The House of Lords yesterday gave judgment in Doherty v Birmingham City Council, allowing the appeal and remitting the case to the High Court. The case is another important step the in the evolution of human rights jurisprudence in the field of property law. The appellant was a gipsy who was subject to possession proceedings in respect of his pitch on a caravan site, which he held under a licence. The appellant claimed that s 5(1) Mobile Homes Act 1983, which had the effect of excluding from the protection of the Act land occupied by a local authority as a caravan site for gipsies, was incompatible with his Convention rights.
The House of Lords reaffirmed its position in respect of the role of claims under Article 8(2) ECHR in possession proceedings set out in Kay v Lambeth LBC and Leeds City Council v Price  2 AC 465. Their lordships rejected the submission that the European Court of Human Right’s judgment in McCann v UK (judgment of 13 May 2008) supporting the minority view in Kay should cause the House to depart from Kay. Lord Scott was highly critical of the approach of the Strasbourg court and held that that case was decided on a “mistaken understanding of the procedure in this country” for possession proceedings by local authorities.
Lord Hope and Lord Walker (with whom Lord Rodger agreed) found s 5(1) of the 1983 Act to be incompatible with the appellant’s convention rights, but declined to make a declaration of compatibility on the basis that amending legislation had already been passed by Parliament.
The case is of further significant interest in light of the comments made by their lordships in respect of the relationship between “conventional judicial review” and judicial review based on human rights grounds.
Ashley Underwood QC appeared for Birmingham City Council.
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