A human rights defence
In May 2004 the European Court of Human Rights decided in the case of Connors – v – UK that Mr Connors’ eviction from a local authority run Gypsy/Traveller site in circumstances where the law gave him no opportunity to defend the possession proceedings in court was a breach of article 8 of the European Convention on Human Rights (the right to respect for private and family life and home).
Since that judgment a debate (not just dealing with the position of Gypsies and Travellers) has raged as to how far article 8 can be raised as a defence to possession proceedings where a landlord or a landowner has an apparently absolute right to possession. On 30th July 2008 ,in the case of Doherty – v – Birmingham City Council, the House of Lords quashed a possession order that had been made against Mr Doherty, an Irish Traveller who was resident on Birmingham City Council’s official site but it did not go as far as the European Court of Human Rights. The House of Lords accepted that Mr Doherty could defend the matter but did not accept the possibility of a full article 8 defence. This remains, it seems, in conflict with a line of decisions in the European Court of Human Rights. In the most recent decision in the case of Zehentner – v – Austria ECtHR, App No 20082/02, 16th July 2009, the European Court has reaffirmed the fact that a full article 8 defence should be available and should be considered.
Lawyers representing defendants in the United Kingdom might be forgiven for not being able to imagine what a full article 8 defence might look like. To assist, I would like to make reference to a leading judgment of the South African Constitutional Court. The case is Port Elizabeth Municipality –v – Various Occupiers [2004] ZACC 7, 1st October 2004. The judgment was given by that famous Judge, Mr Justice Albie Sachs, a judge who had survived a previous attempt by South African security agents (in the time of apartheid) to kill him by means of blowing up his car in 1988.
In the Port Elizabeth case, some 68 people, including 23 children, occupied 29 shacks which they had erected on privately owned land. Some 1600 people, including the owners of the property, petitioned the Port Elizabeth Municipality. As a result, the Municipality sought an eviction order. After various appeals the matter came before the Constitutional Court.
Referring to the South African Bill of Rights Mr Justice Sachs stated that the relevant section of the Bill of Rights:-
.......evinces special constitutional regard for a person’s place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often if will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat.
In this case, Mr Justice Sachs pointed out that:-
.....one is dealing with two diametrically opposed fundamental interests. On the one hand there is the traditional real right inherent in ownership reserving exclusive use and protection of property by the landowner. On the other hand there is the genuine despair of people in dire need of adequate accommodation.
He concluded that:-
.....in the light of the lengthy period during which the occupiers have lived on the land in question, the fact that there is no evidence that either the Municipality or the owners of the land need to evict the occupiers in order to put the land to some other productive use, the absence of any significant attempts by the Municipality to listen to and consider the problems of this particular group of occupiers, and the fact that this is a relatively small group of people who appear to be genuinely homeless and in need, I am not persuaded that it is just an equitable to order the eviction of the occupiers.
October 2009 saw the replacement of the House of Lords by the United Kingdom Supreme Court. We wait to see whether this new version of the highest court in the United Kingdom can finally bring the full force of Human Rights to bear upon situations similar to the one dealt with by Mr Justice Sachs in the Port Elizabeth case.
Chris Johnson
The Travellers Advice Team (TAT) at Community Law Partnership runs a Community Legal Advice Funded Telephone Helpline which is available Monday to Friday 10.00 am to 1.00 pm and 2.00 pm to 5.00 pm on 0845 120 2980.
We would like to welcome to the Law Blog, Marc Willers of the Gypsy and Traveller Team at Garden Court Chambers and we thank Marc for his comments on this blog. Marc will be producing his own blogs in due course.
For an article on the Port Elizabeth case, please see A Compelling Judgment, Nic Madge, Legal Action March 2006 page 21.
Thanks to Emma Westwood, the TAT Administrator, for organising this blog.