Possession proceedings and the Human Rights Act

摘要

Where a public authority brings possession proceedings to force persons out of their family home, such an action must amount to an interference with the persons' right to respect for their home under art.8(1) of the European Convention on Human Rights: though the House of Lords at first in Harrow LBC v Qazi [2003] UKHL 43 had doubts on this. The more difficult issue is whether the interference is justified under art.8(2) on the various grounds therein set out. This will usually raise two separate issues: first whether the legislative objective justification is generally justified and secondly whether in the particular case the decision to use the power to evict is justified. This in both cases will require the application of the proportionality principle. However, where the public authority has an unqualified right to possession, the person whose home is being taken may not be able to test the issue as to whether the eviction is proportionate. Yet in Kay v Lambeth LBC [2005] Q.B. 352 the House of Lords held that there were only two defences or gateways that were available to the defendant. First it could be argued that the law was incompatible with art.8 and, if it could not be interpreted in a way that was compatible via s.3 of the Human Rights Act 1998, then a decision as to whether the law was in fact incompatible would have to be made. The second gateway really amounted to an application of traditional grounds of judicial review and was the defence that the decision to recover possession was one that no reasonable person could consider justifiable. These principles are set out in [110] of Lord Hope's opinion.