House of Lords

Published August 14, 2008

Doherty v Birmingham City Council

Before Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Mance

Speeches July 30, 2008

Although the definition of a “protected site” in section 5(1) of the Mobile Homes Act 1983, in excluding Gypsies from the protection of that Act, was incompatible with an occupier’s right to respect for his home in article 8 of the European Convention on Human Rights, incompatible primary legislation had to be enforced and an occupier’s defence to a local authority’s claim for possession should be remitted to the judge for examination of the question whether the council’s decision to seek possession had been reasonable.

The House of Lords allowed an appeal by the first defendant, William Doherty, from the dismissal by the Court of Appeal (Lord Justice Tuckey, Lord Justice Carnwath and Lord Justice Neuberger) ([2007] LGR 165) of his appeal from Judge McKenna sitting as a Queen’s Bench Division judge at Birmingham District Registry on December 20, 2004. The judge had given summary judgment in favour of Birmingham City Council on its claim against him and other defendants for possession of the Travellers’ Site, Tameside Drive, Castle Vale, Birmingham.

Mr Jan Luba, QC and Mr Alex Offer for Mr Doherty; Mr Ashley Underwood, QC and Mr Douglas Readings (Mr Andrew Arden, QC and Mr Terry Gallivan, written submissions) for Birmingham; Mr Philip Sales, QC and Mr Daniel Stilitz for the Secretary of State for Communities and Local Government, intervening.

LORD HOPE said that on March 4, 2004 the council had served notice to quit on Mr Doherty and his family. They were Gypsies who had been resident on the site for about 17 years.

On the same day as it had commenced proceedings for possession, May 27, 2004, the European Court of Human Rights at Strasbourg had held in Connors v United Kingdom (Application No 66746/01) (The Times June 10, 2004; (2004) 40 EHRR 189) that the eviction of a family of Gypsies from a gypsy site by a local authority had been a violation of their rights under article 8 of the Convention.

Mr Doherty relied on his right to respect for his home under article 8 and on the council’s duty under section 6(1) of the Human Rights Act 1998 not to act in a way that was incompatible with that right.

Mr Underwood submitted that a legislative choice had been made to exclude Gypsies from statutory protection.

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