Article 8 in Wales - Maria Buckland

ARTICLE 8 IN WALES

Buckland v UK, European Court of Human Rights (ECtHR) (Application no. 40060/08), 18 September 2012

In Connors v UK [2005] 40 EHRR 9, the ECtHR held that the eviction of Mr Connors without him being able to effectively challenge that process in the domestic courts amounted to a breach of Article 8 of the European Convention on Human Rights (the right to respect for private and family life and home).

Maria Buckland (MB) is a Gypsy who, in 1994, moved onto a pitch on the Cae Garw site in Port Talbot. The site is owned by Neath Port Talbot CBC and, since 2000, managed by the Gypsy Council (GC). The GC took eviction action against MB on grounds of nuisance plus arrears of water rates. On 25 July 2006 HHJ Bidder gave judgment on the preliminary issue of whether MB could challenge the eviction action. He ruled that the only options open to her were to challenge the domestic law itself or to take judicial review proceedings.

On 18 January 2005 amendments to section 4 of the Caravan Sites Act 1968 had introduced the possibility for possession orders to be suspended for up to 12 months at a time.

HHJ Bidder suspended the order against MB for 12 months upon condition that her son leave the site and that she paid off the water rates arrears.

MB appealed to the Court of Appeal who held that the power to suspend was sufficient to answer the problem identified by the ECtHR in Connors v UK. Dyson LJ stated:

The significance of the amendment [ to allow suspension of an order] is that a claimant’s decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant’s complaints about the defendant’s behaviour (para 42).

He continued:

In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors (para 63).

On 18 February 2008 the House of Lords refused MB permission to appeal. In May 2008 MB left the site.

Section 5(1) of the MHA 1983 expressly excluded local authority Gypsy and Traveller sites from the protection of the Act. Section 321 and Schedule 16 of the Housing and Regeneration Act 2008 removed that exclusion. This amendment came into force in England in April 2001 but has not yet entered into force in Wales.

In Manchester CC v Pinnock [2010] UKSC 45, the Supreme Court gave judgment in a case involving a demoted tenant ( a form of tenancy without security of tenure). Lord Neuberger stated:

Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end…(para 45)

In LB Hounslow v Powell [2011] UKSC 8, the Supreme Court extended this approach to introductory tenancies and tenancies under the homelessness regime.

The ECtHR concluded that there had been a breach of MB’s rights under article 8:

As the Court has previously emphasised, the loss of one’s home is the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end (para 65).

The ECtHR continued:

However, the fact remains that the applicant was not able to argue that no possession order ought to have been made at all. The possibility of suspension for up to twelve months of the possession order is inadequate, by itself, to provide the necessary procedural guarantees under Article 8. Although further suspensions may be granted, suspension merely delays, and does not remove , the threat of eviction. The Court cannot accept that the fact that an individual may effectively be able to remain in her home in the long-term by making repeated applications to extend suspension of a possession order removes any incompatibility of the procedure with Article 8. It is further significant that in the present case the County Court judge considered the applicant’s personal circumstances to be such that suspension was justified and he granted a suspension for the full period sought. In the circumstances it is not possible for the Court to predict what decision he might have reached on the granting of the possession order had he considered it open to him to refuse the grant on the basis of personal circumstances.

Finally, the Court observes that an amendment to the Mobile Homes Act 1983 permits a court considering whether to make a possession order to examine the reasonableness of the termination of the licence …. That amendment has entered into force in England but not in Wales. It would appear that, once it does so, domestic courts in Wales will be able to assess the proportionality of a proposed eviction in compliance with the procedural requirements of Article 8 (paras 68 & 69).

MB was awarded 4000 Euros and her costs.

In a partially dissenting opinion, Judge De Gaetano disagreed with para 65 of the main judgement (see above) in that it might be applied to cases involving private landlords. Since minority opinions will be circulated prior to the full judgment being finalised, this seems to imply that para 65 was intended by the majority to cover private landlord (and thus private landowner) cases. This would be because the court itself is a public authority and must take account of human rights arguments ( see Arden & Bates Buckland v UK, LAG Housing Law 5 October 2012 - available at HYPERLINK "http://laghousinglaw.com/2012/10/05/buckland-v-uk/" http://laghousinglaw.com/2012/10/05/buckland-v-uk/ ).

Conclusion

In light of the this judgment, we urge the Welsh Government to at least bring into force now the security of tenure provisions of the MHA 1983 (even though they are continuing with a consultation process regarding the other aspects of the MHA 1983).

Chris Johnson & Sharon Baxter, Travellers Advice Team (TAT) at Community Law Partnership.

TAT runs a self-funded national telephone helpline for Gypsies and Travellers, 0121 685 8677, Monday to Friday 9am to 5pm.

Marc Willers of Garden Court Chambers drafted the ECtHR application for Maria Buckland.

October 2012.