'court' means –

(a) …

(b) …

(c) …

(d) …

(e) In England and Wales … the High Court or the Court of Appeal.

(6) A declaration under this section ('a declaration of incompatibility') –

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b) is not binding on the parties to the proceedings in which it is made.

6. Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section 'public authority' includes –

(a) a court or tribunal, and …

7. Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.

8. Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."

Relevant provisions of the Convention:-

"Article 6. Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2 …

3 …

Article 8 Right to respect for private and family life

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.

Article 14 Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The facts relating to the appeals

McLellan

On 1 June 2000 McLellan was granted an introductory tenancy by Bracknell of premises known as 1 Enid Wood House, Bracknell, Berkshire. The tenancy commenced on 5 June 2000 and the weekly rent was £62.45. McLellan was aged 19 years and occupied the building with her partner Nicholas Martin, aged 17 years.

On 21 July 2000 Bracknell served a notice of proceedings for possession notifying McLellan that proceedings for possession might be commenced after 21 August 2000. The stated reason was "arrears of rent in the sum of £374.70 remained outstanding at the close of account on 14 July 2000." McLellan requested a review which, on 18 August 2000, upheld the decision to serve the notice of proceedings for possession. The reviewing officer did however agree to postpone court proceedings provided that McLellan's housing benefit was (when obtained) back-dated and that McLellan pay £10 per week to clear the arrears. McLellan issued a draft claim form for judicial review and served it on Bracknell whereupon Bracknell agreed to withdraw the notice of possession. Matters were effectively resolved prior to the hearing before Longmore J, however, all parties desired Longmore J to deal with the impact of the HRA and the Convention and he was in the circumstances prepared so to do.

Since the hearing before Longmore J we are told that there had been further developments. On 18 May 2001 Bracknell issued a summons claiming possession of the premises. It seems the reasons for so doing were allegations of nuisance. McLellan accepts that there have been occasions when noise has emanated from her flat, but disputes it should justify eviction. The County Court was to hear the summons on 18 June 2001 but the hearing was adjourned pending this appeal.

Johns

No appeal arises in relation to Johns but the facts in her case exemplify matters that can occur under the introductory tenancy scheme. Johns was a young single woman and was granted an introductory tenancy on 29 November 1999. On 26 May 2000 the council sent a notice of proceedings for possession giving the reason that Johns was causing a nuisance to other residents. Johns sought a review of that decision by the council. On 14 June 2000 a review panel was constituted, and on 16 June 2000 the panel decided that Johns allowed her visitors to cause a nuisance to other residents. The panel therefore upheld the original decision to seek possession. On 18 September 2000 Johns issued an application for judicial review of the decision of the council to proceed with their notice of proceedings for possession. Turner J granted permission on 6 October 2000 whereupon the council withdrew their notice. However, on 20 October 2000 the council issued a second notice, with the result that on 15 November there was a second review hearing. This second hearing decided that there was no case for Johns to answer on the allegations of nuisance committed by her or her visitors. The council decided not to seek an order for possession and on the anniversary of the grant of the tenancy, 29 November 2000, Johns became a secure tenant who could not be evicted without a court order. As a secure tenant the court order could only be granted if the judge was satisfied that there was a ground for obtaining possession and that it was reasonable for the council to be granted possession.

Benfield and Forrest

Benfield and Forrest were mother and daughter who were granted an introductory tenancy by Reigate on 27 December 1999. They fell into rent arrears and on 28 April 2000 Reigate served a notice of possession proceedings. Benfield and Forrest did not request a review of that decision as (so they alleged but which is disputed) they had been informed (or understood) that unless the arrears were cleared before the review, the matter would proceed to court. On 9 August 2000 Reigate issued possession proceedings. Benfield and Forrest paid £2,000 towards the rent arrears on 29 September 2000, reducing the arrears to £576. Benfield and Forrest paid a further £200 in late December 2000. On 3 October 2000 Reigate decided that the claim for possession would proceed. Benfield and Forrest maintain that they have an outstanding claim for Housing Benefit and should be able to clear the arrears with the assistance of her mother who is selling her house (as to which she had so informed the Housing Officer on 14 July 2000).

Bad payers

In support of Mr Straker's submission in relation to bad payers, it is right to record the evidence of Robert Cripps given in his second statement of 28 November 2000. There at paragraph 5 he says:-

"The Claimant has adopted a regime of Introductory Tenancies, the purpose of this regime being to try to gauge whether persons will be good, reliable tenants, fulfilling their financial responsibilities regarding payment of rent and their social responsibilities, such persons being suitable to become secure tenants. Introductory tenancies have been introduced by the council to ensure that problems with the non-payment of rent and neighbour nuisance are minimised. The regime encourages persons to regularly pay their rent, and generally only those persons who demonstrate that they will reliably pay their rent, become secure tenants. Local Authorities, such as the Claimant, are under a statutory duty to avoid a deficit on the Housing Revenue Account and non-payment of rent causes the Claimant a serious problem in terms of honouring avoidance of the Housing Revenue Account deficit and may have the consequence of passing financial burdens on to those who are already tenants of the Claimant. There is a pressing social need to encourage financial accountability among tenants. That is, if some tenants do not pay rent and run up arrears, other tenants are liable to make up the budgetary shortfall, in the long term, by shouldering rent increases."

Impact of the Convention

Article 8

The provisions of this Article of relevance are in subparagraph (1) that "everyone has the right to respect "(my emphasis)" for his private and family life, his home …"; and in subparagraph (2) "there shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and "(my emphasis)" is necessary in a democratic society … for the protection of the rights and freedoms of others".

Mr Andrew Arden QC for Reigate in the second appeal submitted that Article 8 (1) is not engaged, and thus that Article 8 has no application because there is no interference with the right to "respect" for the home through the mere exercise of a power of termination within the terms pursuant to which the home has been made available. This, it should be said, was an argument which Mr Straker for Bracknell pursued before Longmore J in the Mclellan case. Longmore J rejected it but also held that the interference was necessary in a democratic society for the protection of the rights and freedoms of others. Keene LJ refused leave to appeal on the Article 8 aspect in that appeal, and this aspect of the Article 8 point was accordingly not argued on that appeal.

Mr Sales, for the Secretary of State, whilst standing shoulder to shoulder with many aspects of the Councils' arguments on other points, on this point positively asserted that Article 8 was engaged. It was part of his defence to the Article 6 attack, that eviction of a tenant fell within Article 8(1), and that judicial review would provide a remedy where there was a failure to justify the eviction under Article 8(2). As Mr Arden conceded, part of the reason why the council were keen to succeed on this point, as opposed to being content with arguing that they could justify under Article 8(2), was that the council wished if it could to limit judicial review of its decisions as far as it could, otherwise some of the benefit of the procedure of introductory tenancies would be lost.

Mr Arden's argument in short was this. He suggested that since a tenant would know the basis on which he or she had become a tenant i.e. on the basis that the statutory provisions and procedures of the introductory tenancy scheme applied to it, the rights of the tenant to occupy the premises were simply in accordance with that scheme. Thus if the council complied with the provisions of the introductory tenancy scheme in order to bring the tenancy to an end, that involved no want of respect for the tenant's home. So it is argued the question whether the scheme had been complied with would be the first question which, if answered in favour of the council, would lead to the conclusion that Article 8(1) was not engaged. It would then follow that the question whether the eviction could be justified under Article 8(2) would not arise.

Mr Arden suggested that he obtained support for this approach from the following authorities, Wiggins v UK (1978) 13 D.R. 40; S v UK (1986) 47 D.R. 274 and P v UK at No. 14751/89, 12 December 1990.

In Wiggins the Commission acknowledged that Guernsey's resident laws meant that lawful occupation of the home was conditional upon the applicant either living with his wife or obtaining a permit. On the particular facts the Commission held that the applicant could not have expected to foresee the circumstances in which the condition would cease to be available to him and thus found that Article 8(1) was engaged. In S v UK the Commission concluded that the same sex partner of a deceased secure tenant could not use Article 8 to complain about her eviction by the local authority landlord on the basis that the landlord's entitlement to possession under the general law meant that the house could no longer be considered to be "home". In P v UK the Commission found it unnecessary to decide whether the termination of a tenancy of a caravan pitch could be considered to be an interference under Article 8(1) but questioned whether it was.

In my view the above are scant support for the approach advocated by Mr Arden, and there are more compelling authorities against it. In Mayor & Burgesses of the London Borough of Lambeth v John Andre Howard (2001) 33 HR 58 Sedley LJ assumed that any eviction of a tenant fell within Article 8(1). In paragraph 30 he said:-

"Respect for a person's home is neither an absolute concept, nor, given Article 8(2), an unqualified right. I do find myself puzzled by the learned judge's remark that Article 8 "at first sight … has no application in the present circumstances". It seems to me that any attempt to evict a person, whether directly or by process of law, from his or her home would on the face of it be a derogation from the respect, that is the integrity, to which the home is prima facie entitled."

At paragraph 32 Sedley LJ said:-

"A legal threat to a secure home will, in the ordinary way, engage Article 8.1. In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that Article 8.2 is met, but that is not the present class of case and nothing in this judgment should be taken as impinging on it."

In Teresa Donoghue v Poplar Housing and Regeneration Community Association Ltd [2001] EWCA Civ 595 Lord Woolf the Lord Chief Justice delivering the judgment of the court said at paragraph 67:-

"To evict the defendant from her home would impact on her family life. The effect of Article 8(2) is therefore critical. The starting point is the fact that after the order for possession was obtained, Tower Hamlets continued to owe a limited duty ….."

In my view the terms of Article 8(2) demonstrate that Mr Arden's approach is not a proper approach to Article 8. It is not a preliminary question whether the tenancy has been properly terminated in accordance with its terms. It is under Article 8(2) that the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others. In Poplar the Court of Appeal decided that Poplar was a public authority and thus that Article 8(2) was directly applicable, but it seems to me that even if it had been a private landlord seeking to evict a tenant under an assured shorthold tenancy, the court as a public authority would have had to approach section 21(4) (the section under consideration in that case) in much the same way. It would have concluded that section 21(4) did not infringe any Article 8 right but not because Article 8 did not apply at all, but because the eviction was in accordance with the law and because it was not disproportionate to allow the tenancy to be brought to an end in accordance with the rights of the landlord. The wording of Article 8(2) is apposite to allow consideration not only of the tenants' rights, and not only the rights of persons other than the landlord and the tenant i.e. other tenants for example, but the rights of the landlord as well. In S v UK [1986] 47 D.R. 274 the Commission put their conclusion in these terms:-

"Further, even if the applicant's right to respect for her home, as guaranteed by Article 8, could be regarded as having been interfered with by order of the County Court for possession against her, the Commission considers that such interference was clearly in accordance with the law and was also necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy."

I would accordingly reject Mr Arden's argument that Article 8 has no application.

Impact of Article 8

The issues which need to be considered are at what Mr Sales called the macro level as well as at the micro level. At the macro level the question is whether section 127 is incompatible with the Convention in that it allows a tenant to be evicted from the home without scrutiny by the court making the order. The argument is that there is no justification under Article 8(2) for having such a draconian provision. At the micro level the question is whether the decision to use section 127 in relation to the particular tenant; (a) has to be justified in every case by reference to Article 8(2); (b) if so, whether the tenant is deprived by section 127 and the decision in Cochrane of the ability to contest that justification; and (c) in the Reigate appeal whether at the micro level the tenant has an arguable case that her Article 8 rights are being infringed. The argument in the proceedings before Longmore J provides a good example of the two levels of the argument. The proceedings originally asserted both arguments at the micro level, and also at the macro level. Because Miss McLellan and Miss Johns no longer needed relief in relation to their personal position by the time of the hearing before Longmore J, the argument only proceeded at the macro level and it was only at the macro level that the judge addressed the matter. So far as the Reigate appeal is concerned, argument has certainly concentrated at the macro level, but the micro level must not be overlooked.

Serious questions are in my view raised despite the conclusion of Keene LJ not to grant permission to appeal in the McLellan case, but that flows from consideration of what I am terming the micro level. As I have indicated Longmore J considered the position at the macro level i.e. by reference to whether the introductory tenancy scheme could be justified by reference to the factors under Article 8(2). He considered the evidence relating to the reasons why the scheme was adopted, and said as follows:-

"There can be no doubt that the scheme of introductory tenancies does interfere with the exercise of this right (Article 8(1)), but it is of course in accordance with the law as laid down in the Housing Act 1996. The question, therefore, is whether the interference is necessary in a democratic society for the protection of the rights and freedoms of others. Necessary in a democratic society does not mean indispensable; nor does it mean desirable. Convention jurisprudence has decided that it means:

(a) that the reasons given to justify the interference must be relevant and sufficient;

(b) that the interference must correspond to a pressing social need; and

(c) that the interference must be proportionate to the aim pursued: see Handyside v United Kingdom (1976) 1 EHRR 737….."

This formulation was expressly approved by the Court of Appeal in Howard (supra) (see paragraph 34 of judgment of Sedley LJ). Longmore J having examined the matter then finally concluded in this way:-

"It does not seem to me that it is in any way inevitable that the legislation will act disproportionately and for all these reasons there is, in my judgment, no incompatibility with Article 8. Nor, if relevant, do I consider there to be any compatibility with Article 1 of Protocol 1 for all the same reasons. The infringement of that Article was not argued as a separate point."

The force of the reasoning of Longmore J is clear and if the only question was whether the scheme could be justified I would accept his conclusion. It has furthermore the support of Keene LJ who refused leave to appeal on this aspect. The point in essence is that it is very much for Parliament to make the relevant judgments in this area. Furthermore, since the decision of Longmore J, it seems to me that Poplar has provided further support for the view that he formed.

Poplar indeed provides a good starting point for further consideration of this issue. The issue in that case was whether the fact that a court was bound by section 22(4) to make an order for eviction to terminate a shorthold tenancy involved a breach of the tenant's Convention rights under Article 8 and Article 6. The court held that there was no breach of Article 6 because if the court held that the section was not within the exception identified in Article 8(2), and if the court had held that the County Court could consider whether in the particular circumstances of the tenant in that case, the action of the landlord could be justified under Article 8(2), there would have to be a remission to the County Court for the purpose of trying that issue.

What however the court held was that the section imposed on the court a duty to make the order for possession without considering the particular circumstances of the individual tenant, and that the section was compatible with the Convention saying in paragraph 72:-

"We are satisfied, that not withstanding its mandatory terms, section 21(4) of the 1988 Act does not conflict with the defendant's right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restrictive power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of Article 8 or of Article 6."

The distinction between Poplar and the cases under the introductory tenancy scheme which create the difficulty seems to me to be the fact that the circumstances of the particular tenant are brought directly into focus under the introductory tenancy scheme by virtue of the requirement under section 128(3) to provide reasons for seeking possession, and the machinery for the reviewing of those reasons.

In other words so far as individual tenants are concerned their positions have to be considered at the micro level, and the decision of a council to use section 127 may itself have to be tested. Do those reasons have to be tested by reference to Article 8(2), i.e. do the reasons on their face have to demonstrate that if they are right, it is necessary for the protection of the rights and freedom of others for the procedure under section 127 to be used? If so, is there machinery which allows the tenant to establish that the exceptions in Article 8(2) do not apply?

The decision to take possession proceedings may be taken without the tenant opting to have a review (as in the Forrest appeal) or it may be taken after a review, the review forming part of the process leading to termination. The following questions seem to me to arise. Does the mere existence of the scheme mean that a local authority will not be, or cannot be, guilty of a breach of Article 8 by reference to the individual rights of the particular tenant or will Article 8 (1) require the local authority to justify the particular decision by reference to the criteria in Article 8(2)? Will it be sufficient justification to assert that the local authority has complied with the provisions of the scheme (i.e. acted in accordance with the law), and that Parliament has provided the remedy? Should the tenant be entitled to say in his or her particular case however justified the scheme may be generally, it is unnecessary for the local authority either (a) to enforce the scheme against him or her in order to protect the rights of other tenants or the rights of the local authority; or (b) opt for the scheme at all in the particular area because the conditions do not exist in that area as contemplated by those introducing the legislation?

In Poplar there was no question of the situation of the particular tenant and the reasonableness or otherwise of the decision being in issue. Thus there was no discussion as to whether judicial review would provide a remedy which was Article 6 compliant. But if the answer to the above questions is that the tenant should be entitled to raise matters, the question will arise as to whether the contemplation in Cochrane that judicial review may be available is sufficient, or whether some modification to Cochrane is required and if so whether that modification can be achieved on the wording of the present legislation. This may be akin to the question that will arise when Article 6 comes to be considered, but it needs consideration at this stage in relation to Article 8.

Mr Sales positively asserted that a tenant does have the right to raise points by reference to his or her own particular situation, but he also asserted that it does not follow that there needs to be any departure from Cochrane. His submission was that the tenant has the opportunity to raise points on the review; the tenant then before the County Court judge has an opportunity to raise the question whether there is an arguable case for judicial review, and that the procedure in Cochrane allowing the judge to consider whether there was an arguable case for judicial review provided the tenant with protection against any breach of Article 8. Mr Sales would further suggest that the scope of judicial review will be wider than the traditional approach, and could be wider still if necessary.

Mr Watkinson also asserted in his appeal that the tenant should have the right to raise points by reference to the facts of the particular case, but he asserted that the alternatives were as follows:-

"The judge could have

(i) adjourned the claim for possession to enable the appellants to discharge the rent arrears;

(ii) suspended the possession order for up to six weeks (section 89 HA 1980) which might have enabled arrears to have been discharged;

(iii) adjourned the possession proceedings to allow application for judicial review to be made of the decision to institute or pursue possession proceedings (see Cochrane [1999] 1 WLR 809 at 819);

(iv) adjourned the possession proceedings to enable an application to the High Court for a declaration of incompatibility; or

(v) transferred the case to the Administrative Court list for hearing as a judicial review which could lead to a quashing of the decision as incompatible with a Convention right with consequent invalidity of the possession proceedings (see Trustees of Dennis Rye Pension Fund v Sheffield City Council [1997] 4 All ER 747 at 755F and Avon CC v Buscott [1988] QB 656). "

Mr Arden submitted that the review allowed the tenant if he or she opted for it to raise particular facts , and that Section 127 was clear in its terms and did not allow for the tenant to raise points before the County Court. He accepted that if he was wrong on his first argument then judicial review would be available although he would argue for a limited scope to that review.

As to Mr Watkinson's suggestions the position seems to me to be as follows. The wording of section 127 is clear, and indeed it is not suggested by him, or indeed by any counsel, that by virtue of Section 3 of the HRA, words could be read into that section so as to reverse their effect, and reverse Cochrane. He submitted that if there has been an infringement of a Convention right, the tenant must be entitled to raise it in the possession proceedings (section 7(1) of the HRA (a)), and that it follows the judge must be bound to consider it. If the judge finds the breach established he must be bound to give effect to that decision, the court itself being a public authority, and that the court should in those circumstances adjourn the possession proceedings generally so that the tenant's rights are not infringed. His alternatives are fall back positions one of which allows for suspending possession under Section 89 for a limited period of time, leading Mr Watkinson into the argument that that section is also incompatible because it imposes the time limits. His final two fall backs, adjourning for judicial review or a transfer to the Administrative Court, seem to adopt Cochrane.

It seems to me that a tenant under an introductory tenancy must have the right to raise the question whether it is reasonable in his or her particular case to insist on eviction i.e. the question whether Article 8(2) justifies the eviction. That much has in reality to be conceded because under the relevant section reasons must be given and there is then an entitlement to review i.e. an opportunity to argue, that it is not reasonable in the particular case.

The tenant must then have the right to rely on his or her Convention rights in any proceedings (see section 7(1) (b) of HRA). That does not mean any more than it says and because the point can be raised, it does not follow that the court is bound to do any more than Cochrane envisaged i.e. consider the arguability of the point, and then adjourn to allow the point to be properly considered if the point is arguable. The court is making the order it considers appropriate (see section 8(1)). Section 127 does not prevent the tenant relying on a Convention right if the procedure in Cochrane is followed.

In this area, as with the arguments that will arise under Article 6, what at root has to be considered is whether the review procedure taken together with judicial review provides adequate protection for a possible breach of Article 8, and thus whether the procedure advocated by Cochrane where the County Court judge considers whether there is a case for judicial review, and then adjourns it if there is, conforms with Section 7 of the HRA.

In my view it does for the following reasons. Although as indicated the circumstances of particular tenants must be looked at, the overall scheme was one put in place by Parliament and that is an important point as it was in Poplar as appears from the paragraph already quoted. The same point appears from Buckley v UK (1997) 23 EHRR 101 at paragraph 74 where it is stated:-

"As is well established in the Court's case law, it is for the national authorities to make the initial assessment of the "necessity" for an interference, as regards both the legislative framework and the particular measure of implementation. Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention.

The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities involved."

Furthermore, in the context of Article 1 Protocol 1, the court has stated in Mellacher v Austria [1989] 12 EHRR 391 at paragraph 45:-

"[Laws to control the use of property in accordance with the general interest] are especially called for and usual in the field of housing, which in our modern societies is a central concern of social and economic policies. In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures. The Court will respect the legislature's judgement as to what is in the general interest unless that judgement be manifestly without reasonable foundation."

Thus in the context of the introductory tenancy scheme Parliament decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby during the first 12 months tenants were on probation and could be evicted without long battles in the County Court. The scheme does not require the local authorities to be satisfied that breaches of the tenancy agreements have taken place, although alleged behaviour that would constitute a breach will be relevant. There is in place a review procedure and that procedure is quasi-judicial in the sense that it is required to be fair. It contains a number of important safeguards. First, the local authority has a statutory obligation to set out a full statement of reasons for terminating the introductory tenancy in the notice for possession. Second, an attempt is made to remove any bias that there may be by requiring the review to be conducted by an officer senior to the officer who took the decision to issue the notice for possession, and someone who was not involved in that previous decision. Third, the tenant has an opportunity to make representation at an oral hearing or to make written representations (see paragraphs 2, 4, and 5 of the 1997 regulations). Fourth, the tenant has the right to representation including legal representation (see paragraph 5(2)(a) of the 1997 regulations). Fifth, the tenant has the right to call witnesses to give evidence (see paragraph 5(2)(b) of the 1997 regulations). Sixth, the tenant has the right to put questions to any person who gives evidence at the hearing (see paragraph 5(2)(c) of the 1997 regulations).

If following the review the council decide to continue with the possession proceedings, they again must give their reasons. The application for possession then comes before the County Court. If there is a challenge to the reasons given and/or if the tenant asserts that the exceptions in Article 8(2) do not apply in the particular case, and the judge thinks that arguable, the judge will adjourn to allow an application to be made for judicial review. Should the decision of the review panel be found to have been reached without proper evidential basis or upon a view of the facts which could not reasonably be entertained or on the basis of a material error of fact, then that would be a ground for a review in the High Court (see Secretary of State for Education v Tameside MBC [1977] 1 AC 1014and R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330 at 344-345). In addition, if the judge thought that although the decision to evict was not in breach of Article 8 the pace of the eviction which was taking place was out of proportion and an infringement of the tenant's human rights, he could use section 89 and grant an extension of time, albeit for a limited period.

What then if the tenant has not sought to review the decision to seek possession under the section as in the Reigate appeal? This will be relevant but it would not deprive the County Court of the power to consider whether the particular decision might arguably be a breach of the Convention. If the judge concludes that the point is arguable then he can adjourn to allow an application to be made for judicial review.

In relation to arguability the County Court will in any event bear in mind that the scope of judicial review is not necessarily set in stone (see further below).

In my view therefore the introductory tenancy scheme is not as such incompatible with Article 8, and there is no reason to think that individuals' rights will be infringed without remedy from the courts.

Section 89 compatibility

It would not be right to consider the effect of this section outside the ambit of the introductory tenancy scheme. I say that because in the light of Poplar it certainly cannot be said that any limit placed on a County Court's powers in relation to making an order for possession must be incompatible with Article 8. Poplar clearly demonstrates that simply is not right. In the context of introductory tenancies and in the light of my reasoning based on Cochrane it seems to me there is no tenable argument that section 89 will provide a basis for saying that a tenant's article 8 rights are being infringed. The court has the power to adjourn if it is arguable that a tenant's right is being infringed. If it does that, section 89 is simply not in play. Section 89 only comes into play if either the court thinks its use with its limitations will prevent an infringement of human rights, or if there is no arguable infringement of those rights.

Article 6

Is Article 6 engaged? Article 6 is concerned with the "determination of civil rights" i.e. with the resolution of a dispute between persons as to their civil rights. The initial decision by the council's Housing Section to serve notice of proceedings is said not to be such a determination,(see paragraphs 22 and 23 of Mr Sales' skeleton). If that decision were simply characterised as a decision by one party to seek termination of a contract or tenancy that might no doubt be right. That was how it was characterised before Longmore J and on that basis it was so accepted by Longmore J see paragraphs 18 and 19 of his judgment. Indeed it is right to emphasise by way of introduction to the first point argued by Mr Sales on Article 6 that no decision by one party to terminate a contract will be a determination within the meaning of that term in Article 6.

But it also is right to emphasise that Article 6 may be engaged where the decision is of an administrative nature which affects the civil rights of individuals. Lord Clyde in Alconbury at paragraph 150 said this:-

"It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly affects civil rights and obligations and is of a genuine and serious nature."

The decision of the council to terminate an introductory tenancy involves not only consideration of whether the introductory tenant has acted in certain ways which may be a breach of the tenancy agreement but it involves a balancing exercise so far as the position of other tenants or other would be tenants are concerned. Linda Wells on behalf of Bracknell, said this in her witness statement:-

"33. As Social Housing Professionals in a Joint Social Services and Housing Department, our role is to encourage and enable tenants to maintain successful tenancies. Eviction is very much a last resort, and is very often considered to be a failure. We regularly engage with other support agencies to prevent tenants losing their homes, and that remains so under the Introductory Tenancy Scheme.

34. However, as indicated above, the Scheme is a vital tool in the Council's fulfilment of its housing functions and its duties and responsibilities towards all its tenants and forms key part of the Council's strategy for dealing with anti-social behaviour.

35.Introductory Tenancies help to impress on new tenants the significance of their responsibilities under the Tenancy Agreement, and the fact that such an agreement should not be entered into lightly. They also provide a more expedient and certain route to possession in the small proportion of cases in which tenants persistently fail to pay rent or engage in behaviour that seriously affects other residents' peaceful enjoyment of their home and neighbourhood. In these ways they have proved to be a crucial Housing Management tool, both as a deterrent to anti-social behaviour and in minimising rent arrears."

Those paragraphs, and those already quoted from the second statement of Mr Cripps, have not been suggested to be in any way inaccurate as reflecting the attitude of a council. They demonstrate that decisions involve weighing up competing interests of tenants as a whole. It is the nature of the introductory tenancy scheme giving the council powers to terminate a tenancy in the way provided for which brings into play public law remedies and not private law remedies as Cochrane recognised.

However, the decisions do affect the property rights of the particular tenant and in relation thereto the decision is of a "genuine and serious nature". I stress that aspect because as it seems to me even if there was not an express procedure laid down for some form of review and hearing, a decision of this nature to terminate this type of tenancy might well bring into play an obligation to provide an opportunity to be heard, and indeed under European Jurisprudence, Article 6 might well in any event be engaged in relation to that decision in the way hereafter explained.

Before turning to Article 6 and the cases relevant thereto, it is worth examining what the attitude of the English courts would have been prior to the coming into force of the HRA. As already indicated in relation to a decision of the council which complied with the review procedure, the introductory tenant would not have had a private law remedy. The remedy would have been by judicial review. What challenge could have been made? Could there have been a challenge to the fairness of the procedure if the regulations had been followed? It seems to me that the court would have accepted that there was imposed on the council a duty to act fairly. The precise content of that duty would have depended on the circumstances. In each case it would have been recognised that a tenant would be at risk of losing the right to a secure tenancy, and thus that the consequences for the tenant were great. But in relation to the assertion that an obligation to act fairly would not normally allow someone to act as judge in their own cause, the response would have been (a) that Parliament had authorised that the review should be carried out as per the regulations and (b) that in any event the procedural safeguards of having persons not involved in the first decision reviewing the decision was fair. It has never been suggested in these appeals that at common law an introductory tenant would succeed either in challenging the Regulations or in challenging any decision of a review panel under the Regulations, on the basis that no decision of a review panel could be valid since the body was bound to be disqualified as a judge in its own cause.

In Bewry v Norwich City Council Transcript 31 July 2001 (to which we have been referred after completion of the arguments in this case), Moses J seems to have held that a decision of the Review Board under the Housing Benefit (General) Regulations 1987 was invalid at common law on the basis that only primary legislation could authorise a body to be judge in its own cause. I am not sure that that is right. The matter has not been fully argued out before us. But the relevant principle seems to me to be the principle of legality as described by Lord Hoffman in Regina v Home Secretary ex parte Simms [2000] 2 AC 115 at 131:

"Parliamentary sovereignty means Parliament can, it if chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts, therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." . . . .

After 2 October 2000 the principle was subsumed by section 3 of the Human Rights Act, but before that date the principle was a rule of construction of some importance. First, it recognised the need for primary legislation to take away a fundamental right. Second, general words in primary legislation would not be enough.

Before the coming in to force of the Human Rights Act it would accordingly have been open to persons in the position of the appellants on these appeals, to argue that it needed primary legislation to take away fundamental rights, and to seek to argue that the Regulations fell foul of that principle. The attack, so far as I know, was never made, and I would suggest that it would have failed. It would have failed because a fundamental right is not to a tribunal which may not be perceived as judge in its own cause; the right is to access to the courts for the determination of civil rights as described in Article 6 of the Convention. The question at common law would accordingly have been whether the primary legislation empowered Regulations setting up the review panel, bearing in mind an introductory tenant's right to seek judicial review. I suggest that there would be no question that it did. On judicial review I suggest that if an attack on the decision of the review body were to be successful, it would have been necessary to establish some factor beyond the mere constitution of the review body in accordance with the Regulations. It would not have been enough to argue that albeit constituted strictly in accordance with the Regulations, the review body would be perceived as a judge in its own cause making all decisions void.

As I say the matter has not been argued out but one can say at least this. Before the Human Rights Act came in to force it has not been suggested that the review body set up under these Regulations simply cannot reach a fair decision; nor has it been suggested that the decision reached by the review body cannot be properly reviewed by judicial review.

How then does Article 6 impinge on the above? The argument of Mr Pleming, putting it at its simplest, is that the sections of the HA recognise that the local authority must have reasons for terminating an introductory tenancy (see section 128(3)); if the tenant takes issue with the validity of those reasons and seeks a review, the validity is determined by the review panel whose fact finding is then implemented by the County Court making an order. He thus submits there is a determination of a civil right and Article 6 applies to the decision making process. Since the County Court takes no part in the decision relating to the facts and since the review panel is not an independent tribunal taking decisions in public, Article 6 is prima facie infringed. Furthermore, by the information provided to tenants who enter into introductory tenancies, introductory tenants will be led to believe that only if they are in breach of the terms of the introductory tenancy agreement will the local authority consider that there are reasons for taking proceedings for possession; thus the issue determined by the review panel will more often than not be whether the tenant is in breach of the introductory tenancy agreement. Again he submits a civil right is determined, Article 6 is thus engaged and Article 6 is prima facie infringed.

Mr Sales' argument in reliance on Kaplan is that on a proper analysis there is no determination of civil rights by the review panel. He submitted that under the introductory scheme the local authority is free to determine a tenancy without reliance on any breach and without any determination of any issue between the parties. The fact that one party to the tenancy allows another party to come and seek to explain why the tenancy should not be terminated, does not mean that a rejection of the explanation amounts to a determination of any civil right. In one sense the very fact that the review panel is part of the local authority demonstrates that the body is not determining issues; it is deciding for itself whether to exercise the right of obtaining possession having given the other party a fair opportunity to explain why it should not. Not every administrative decision which affects private rights brings into play Article 6. Mr Sales would not go so far as to say that the local authority need have no reason for termination, because he would accept that the decision of the local authority can be made the subject of judicial review where for example it could be shown to be an unreasonable decision, or, he would add, where it can be shown that the taking of the decision in the particular circumstances infringes the Article 8 rights of the tenant.

Mr Sales relied particularly on the following citations from Kaplan.

"151. As the Court has held in the RINGEISEN and KONIG CASES Article 6(1) may be applicable in cases concerning the exercise of such public powers. Nevertheless, Article 6 does not, in the Commission's opinion, prohibit the conferment on public authorities of powers to take action affecting the private rights of citizens. It does not go so far as to provide that all acts, decisions or measures which affect private rights must themselves be taken by a tribunal. Such a conclusion, apart from being in conflict with the common position in the contracting States both today and when the Convention was drafted, would also not be warranted, in the Commission's opinion, by a proper interpretation of Article 6(1).

152. It is plain from the text of Article 6(1) that it does not directly protect the individual's 'civil rights' as such against acts or decisions which modify, annul or otherwise interfere with them. In many circumstances the private rights of an individual are liable to be affected not only by the lawful acts of public authorities but also by those of other individuals or entities exercising countervailing private rights of their own, and indeed by circumstances of a purely factual nature such as the effluxion of time. The mere fact that an individual's private rights are adversely affected by the acts of another party, whether a public authority or not, does not therefore involve a violation of Article 6(1).

154. In the Commission's view the essential role of Article 6(1) in this sphere is to lay down guarantees concerning the mode in which claims or disputes concerning legal rights and obligations (of a 'civil' character) are to be resolved. A distinction must be drawn between the acts of a body which is engaged in the resolution of such a claim or dispute and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute. Article 6(1) would not, in the Commission's opinion, apply to the acts of the latter even if they do affect 'civil rights'. It could not be considered as being engaged in a process of 'determination' of civil rights and obligations. Its function would not be to decide ('decidera') on a claim, dispute or 'contestation'. Its acts may, on the other hand, give rise to a claim, dispute or 'contestation' and Article 6 may come into play in that way.

161. An interpretation of Article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision affecting private rights would therefore lead to a result which was inconsistent with the existing, and long-standing, legal position in most of the Contracting States. "

Mr Sales' argument is similar to that put forward on behalf of the Lord Advocate in Alconbury and dealt with by Lord Hoffmann from paragraphs 131 to 135. Lord Hoffmann indeed quotes paragraph 154 of Kaplan and then says:-

"134 My Lords, this reasoning is in accordance with the way in which, at the outset of this speech, I suggested to your Lordships that, apart from European authority, the case ought to be decided. But it provides a short answer only if it is assumed that article 6 requires no more than that judicial review proceedings be decided by an independent and impartial tribunal. If, however, article 6 is construed as going further and mandating some minimum content to the judicial review jurisdiction, then it is necessary to ask, as I have done at some length, whether the extent of the judicial review jurisdiction available in England and Scotland is sufficient to satisfy the requirements of the European court jurisprudence. As appears from my analysis of that jurisprudence, there is no doubt that the European court has construed article 6 as requiring certain minimum standards of judicial review. This appears most clearly from the Swedish cases to which I have referred.

135. Once one accepts this construction, it makes little difference whether one says, as in Kaplan, that the administrative act does not fall within article 6 at all and the question is concerned only with the adequacy and impartiality of the judicial review, or whether one says, as the European court and Commission have done in other cases, that the administrative act does in theory come within article 6 but the administrator's lack of impartiality can be cured by an adequate and impartial judicial review. The former seems to me a more elegant analysis, but the latter may be necessary in order to explain, in the context of civilian concepts, why the administrative process can be treated as involving at any stage a determination of civil rights and obligations. So, tempting as it is, I am unable to accept Mr Macdonald's short cut."

It seems to me that Mr Sales is suggesting that in this case we should take the short cut. In my view we are not free to do so. Thus I reject Mr Sales' first point. The decision of the review panel is certainly involved in the determination of an introductory tenant's civil rights and I accept that the real issue to be addressed at this stage is whether the combination of the review panel plus judicial review is enough to meet the requirements of Article 6 to which I now turn.

Is combination of review panel plus judicial review enough to meet the requirements of Article 6?

It is accepted that the review panel itself could not have the degree of independence to comply with Article 6. But it is also accepted that it is necessary to consider the decision making process as a whole in determining whether the requirements of Article 6 are met. Albert and Le Compte v Belguim (1983) 54 EHRR 533 at paragraph 29 puts it this way:-

"The Convention calls for at least one of the two following systems: either the jurisdictional organs themselves comply with the requirements of A6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of A6(1)."

There are further aspects of the speech of Lord Hoffman in Alconbury to which I would draw attention. First he points out (paragraph 73) how judicial review gives effect to the rule of law ensuring that "administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament". Second he points out that decisions on policy are not a "determination of civil rights" although they may "affect civil rights" (paragraph 74) although some decisions may in fact "determine civil rights" and should thus be made by independent and impartial tribunals. Third he traces how the European jurisprudence arrived at the view that Article 6(1) could have an application to administrative decisions concluding that the court has accepted that "civil rights" means only rights in private law and has applied Article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law. (paragraph 79). He then cites the above passage from Albert and Le Compte v Belgium which refers to control by a judicial body with "full jurisdiction", and continues:-

"79 These views of the meaning of "civil rights and obligations" are only of historical interest, because, as we shall see, the European court has not restricted article 6(1) to the determination of rights in private law. The probable original meaning, which Judge Wiarda said in Konig's case, at p 205, was the "classical meaning" of the term "civil rights" in a civilian system of law, is nevertheless important. It explains the process of reasoning, unfamiliar to an English lawyer, by which the European court has arrived at the conclusion that article 6(1) can have application to administrative decisions. The court has not simply said, as I have suggested one might say in English law, that one can have "civil right" to a lawful decision by an administrator. Instead, the court has accepted that "civil rights" means only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law.

86 In the later case of Albert and Le Compte v Belgium (1983) 5 EHRR 533, in which a similar situation arose, the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of article 6(1) (eg because they were not "established by law" or did not sit in public):

"None the less, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1)."

87 The reference to "full jurisdiction" has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that "full jurisdiction" does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.

88 This emerges most clearly from the decisions on the English planning cases, which I shall analyse later in some detail. But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate government committee heard their objections but confirmed the order. They appealed to an administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not "independently assess the merits and the facts of the case", it did not have "full jurisdiction" within the meaning of the Albert and Le Compte formula. The European court said at para 32, that its jurisdiction was sufficient in the circumstances of the case, "Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership."

What however about the review of factual decisions? On this Lord Hoffmann cites with approval a passage from the opinion of Mr Nicolas Bratza (as he then was) when concurring with the majority of the Commission on the admissibility of Mr Bryan's complaint in Bryan v UK (1995) 21 EHRR 342. Mr Bratza said this:-

"It appears to me that the requirement that a court or tribunal should have 'full jurisdiction' cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review."

Lord Hoffmann then said:-

"110 Mr Bratza's particular insight, if I may respectfully say so, was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent than the Secretary of State himself. But this was a matter on which independence was unnecessary – indeed, on democratic principles, undesirable – and in which the power of judicial review, paying full respect to the views of the inspector or Secretary of State on questions of policy or expediency, was sufficient to satisfy article 6(1). On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact."

Lord Hoffmann pointed out that the European court adopted Mr Bratza's approach in its judgment saying:-

"114 On ground (b), (issues of fact) the European court noted what, in para 46, it described as:

"the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality.

115 It went on to say, at para 47, that, if Mr Bryan had pursued his appeal on ground (b), the High Court, while not being able to substitute its own findings of fact, "had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational". This was enough to satisfy article 6:

" Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states."

What those passages support are the following propositions in considering whether judicial review, plus the procedures, are Article 6 compliant:-

1. it is relevant whether findings of fact are material to the decision;

2. if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with Article 6;

3. if the facts have themselves been found by "an expert tribunal" sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact that is likely to lead to the conclusion that judicial review is sufficient.

The above propositions are made in the context of the traditional ambit of judicial review. If that was the correct ambit to contemplate then clearly, if the facts are material, it might be said that the less expert the fact-finder and the less independent the fact-finder then the less likely it would be that judicial review would be sufficient. Perhaps the first question is whether it is right to contemplate only the traditional form of judicial review. In W v UK [1988] 10 EHRR 29 the decision referred to by Keene LJ in giving leave in the McLellan case, the court took a limited view of the scope of judicial review as appears from paragraph 82:-

"An application for judicial review or the institution of wardship proceedings does enable the English courts to examine a local authority's decision in the matter of access by a parent to his child who is in public care. These two remedies provide valuable safeguards against exercise by the authority of its discretion in an improper manner.

Nevertheless, on an application for judicial review, the courts will not review the merits of the decision but will confine themselves to ensuring, in brief, that the authority did not act illegally, unreasonably or unfairly. Where a care order or a parental rights resolution is in force, the scope of the review effected in the context of wardship proceedings will normally be similarly confined."

One question is whether it is right to contemplate that judicial review would be as limited as there suggested.

In Alconbury Lord Hoffman was not contemplating, or perhaps not needing to contemplate, any extension in relation to judicial review. (see paragraph 73 of his speech). Lord Nolan said this at paragraph 62:-

"The reversal of a finding of fact in the field of planning would no doubt be highly unusual. I mention Edwards v Bairstow simply to illustrate the generosity with which the courts, including your Lordships' House, have interpreted their powers to review questions of law. A similarly broad and generous approach has been adopted in the development of judicial review extending as it does not only to points of law in the strict and narrow sense but to such matters as the rationality of the decisions and the fairness of the decision-making process. One possibility canvassed in argument was that the powers of review as at present exercised by the courts might be enlarged in order to accommodate the requirements of the Human Rights Act 1998. For my part, at least in the context of the present case, I see no need for that."

Lord Clyde said this at paragraph 169:-

"The scope of judicial review

The suggestion was advanced that, if the respondents were correct in their contention that the present proceedings are in breach of article 6(1), the scope of judicial review might somehow be enlarged so as to provide a complete remedy. The point in the event does not arise, but I consider that it might well be difficult to achieve a sufficient enlargement to meet the stated purpose without jeopardising the constitutional balance between the role of the courts and the role of the executive. The supervisory jurisdiction of the court as it has now developed seems to me adequate to deal with a wide range of complaints which can properly be seen as directed to the legality of a decision. It is sufficient to note the recognition of the idea of proportionality, or, perhaps more accurately, disproportionality, and the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision maker of facts which are irrelevant or even mistaken: R v Criminal Injuries Compensation Board, Ex p A [1999] 2 AC 330, 344-345. But consideration of the precise scope of the administrative remedies is not necessary for the purposes of the present appeals."

Lord Slynn at paragraph 51-52 said this:-

"The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between the principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act 1998 however makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied: see R v Secretary of State for the Home Department, Ex p Turgut [2001] 1 All ER 719; R (Mahmood) v Secretary of State for the Home Department [2000] 1 WLR 840.

This principle does not go as far as to provide for a complete rehearing on the merits of the decision. Judicial control does not need to go so far. It should not do so unless Parliament specifically authorises it in particular areas."

Judicial control over the legality of a decision does not require a complete rehearing of the merits. But it seems to me that in considering whether a section of a statute is compatible or not, this court should be inclined to assume that the administrative court will at least be likely to ensure that its procedures will enable it to test the legality of a decision, and in particular whether that decision infringes the human rights of a tenant such as the tenants in the appeals before us. Support for this view appears from paragraph 89 of Halsburys Laws Vol 1(1) 4^th Ed. reissue 2001, where it says "Where the exercise of a discretionary power is liable to interfere with fundamental human rights, the courts will examine the decision maker's actions more rigorously than where such interests are not directly affected by the action taken … " citing Lord Hope in R v DPP ex p Kebeline [1999] 3 WLR 972 at 993-994.

With the above in mind I return to the relevant considerations. Are material facts likely to be an issue? That seems to me to depend on the circumstances of individual cases. In relation to rent arrears, for example, the facts can be established with certainty, and the question in issue as between the council and an individual tenant is likely to be whether in the circumstances it was reasonable for the council to proceed with terminating the introductory tenancy. That question, if it is to be reviewed by a court, seems to me to be clearly suitable for judicial review even of the traditional variety.

There may however be circumstances of a more difficult nature. If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. That is again a matter which can be dealt with under judicial review either of the traditional kind or if it is necessary so to do intensified so as to ensure that the tenant's rights are protected.

What about the quality of the tribunal carrying out the review and what about the important point taken by Mr Pleming that if the administrative court formed the view that the decision of a review panel ought to be quashed then its only power would be to remit the matter to the landlord? This was a point of significance in Kingsley v UK (ECtHR) 7 November 2000, see in particular paragraphs 58 and 59.

It is in my view legitimate to take into account in this context that the review panel is a body chosen by Parliament. If, of course, it was simply impossible for such a tribunal to reach a fair decision, that would lead inevitably to the conclusion that the scheme could not work without infringement of Article 6. Would it be impossible for there to be a fair decision from any person who would be appointed to review matters under the introductory tenancy scheme? Would a court inevitably come to the conclusion that any officer, however senior, could not constitute a fair tribunal for hearing the matter? Is the position such that judicial review could not provide the check as to whether a decision had been reached fairly and lawfully?

One has to remember that the council are in reality making decisions which are not simply decisions as to whether it has a right to terminate. The council is not anxious to terminate unless other considerations prevail. The council is having to have regard to competing interests of other tenants and the competing interest of others who need the housing that they can supply. In my view there is no reason to think that such a decision cannot be taken fairly at a senior level of the council reviewing the decisions already reached by less senior people. Furthermore it seems to me that judicial review will be able to check the fairness and legality of decisions taken.

Thus, it is my view (i) that there is no reason to hold that the review procedure cannot be operated fairly, and (ii) that there is no reason to hold that the remedy of judicial review will not provide an adequate safeguard to tenants enabling them to challenge any unfairness and/or any infringement of their Convention rights particularly under Article 8.

Thus, as it seems to me, it cannot be said that section 127 or the scheme at the macro level is incompatible with Article 6.

What I would stress is that where a review has taken place, in a case in which the council is seeking to take possession, it should be the norm for the council to spell out in affidavits before the County Court judge, how the procedure was operated in the individual case dealing with the degree of independence of the tribunal from persons who took the original decision, the way the hearing was conducted and the reason for taking the decision to continue with the proceedings. In that way the judge will have the information on which he can take an informed view as to whether the matter should be adjourned to allow for an application to be made for judicial review. In this way also section 7 of the HRA can be complied with so that the question whether it is arguable that any breach of human rights occurred can be considered at the County Court stage.

Article 14

Having regard to the views expressed on Article 6 and Article 8 no point arises in relation to Article 14, Article 14 only having any operation within the ambit of another Convention right. I should however just say that in my view the argument that the introduction of an introductory tenancy scheme is in some way discriminatory, seems to me misplaced. Once introduced the scheme applies to all would-be tenants, and there is no question of persons in factually similar circumstances being treated differently.

Conclusion

In relation to the McLellan appeal the appeal must be dismissed.

In relation to the Forrest appeal the position is as follows. Forrest did not seek a review by the council of its decision. There is an issue as to how that came about. However, no request was made to the County Court judge to adjourn the case so that an application for judicial review could be made, and the argument proceeded on what I have called the macro level. It seems to me that it is too late now to apply for permission to move for judicial review. I should add that on the facts as presented to us, I have no reason for thinking that permission to move for judicial review would ever have been granted. In the circumstances this appeal must be dismissed also.

LORD JUSTICE LATHAM:

I agree.

LORD JUSTICE KAY:

I also agree.

Order: appeal dismissed; Legal Services Commission order; permission to appeal to House of Lords refused.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1510.html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McLellan v Bracknell Forest Borough Council & Anor [2001] EWCA Civ 1510 (16 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1510.html Cite as: [2002] HRLR 12, [2002] BLGR 191, [2002] UKHRR 45, [2002] 1 All ER 899, [2002] ACD 54, [2001] NPC 149, [2002] QB 1129, [2001] EWCA Civ 1510, [2002] 2 WLR 1448, (2001) 33 HLR 86