Guernsey Legal Resources

In this case, I am asked to determine a point of law arising from the suggested application of art. 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, as it has effect in Guernsey by virtue of the Human Rights (Bailiwick of Guernsey) Law 2000. Put simply, I have to decide if art. 8, which is headed “Right to respect for private and family life” is engaged in this case, and if it is, whether art. 8(2), which deals with permitted interference with that right, applies. The position of the respondent is that art. 8 does not operate in the present case, but if it does, any interference is permissible by virtue of art. 8(2). The parties in the case are the appellant, Mr. Thomas (“A”) and the Minister of Housing, the respondent (“R”). For the sake of convenience, I propose to refer to the Housing (Control of Occupation) (Guernsey) Law 1994 as “the Law” and the European Convention as the “ECHR.”

    (a) A is aged 38. He first came to Guernsey for a holiday with his uncle and aunt in December 1992. In April 1993, he commenced residence in Guernsey. As has been correctly pointed out on behalf of R, although A has lived in Guernsey for almost all that period, it is not continuous, as he

    (b) From 1993 to 1996, A lived in rented local market accommodation as the cohabitee of a qualified local resident. From January 1997 to March 1997, he lawfully resided in Guernsey under a short-term employment licence. He then rented accommodation with another locally-qualified person, living with her under a licence. Since 2000, A has been employed by the well-known local firm of J. Meerveld & Sons as a bricklayer and trains apprentices. In April 2000, A and his cohabitee jointly purchased a house, which he renovated.

    (c) On February 9th, 2005, A wrote to R setting out his circumstances and explaining that the current relationship was unfortunately breaking down. He set out his links with Guernsey and provided letters of support. By letter of May 13th, 2005, Housing expressed the view that A’s connections with the Island were insufficiently strong to justify the grant of a housing licence. Following a meeting shortly thereafter with the Director of Housing, it was suggested that he supply further details of his situation. On August 9th, 2005, A wrote to R providing further details, including his training of Guernsey apprentices, together with further letters of support.

    (d) On September 27th, 2005, R wrote to A stating that if he continued to be employed by Meervelds as a bricklayer and continued to be involved in training apprentices, he would be granted a licence to occupy either lodgings (hotel or guest-house), or accommodation in the household of a lawfully resident householder. A further meeting took place on October 2nd, 2005 and it was decided that A could obtain his own house, but would have to let part of it to a locally-qualified lodger. Thereafter, A continued to live at the house he had purchased with his cohabitee, but the relationship became strained. A observed that he wanted to continue living in Guernsey, as he had done for (largely) the past 14 years and had just accepted responsibility for a 5-year apprentice. His options are (i) to occupy a property, provided a qualified resident occupies it with him; or (ii) live in lodgings, i.e. an hotel or guest-house; or (iii) occupy any accommodation in the household of a lawfully resident occupier, who is already the owner or tenant of it and who is ordinarily resident in that building.

    (e) A is financially unable to purchase his cohabitee’s share in the house and it will therefore have to be sold.

3 For the purposes of the present hearing, the question for consideration is the ECHR point. In relation to R’s decision to require A to live with a “stranger” so that he can remain in Guernsey, it is suggested that this would “. . . breach the appellant’s right to respect for his private life granted by art. 8 of the European Convention on Human Rights and Fundamental Freedoms . . .”

4 Both counsel are considerable experts on this area of the law and made submissions in detail. These submissions were based upon their respective skeleton arguments and were developed to cover a great deal of ground. The basic point made on behalf of A was that R’s decision is too restrictive and a breach of art. 8(1). A must show the rights subject to protection are relevant under that article—then, it was said, the burden goes on to R. The Guernsey Housing Law is unique and has to be approached on general principles. The leading case of Walters v. States Housing Auth. (18) was referred to, and it was suggested that human rights arguments are now a separate category to the five items set out there by Beloff, J.A., or a “gloss” on the ultra vires/unreasonable category. Counsel then referred to the leading text-book, Lester & Pannick, Human Rights Law & Practice, 2nd ed. (2004).

5 After being taken to the general introduction to and scope of art. 8 rights (para 4.8.2, at 261–262), counsel went to para. 4.8.18 (op. cit., at 269–70), “The concept of private life.” The case of Pretty v. United Kingdom (10) (35 EHRR 1, at para. 61) was referred to: “Article 8 also protects a right to personal development and the right to establish and develop relationships with other human beings and the outside worlds . . .”

6 The next part of Lester & Pannick cited was para. 4.8.84 (op. cit., at 305), which introduces the justification element in art. 8(2). In summary, there must be “a pressing social need” for the interference and the means employed need to be “proportionate to the legitimate aim(s) pursued by the State.” Paragraph 4.8.102 (op. cit., at 316) refers to the case of Gillow v. United Kingdom (4), where the enforcement of the housing control legislation in Guernsey was held to be not objectionable in itself but the particular action taken in the circumstances of the case was found disproportionate to the legitimate aim pursued.

7 Counsel for A produced various ECHR decisions dealing with the rights of travellers. It was stressed that the facts were very different from the situation before the Royal Court and the questions for consideration were the principles relating to art. 8 points, rather than their detailed application to cases involving caravan sites in England. The first case mentioned was Connors v. United Kingdom (3) ([2004] ECHR 66746/01, especially at paras. 81 and 82). Paragraph 81 is a general summary of the question of the legitimacy of “interference”:

“81. An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention

“82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Dudgeon v UK, [1981] ECHR 7525/76 at para. 52; Gillow v UK, [1986] ECHR 9063/80 at para. 55). On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation (Buckley v UK, [1996] ECHR 20348/92 at para. 75 in fine). The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Mellacher v Austria, [1989] ECHR 10522/83 at para. 45, Immobiliare Saffi v Italy, [1999] ECHR 22774/93 at para. 49). It may be noted however that this was in the context of art. 1 of Protocol No. 1, not art. 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, mutatis mutandis, Gillow v UK, [1986] ECHR 9063/80 at para. 55; Pretty v UK, [2002] ECHR 2346/02; Christine Goodwin v UK, [2002] ECHR 28957/95 at para. 90). Where general social and economic policy considerations have arisen in the context of art. 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (Hatton v UK, [2003] ECHR 36022/97 at paras. 103 and 123).”

Counsel stressed that the “margin of appreciation” was, in his submission, not a term to which domestic courts have regard, only the Strasbourg court.

9 It was next submitted that R’s skeleton was wrong in its observation at para. 3 to the effect that A’s personal life can continue as it was before the decision. He has not been living as a lodger or taken a lodger but has been with partners of his choice. Whilst it was conceded that there was no positive obligation to support A financially, there was one not to impose conditions that impact upon his private life. Paragraph 6 of the skeleton is also incorrect, as the art. 8(2) test is not whether the interference is “arbitrary” or not and the case of Kroon v. Netherlands (8) did not involve the exercise of a discretionary power.

10 After considering art. 8(1), it is necessary to go to art. 8(2). If art. 8(1) is not engaged, then that is the end of the ECHR arguments in this appeal. If art. 8(2) falls for consideration, then the burden is on R to justify it. Counsel for A referred to the Housing Needs Survey of 2006. You cannot retrospectively introduce matters, it was suggested, that were not before the deciding body. There is no reference to this document in the correspondence. It was pointed out that A is not contesting the legislation on housing control per se and the Gillow decision (4) applies. Reference was made to the case of Slivenko v. Latvia (17) ([2003] ECHR 48321/99, at para. 103):

    “The Court points out that the basis for its examination must always be the impugned decisions of the domestic authorities and the legal grounds on which they relied. It cannot take into account any alternative legal grounds suggested by the respondent Government in order to justify the measure in question if those grounds are not reflected or inherent in the decisions of the competent domestic authorities.”

11 The appeal is made under s.56 of the Law, which provides for the burden to lie on the appellant. Section 56(3) applies throughout: “On an appeal under this section the appellant shall have the burden of proof and the final right of reply.” The legal burden therefore rests throughout on A.

13 Whilst the facts are not in dispute, it was pointed out that A has not been in continual residence in Guernsey since 1993; his period dates from 1997 due to his one-year residence in Brecqhou.

14 R’s primary submission, made very clearly, was that art. 8 is not engaged in this case. The main purpose of art. 8 involves negative obligations of the State; in this case there are no rights that have been interfered with or not accorded. A is seeking to give art. 8 a far wider breadth than the jurisprudence supports. R has not acted unlawfully.

15 The judgment in Kroon (8) contains a general statement of principle in relation to art. 8. The essential object ([1994] ECHR 18535/91, at para. 31) is to protect the individual against “arbitrary action by public authorities.” A “fair balance” has to be struck “between the competing interests of the individual and of the community as a whole; and . . . the State enjoys a certain margin of appreciation . . .” (ibid.). Article 8 is about the recognition that the state cannot descend into private lives to such an extent that the intrusion is too great. Persons have a right to personal autonomy.

16 The decision in Codona v. United Kingdom (2) was referred to. In that case the Strasbourg court found (Application No. 485/05, at 10) that art. 8 “does not in terms recognise a right to be provided with a home . . . let alone a specific home or category of home—for instance one in a particular location . . .” It was submitted that the phrase used in that application—“is under a positive obligation by virtue of Article 8 to provide her with accommodation of her own choosing”—could be amended for the purposes of the present case so as to read—“is under a positive obligation by virtue of Article 8 to permit him to have accommodation of his own choosing.” R is under no such obligation. It follows that when dealing with art. 8, there is a balancing between positive and negative obligations. The positive obligations do not accord A a complete freedom of choice; there is no positive obligation to assist the self-determination of individuals.

17 Under art. 8, it was submitted, there are limitations on what has to be respected. “Private life” extends to certain core concepts, not to everything a person might wish to do. In the present case, a decision by R to impose conditions demonstrates a consistent approach by R; A has never been completely free to choose his own accommodation. R’s decision, in short, accords respect to A’s right to stay in Guernsey and carry on—nothing has changed. Article 8 is not baldly a right to private life, it is more about respect for private life.

18 By virtue of the Gillow case (4), the Law and its aims are accepted for the purposes of this hearing as legitimate; the matter for consideration if art. 8(2) comes into focus, is the question (put generally) of “proportionality.” It was submitted that where art. 8 is involved, that does not mean R on appeal has attracted the legal burden to disprove the allegation and prove it has acted intra vires. The terms of s.56 of the Law cannot be side-stepped. The court must look at the terms of s.56(3). In this appeal the statute has primacy; the legal burden stays with A. R has to demonstrate evidentially that it has done something to form its contention that the decision impugned was indeed proportionate; the court can take judicial notice of the increasing size of the Island’s population and can take account of the Gillow decision as well.

19 Counsel dealt with the question of the margin of appreciation by stating that there have been cases where this concept has been used under the description of “discretionary area of judgment,” or “judicial deference.” The court’s role is not to substitute its own decision but to review R’s. There are areas of flexibility accorded to the decision-maker. In the present case, less would need to be demonstrated to justify the “interference”; A is not, for example, being evicted and what is being done by R is at the lower end of the scale. What was done was necessary in a democratic society and should not be invalidated.

20 It was R’s letter of October 17th, 2007 which is the subject of the appeal. Counsel suggested that the Housing Needs Survey of 2006 is dated September 26th, 2007 and was in the mind of R at the time it took its decision in relation to A’s case. Various citations were made from this document, particularly in relation to the pressure on housing stock in Guernsey at the lower end of the market. In A’s case there are people competing for such dwellings and R must conduct a balancing exercise in each individual case. In such an exercise, persons with essential licences need to be taken into account.

21 By way of reply, counsel for A submitted that s.56 of the Law has to be read in the light of the Human Rights Law, which is later legislation. Convention rights must be interpreted in exactly the same way as they would be in Strasbourg and, of course, a domestic court can apply Convention rights without the parties needing to go off to Strasbourg. It does not matter whether the proceedings concern s.7(1)(a) of the Human Rights Law, or (as here) s.7(1)(b).

22 On the facts, it was put forward that for the vast majority of his time in Guernsey, A has been with a partner, in a one-to-one relationship. The requirement now being imposed is rather different; specifying as to whom you may live with is important. The Codona case (2) was also referred to

23 It is apposite to point out that we are concerned with art. 8 of the ECHR because the States of Guernsey have enacted the Human Rights (Bailiwick of Guernsey) Law 2000, approved by Her Majesty in Council on December 13th, 2000. Under s.2(1) of that Law, Guernsey courts or tribunals determining questions relating to Convention rights, “must take into account any judgment . . . of the European Court of Human Rights . . .”; and under s.3(1), “so far as it is possible to do so,” legislation in Guernsey must be read and given effect to in a way which is compatible with the Convention rights. Article 8 is such a right. The Convention is sometimes seen as a charter for undesirables and an unwarranted rein on the discretion of public bodies to act in the proper execution of their functions. But the Convention contains an important element of balance, which courts need to bear very clearly in mind, as was explained by Lord Steyn in Brown v. Stott (1) ([2003] 1 A.C. at 707–708):

“The inspirers of the European Convention . . . realised that from time to time the fundamental right of one individual may conflict with the human right of another. Thus the principles of free speech and privacy may collide. They also realised only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited; we live in communities of individuals who also have rights . . . Subject to a limited number of absolute guarantees, the scheme and structure of the Convention reflects this balanced approach. It differs in material respects from other constitutional systems but as a European nation it represents our Bill of Rights. We must be guided by it.”

24 The obligation, under s.2(1) of the Law of 2000, to “take into account” Strasbourg jurisprudence, is construed as an obligation to follow it as well. In the words of Amos in her valuable textbook, Human Rights Law, para. 7.2, at 18 (2006): “It has been held that, in the absence of some special circumstance, the court should follow any clear and constant jurisprudence of the European Court of Human Rights.” Although there have been some “special circumstances” in some UK cases, there are none evident in the present case. Accordingly, I will seek to interpret art. 8 in a way that appears to me to be consistent with decisions of the Strasbourg court.

25 By virtue of s.6(1) of the Law of 2000 “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.” For the purposes of the present case, R is a “public authority.”

26 It is with this fundamental background in mind that we must now turn to consider the application of art. 8 of the Convention to the present case.

27 In the words of R’s skeleton: “In this case, the appellant has failed to demonstrate any interference with his right to respect for his private life or his home and the Department is not required to present any art. 8(2) justification.” Whereas the simple assertion is made in A’s skeleton: “It is submitted that the conditions imposed by the appellant [should read ‘respondent’] impinge both on the appellant’s home and private life, in that they require him to live in a particular way.”

28 Two conditions are found, e.g. in R’s letter of September 27th, 2005, viz: (a) lodgings, i.e. hotel or guest house; or (b) any accommodation that the appellant was occupying in the household of a lawfully resident householder who was already the owner or tenant of it and was lawfully resident in that building.

29 A further condition was added after A’s meeting with Mrs. Brown on October 2nd, 2005: the appellant could buy his own house, but would then have to let part of it to a locally-qualified person as a lodger, and the appellant could live with such a person. This condition is the point at issue for resolution in this case.

30 “Private life” is a rather broad term, which is difficult to pin down and define. One helpful attempt can be found in R. v. Broadcasting Standards Commn., ex p. BBC (11) ([2001] Q.B. 885, at para. 48, per Lord Mustill):

“To my mind the privacy of a human being denotes at the same time the personal ‘space’ in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor

31 More concisely, “private life” can be said to cover all aspects of a person’s physical identity and thus freedom to live as they choose. Whilst some matters are not within the sphere of “private life,” the concept under the jurisprudence of the Strasbourg court is a wide one. In Pretty v. United Kingdom (10) (35 EHRR 1, at para. 61), it was said (as quoted in Lester & Pannick, para. 4.8.18, at 270):

“. . . [T]he concept of ‘private life’ is a broad term, not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . Article 8 also protects a right to personal development and the right to establish and develop relationships with other human beings and the outside world . . . [T]he Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

32 “Home” has an autonomous meaning. The concept was examined by the House of Lords in Harrow London B.C. v. Qazi (5), in which Lord Millett observed ([2004] 1 A.C. 983, at para. 89):

“A person’s home is . . . the place where he and his family are entitled to be left in peace free from interference by the state or agents of the state. It is an important aspect of his dignity as a human being, and it is protected as such and not as an item of property.”

There are other helpful observations in that case, including from Lord Bingham (ibid., at paras. 8–10), referring to Gillow (4). Consideration of the concept should be “down-to-earth and pragmatic.”

33 It must be accepted, when considering the cases, that there are limitations on what has to be respected under art. 8. As was submitted on behalf of R, “private life” extends to certain core concepts, not to everything a person may wish to do. R submitted that nothing has changed and that the decision accords with A’s wish to stay in Guernsey and carry on. A has never had complete freedom in his accommodation options. A’s response was to point out that for the vast majority of his time in Guernsey, he has been with a locally qualified partner, in a one-to-one relationship. The requirement now being imposed is rather different. Specifying whom an individual may live with, or whom he may take into his home is important. Nor, stressed counsel, is this a case where A is asking the state to pay money or provide a house for him; it is accepted that there is no positive obligation of that nature. It seems to me, with great respect to Housing, that the requirement of taking a locally-qualified lodger should A buy his own home, is a markedly different situation from

34 It is clear from the plain wording of the Convention, that once A has shown that art. 8(1) is engaged, it is for R to demonstrate that art. 8(2) applies, in order to justify the interference. R asserts that the interference can be justified by reference to the Housing Needs Survey, which shows the pressure that exists in the housing market and that demand outweighs supply. A responded that R cannot rely upon this document (see para. 20 above). In my judgment, what was said by the Court of Appeal in Perkins (9) and the Royal Court in X (19) still holds good. In X, the Bailiff said (explaining Perkins): “The court also rejected the attempt by counsel for the Authority . . . to introduce material explaining the decision that had not been included in the original letter explaining the Authority’s decision.”

35 There is no reference to the Housing Needs Survey in any of R’s correspondence, and thus no evidence that it was taken account of in resolving A’s application. Counsel for R submitted that this material was in the minds of Housing by the time it took its decision; the relevant decision letter is dated October 17th, 2007, the report to the States is dated September 26th, 2007. This submission does not meet the objection put forward on behalf of A. The observations of the Court of Appeal in this respect are binding upon me, but it is right to emphasize that this is not some mere legalistic quibble or technicality of pleading. A person is entitled to know, in reasonable detail, what the basis of a decision adverse to him is. The trend of Court of Appeal housing decisions is emphatically in favour of providing applicants with full information, and, with respect, that is plainly the just way to proceed in cases of such importance to individuals. On this point, A’s submissions are correct and consistent with the Slivenko case (17) as well.

36 There was a further issue between the parties on the burden of proof. R submitted that the appeal provisions of s.56 of the Law could not be side-stepped. When art. 8 is invoked, that does not mean R on appeal has the legal burden to disprove the allegation and prove it has acted intra vires. The Housing Law has primacy in this regard in the appeal, but once interference in Convention terms is recognized, it is for the public authority to justify it. In the present case, the decision in Gillow (4) is, as has been mentioned, not impeached. The Housing Law and its aims are not under attack—the question is whether the decision impugned is “necessary in a democratic society.” It was pointed out on behalf of A that the housing legislation must be read in the light of the Human Rights Law,

37 At the risk of appearing to be simplistic, I do not consider there is any tension between the provisions of art. 8(2) and the Housing Law. The legal position in Guernsey is that under s.56(3) A has the burden of proof. The legal position is also that R (in broad terms) must, as a public authority, justify any interference under art. 8(2). These seem to me to co-exist quite peacefully. It would be wholly wrong to negate the consistent and correct approach of national courts and Strasbourg and stand art. 8(2) on its head, so that the burden rested on the applicant in a case, not the public authority. But no mental gymnastics need be involved, as there is nothing inconsistent in accepting both s.56 and art. 8(2). Accordingly, in the present case, R must demonstrate that the interference is justified and, at the end of the day, A has the burden in the appeal. There is no reason to seek to put either provision here to the sword.

38 A further issue between the parties alluded to the concept of “margin of appreciation.” In broad summary, the nub of R’s case is that “the extent of interference falls within the margin of appreciation open to the Department to operate the 1994 Law . . .” A submits that this concept is for the Strasbourg court, not a domestic tribunal. I take the term to mean (Emmerson, Ashworth & Macdonald, Human Rights & Criminal Justice, 2nd ed., para. 2–115, at 115 (2007))—

“a doctrine of restrained review at the international level, which reflects the primary role that the national authorities, including the courts, are intended to perform in human rights protection. According to a former judge of the court, it is simply the term used to describe ‘the amount of latitude left to national authorities once the appropriate level of review has been decided by the Court.’”

And, in the words of Sedley, L.J. in Knight v. Nicholls (7) ([2004] 1 W.L.R. 1653, at para. 38): “Any decision of the Strasbourg court that a potential breach falls within the member states’ margin of appreciation belongs to its jurisprudence, not to ours.”

39 However, the Strasbourg court’s decisions concerning the margin of appreciation are still relevant, especially as, under s.2 of the Human Rights Law, this court must “take into account” judgments, etc. of the Strasbourg court. Some observations of Buxton, L.J. in R. v. Stratford JJ., ex p. Imbert (14) ([1999] 2 Cr. App. R. at 286) are apposite:

“The application of the doctrine of the margin of appreciation would appear to be solely a matter for the Strasbourg Court. By appealing to the doctrine that Court recognises that the detailed content of at

40 The standard of review under the Human Rights Law is distinct from the Strasbourg court’s “margin of appreciation.” In R. v. D.P.P., ex p. Kebilene (12), this was recognized in the speech of Lord Hope of Craighead ([2000] 2 A.C. at 380–381):

“[The doctrine of the margin of appreciation] is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention . . . It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”

41 If the doctrine of the margin of appreciation has no place in the armoury of domestic courts, beyond the limited influence referred to, the question then arises as to what test should be applied. The burden of

“. . . look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued.”

42 In R. (Daly) v. Home Secy. (15) Lord Steyn laid down more detailed general guidance, which is most helpful from the viewpoint of a domestic tribunal ([2001] 2 A.C. 532, at paras. [27]–[28]):

    “[27] . . . The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex p. Smith is not necessarily appropriate to the protection of human rights . . . [T]he intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

    [28] The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] P.L. 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 W.L.R. 840 are correct. And Laws L.J. rightly emphasises in Mahmood, at p.487, ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so

43 The key phrase for consideration in the present case is to be found in art. 8(2). The interference must be “necessary in a democratic society.” It will be recalled that there is no quarrel with the Housing Law or the legitimate aim it pursues, following the Gillow decision (4). The most important consideration is whether or not the interference is proportionate to the legitimate aim pursued. Various formulations have been made by the House of Lords, a helpful one coming from Lord Bingham (Lords Hobhouse and Scott agreeing) in R. v. Shayler (13) ([2003] 1 A.C. 247, at para. 26)—“the acid test [was] whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law [was] greater than [was] required to meet the legitimate object which the State [sought] to achieve.”

44 I have already made reference to the ECHR case of Connors (3). A relies upon the judgment, and it is worth considering what was said there. In referring to the margin of appreciation, the Strasbourg court drew attention ([2004] ECHR 66746/01, at para. 82) to the fact that this will vary—

“according to the nature of the Convention right in issue, its importance for the individual, and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. [The judgment, importantly to my mind, then goes on to say:] The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights . . .”

The case of Gillow is an example cited in the context of that sentence. The judgment goes on to say (later in the same paragraph):

“. . . [A]rticle 8 . . . concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community . . .”

Again, Gillow is cited after this sentence.

45 Counsel for R made much of the assertion that “nothing has changed” as a result of the decision. A has not had his own licence and has never been completely free to choose his own accommodation options. He has not been granted an independent licence and has never had one. As has already been mentioned, A’s contention is that the requirement now being imposed is different—and a requirement of this nature, as to whom you may live with, is important. I concur in the observations made on behalf of A. Requiring that A permit a stranger to live with him is onerous and

46 I have referred to “private life” in paras. 5, 30, 31 and 33 above. In view of the decisions mentioned, including Lord Mustill’s observations in the Broadcasting Standards case (11), I find that the impugned condition is a disproportionate potential interference with A’s rights under art. 8 of the ECHR. I need not repeat the quotation from that case, which was set out at para. 30 above. In coming to this conclusion, I am mindful of the need not to “usurp those functions of government which are controlled and distributed by powers whose authority is derived from the ballot box,” to use the words of Laws, L.J. in R. (Mahmood) v. Home Secy. (16) ([2001] 1 W.L.R. 840, at para. [33]). However, as Lord Steyn said in Daly (15) ([2001] 2 A.C. 532, at para. 28):

“And Laws L.J. rightly emphasises in Mahmood ‘that the intensity of the review in a public law case will depend on the subject matter in hand’. That is so even in cases involving Convention rights. In law context is everything.”

47 In this case, to quote what appears in para. 82 of the judgment in Connors (3), “the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights” (citing, inter alia, Gillow (4)). The balancing exercise therefore comes down in favour of A, on the individual circumstances of this particular case.

48 On this aspect of the appeal, A succeeds. In terms of para. 16(a) of A’s cause, R’s decision to require him to take in a locally-qualified person as a lodger is ultra vires and unreasonable, as it breaches A’s right to respect for his private life granted by art. 8 of the European Convention on Human Rights and Fundamental Freedoms.