When is a duty not a duty? Interpreting the main homeless duty in Elkundi v Birmingham and Imam v Croydon

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Housing has been in the news quite a bit over the last few weeks. We have seen the inclusion in the Queen’s Speech of the much-anticipated and long-delayed Social Housing Regulation Bill and Renters’ Reform Bill, aimed at increasing regulatory oversight and improving standards in the social and private rented sectors. The Prime Minister has announced that he is once again considering extending the controversial Right to Buy to England’s two million housing association tenants. Meanwhile, in an interview on Thursday morning, the Levelling Up Secretary, Michael Gove refused  to recommit the Government to its 300,000 annual housebuilding target. But amid all the sound and fury, an important judgment was handed down by the Court of Appeal on 4 May in the joined cases of R (Elkundi) v Birmingham City Council and R (Imam) v London Borough of Croydon [2022] EWCA Civ 601, which could have far-reaching implications for local authorities and homeless households across the country.

The two appeals concerned the interpretation and application of s.193(2) Housing Act 1996, known as the ‘main housing duty’, which states that, where an applicant is unintentionally homeless and in priority need, “unless the authority refer the application to another local housing authority, they shall secure that accommodation is available for occupation by the applicant.” Both appeals raised important questions around the extent of this duty and the circumstances in which a local housing authority might be said to have discharged it. The initial claimants all belonged to households which were trapped in unsuitable accommodation at the time the claims were brought, either through overcrowding or a lack of adaptation to meet the needs of disabled family members or both. 

In the first appeal in Elkundi, the Judge in the lower court, Mrs Justice Steyn, had held that s.193(2) imposed an “immediate, unqualified and non-deferrable duty” on a local authority to secure accommodation for a homeless applicant [2]. The local authority, Birmingham City Council, appealed on the basis that this was a misreading of the statutory provision. It contended that it was only under a duty to secure that accommodation be made available within a reasonable period of time, the reasonableness of the period being dependent on the circumstances.

Steyn J also held that Birmingham City Council’s misunderstanding of the nature of its duty under s.193(2) rendered the operation of its system for housing homeless applicants in unsuitable accommodation unlawful, since it wrongly considered it had a reasonable time in which to secure them suitable accommodation and could therefore comply with its duty by temporarily leaving them in unsuitable accommodation [61]. She issued a mandatory order requiring Birmingham to secure accommodation for one of the five initial claimants, Mr Ahmed, within 12 weeks and indicated that she would have done the same for Mr Elkundi, had he not already been offered suitable accommodation by the time the case was heard [62–63]. The local authority appealed on four further grounds, relating to the lawfulness of its system for housing homeless applicants and the Judge’s reasons for granting relief to specific claimants. These are set out in the judgment of the Court of Appeal at [70] and summarised at [3], and the conclusions of Lewis LJ on the issues they raise are set out at [109–123]. The main issues raised by the further grounds of appeal were whether Birmingham was operating an unlawful system for housing homeless applicants and whether it is possible for an individual to waive their right to suitable accommodation, once that right has been established.

In the second appeal, the Court considered the circumstances in which mandatory relief might be refused by the courts once a duty to house a homeless applicant in suitable accommodation has been established. The initial claimant, Ms Imam, appealed against the refusal by the Deputy Judge in the court below to grant a mandatory order compelling Croydon Borough Council to comply with its statutory duty under s.193(2) in circumstances where it had already accepted it was in breach of it. The sole ground of appeal here was that this refusal constituted an error in principle.  

The extent of the main housing duty

The primary issue upon which the Court had to rule in the first appeal was the extent of the main housing duty. The Court of Appeal unanimously upheld the lower court’s formulation of the duty under s.193(2) as immediate, unqualified and non-deferrable. Speaking at a webinar hosted by Doughty Street Chambers, Zia Nabi, who acted for Mr Elkundi and the other respondents in the first appeal, noted that this judgment effectively reinforces the orthodox interpretation of the statutory provision.[1] Indeed, the Court apparently did not consider this to be an especially complicated or lengthy point. The case advanced by the local authority, that the use of the word “shall” in s.193(2) indicated that “Parliament intended that the authority would make arrangements for the provision of accommodation in the future” [72], would have constituted a radical departure from the existing understanding of the main housing duty had it been accepted. In this context, it is unsurprising that the Court instead preferred to interpret the word “shall” to mean “must” and to refer to an immediate obligation to secure suitable accommodation for eligible applicants, rather than one to be fulfilled in the future [77].

What does this mean for local housing authorities facing major financial challenges or a severe shortage of appropriate housing stock in which to house homeless applicants, especially disabled applicants who require specifically adapted homes to be able to enjoy a good quality of life? Does the immediate and unqualified nature of the main housing duty mean that such factors cannot be taken into consideration by councils or the courts? Well, not exactly. In paragraph 170 of her judgment in the lower court, Steyn J held that:

Interpreting the duty as unqualified does not mean that the circumstances in which the local housing authority is seeking to perform its duty are relegated to be considered only at the relief stage. First, they are taken into account in determining whether a person is homeless under section 175(3) … Second, the flexible concept of suitability imports considerations such as the length of time an applicant has been in a particular type of accommodation and the dearth of availability of the type of accommodation the applicant requires in the longer term.

In his leading judgment in the Court of Appeal, Lewis LJ endorsed this notion of suitability as a flexible concept, which may be influenced by the resources available to the local housing authority and the circumstances of the individual case. Thus, a dearth of alternative accommodation might lead a council to conclude that an applicant’s current accommodation is suitable for continued occupation on a temporary basis, even if it would be unsuitable for them to occupy in the long term. Lewis LJ further clarified that it may sometimes be appropriate and necessary for a local authority to provide an applicant with different accommodation at different times. Permanent accommodation suitable for long-term occupation need not be secured immediately in order to fulfil the duty, though it should be the ultimate goal [81–82]. Where a local housing authority considers that the accommodation currently being occupied is suitable in the short or medium term, but unsuitable in the longer term, they should clearly state this conclusion in their decision letters to homeless applicants [83].

However, once a local authority has accepted that accommodation is unsuitable, it must secure suitable accommodation for the applicant right away. It is not enough to place them on a waiting list for suitable accommodation somewhere down the line. When a decision on unsuitability is reached, a local authority will be in breach of its duty for as long as the applicant remains in their current unsuitable accommodation [83].

The Court declined to rule on whether a local authority can change its mind over whether accommodation is suitable, having initially found it to be unsuitable (dealt with in the judgment as ‘the fourth issue’ [120–123]). Steyn J had expressed the view, obiter, that such a reversal of an initial decision by a local authority would be unlawful. The Court of Appeal judgment noted that Lewis LJ “would not want it to be assumed that the obiter dicta of the Judge are correct” but indicated that this point should be decided in a future case where it actually arises on the facts [121].

Was Birmingham’s system unlawful?

The second issue upon which the Court ruled was the lawfulness or otherwise of Birmingham’s system for housing homeless applicants. Social housing in Birmingham has been at the centre of a number of controversies in recent years, particularly with regard to the level of regulation in the exempt accommodation sector. The council also has an exceptionally long housing waiting list and very few homes available which are suitable for large families or properly adapted for occupation by disabled people. Despite, or perhaps because of, these challenging circumstances, Birmingham lacks a written policy explaining how properties are allocated to homeless persons under Part VII Housing Act 1996 [47]. Neither had it carried out equality impact assessments to demonstrate that it had had regard to the impact of its allocation system on disabled applicants [114]. While neither a written allocation policy nor equality impact assessments are mandatory, both are good practice.

In essence, the system being operated by Birmingham in respect of applicants to whom the main housing duty was owed was to place them on a waiting list known as the ‘Planned Move List’ (PML), along with applicants in “apparent priority need” to whom an interim duty was owed under s.188 Housing Act 1996, and to match them with suitably-sized properties as they became available, according to the length of time they had been on the list [46, 109]. The Court of Appeal upheld the decision of the lower court that this system was unlawful, in that it failed to distinguish between people living in accommodation which was currently unsuitable and those living in accommodation which was suitable in the short or medium term but would become unsuitable in the long term [113]. Moreover, the council was unable to evidence that it had had due regard to its duty under s.149 Equality Act 2010 to eliminate discrimination, advance equality of opportunity, and foster good relations between those who share the protected characteristic of disability and those who do not. [114]

Can the right to suitable accommodation be waived?

The third issue was whether the right to suitable accommodation can be waived, once a local authority has accepted that it owes a duty to an applicant. This point arose because one of the initial claimants in Elkundi, Mr Al-Shameri, had indicated that he preferred to stay in his current accommodation, where his wife had an assured tenancy, while Birmingham looked for suitable accommodation for him. The question was whether this constituted a waiver of his right to suitable accommodation.

The Court dealt with this point fairly briefly. It held that the right can be waived, but only with informed consent of the applicant, who always has the right to change their mind [117]. Lewis LJ recognised that there may be circumstances where a person prefers to remain in their current accommodation until suitable long-term accommodation can be secured for them, especially if the duty owed is an interim one under s.188, if the alternative accommodation would be very temporary (for example bed and breakfast accommodation), and/or if they would have to give up a secure long-term tenancy in order to move into uncertain interim accommodation [116]. It is therefore vital that local authorities take steps to properly ascertain applicants’ wishes and keep them fully informed of their rights and of the outcome if they refuse the offer of suitable accommodation.

Can relief be withheld where the main housing duty is breached?

The fifth issue and the main substance of the second appeal concerned the proper approach of the court to the grant of a mandatory order to compel a local housing authority to secure suitable accommodation for a homeless applicant, once a breach of duty has been established. Ms Imam appealed against the refusal of the Deputy Judge to grant an order mandating that Croydon Council secure suitable accommodation for her, while Birmingham appealed against the grant of a mandatory order on behalf of Mr Ahmed.

In the case of Ms Imam, the Deputy Judge had held that Croydon were doing all they reasonably could to secure suitable accommodation for her, within the context of the general shortage of accommodation in the area and other applicants’ greater levels of need and longer periods waiting for suitable accommodation [67]. He noted in particular that Croydon’s resources were finite. Its estimated budgetary overspend in the current year was £67 million, and indeed readers can hardly fail to have heard about the borough’s financial crisis, which took it to the brink of bankruptcy and recently resulted in its Labour administration losing overall control of the council and the mayoral race to the Conservative candidate.

On appeal, the Claimant submitted that once a local housing authority has accepted that it has a duty, a failure to discharge it is an affront to rule of law and relief must therefore be granted [125]. Croydon stressed that a mandatory order is a discretionary remedy and submitted that the Deputy Judge was entitled to take into account the factors that he did, when deciding whether to grant relief [127].

At the Doughty Street webinar, Martin Westgate QC, who acted for Ms Imam, suggested that the Deputy Judge had incorrectly imported a purported legal test of “intolerability” from Baroness Hale’s judgment in Ali v Birmingham City Council [2009] UKHL 36, [2009]; 1 W.L.R. 1506, even though such a test does not actually exist. The mandatory order had been refused on the basis that Ms Imam had failed to evidence that the conditions in which she was living were having an extremely serious effect on her, or that they were “intolerable” or that “enough was enough” [67]. This was an incorrect approach for two reasons: first, because “intolerability” is not a legal test, and second, because the burden is on the authority to show why an order should not be made once breach is established, rather than on claimant to show why it should be.

The correct approach, per Lewis LJ, was to consider whether the local housing authority has taken “all reasonable steps” to perform the duty [132-134]. Although the judgment does not frame this in terms of a strict legal test, it is the approach taken by the Court in relation to both the Birmingham and Croydon appeals. Breaches of duty under s.193(2) are on a scale of seriousness, and the more serious and significant the breach, the more detailed evidence the local authority will need to provide to demonstrate that it has taken all reasonable steps to remedy the breach and secure suitable accommodation for the applicant. “References to the general difficulties facing housing authorities, or the lack of availability of suitable properties”, without specific details on the number and type of properties available and why they cannot be used, will most likely be insufficient [132]. In both of the present cases, the Court of Appeal held that the local authorities had failed to adduce sufficient evidence to demonstrate that they had taken all reasonable steps to remedy the breaches. Thus a mandatory order was correctly granted in the case of Mr Ahmed and ought to have been granted in the case of Ms Imam [142, 150].

The Court also held that the Deputy Judge in Imam had erred in taking into account budgetary constraints when considering whether a mandatory order was appropriate once the housing authority had accepted that Ms Imam was homeless and her current accommodation was unsuitable, since the decision on unsuitability had already taken into account budgetary considerations [141]. To consider them again at the relief stage would therefore introduce element of double counting. The courts are entitled to take into account a wide range of factors when deciding whether to exercise their discretion to provide mandatory relief, including but not limited to the extent of the unsuitability, the length of time the claimant has been waiting and the impact on their life, the likelihood of compliance in the near future, the risk of unfairness to other applicants, and any policy on the part of the local authority not to use its Part VI housing stock for Part VII purposes [141–144], but general budgetary constraints do not form part of this list.

In some respects, the points dealt with in these appeals seem self-explanatory. The value of this judgment lies not in moving the law on in any dramatic way but in clarifying the expectations on local authorities. The fact that both Birmingham and Croydon were held not to have taken all reasonable steps to house the claimants in suitable accommodation, despite the manifest financial and administrative challenges faced by both in addressing unmet housing need within their local authority areas, demonstrates that the hurdle for avoiding mandatory relief when s.193(2) is breached is very high. Local authorities will need to consider this carefully when assessing suitability and allocating resources to housing applicants once a duty has been established. Clear communication with applicants and careful record keeping will also help them when it comes to demonstrating compliance with their s.193(2) duty. The Court of Appeal refused Birmingham permission to appeal. They may yet apply to the Supreme Court for permission but given the unanimous, clear-cut and forceful nature of this judgment, they seem rather unlikely to succeed. 

What I’ve been up to recently…

I hope that readers will forgive the radio silence from your Green and Pleasant bloggers during the month of April. I was preparing for my final Bar exams at the end of last month, while Sam was completing his dissertation. With exams now over, I am very much looking forward to a planned cycle touring holiday to the Outer Hebrides at the beginning of June and desperately hoping for clement weather.

[1] Readers can find further details about the webinar here and can request a copy of the transcript by emailing events@doughtystreet.co.uk.

How to sue an ex-king

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Lois and I have in recent weeks observed that the blog posts that prove most popular are those that provide practical advice to our readership on matters that are likely to arise in their own lives. For this reason, I hope that you will enjoy my short presentation of the decision of the High Court on a preliminary issue in Corinna Zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Víctor María De Borbón Y Borbón [2022] EWHC 668 (QB). The case is indispensable for anyone considering bringing a civil claim against a former head of state.

The background

His Majesty Juan Carlos Alfonso Víctor María de Borbón y Borbón-Dos Sicilias reigned as Juan Carlos I, King of Spain, from the death of the dictator Francisco Franco in 1975 until his abdication on 18 June 2014. Since then, his son has ruled as King Felipe VI of Spain, and he himself has been referred to as Rei Emérito, or King Emeritus. He retired from public life in June 2019, and in 2020 he moved from Spain to the United Arab Emirates. He has been married to Princess Sofía of Greece and Denmark, who during her husband’s reign was Queen of Spain, since 1962.

Corinna zu Sayn-Wittgenstein-Sayn met His Majesty in 2004. Her job, at that time, was to organise hunting trips, and His Majesty availed himself of her services. They also began a romantic relationship at about the same time. This lasted until 2009, when, according to Ms zu Sayn-Wittgenstein-Sayn, she refused a proposal of marriage made by His Majesty.

Readers who would like to know more about the relationship between these two individuals can find juicy content all over the Internet: for example, here, here and here.  

If you are wondering why we, legal bloggers, are writing about these individuals, it is because, on 16 October 2020, Ms zu Sayn-Wittgenstein-Sayn filed a claim form in England by which she claimed damages and an injunction on the basis of a course of conduct pursued by His Majesty that amounted to harassment of her, contrary to section 1 of the Protection from Harassment Act 1997.

In December 2020, Ms zu Sayn-Wittgenstein-Sayn particularised her claim, alleging that the course of conduct had begun in April 2012 and was still ongoing. The gist of the allegations as set out in the Particulars of Claim is that Ms zu Sayn-Wittgenstein-Sayn was surveilled by the Spanish national intelligence agency and her property searched by them on behalf of His Majesty; that she was threatened and blackmailed by the head of that agency, General Félix Sanz Roldán, on behalf of his Majesty, and made to fear for her and her family’s safety; and that His Majesty spread malicious rumours about her, including to the media, in an attempt to damage her personal and commercial relationships. It is alleged that Ms zu Sayn-Wittgenstein-Sayn was harassed both before and after His Majesty’s abdication in June 2014.

The usual next step in a claim following service of Particulars of Claim is the filing of a Defence, in which the defendant’s response to the substantive claim is set out. However, His Majesty has not filed a Defence. Rather, he has applied for an order declaring that the court has no jurisdiction to try the claim because His Majesty benefits from immunity under sections 1(1), 14 and 20 of the State Immunity Act 1978.

Although there are additional preliminary grounds on which His Majesty challenges the claim, the issue of state immunity was isolated and tried in the High Court before Nicklin J at hearings on 6 and 7 December 2021. Judgment was handed down on 24 March 2022.  

The issues and submissions

His Majesty claimed immunity on two bases. First, he claimed that section 14 of the State Immunity Act rendered him immune from suit in respect of any act in his public capacity while he was head of state. This kind of immunity is called immunity ratione materiae, which means immunity by reason of subject-matter. It is immunity that attaches to qualifying acts. Second, His Majesty claimed that section 20 rendered him immune from any suit because he is a sovereign, a member of the King of Spain’s family and household. This kind of immunity is called immunity ratione personae, which means immunity by reason of personality. It is immunity that attaches to a qualifying person. His Majesty therefore made two arguments. First, as a person covered by section 20, he is completely immune from suit in respect of any acts whatsoever. Second, if that is incorrect, section 14 means that he is immune from any acts done in his public capacity as head of state, that is before his abdication. If the first argument succeeded, His Majesty would be immune in respect of Ms zu Sayn-Wittgenstein-Sayn’s entire claim. If the first argument failed but the second succeeded, His Majesty would only be immune in respect of the part of the claim relating to conduct during his reign.

The question in relation to section 20 was whether His Majesty is a “sovereign” or, alternatively, a member of the family of King Felipe “forming part of his household”.

On behalf of His Majesty, Sir Daniel Bethlehem QC submitted that a state may have more than one “sovereign”, and that His Majesty’s unique status as King Emeritus meant that both he and his son were sovereigns. Sir Daniel relied on the travaux préparatoires (preparatory works) to the Vienna Convention on Diplomatic Relations of 1961, to which the State Immunity Act gives effect, to argue for a broad conceptual interpretation of “household”. As a member of the Spanish royal family, His Majesty is part of King Felipe’s household even though he lives abroad and is largely financially independent.

On behalf of Ms zu Sayn-Wittgenstein-Sayn, James Lewis QC submitted that the wording “sovereign or other head of state” in section 20 made it clear that a sovereign is a head of state. If, like His Majesty, one is not a head of state, one is not a sovereign. There is no exception or special category for former heads of state. On the family point, the Court of Appeal in HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud and HRH Prince Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2013] EWCA Civ 642, [2014] 1 WLR 492 made clear that the group of “members of [the head of state’s] family forming part of his household” envisioned by section 20 was limited to dependant family members. Since His Majesty is not dependent upon King Felipe, he does not benefit from immunity under section 20.

The question in relation to section 14 was whether any of the alleged acts done in His Majesty’s reign had been done in his official capacity. (It is important to note that, for the purposes of these arguments, the parties treated the allegations as true.)

Sir Daniel relied on Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another ]2006] UKHL 26, [2007] 1 AC 270 and R (Pinochet Ugarte) v Bow Street Metropolitan Stipendiary Magistrate (No.3) [1999] UKHL 17, [2000] 1 AC 147 in his submission that even a heinous and unlawful act, and even one done to advance a personal agenda, could attract immunity if it was done in the purported discharge of official duties. It was submitted that the alleged acts of His Majesty through General Sanz Roldán and the Spanish national intelligence agency were done in the discharge or purported discharge of His Majesty’s official duties as king.

Mr Lewis relied on a large number of authorities, including Playa Larga (Owners of Cargo lately laden on board) v I Congresso del Partido [1983] 1 AC 244, Kuwait Airways v Iraqi Airways [1995] 1 WLR 1147, Holland v Lampen-Wolfe [2000] UKHL 40, [2000] 1 WLR 1573 and Surkis and others v Poroshenko and another [2021] EWHC 2512 (Comm), in submitting that, when deciding whether an act is done in an official capacity, the judge must ask whether the act, in its context, has the character of a private act, meaning an act that a private person could have performed. Further, the purpose for which the act was performed is not relevant. It was submitted that the alleged acts were in the context of the breakdown of a romantic relationship, which was a private matter, and that any wealthy person could have performed.

The decision

Nicklin J adopted Mr Lewis’s submissions about immunity under section 20 more or less completely. King Felipe is the only sovereign of Spain. The judge noted that, if Sir Daniel were correct that His Majesty continued as a sovereign after his abdication, he would have complete life-long immunity. If he were “to walk into a jewellers’ shop in Hatton Garden and steal a diamond ring, he could face no civil or criminal proceedings in this jurisdiction” [60]. Such a conclusion had no basis in any relevant principles. In respect of the family and household argument, the judge held that he was bound by the Court of Appeal’s decision in Apex to hold that dependence is the key factor in deciding whether someone is part of the head of state’s household. Since his Majesty is not dependent on King Felipe, he is not part of his household.

The section 14 issue was more finely balanced. On the one hand, harassment is not a public act, but an act that any private citizen can perform. On this basis, His Majesty would enjoy no immunity under section 14 in respect of the pleaded course of conduct amounting to harassment. On the other hand, individual acts alleged by Ms zu Sayn-Wittgenstein-Sayn as comprising a course of conduct amounting to harassment could be analysed as official acts attracting immunity. The parties seemed to agree about this. The judge therefore asked which individual acts could be considered as official acts. He singled out the alleged acts involving surveillance of Ms zu Sayn-Wittgenstein-Sayn and interference with her home. However, these allegations presented the problem that it was not clear whether it was Spanish state security agents or private contractors who performed the surveillance. If it was private contractors, there could be no successful immunity argument. If it was Spanish state security agents, immunity would be more arguable. The judge concluded that the pleadings and evidence before him were not clear enough to enable him to decide this question with satisfactory certainty. The burden of proof for establishing immunity being on His Majesty, the present position was that the judge was “very far from convinced that there could be any claim to functional immunity” [72]. On the basis that his decision about section 20 immunity meant that the claim would be proceeding anyway, he held that there was no immunity under section 14, but that, if the Spanish state wished to step forward later in the proceedings and take responsibility for the surveillance of Ms zu Sayn-Wittgenstein-Sayn, the position could be revisited.

The result of all this was that none of His Majesty’s claims of immunity succeeded.

Conclusion: practical take-aways

What can you and I learn from this case as prospective litigants against former heads of state?

First, and most importantly, a former head of state does not benefit from personal immunity under section 20 of the State Immunity Act, no matter their current title. They are not a sovereign. So look at the detail of what your potential defendant has done.

Second, identify ways in which the former head of state acted both unlawfully and in a way accessible, at least in theory, to a private individual. If they felt that their conduct could be perceived as dodgy, they might have tried to pursue it outside official channels. This is good news for you.  

Third, engage two silks and two juniors for preliminary issue hearings.  

And what about our readers who are former heads of state or considering retirement from that position and who expect to defend proceedings in this country?

First, ideally, stay in post.

Second, possibly counter-intuitively, make sure to use your official resources to conduct any potentially unlawful activity. Acts that no private person could have performed are likely to attract immunity under section 14.

Third, even the best lawyers cannot guarantee victory.

What I’ve been watching this week

From the ridiculous to the sublime. I have been watching Peep Show, which is all on Netflix, and which might be the best sit-com of the noughties. 

Split decision in Mozambique gas project challenge

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Back in October last year, I wrote a piece arguing that the UK legal system is ill-equipped to deal with the climate crisis. Citing a number of high-profile legal challenges to carbon-intensive infrastructure projects which have been dismissed over the last few years, I argued that the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions-reduction targets into actual policy and the reluctance of judges to be seen to be making politicised decisions meant that such challenges are likely to keep failing. Since then, two interesting judgments have been handed down in cases concerning decisions to approve new fossil fuel developments, which have caused me to revisit some of the assertions I made in my previous post on the subject to see whether they still hold true.

First there was the judgment in R (on the application of Finch) v Surrey County Council [2022] EWCA Civ 187. Here, a majority of the Court of Appeal upheld the decision of Holgate J that Surrey County Council’s approval of a new oil well at Horse Hill was lawful, but disagreed that downstream greenhouse gas (GHG) emissions are “legally incapable” of being factored in as an indirect effect of a project for the purposes of its Environmental Impact Assessment (EIA). The court held instead that such emissions should be included where there is a sufficiently close connection between the proposed project and its putative effect, with the existence of such a connection being decided on a case-by-case basis [41, 141]. The majority found that the necessary causal connection was absent in the present case [85]. However, Moylan LJ held that there was a close connection and the decision to exclude end-use emissions from the EIA was therefore legally flawed. In his own words, “it is not difficult to describe the combustion of material obtained from a development whose sole purpose is to obtain that material for combustion as being an environmental effect of the development” [138].

Then, on 15 March last week, there was another split decision in the High Court over the legality of the UK government’s approval of $1.15bn of export credit finance for a huge liquified natural gas (LNG) project in Mozambique. So, why could Lord Justice Stuart-Smith, who normally sits in the Court of Appeal, and Mrs Justice Thornton not agree? What happens in the event of a 1–1 split decision of this kind? And what (if anything) might R (Friends of the Earth Ltd) v Secretary of State for International Trade / Export Credits Guarantee Department & Chancellor of the Exchequer [2022] EWHC 568 (Admin) mean for the future of UK climate litigation?

The proposed site for the LNG project is in northern Mozambique, in the offshore Rovuma Basin. It is anticipated that around 5% of the LNG extracted would be retained for domestic use in Mozambique, with the remaining 95% being exported. The challenge to the project, brought by Friends of the Earth (FoE), was really a challenge to three separate decisions.

  1. First, there was the decision on 10 June 2020 by the CEO of UK Export Finance (UKEF) — the government’s export credit agency, which works alongside the Department for International Trade to help UK exporters to find new markets through loans, guarantees and insurance — to provide $1.15bn in financial support for the project, which was supported by the Secretary of State for International Trade.
  1. Second, there was the approval of this investment by the Chancellor of the Exchequer on 12 June 2020.
  1. Third and finally, there was the decision of 30 June 2020 by the Accounting Officer and Chief Executive of UKEF to approve the underwriting minute and the decision of 1 July 2020 of the Chief Executive of UKEF to approve the clearance of documents memorandum.

However, for the sake of ease, I will group these stages together and refer to them jointly as ‘the decision’. The decision was controversial within government at the time, with support from then Secretary of State for International Trade, Liz Truss, but concerns or outright opposition expressed by Business Secretary Alok Sharma, Foreign Secretary Dominic Raab and International Development Secretary Anne-Marie Trevelyan. In particular, ministers opposed to the project cited the reputational risks it posed in the context of the UK’s hosting of COP 26 the following year. Stuart-Smith LJ recognised the controversies surrounding the project in his judgment but was at pains to stress at several points that the role of the courts in cases of judicial review is not to comment on the merits of a decision but only on its legality [6, 49, 95].

FoE challenged the decision on two, closely related grounds.

  1. Ground 1(a): the decision was based on an error of law or fact, namely that the Project and its funding was compatible with the United Kingdom’s commitments under the Paris Climate Change Agreement (“the Paris Agreement”) and/or assisted Mozambique to achieve its commitments under the Paris Agreement; and/or
  1. Ground 1(b): UKEF’s decision was otherwise unlawful in so far as it was reached without regard to essential relevant considerations in reaching the view that funding the Project aligned with the UK and Mozambique’s obligations under the Paris Agreement.

In ruling on each of these grounds, the Court was concerned with three main questions, summarised by Stuart-Smith LJ at [96]:

First, what is the appropriate scope of enquiry when a decision maker decides to take something into account in the course of the decision-making process? Second, should the Court entertain submissions and decide questions of interpretation of the Paris Agreement? Third, and related to the second, is the Foreign Act of State doctrine relevant or applicable to the facts of this case?

The scope of enquiry

All public bodies are under a Tameside duty to carry out a sufficient enquiry prior to making a decision, so that they are in possession of all the necessary information required to make it. The name is derived from Lord Diplock’s judgment in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 at 696, [1977] AC 1014, where he held that the question for a court is: “did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?” [1065].

However, subsequent case law has tended to view the question of what considerations should be taken into account and what information should be sought as being a matter for the decision-maker and largely context-specific, subject to the irrationality test and any statutory requirements. Citing the judgment of the High Court in R (Spurrier) v Transport Secretary [2019] EWHC 1070 (Admin), [2020] PTSR 240 [141] ff., concerning the appropriate standard of review where the Tameside duty is engaged, Stuart-Smith LJ also noted that, where the decision under challenge depends “essentially on political judgment” or involves “scientific, technical and predictive assessments” the decision-maker should be granted a wider margin of appreciation in relation to the inclusion or non-inclusion in the decision-making process of information on a particular subject [100]. Thornton J also recognised that in the context of a complex, scientific, predictive evaluation of the kind required when conducting an EIA for this kind of project, decision-makers must enjoy a wide margin of appreciation, and cited a number of other climate change cases where this principle had been stressed [271, 277]. Yet the two judges took very different views on whether UKEF had discharged its duty of enquiry, particularly as regards the calculation of Scope 3 emissions.

GHG emissions tend to be divided into three categories for the purposes of conducting environmental/climate impact assessments. The direct emissions associated with an activity or project fall within Scope 1. In this case that is the emissions associated with the extraction of LNG. In the Horse Hill oil well case it was the emissions associated with the construction of the well and associated buildings. Scope 2 emissions include the indirect emissions from the generation of purchased electricity in order to undertake the activity. Scope 3 are all indirect emissions not included in Scope 2, including the end-use of products produced by the activity.

In relation to the Mozambique LNG project, UKEF produced a climate change assessment report which posed the question: “what are the estimated Scope 3 GHG emissions of this project?”. However, the report ultimately declined to make an estimate on the basis that it would be “inaccurate and therefore likely to be misleading”. An associated environmental/human rights report stated that Scope 3 emissions could not be reported “due to considerable uncertainty in the measurement and reporting of these data”, which “could not be resolved without further analysis or due diligence” [301].

The question for the Court in the present case, therefore, was whether this failure to take Scope 3 emissions into consideration was unreasonable. Stuart-Smith LJ held that it was not. He considered that UKEF enjoyed a wide margin of appreciation over how it conducted its assessment of the climate change impacts of the proposed project in the present case, since “at the time there was no established or internationally recognised methodology for evaluating the climate change impacts of a project like the one under scrutiny” [103], and further held that quantification would not have added anything material to the qualitative assumptions made for the purpose of assessing compliance with the Paris Agreement [234].

By contrast, Thornton J noted that the UKEF climate report set itself the task of producing an impact assessment which would “fully acknowledge”, “fully consider” and “evidence” the climate change risks associated with the project so that they could be coherently presented to ministers but ultimately failed to deliver a proper assessment of those risks [332]. She pointed out that UKEF had neglected to estimate Scope 3 emissions, even though there did in fact exist a suitable methodology, in the form of the GHG Protocol used by many private-sector companies and endorsed by the House of Commons Environmental Audit Committee [304].

Scope 3 emissions for the project were eventually calculated by the Department for Business, Energy and Industrial Strategy (BEIS) after the Prime Minister requested advice on whether they could be offset. This calculation took just 24 hours and was completed on 30 June 2020, shortly before final approval for the project was given. The BEIS calculations indicated that the LNG extracted from the site would produce some 805 million tons of CO2 over the 25-year lifetime of the project, constituting no less than 0.2% of world’s entire remaining carbon budget if we are to stay within 1.5oC of warming. Yet the UKEF climate report was never amended to reflect this updated calculation [322–324].

Other flaws in the UKEF climate report were touched upon briefly, in particular its inconsistent assessments concerning the extent to which the Scope 3 emissions from the project would be offset by a reduction in the use of more polluting fuels. While the summary section suggests it is more likely than not that the project would lead to a net reduction in global emissions, the conclusion indicates that it may lead to such a reduction, and a passage quoting analysis by the US export credit agency, US EXIM, states that it is unlikely that the project would replace more polluting fuels and suggests that it might instead hamper the growth of renewables. These differing positions could lead to very different outcomes in relation to the UK’s ability to meet its obligations under the Paris Agreement [310–316].

In light of these ambiguities, and the failure to amend the report with the updated Scope 3 emissions calculation and send it back to ministers for reconsideration, Thornton J concluded that UKEF “failed to make reasonable and legally adequate enquiries in relation to a key consideration in the decision making (climate risks). The lack of information deprived Ministers of a legally adequate understanding of the scale of the emissions impact from the Project” [333].

The interpretation of the Paris Agreement

It is worth noting at this stage that the UK’s international commitments under the Paris Agreement have no automatic force in domestic law, but that the UK has adopted a legally-binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and an obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008). This means that decisions can be challenged in domestic courts on the basis of their failure to comply with these domestic climate obligations, although the Act is not prescriptive about the actions that ministers or officials must take to achieve net zero. However, as the parties in the present case agreed, compatibility with the provisions of unincorporated treaties can also be justiciable in certain circumstances.

Drawing together principles from a range of authorities, Stuart-Smith LJ held that, while there was no general rule that a national court shall never determine a question of interpretation of an unincorporated international treaty, it should adopt a lower intensity of review where the language of the treaty is broad and aspirational [119]. In such circumstances, the domestic court need only satisfy itself that the decision-maker’s interpretation of the relevant treaty provisions is “tenable”, rather than necessarily correct. Thornton J concurred that the correct test in the present circumstances was that of “tenability” [262] but the judges disagreed on whether the decision under challenge satisfied that test.

Stuart-Smith LJ held that “UKEF was entitled to form the view that the support for the Project that was in contemplation was in accordance with its obligations under the Paris Agreement as properly understood. That view was at least tenable” [240], while Thornton J concluded that “the failure to quantify the Scope 3 emissions, and the other flaws in the Climate Report mean that there was no rational basis by which to demonstrate that funding for the Project is consistent with Article 2(1)(c) of the Paris Agreement on Climate Change and a pathway to low greenhouse gas emissions” [335].

Foreign Act of State doctrine

There was no disagreement on the third question, regarding the applicability of the Foreign Act of State doctrine. The Defendants submitted that the portion of Ground 1(a) concerning Mozambique’s commitments under the Paris Agreement was not justiciable, since it is not, as a matter of judicial policy, for the courts of this country to determine the legality of acts of a foreign government in the conduct of foreign affairs. After considering a range of case law on the doctrine, Stuart-Smith LJ held that, while the involvement of foreign state does not automatically preclude domestic courts from ruling on issues of foreign law, provided that there is a relevant “foothold” in domestic law in relation to the issue [130], it was not for a UK court to pronounce on whether the development of the LNG project would cause Mozambique to breach its own obligations under the Paris Agreement [232].

Where next?

So, what happens next? The split decision means that the judicial review did not succeed. However, the day after handing down its judgment, the High Court took the unusual step of issuing an order giving Friends of the Earth permission to appeal. Provided that FoE chooses to proceed, therefore, the Court of Appeal will settle the issue. Given the differing approaches taken by the judges in the lower court to Scope 3 emissions, it will be interesting to see how the judgment of the Court of Appeal in the present case interacts with its decision in Finch v Surrey County Council. Having declined to provide specific examples in that case of circumstances in which the connection between a proposed project and a putative effect might be sufficiently close to justify taking Scope 3 emissions into account when carrying out an EIA, the Court will now be forced to decide whether the connection between the planned project and the end-use emissions in the present case is so close as to make a decision to exclude them unreasonable.

The bar for success for such challenges is extremely high and the weight of recent case law is firmly against the Appellant. It would be foolish to try to predict the outcome of the appeal but, for all the reasons set out in my piece last October, one cannot help but suspect that it will be dismissed. However, given the manifest flaws in the UKEF climate change report and the scale of the GHG emissions that the project would produce, if ever there was a case to test the theory that the UK courts will never overturn a government decision on climate change grounds, this could be it.

What I’ve been up to this week

It is exam season on the Bar course, so much of my time has been taken up with preparing for assessments. But last Wednesday I took an evening off to go and see Ralph Fiennes in David Hare’s new play at the Bridge Theatre. In ‘Straight Line Crazy’, Fiennes plays Robert Moses, the hugely influential and controversial urban planner and master builder, whose decades-long career shaped much of the modern look and layout of the New York metropolitan area. After a slow start, the play worked its way up to a pretty devastating second act, and addressed many mid-twentieth-century arguments — about road-building, gentrification, access to the open space, and structural racism in planning — which are still awfully topical today.

The Supreme Court giveth, and the Supreme Court taketh away: How to terminate a fixed-term tenancy

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At the start of a bumpy road, there is a checkpoint. At the checkpoint, there is a sign, which reads: IF YOU HAVE A VEHICLE, YOU CAN PASS. Does this mean that you have to use your vehicle to pass the checkpoint? Or do you only have to bring the vehicle with you to the checkpoint, and then you can pass on foot? Or is not even that required, and you only need to own a vehicle, wherever it is, in order to pass?

This is my extremely clumsy attempt to analogise the questions that were before the United Kingdom Supreme Court in Croydon London Borough Council v Kalonga [2022] UKSC 7. This case was not about road use, but about the circumstances and ways in which a public-sector landlord can terminate a fixed-term secure tenancy before its natural conclusion. Given the number of fixed-term secure tenancies granted by local authorities in England, and in particular the popularity since its introduction in 2012 of a kind of fixed-term tenancy called a flexible tenancy, it is surprising that this issue was uncertain. But now that, as of last week, the Supreme Court has had its say, the position is settled, and if it is not crystal-clear, that is all the more reason for us to take a moment to wrap our heads around it. I have tried to make this post accessible to those with no knowledge of social housing law, so I hope that specialists will forgive any over-explanation or over-simplification and skip over those parts.

The case in the Supreme Court was the second appeal against the decision of the High Court on a preliminary issue. This means that the legal arguments were made on the basis of assumed facts, before a proper trial. The detailed facts or assumed facts of the case are not material but the procedural history is as follows. Ms Kalonga had a five-year flexible tenancy with Croydon Borough Council. Two years into the tenancy, Croydon served a notice on Ms Kalonga seeking to terminate the tenancy and to recover possession of the property. Croydon relied on grounds 1 and 2 of Schedule 2 to the Housing Act 1985, which are rent arrears and anti-social behaviour respectively. Later in the proceedings, Croydon emphasised that it did not rely on forfeiture. Ms Kalonga challenged the possession claim on the basis that the only way in which a flexible tenancy can be terminated early is by way of a forfeiture clause included in the tenancy agreement. A preliminary issue was identified: “How does a landlord under a secure flexible tenancy obtain possession during the fixed term?”. The County Court transferred the trial of this issue to the High Court. The High Court’s decision was appealed to the Court of Appeal and from there to the Supreme Court. There was a second issue, namely whether Ms Kalonga’s tenancy agreement did in fact contain a forfeiture clause. For the sake of focussing on the broader issue, I am not going to discuss this here.

The disagreement is rooted in section 82 of the Housing Act 1985. This section provides for the termination of a fixed-term tenancy such as a flexible tenancy (a “tenancy for a term certain”, in the language of the Act). Any tenancy is primarily a contractual relationship between a landlord and a tenant, giving rise to contractual and proprietary rights as specified in the written agreement. The Housing Acts add to this legal position in the cases of certain kinds of tenancies, usually those granted by public-sector landlords. One important way in which they do this is by providing for security of tenure by specifying the ways in which a tenancy can be brought to an end beyond what is generally possible using a tenancy agreement. This is what section 82 does. The full wording of section 82 is as follows:

82 Security of tenure.

(1) A secure tenancy which is either—
(a) a weekly or other periodic tenancy, or
(b) a tenancy for a term certain but subject to termination by the landlord,
cannot be brought to an end by the landlord except as mentioned in subsection (1A).

(1A) The tenancy may be brought to an end by the landlord—
(a) obtaining—
(i) an order of the court for the possession of the dwelling-house, and
(ii) the execution of the order,
(b) obtaining an order under subsection (3), or
(c) obtaining a demotion order under section 82A.

(2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed.

(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.

(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

This section is not very easy to understand, which is why it took so much litigation to establish what it means. An important distinction to be borne in mind when tackling the section is between the three remedies under subsections (1A)(a), (1A)(b) and (1A)(c). These are the three different ways in which a secure tenancy can be brought to an end.

Subsection (1A)(a) provides for a possession order. This is a procedurally relatively straightforward remedy, which requires the landlord to show that one of the grounds for possession listed in Schedule 2 to the 1985 Act is made out (for example, rent arrears), and, sometimes, that it is reasonable for the court to make a possession order.

Subsection (1A)(b), which refers to subsection (3) provides for cases in which there is a forfeiture clause in the tenancy agreement. A forfeiture clause is basically a written clause that provides for the tenancy to be terminated early if the tenant breaches a term of the agreement. If a landlord seeks to rely on a forfeiture clause to terminate the tenancy because a tenant has breached an obligation under the tenancy, the tenant will have the opportunity to ask the court to grant relief from forfeiture, and not terminate the tenancy. The court will usually do so if the tenant can remedy their breach and undertakes to abide by the terms of the tenancy from then on. Subsection (3) explains that, if the court reaches the end of this process and would ordinarily make a forfeiture order, it will make a different kind of order effectively replacing the fixed-term tenancy with a periodic tenancy.

Subsection (1A)(c) refers to a demotion order, which can be made in cases of anti-social behaviour or unlawful use of the property. A demotion order does not terminate the tenancy, but reduces the tenant’s security of tenure for a period of a year or more, making it much easier for the landlord to recover possession at any time during that period.

The main takeaway is that, for landlords wishing to terminate a tenancy, the subsection (1A)(a) route, leading to a possession order, is generally preferable to the subsection (1A)(b) route, leading to an order in lieu of forfeiture, because the subsection (1A)(a) route is much more likely to lead to the timely vacation of the property by the tenant.  

With this in mind, we can contemplate the first major question in section 82: subsection (1)(b). What is “a tenancy for a term certain but subject to termination by the landlord”? A tenancy for a term certain is a fixed-term tenancy. But is a tenancy only “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, which can provide a route to termination? Or is a tenancy “subject to termination by the landlord” if there is any way in which a landlord can bring it to an end, such as a break clause or an applicable Schedule 2 ground?

Zooming out to view the whole section, including subsection (3), a second question occurs to us. If a tenancy is “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, can it only be terminated by using that clause to obtain an order in lieu of forfeiture? Or, if there is a forfeiture clause, meaning that the tenancy is “subject to termination by the landlord”, can the landlord simply pursue a possession claim?

These questions have high stakes. On the one hand, if a fixed-term tenancy can only be terminated by the landlord by relying on a forfeiture clause in the tenancy agreement, tenants’ security of tenure would be excellent and landlords’ flexibility small, because, first, not all tenancy agreements contain a forfeiture clause, and, second, the forfeiture process is more tenant-friendly than the possession claim process. On the other hand, if a fixed-term tenancy can be terminated by the landlord using the possession claim process as long as there is any provision in the tenancy agreement for early termination, such as a break clause, tenants’ security of tenure would be limited and landlords’ flexibility excellent, since possession could, in appropriate circumstances, be sought on the basis of a no-fault ground in Schedule 2, such as intention to redevelop the property.

What did the courts make of these questions? The judge in the High Court, Tipples J, decided the first question in favour of Ms Kalonga and the second in favour of Croydon ([2020] EWHC 1353 (QB); [2020] 1 WLR 4809). A fixed-term tenancy could only be terminated early if it contained a forfeiture clause: that was what “subject to termination by the landlord” meant. But, if it contained such a clause, the landlord did not need to use it to terminate the tenancy, but could choose to pursue a possession claim. On Croydon’s appeal, the Court of Appeal affirmed Tipples J’s decision on the first question but disagreed on the second question ([2021] EWCA Civ 77; [2021] 2 WLR 1069). For Arnold LJ, with whom King and Asplin LJJ agreed, not only did there need to be a forfeiture clause in the tenancy agreement for a tenancy to be “subject to termination by the landlord”, but the landlord was also obliged to rely on this clause if it sought to terminate the tenancy. In other words, the Court of Appeal held that a fixed-term tenancy could only ever be brought to an end by an order in lieu of forfeiture, and that the regular possession claim process was never an option.

Croydon appealed again to the Supreme Court. Writing for the court, Lord Briggs considered that both of the cases presented by the parties were too extreme. On Croydon’s case, a model tenant would have their contractual and proprietary rights severely diminished by the Housing Act 1985, because possession could be sought in circumstances not contemplated in the tenancy agreement. On Ms Kalonga’s case, what appeared to be menu of options for landlords provided by subsection (1A) was ignored, and fixed-term tenancies could only be terminated by an order in lieu of forfeiture, which did not appear to be a natural meaning of the provisions.

Lord Briggs found what he considered to be the way between Scylla and Charybdis by paying close attention to the statutory language and by being guided by the central purpose of the Housing Acts 1980 and 1985. In his view, this was to add to, and not take away from, tenants’ contractual security of tenure. The words “cannot be brought to an end by the landlord except” in subsection (1) did not add any means of termination, but limit the means of termination from among those already available to the landlord. And when is a means of termination available to the landlord? A tenancy is only “subject to termination by the landlord” when a provision such as a break clause or a forfeiture clause is exercisable, that is, when the tenancy has obtained for the length of time required before a break clause can be used, or when the tenant falls foul of a forfeiture clause by breaching the tenancy agreement. It is not enough for such a clause to be in the tenancy agreement. The conditions must be such that landlord has the right to use it. 

The upshot of this is that, if a tenancy agreement contains a provision for early termination based on anything other than the fault of the tenant, the landlord may rely on that provision to apply for a standard possession order. If the only provision for early termination is a forfeiture clause, requiring the fault of the tenant, the landlord will have to obtain an order in lieu of forfeiture in order to recover possession, giving the tenant the opportunity to apply for relief from forfeiture. If there is no provision at all for early termination, the tenancy cannot be terminated before the end of the term.  

When the Supreme Court’s judgment was handed down last week, this issue had long since ceased to be material to Ms Kalonga’s situation. Her five-year flexible tenancy had expired and she continued to reside at the property under a follow-on periodic tenancy. But this judgment will help local authority landlords and tenants across England. Landlords can have confidence, based on the terms of their tenancy agreements, in which fixed-term secure tenancies are capable of being terminated early for property management purposes and can, for example, plan redevelopments accordingly. Tenants can rely on the terms of their agreements without having to worry about their being undercut by statute. The Supreme Court seems to have found a solution that is fair to all parties. Maybe next time the legislation will be drafted so that the courts are not put in the position of having to make these difficult judgements the best part of forty years after enactment.

What I’ve been watching this week

For violent, multilingual spies; for eerie opening credits sequences; for patterns of allegiance you will need to write down somewhere; for improbable sentimentality about America; for racist portrayals of other countries; for the emotional intensity of Claire Danes and Damian Lewis and the beard of Mandy Patinkin; it has to be Homeland.

Pupillage interviews: What to expect and how to make the most of them

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As pupillage interview season gets underway in earnest, we share our experiences of the process in previous cycles, and ten tips for making the most out of your interviews.

Sam:

I made three rounds of applications for pupillage. During that time, I was very lucky, or unlucky, to experience more pupillage interviews than I now care to recall. In my first year, I had one first-round interview and one assessed mini-pupillage. As my CV and confidence improved and my number of applications increased over the next two years, so did my number of interviews. The more interviews I did, the more at ease I became and the more reliably (though not perfectly) I was able to do my best. We hope to accelerate this process for you so that, if you are blessed with your first interview, you are not held back by inexperience. We have listed any pieces of advice best framed as action-points under ten tips below. Here are my broad impressions of the process.  

First: Most sets of chambers hold two rounds of interviews before making offers of pupillage. There are thus three filter-points. Which applicants will be selected for a first-round interview on the basis of their form? Which first-round interviewees will be selected for a second-round interview? And which second-round interviewees will be offered pupillage or placed on the reserve list? Some sets of chambers invite applicants for an assessed mini-pupillage as part of the process. This results in a process with more filter-points. Between form, first interview, mini-pupillage, second interview and offers, there are five opportunities to assess an applicant.

Of these points, the first is usually numerically the most challenging. Most sets of chambers invite a small minority of applicants for an interview, perhaps 10%. So, in a sense, if you are invited to an interview, you have cleared the highest hurdle, and deserve to be proud of yourself for that. But your competition will be stiffer at the interview stage.

At the first round, applicants will typically be interviewed by between two and four members of chambers, usually junior barristers. At the second round, it is more common to have a larger panel, maybe as large as seven, and for it to include a silk or two. Sometimes a single panel interviews all the interviewees, but sometimes different barristers interview different applicants.  

What happens in a pupillage interview? Unhelpfully, it varies. As a general rule, a first-round interview is a short, conversational, competency-based interview, while a second interview involves an advocacy or legal analysis exercise prepared shortly before the interview. However, every set has its own procedure. Here are some kinds of questions or exercises that might arise in a pupillage interview.

1. Competency question. This will usually address relatively directly a criterion or sub-criterion from the list that the set uses to assess applicants. Some sets helpfully publish this list on their website so that applicants can assess their own prospects and complete their form and interview preparation with the benefit of knowing how they will be assessed. Examples of such questions: “When have you used advocacy skills to persuade someone of something?” or “Tell us about a time you showed integrity.” Motivational questions and questions about an applicant’s knowledge of the set and the bar fall under this category: “Why do you want to be a barrister?” or “Why have you applied to Shoe Lane Chambers?” or “What would you like your practice to be like in ten years’ time?”   

2. CV- or form-based question. The panel might want you to expand on some work experience that you mentioned on your application form by asking you what you learned from it, or ask you what your most valuable piece of experience has been. They might ask you to explain why a certain thing is missing from your CV, such as mooting experience, or, if they are feeling mean, they might ask why your exam marks during one year at university were not as good as they could have been.

3. Prepared exercise. You could be sent a question or topic to prepare to discuss shortly before your interview. You might have between 15 and 30 minutes to prepare. Sometimes you are given a choice of topics and sometimes not. This could be a legal problem question, or it might be a law-related discussion subject, e.g. “Should jury verdicts be appealable?” or “Should remedies be discretionary in public law?” or “Should the UK forbid the development of any new airports or runways?” Alternatively, you might be sent a judgment and asked to prepare to summarise it and give your opinion about it.

4. On-the-spot advocacy exercise. Similar to the above, except that you might be given thirty seconds in the interview room to sit with the topic and gather your thoughts, or no time at all.

5. Curveball. Not all sets do this, but sometimes you will be asked something about your personal life or opinions that apparently has nothing to do with working as a barrister. E.g. “What new show would you pitch to Netflix if you had the opportunity?” or “Who is your favourite fictional villain?” Such a question may just be a chance for the barristers to see you in a relaxed state (if only), but usually there will be a quality that they are looking to measure, such as advocacy skills or articulacy while thinking on the spot.

6. Do you have any questions for us? Applicants will very often be asked this question at the end of the interview. Opinions differ as to whether you should make sure to have a question ready, but it is definitely preferable to say no than to ask a question to which the answer is available online.

Lois:

I was extremely lucky to get a pupillage offer at my first attempt. I applied during my GDL year, having taken a rather circuitous route into law. After completing a PhD on medieval bishops, I spent three years working as a policy officer in the non-profit sector. It was only when I was working from home during the first lockdown and contemplating the fact that I would be turning 30 the next year that I decided to take the plunge and pursue a career at the Bar.

I knew from my time working in policy that I had a broad interest in public law and a particular interest in planning and environmental work. I applied to nine sets, each of which specialised in this area to a greater or lesser extent, and received six invitations to first-round interview. The interview invitations were spread over quite a long period, so don’t panic if you haven’t yet heard back from your favourite sets. They may just be taking their time to shortlist. I ended up being called back for second rounds at some sets before I’d even had my first-round interviews at others.

The first round

My first-round interviews were all with panels of two or three mostly junior barristers. They were each around 20 to 30 minutes long, but the interviewing styles varied widely, as did the type and number of questions I was asked.

My first interview comprised a mixture of competency questions, looking for examples of skills that the chambers had not asked about on its application form, and questions testing candidates’ awareness of current affairs and legal news. I was also asked to talk about a time when I had had to apply a complex area of law and then explain said area of law to the panel. The most disconcerting aspect of this interview was how inscrutable the panel were. I emerged with absolutely no idea how I had done.

Another set filled the time with a ten-minute presentation and follow-up questions on one of a choice of five topics sent to candidates 30 minutes before the interview, followed by only three other questions. The interviewers were extremely friendly and provided lots of positive reinforcement. In fact, the whole thing felt more like having a conversation than doing an interview.

At a third chambers, a panel of three (who had obviously read my form carefully) kicked things off by asking me a charmingly whimsical question about whether I thought eleventh-century bishops would like the modern planning system, before firing tricky questions at me for twenty minutes and pushing back hard on many of my answers. The aim of this interview was clearly to see how candidates coped under pressure, more than trying to elicit any particular ‘right answers’.

Finally, there was the set which asked a series of disarming questions designed to elicit information about what candidates were like as people beyond what they had written on their application forms. They closed the interview by asking me to talk about a book I found emotionally meaningful, so of course every book I had ever read immediately fled my brain. I somehow found myself talking about my love of Lord of the Rings and emerged feeling very glad that I would never have to be cross-examined by the interview panel!

Perhaps unsurprisingly, the two sets where I felt that I had given my most predictable, generic and rehearsed answers were also the two that did not call me back for a second round. (Is completing my PhD really the achievement I am most proud of? To be honest, I am still not sure). I guess the moral of the story is to let your personality show a bit. And to talk about hobbits where possible…

The second round

Second round interviews tend to be longer than first rounds, though this isn’t always the case. At the chambers from which I eventually received an offer I was in and out in 20 minutes and convinced I had blown it because I had been told in advance that they were 40-minute slots. It is definitely wise not to second-guess how you have done from the length of the interview.

All four of my second rounds involved some form of advance preparation. Mostly this entailed reading a case or a problem question shortly in advance of the interview and then responding to questions about it, but one set required candidates to carry out a pre-prepared advocacy exercise on an unfamiliar area of law and submit a skeleton argument several days ahead of the interview.

The interview panels stayed fairly small for three of my second rounds, but at one set a panel of nine had the privilege of watching me spectacularly screw up my answer to a legal ethics question. If you are applying before you start the Bar course, I would highly recommend finding someone to practice ethics questions with ahead of time.

On the whole, my second-round interviews involved a lot more legal analysis than my first rounds and also more practical advocacy. Even at sets where I wasn’t asked to prepare for a formal ‘advocacy exercise’ I ended up having to do something akin to one, whether it was presenting submissions for a hypothetical appeal against a judgment given to me ahead of the interview, summarising the argument of my PhD thesis in two minutes, or responding to the question “what is the point of the National Housing Federation?” (my former employer) in one. All these were, in their various ways, testing candidates’ ability to think on their feet and prioritise their strongest arguments.

Across both first and second rounds I also received a number of questions aimed at testing candidates’ understanding of what barristers actually do, from how I would feel about acting for clients whose views and interests did not align with my own or those of my previous employers, to whether I would rather do more court or inquiry work, to what I would find most difficult about a career at the Bar. As Sam mentioned above, it is definitely not essential to ask a question at the end. I didn’t in any of my interviews and I certainly wouldn’t recommend trying to come up with a question just for the sake of it.

Overall, I enjoyed the interview process much more than I expected to. The intellectual challenge and variety of pupillage interviews made a nice change of pace after several years of more conventional job interviews and my interviewers were mostly lovely. I feel that coming to the process as a mature student definitely helped me to feel more at ease and I was relieved to find that my slightly unconventional CV and relative lack of legal work experience didn’t count against me.

Image from the excellent Defending the Guilty.

Ten tips:

  • Structure your answers. Barristers are in general obsessed with the number three. Not all answers will lend themselves to this kind of structure, but if you can divide your answer into two, three or four parts, begin your answer by saying “I have two/three/four points”, then say “my first point is” or “firstly” before each one, your answer will not only be much easier for the panel to understand than otherwise, but you will also sound more like the panel’s idea of a barrister yourself. If this becomes a lifelong habit that wins over judges and loses you friends, so be it.
  • Keep your answers short and sweet. Applicants’ answers are often too long. You may have a lot of worthwhile things to say, but if you wait to be interrupted by the panel, you may never finish speaking. This is especially the case if it is an unexpected question and you are building the road in front of you as you speak, but even a question like “Why do you want to be a barrister?” only wants a few snappy points or an easy-to-follow narrative. A little practice with a friend or listening back to your own recorded answers can help you to identify when you could be more concise. 
  • Re-read and annotate your form. Link the achievements you have included on your form to as many competencies as you can think of. You may be asked for examples of times you’ve demonstrated skills which are not explicitly addressed in the questions on the form. Identify anything particularly interesting or unusual that is likely to elicit a question. If you are an expert on eleventh-century bishops or keen on animal law, you are likely to get a lot of questions about this, so it pays to decide in advance how you can best pitch what makes you unique.
  • Plan answers to likely questions. You may get some curveball questions (as Sam discussed above) but a lot of questions will be predictable. You will be asked why you want to be a barrister, why a particular area of law, why a particular set? You don’t need to script answers to these questions word for word, but make sure you have clearly identified the key points you will make in response to each. Consider practicing with friends and family members, so that your responses will seem considered without seeming scripted. It’s also well worth writing down what questions you were asked immediately after each interview. It will help you prepare should you encounter them again.
  • All experience is useful experience. You may find yourself competing against people with significantly more legal work experience than you, or who have come top of their year on the Bar course, or won a whole host of moots. Try not to panic about this. An unconventional CV is not necessarily a disadvantage. It may help to make you stand out. Apparently unrelated jobs and hobbies can also provide a wealth of relevant examples of times you have demonstrated the skills needed to become a successful barrister. Teaching a class of 30 students means you can work under pressure, convey complex information clearly, and think on your feet. Running your own jewellery-making business on the side shows that you are self-motivated and know how to market yourself effectively. Volunteering at a local homeless shelter demonstrates your integrity and emotional intelligence.
  • Present yourself professionally. Expressions like this are laden with cultural assumptions. You should not try to be someone you aren’t or to fit what you think, or what you think others think, is the model of a barrister. Every aspect of your character that distinguishes you from the historically average barrister is something for you and the bar to embrace. What I mean is that you should treat the panel with respect, as in any job interview. This includes dressing as you would on a mini-pupillage or on work experience with solicitors. Suits are essential, unless you are specifically informed otherwise, and should be worn with a shirt and tie, a white blouse, or a dark dress underneath. 
  • Remember that interviewers are human too. They may have a particularly stressful case coming up next week. They may be relatively junior juniors interviewing for the first time alongside more senior members of chambers and anxious to make a good impression. Many pupillage interviews take place outside of ordinary working hours and that means that the panel are giving up some of their limited free time to interview you. Be polite, appreciative and empathetic. Remember that these will be your future colleagues if you are successful.
  • Try to relax. If this is not possible, try to appear relaxed, and you may find that you forget to feel nervous a few minutes in. There is no point pretending that there isn’t a power imbalance in the interview room, but the panel will be trying to identify applicants who could, in a couple of years, inspire confidence in professional and lay clients and hold their own in front of a grumpy judge. Be polite and respectful, but not meek. 
  • Do not worry if you have a difficult interview. If the panel pushes you to or beyond your limit, it is because they think you are worth pushing. If you spend the whole interview in your comfort zone, you may not have the opportunity to show your best. So if you feel out of your depth at any point, calm yourself by remembering that it is part of the process for everyone who eventually succeeds.
  • Give yourself credit. Many sets get hundreds of applications every year. To have got to the interview stage at all is a huge achievement. The interview process can be gruelling and it’s important to take time to celebrate your successes. Similarly, try not to take rejections at any stage too personally. There is always an element of chance. Sometimes a panel has to make a call between two apparently equal applicants, for example on the basis that one of them fits the culture of chambers better, which is very hard for applicants to gauge. It also only takes one super-applicant (an experienced solicitor or well-known academic in a relevant field) to change everyone’s prospects in a given year.

Animals in constitutions around the world

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Animal lives are shaped by human laws, though they do not elect or lobby or stand as lawmakers. And animals may benefit from those laws, though they do not draft pleadings or instruct counsel or make choices about the use of litigation in broader social change strategies. In terms of prevailing constitutional theory and practice, they are subjects, but not citizens; beneficiaries, but not enforcers, of law. They think, and feel, and communicate, but not in ways that allow them to speak for themselves in the languages of formal law.

Jessica Eisen, ‘Animals in the Constitutional State’, I•CON (International Journal of Constitutional Law) (2017), Vol. 15 No. 4, 909, p. 941

Animals occupy an interesting position within legal systems. Animals have traditionally been considered property or things in law, but there have always been laws designed to deal with animals’ unique character within that class. For one thing, animals have minds of their own, autonomous physical mobility, and the ability to reproduce. The same laws that govern chairs could not completely suit such creatures, so special laws for animals are required. For another thing, humans are sometimes sufficiently morally concerned about the treatment of animals or their well-being to seek to rebut the usual presumption that one may do whatever one wishes with one’s property. Animals are not unique in this respect – ask anyone who owns a listed building – but the nature of the legal protection that animals receive, when they do receive it, is different from the nature of protection granted to inanimate property because of the different kinds of harms that animals suffer. (I discussed this phenomenon in my first post on this blog.)

Above, Eisen identifies a third way in which animals might need to be treated as a special category. This is by constitutional law. If you are not a lawyer: roughly, constitutional law is the body of law setting out how the state is constituted: its component parts, their relations with one another, and their powers and duties towards individuals, often expressed in the form of a bill of rights. Constitutional law is usually some combination of a written constitutional document (a Constitution with a big C) and unwritten constitutional principles or values, which are developed and applied in judicial decisions. A written constitutional document is usually adopted by a process that at least claims to be democratic and derives its legitimacy from that fact. If animals are part of the community of beings whose lives are governed by law, how can a constitution validated only by humans legitimately apply to animals? How could a constitution be legitimate with respect to animals? And how could, or should, a constitution recognise the status of animals as worthy of protection if the law treats them as property?

These questions assume that animals are part of the community of beings whose lives are governed by law and that animals are worthy of protection. The first assumption is a not-widely-held answer to a difficult question of legal theory. However, the second assumption is a widely-held view. It is not universal, and the nature and scope of the legal protection that animals deserve are controversial. But, without entering heavily-contested territory or getting into legal-theoretical weeds, we can quite safely ask: How can animals be protected by constitutions?

I hope to write a number of blog posts addressing this question. This post is a short survey of the countries that have explicitly mentioned the protection of animals in their constitutional documents. There are nine such countries: Austria, Brazil, Egypt, Germany, India, Italy, Luxembourg, Slovenia and Switzerland. Without dwelling on every example, we can see the range of approaches that have been adopted so far and their effects.

Constitutional provisions protecting animals have been classified in a number of ways, but no one ever got rich using someone else’s analytical framework. I think that a helpful way to divide up these provisions is between subject-matter duties, vague substantive duties and specific substantive duties. A subject-matter duty arises when a state is obliged to make laws concerning a particular subject, but the constitution does not guide or limit the state as to the content of those laws. A vague substantive duty arises when a state is obliged to undertake a particular activity or respect a particular value but is not obliged to achieve a particular result. A specific substantive duty arises when a state is obliged to achieve a particular result. We can classify our provisions along these lines by taking their text at face-value, but the interpretation of a provision will depend on legal doctrines and culture in the country.

We can start with the subject-matter duties. Article 72 of the Constitution of the Republic of Slovenia provides as follows (I have emphasised the crucial words for our purposes):

Zdravo življenjsko okolje
Vsakdo ima v skladu z zakonom pravico do zdravega življenjskega okolja. Država skrbi za zdravo življenjsko okolje. V ta namen zakon določa pogoje in načine za opravljanje gospodarskih in drugih dejavnosti.
Zakon določa, ob katerih pogojih in v kakšnem obsegu je povzročitelj škode v življenjskem okolju dolžan poravnati škodo.
Varstvo živali pred mučenjem ureja zakon.

Healthy living environment
Everyone has the right in accordance with the law to a healthy living environment. The state shall promote a healthy living environment. To this end, the conditions and manner in which economic and other activities are pursued shall be established by law.
The law shall establish under which conditions and to what extent a person who has damaged the living environment is obliged to provide compensation.
The protection of animals from cruelty shall be regulated by law.

The reason that this is only a subject-matter duty is that the fact that animal protection “regulated by law” does not guarantee any substantive level of animal protection. While it is arguable whether this provision would be satisfied if a law stated animals shall not be protected from cruelty (is this the regulation of the protection of animals from cruelty?), it is hard to interpret the provision as requiring the state to prohibit any specific acts.

Very recently, the Italian Chamber of Deputies approved a constitutional amendment that will, among other things, brings animals into the Constitution of the Italian Republic. Article 9 will now say as follows:

La Repubblica promuove lo sviluppo della cultura e la ricerca scientifica e tecnica. Tutela il paesaggio e il patrimonio storico e artistico della Nazione. Tutela l’ambiente, la biodiversità e gli ecosistemi, anche nell’interesse delle future generazioni. La legge dello stato disciplina i modi e le forme di tutela degli animali.

The Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the nation. It protects the environment, biodiversity and ecosystems, also in the interest of future generations. The law of the state regulates the ways and forms of animal protection.

We can call this a subject-matter duty for the same reasons as apply to Slovenia.

Do these provisions have any value with respect to protecting animals? Even if they do not set a minimum standard of animal protection, they require the state to pass some kind of law relating to animal protection. Unless the legislature (or the executive, depending on the national system) can devise and pass a law unnoticed, there will have to be a national conversation of some sort about appropriate standards of protection for animals. Constitutional provisions imposing subject-matter duties are therefore of political value with respect to protecting animals.

Next we have vague substantive duties. Article 11 bis of the Constitution of the Grand Duchy of Luxembourg provides as follows:

L’Etat garantit la protection de l’environnement humain et naturel, en œuvrant à l’établissement d’un équilibre durable entre la conservation de la nature, en particulier sa capacité de renouvellement, et la satisfaction des besoins des générations présentes et futures. Il promeut la protection et le bien-être des animaux.

The State guarantees the protection of the human and cultural environment, and works for the establishment of a durable equilibrium between the conservation of nature, in particular its capacity for renewal, and the satisfaction of the needs of present and future generations. It promotes the protection and well-being of animals.

Similarly, Austrian constitutional law no. 111/2013 on sustainability, animal welfare etc, provides at paragraph 2, as follows:

Die Republik Österreich (Bund, Länder und Gemeinden) bekennt sich zum Tierschutz.

The Republic of Austria (at the federal, state and local levels) commits itself to the protection of animals.

These provisions commit the state to a substantive position on the issue of animal welfare. It cannot neglect or choose to attach no importance to the protection and well-being of animals. It must promote them. But this is such a high-level duty that it is difficult to see how it would be enforced by a court or applied to a particular context.

A further example can enlighten us. Article 20a of the Basic Law (Grundgesetz) for the Federal Republic of Germany, which is the German constitution, provides as follows:

Der Staat schützt auch in Verantwortung für die künftigen Generationen die natürlichen Lebensgrundlagen und die Tiere im Rahmen der verfassungsmäßigen Ordnung durch die Gesetzgebung und nach Maßgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.

Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

This is another vague substantive duty. The state is committed to protecting animals, but what does this mean? Elien Verniers argues that this provision has both political and legal effects. Legally speaking, it allows fundamental constitutional rights to be limited on the basis of the protection of animals, which is a constitutional value of equal status. This has resulted in little change in judicial decisions involving the rights to freedom of research and freedom of religion, but it has had an impact on the scope of the rights to freedom of artistic expression and freedom of teaching. While before the adoption of this constitutional provision, constitutional freedom of artistic expression or teaching could not be limited on the basis of animal protection, now that can happen, because animal protection is a constitutionally-protected value. This led the Cologne Administrative Court to forbid educational experiments on mice when they could instead learn by watching videos (Verwaltungsgericht Köln, 22.08.2018 – 21 K 11572/17). This example shows that vague substantive duties can have an effect in practice, which will depend on how the constitutional law works in a given country.1

Now we have specific substantive duties. Article 45 of the Constitution of the Arab Republic of Egypt provides as follows:

.تلتزم الدولة بحماية بحارها وشواطئها وبحيراتها وممراتها المائية ومحمياتها الطبيعية
ويحظر التعدى عليها، أوتلويثها، أواستخدامها فيما يتنافى مع طبيعتها، وحق كل مواطن فى التمتع بها مكفول، كما تكفل الدولة حماية وتنمية المساحة الخضراء في الحضر، والحفاظ على الثروة النباتية والحيوانية والسمكية، وحماية المعرض منها للانقراض أو الخطر، والرفق بالحيوان، وذلك كله على النحو الذى ينظمه القانون

The State shall protect its seas, shores, lakes, waterways and natural protectorates.
Trespassing, polluting or misusing any of them is prohibited. Every citizen is guaranteed the right of enjoying them. The State shall protect and develop the green space in the urban areas; preserve plant, animal and fish resources and protect those under the threat of extinction or danger; guarantee humane treatment of animals, all according to the law.

This provision requires the state to guarantee “al-rifq bil-hayawan” (the humane treatment of animals or animal welfare). This is a specific substantive duty because, if the state fails to guarantee animal welfare, for example by allowing cruel practices, the state can be said to be in breach of the duty. The state must make laws that guarantee the welfare of animals and enforce them effectively.

Another specific substantive duty is to be found in Brazil. Article 255 of the Constitution of Brazil provides, in relevant part, as follows:

Todos têm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do povo e essencial à sadia qualidade de vida, impondo-se ao Poder Público e à coletividade o dever de defendê-lo e preservá- lo para as presentes e futuras gerações.
§ 1º Para assegurar a efetividade desse direito, incumbe ao Poder Público:
[…]
VII – proteger a fauna e a flora, vedadas, na forma da lei, as práticas que coloquem em risco sua função ecológica, provoquem a extinção de espécies ou submetam os animais a crueldade.

All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.
Paragraph 1 – In order to ensure the effectiveness of this right, it is incumbent upon the Government to:
[…]
VII. protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.

The provision is quite clear that the government must prohibit “as práticas” (literally the practices, but translatable as all practices, as in the official translation) that subject animals to cruelty. The value of this provision is illustrated by judicial decisions striking down laws that permit such practices. One such case concerned the practice of vaquejada (STF, ADI No. 4983, Relator: Min. Marco Aurélio, 06.10.2016, Diário Da Justiça Eletrônico [D.J.E.], 10.10.2016, 215). This is a traditional sport in north-east Brazil, involving two horse-riders who between them try to direct a bull into a marked area before knocking the bull over. In 2016, the Supreme Federal Court of Brazil (Supremo Tribunal Federal), sitting en banc, ruled, by a majority of 6 to 5, that the law passed by the State of Ceará permitting vaquejada was unconstitutional and void because it permitted the infliction of unnecessary suffering on animals. This case shows the force of a specific substantive constitutional duty, but it also shows a danger inherent in overturning democratically-approved laws. The decision was very controversial, and resulted not only in the passing by other states in Brazil of similar laws in protest (which were presumably also unconstitutional), but also in the adoption of a constitutional amendment creating a specific exception from the constitutional prohibition of cruel practices for traditional cultural practices (meaning that the new laws now comply with the constitution). It is a topic for another time, but one step forwards can be followed by two steps back when legal developments are far removed from popular opinion.

Now we have seen three kinds of constitutional provision protecting animals: subject-matter duties, vague substantive duties and specific substantive duties. We have two more countries to visit, one that combines several kinds of duties and another that has an unusual constitutional provision.

Switzerland is regarded as a progressive country when it comes to laws protecting animals. Although the electorate of the canton of Basel recently voted not to extend fundamental rights to primates in a long-awaited referendum, Switzerland has a reputation for legally innovative animal welfare laws. This is reflected in its constitutional law. Four articles of the Federal Constitution of the Swiss Federation are of interest to us. They provide as follows:

Art. 78 Natur- und Heimatschutz
1 Für den Natur- und Heimatschutz sind die Kantone zuständig.
2 Der Bund nimmt bei der Erfüllung seiner Aufgaben Rücksicht auf die Anliegen des Natur- und Heimatschutzes. Er schont Landschaften, Ortsbilder, geschichtliche Stätten sowie Natur- und Kulturdenkmäler; er erhält sie ungeschmälert, wenn das öffentliche Interesse es gebietet.
3 Er kann Bestrebungen des Natur- und Heimatschutzes unterstützen und Objekte von gesamtschweizerischer Bedeutung vertraglich oder durch Enteignung erwerben oder sichern.
4 Er erlässt Vorschriften zum Schutz der Tier- und Pflanzenwelt und zur Erhaltung ihrer Lebensräume in der natürlichen Vielfalt. Er schützt bedrohte Arten vor Ausrottung.
5 Moore und Moorlandschaften von besonderer Schönheit und gesamtschweizerischer Bedeutung sind geschützt. Es dürfen darin weder Anlagen gebaut noch Bodenveränderungen vorgenommen werden. Ausgenommen sind Einrichtungen, die dem Schutz oder der bisherigen landwirtschaftlichen Nutzung der Moore und Moorlandschaften dienen.

Art. 78 Protection of natural and cultural heritage
1 The protection of natural and cultural heritage is the responsibility of the Cantons.
2 In the fulfilment of its duties, the Confederation shall take account of concerns for the protection of natural and cultural heritage. It shall protect the countryside and places of architectural, historical, natural or cultural interest; it shall preserve such places intact if required to do so in the public interest.
3 It may support efforts made for the protection of natural and cultural heritage and acquire or preserve properties of national importance by contract or through compulsory purchase.
4 It shall legislate on the protection of animal and plant life and on the preservation of their natural habitats and their diversity. It shall protect endangered species from extinction.
5 Moors and wetlands of special beauty and national importance shall be preserved. No buildings may be built on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.

Art. 79 Fischerei und Jagd
Der Bund legt Grundsätze fest über die Ausübung der Fischerei und der Jagd, insbesondere zur Erhaltung der Artenvielfalt der Fische, der wild lebenden Säugetiere und der Vögel.

Art. 79 Fishing and hunting
The Confederation shall lay down principles on fishing and hunting and in particular on the preservation of the diversity of fish species, wild mammals and birds.

Art. 80 Tierschutz
1 Der Bund erlässt Vorschriften über den Schutz der Tiere.
2 Er regelt insbesondere:
a. die Tierhaltung und die Tierpflege;
b. die Tierversuche und die Eingriffe am lebenden Tier;
c. die Verwendung von Tieren;
d. die Einfuhr von Tieren und tierischen Erzeugnissen;
e. den Tierhandel und die Tiertransporte;
f. das Töten von Tieren.
3 Für den Vollzug der Vorschriften sind die Kantone zuständig, soweit das Gesetz ihn nicht dem Bund vorbehält.

Art. 80 Protection of animals
1 The Confederation shall legislate on the protection of animals.
2 It shall in particular regulate:
a. the keeping and care of animals;
b. experiments on animals and procedures carried out on living animals;
c. the use of animals;
d. the import of animals and animal products;
e. the trade in animals and the transport of animals;
f. the killing of animals.
3 The enforcement of the regulations is the responsibility of the Cantons, except where the law reserves this to the Confederation.

Art. 120 Gentechnologie im Ausserhumanbereich
1 Der Mensch und seine Umwelt sind vor Missbräuchen der Gentechnologie geschützt.
2 Der Bund erlässt Vorschriften über den Umgang mit Keim- und Erbgut von Tieren, Pflanzen und anderen Organismen. Er trägt dabei der Würde der Kreatur sowie der Sicherheit von Mensch, Tier und Umwelt Rechnung und schützt die genetische Vielfalt der Tier- und Pflanzenarten.

Art. 120 Non-human gene technology
1 Human beings and their environment shall be protected against the misuse of gene technology.
2 The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species.

We can see our three kinds of provision concerning animals here. First, and mostly, we have subject-matter duties. The first sentence of Article 78(4) and all of Article 79 and Article 80 set out domains in which the state is obliged to pass laws without specifying what those laws should achieve. Second, the commitment in Article 120 to take account of the dignity of living beings is a vague substantive duty. It is an interesting provision because it recognises at a constitutional level the distinctively Swiss legal value of animal dignity, but it is not hard-edged and it is unclear whether it applies in any way outside the direct context of genetic technology. Third, the second sentence of Article 78(4) is a specific substantive duty. The state must pass laws that protect endangered species from extinction.

Our last country is India, and it is unique because the constitutional provision we are looking at imposes a duty not on the state but on the individual citizen. Article 51A of the Constitution of India provides, in relevant part, as follows:

Fundamental duties
It shall be the duty of every citizen of India
[…]
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
[…]

As written, this would not grant animals any real protection at all. Not only does not concern the law-making power of the state, but it only requires citizens to “have compassion”, not to act with compassion. However, it has been interpreted expansively. This is, in the first place, because the constitutional role of fundamental duties has been expanded beyond what is obvious in the text. This was established in AIIMS Students’ Union vs All India Institute of Medical Sciences & others (2002) 1 SCC 428, in which R. C. Lahoti J said as follows:

Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. […] Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values

In Indian constitutional law, the values underlying fundamental duties can serve as aids to statutory interpretation and can ground limitations on state power. This was seen in the context of Article 51A(g) of the Constitution in Animal Welfare Board of India v Nagaraja and others (2014) 7 SCC 547. In this case, the Supreme Court of India considered the compatibility of state legislation permitting jallikattu, a traditional form of entertainment involving bulls, with the federal Prevention of Cruelty to Animals Act 1960. The court (K. S. Panicker Radhakrishnan J) concluded that jallikattu violated the Act and that laws permitting it were invalid. It did so by using Article 51A(g) of the Constitution to read new content into the Act and to give the protections in the act the normative force of constitutional rights. The judgment takes some time to expose fully but these three paragraphs show how the

32. Sections 3 and 11, as already indicated, therefore, confer no right on the organisers of Jallikattu or bullock-cart race, but only duties, responsibilities and obligations, but confer corresponding rights on animals. Sections 3, 11(1)(a) & (o) and other related provisions have to be understood and read along with Article 51A(g) of the Constitution which cast fundamental duties on every citizen to have “compassion for living creatures”. Parliament, by incorporating Article 51A(g), has again reiterated and re-emphasised the fundamental duties on human beings towards every living creature, which evidently takes in bulls as well. All living creatures have inherent dignity and a right to live peacefully and right to protect their well-being which encompasses protection from beating, kicking, over-driving, over-loading, tortures, pain and suffering etc. Human life, we often say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals have also got intrinsic worth and value. Section 3 of the PCA Act has acknowledged those rights and the said section along with Section 11 cast a duty on persons having charge or care of animals to take reasonable measures to ensure well-being of the animals and to prevent infliction of unnecessary pain and suffering.

54. […] These five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.

56. Rights guaranteed to the animals Under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals Under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution, which is the magna carta of animal rights.

The point of producing these paragraphs is not to show you exactly how the Indian constitution protects animals. That would require several blog posts. The point is that textually vague and unpromising constitutional provisions can have a profound legal effect when the system of constitutional law enables an underlying value to be identified and applied independently. Does this mean that our analysis of subject-matter duties, vague substantive duties and specific substantive duties is worthless, because the effect of a constitutional provision depends more on the constitutional context than on the words of the provision?

I think not, for two reasons. First, words do matter. India’s muscular constitutional jurisprudence makes it an outlier, at least among the countries we have looked at, with respect to how far from the literal meaning of the text courts are willing to go. In most countries, the precise formulation of a constitutional provision determines its effect, so it is useful to understand the possible formulations. Second, a country that wishes to add a provision concerning animal protection to its constitution may have one of a wide range of intentions. Maybe the population and the legislators are overwhelmingly pro-animal-rights, or maybe a constitutional amendment is the controversial result of a coalition agreement. Democratic considerations require a variety of options to be available to constitutional drafters. And, relatedly, if law-makers understand that the possibilities are more nuanced than having fundamental rights for animals on the one hand or no protection for animals on the other, it is more likely that animals will end up appearing in constitutions at all.

1Verniers’ full analysis of the effect of the German constitutional provision can be read at: Elien Verniers, ‘The impact of including animals in the constitution – Lessons learned from the German animal welfare state objective’, Global Journal of Animal Law (2020) 8.

What I’ve been watching this week

I have returned to, and finished, North Square, the 2000 barrister drama series by Peter Moffat. It’s not as polished as Silk but it is fantastic entertainment, held together by Phil Davis as the terrifying senior clerk. And it’s available to watch for free on All 4.

The birds and the bees: Biodiversity Net Gain in practice

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After a long process of scrutiny, debate and amendment, the Environment Act 2021 (“the Act”) finally received royal assent on the 9th November last year. It sets out a statutory framework for post-Brexit environmental protection and regulation, to be overseen by the newly created Office for Environmental Protection.[1] Some of the provisions of the Act simply carry over existing protections from EU legislation, but others are genuinely new. One of the new provisions concerns mandatory Biodiversity Net Gain (BNG) requirements to be introduced as a condition of planning permission. The principle behind these requirements is that new developments should leave the natural environment in a measurably better state than they found it in order to be acceptable in planning terms.

The relevant provisions in the Act itself are to be found at Part 6: sections 98–101 and Schedule 14 and are summarised below.

  • The Town and Country Planning Act 1990 has been amended to introduce a mandatory minimum 10% gain in biodiversity.
  • The requirement that this gain be calculated according to Natural England’s Biodiversity Metric 3.0 and that the proposed steps to be taken to achieve it are set out in a developer’s ‘Biodiversity Gain Plan’.
  • BNG will be deliverable on-site, off-site, or via the purchase of ‘biodiversity credits’ from central government.
  • Habitats delivered via the policy are to be secured for at least thirty years via planning obligations or conservation covenants.
  • Biodiversity gain sites will be registered on a newly established national public register. 

The policy is due to come into force in November 2023 but, notwithstanding the provisions of the Environment Act, many details of its operation are yet to be fleshed out via secondary legislation. Defra is currently consulting on how BNG will work in practice.[2] The subject is a complex and technical one and I do not profess to be any kind of expert, but in the remainder of this piece I hope to provide an overview of the scope and some of the key features of what is being proposed, as well as considering a few potential barriers to the successful implementation of the policy and the adequacy or otherwise of the government’s proposed solutions.

What kinds of development are covered by the new proposals?

Under current proposals, the new BNG requirements will apply to a wider range of developments than initially anticipated when the Environment Bill was first tabled. For example, a government amendment introduced in June of last year expanded the requirement to include Nationally Significant Infrastructure Projects (NSIPs). Defra’s consultation document notes that there may be circumstances where a particular NSIP is unable to deliver the 10% minimum BNG required from schemes delivered through the normal planning process but prefers a reduced percentage target in such circumstances to a blanket exception for large scale projects [p. 41]. One can only imagine the number of planning inquiries which are likely to arise after the introduction of the policy, dealing with the question of whether a particular percentage target is appropriate in a given set of circumstances Crucially, however, 10% will remain the baseline target, even for NSIPs.

The government is also now proposing to apply the 10% target to schemes on brownfield sites, despite previously considering exempting such developments from BNG requirements. The rationale behind the change is that brownfield exemptions would “deliver little added benefit and would greatly complicate the requirement’s scope for developers and planning authorities alike” as well as a stated desire for the policy to benefit people as well as wildlife, by improving the biodiversity of sites in urban and suburban areas, where brownfield land tends to be concentrated [p. 26]. Previously considered exemptions for temporary planning permissions and schemes in conservation areas and national parks have also been abandoned.[3]

Some exceptions remain in the consultation proposals, including householder planning applications such as extensions and permitted development, the former presumably in the interests of avoiding unfairness to individual householders for the sake of minimal benefits, and the latter because permitted development rights operate outside of the usual planning process and do not normally involve substantial additional land take or construction work. Defra is also considering exemptions for self-build, custom build, and the creation of biodiversity gain sites themselves (the role of these sites is discussed more fully below) [pp. 23–27]. Nevertheless, the consultation document seems to indicate a commitment to apply the policy more widely than many in the environmental and development sectors had previously anticipated.

How will the policy work?

The consultation document makes clear that the new statutory BNG requirement is designed to complement the existing biodiversity mitigation hierarchy set out in paragraph 180a of the National Planning Policy Framework. Developers should in all cases aim to avoid or reduce biodiversity impacts through site selection and layout. In terms of meeting their 10% BNG target, they should preferably seek to do so through on-site improvements, with the resulting habitats being secured for at least thirty years via planning obligations or conservation covenants. In the event that on-site delivery is not feasible, developers will be permitted to meet the requirement off-site, either through improvements elsewhere on their land, or by purchasing off-site benefits to be achieved via biodiversity gain sites elsewhere. As a last resort, if no other option is feasible, they may purchase biodiversity credits from central Government. The biodiversity gains and losses of a development will be measured in ‘biodiversity units’, using Natural England’s Biodiversity Metric 3.0. This metric uses habitats as a proxy for biodiversity and calculates units by taking account of their type, extent and condition. Developers will be able to purchase biodiversity units on the market when meeting their BNG target via off-site contributions.

Under the new policy, all applications for planning permission which do not fall under one of the proposed exceptions will need to provide initial BNG information, including:

  • the pre-development biodiversity value,
  • the proposed approach to enhancing biodiversity on-site, and
  • any proposed off-site biodiversity enhancements (including the use of statutory credits) that have been planned or arranged for the development.

To fully discharge the new planning condition, local planning authorities will need to approve a development’s biodiversity gain plan. These plans should offer a more detailed road map for how the developer proposes to achieve the benefits to biodiversity indicated as part of their initial planning application. The consultation document contains a template plan at Annex B. The approval of a biodiversity gain plan must take place before development starts [p. 13].

Biodiversity gain sites will be registered on a newly established Public Biodiversity Gain Site Register, to aid enforcement and avoid double counting. In the interests of transparency, the register will be designed so that local communities are able to access information on the delivery of sites and monitor their progress over time. 

Will the policy be effective?

While the introduction of the mandatory BNG policy has been broadly welcomed in the environmental sector, conservationists and biodiversity experts have raised a number of serious issues with the current proposals and questioned the efficacy of the government’s proposed solutions to them. A non-exhaustive list of these issues includes fears over the loss of irreplaceable habitats, the design of the algorithm for Natural England’s Biodiversity Metric, delays in the delivery of replacement habitats, and the challenges of enforcement.[4]

Irreplaceable habitats

As noted above, the new BNG policy is supposed to complement existing planning protections for habitats and the mitigation hierarchy enshrined in the NPPF, not replace them. Campaigners and academics alike have called on the government to take this opportunity to firm up its commitment to protecting irreplaceable habitats such as ancient woodland, blanket bog, limestone pavement, sand dunes, salt marsh and lowland fen, arguing that it should be all but impossible for developers to achieve planning permission for schemes which would result in the destruction of these vital ecosystems.

Irreplaceable habits have been removed from scope of the current BNG consultation, so as not to give the impression that losses in such habitats can be offset in the usual way. However, when a development results in losses of both irreplaceable and non-irreplaceable habitat, the BNG requirement will still apply to any affected non-irreplaceable habitat. Defra has promised supporting guidance on what constitutes irreplaceability and proposed to adopt a bespoke compensation approach where developments would lead to the loss of irreplaceable habitat. The consultation document suggests that the appropriate compensation would typically exceed standard BNG requirements [p. 31].

While the recognition that the value of irreplaceable habitats for biodiversity cannot be assessed in terms of standard units under the general Biodiversity Metric is welcome, the language of ‘compensation’ and refusal to tighten restrictions on the destruction of such habitats is deeply concerning. The value to nature of an acre of ancient woodland cannot be adequately compensated in money, no matter how many trees one pays to plant. Without stronger protections, there is a very real risk that developers of schemes which are likely to be particularly profitable, but which will also lead to irreplaceable habitat loss, will be quite content to throw money at the problem in the form of compensation.

The Biodiversity Metric

Many rewilding experts have raised serious concerns over the way that Natural England’s algorithm calculates the value of a given habitat for biodiversity. The algorithm uses information about the type, size and condition of a habitat to assign it a number, defining how valuable it supposedly is for biodiversity.  However, critics have warned that the new Biodiversity Metric does not value scrubby landscapes characterised by bramble, thistle and ragwort, which are often key features of rewilding projects. Such characteristics are logged as a sign of the ‘degradation’ of a landscape. In this respect the algorithm privileges more traditional conservation projects over innovative rewilding schemes, which seems a great shame when these projects can actually provide some of the most genuine and lasting benefits for biodiversity.

Speaking to the Guardian, entomologist Steven Falk noted that quarries and field margins were among habitats undervalued by the algorithm and labelled as ‘degraded’, despite being very rich for wildlife. He highlighted the risk that assessments based on the Biodiversity Metric would therefore conclude that such habitats did not need to be compensated for at all.

The algorithm also does not take into account the location or interconnectedness of a habitat. Scrubland next to a carpark and scrubland in the middle of a large rewilding project would consequently be afforded the same purported value for biodiversity under the current metric, even though the difference in their actual value would be transparently obvious to a human observer assessing them in their physical context.

Delay and enforcement

The government’s stated aim is for net gains to be delivered quickly.The consultation document proposes that on-site gains should be secured for delivery within 12 months of the development being commenced or, at the very least, before occupation. Biodiversity gain plans will have to set out a full timetable for implementation of their proposed measures. Any delay in the creation of replacement habitats for longer than 12 months will have to be reflected in the biodiversity metric calculation, meaning that developers who delay will ultimately have to pay more [p. 54].

However, the issue of delay in the delivery of offsets is closely linked to that of enforcement. Planning departments and councils are underfunded, understaffed and overstretched already. The introduction of the new BNG policy will leave them with yet another mandatory consideration to assess at the decision-taking stage and there is a danger that local planning authorities have neither the time nor the expertise to do it properly.

When Rebecca Moberly, principal consultant for the Planning Advisory Service (PAS), was quoted in a recent piece for ENDS report, she expressed her concern that the proposals for the implementation of the policy are too vague to be properly enforceable and that developers and landowners might be able to fudge the numbers. “We still don’t know if this will be part of the planning process or something separate,” Moberly said. “Developers might say they have done it, but who is going to check it? And if it has not happened, who will make sure it does happen?” If fears about the lack of capacity in the system prove to be justified, then delays in the delivery of off-sets may prove to be the least of environmentalists’ worries.

Alongside the publication of the its consultation document, the government announced a new £4 million funding pot to help local authorities with implementation costs. This works out at a rather meagre £10,000 per local authority, which hardly seems sufficient to cover the cost of enforcing a whole new governance framework.

It is hardly surprising, therefore, that when ecological economist Sophus zu Ermgassen and a team of researchers from the University of Kent assessed 6% of the housebuilding in England between January 2020 and February 2021, in six local authorities who had adopted the BNG scheme ahead of its national rollout, they found evidence of a governance gap and that promised biodiversity units were not being delivered. Overall, they found that BNG developments led to a 34% reduction in green space, offset by promises of a 20% increase in total biodiversity through the theoretical delivery of smaller but more ecologically valuable habitats. Whether or not these promised gains will materialise remains to be seen.

The BNG policy has the potential to lead to some genuinely positive outcomes in terms of habitat creation, especially where a development takes place on denuded agricultural land (and an awful lot of land in England is exactly that). If properly enforced, it could constitute a valuable source of funding for conservation, rewilding and habitat creation projects. Or it could turn out to be unwieldy, overly financialized, and ultimately unenforceable, allowing developers to destroy thriving ecosystems and interconnected habitats and then plant a few trees elsewhere or buy a few extra credits. If the policy is to be more than greenwash, there needs to be proper government support available to local authorities to enforce it and decision makers must prioritise ecological outcomes when assessing whether a given development meets its obligations. Otherwise the risk is that all BNG will create is a low quality market in off-sets.

[1] Analysis of the range of targets included in the Act and of the objectives, functions and draft strategy of the OEP can be found in two recent posts on FTB’s Environmental Law Blog.

[2] Defra, Consultation on Biodiversity Net Gain Regulations, closes 5 April 2022. Page ranges given in square brackets refer to this document.

[3] Conservation areas for this purpose include Sites of Special Scientific Interest, Special Areas of Conservation, Special Protection Areas and Marine Conservation Zones.

[4] These issues and others are addressed in a case study of six early-adopter councils already implementing mandatory BNG policies by Sophus zu Ermgassen et al., ‘Exploring the ecological outcomes of mandatory biodiversity net gain using evidence from early-adopter jurisdictions in England‘, Conservation Letters, Vol. 14, June 2021.

Trespassers and will-be-trespassers: Anti-encampment injunctions and the recent Court of Appeal decision

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Two weeks ago, I wrote about the provisions in Part 4 of the Police, Crime, Sentencing and Courts Bill that would criminalise unauthorised encampments and empower police officers to confiscate property, including mobile homes, on suspicion of such activity. Three days later, the Court of Appeal handed down its decision in London Borough of Barking and Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13. This decision is the second Court of Appeal decision dealing with anti-encampment injunctions. The term anti-encampment injunctions refers to the phenomenon, now about seven years old, of local authorities applying for interim or final injunctions to forbid encampment in any of the public spaces in the local authority area. Anti-encampment injunctions are sought with members of the Gypsy, Roma and Traveller (GRT) communities in mind. For some information about the relevant characteristics of those communities, please see my last post here.

The recent decision by the Court of Appeal, which I will call Barking, is an important development in the law relating to injunctions generally. It is particularly important with respect to anti-encampment injunctions and anti-protestor injunctions. Interesting lines of case-law have developed around these two subjects. Legal issues have arisen when injunctions have been sought against individuals whose names are unknown to the applicant (described in claim forms, application notices and judgment titles as persons unknown), and in particular when injunctions have been sought not only against a fixed group of unidentified individuals but also against a individuals who may join the group after the grant of the injunction (described in the cases as newcomers). Issues arise because injunctions are powerful coercive tools that are generally only granted against individuals that are on notice of the injunction or can be put on notice. The Master of the Rolls, Sir Geoffrey Vos, took the opportunity in Barking to survey all the cases he considered relevant and clarify the law.

The decision in Barking is of far-reaching importance. In this blog post I am only trying to explain its relevance in the original context of the proceedings, which is anti-encampment injunctions. The effect of Barking on local authorities’ ability to restrain protest or other activities, and the secondary issues decided in the case, are not explored here.

I will first summarise two cases concerning anti-encampment injunctions that pre-date Barking. I will then explain the proceedings that gave rise to the High Court’s decision in Barking, the High Court’s decision itself, the Court of Appeal’s decision, and finally my view on the impact this will have on the practice of anti-encampment injunctions.

The first case we should look at is called Harlow District Council and another v Stokes and others [2015] EWHC 953 (QB) (I will call it Harlow). This decision was handed down on 3 March 2015, and it is short enough to be worth reading in full. In this case, Harlow District Council and Essex County Council (the second claimant) applied for an interim injunction to forbid encampment on any of the public spaces in the district of Harlow in Essex. The defendants to the action, who were the subject of the injunction sought by the councils, were 64 named defendants and “Persons Unknown being members of the traveller community who have unlawfully encamped within the borough of Barking and Dagenham”. The defendants were not represented in court.

The judgment tells the story of the antisocial behaviour of “certain traveller families”, “predominantly […] members of the McGinley and Stokes family”, since their arrival in October 2013 [2]. That time had seen encampments on 109 sites in Harlow, none of which had planning permission [3]. No application for planning permission had been made in respect of any of those sites, but Harlow council had failed to provide any suitable suites for encampment. As the judge, the late Mrs Justice Patterson DBE, a planning specialist, said delicately at [4]: “the council is required to make provision for gypsy and traveller accommodation within the district, but at present there is a policy void on that particular issue.” The judge went on to say that the encampments had been on “highway verges, grass verges, schools, enterprise zone land or public amenity land” [7], before setting out at length at [10] the negative consequences of the encampments that had been reported by the two authorities. These included deposits of human excrement, piles of rubbish left on vacated sites, damage to land by fires and tyres and the removal of bollards erected by Harlow council to prevent access to sites. Further, the defendants had been accused of antisocial behaviour consisting of “the presence of loose, untethered and aggressive dogs, abandoned horses, noise from generators, loud music and nuisance caused by children, vans driving and parking on public footpaths, cycle tracks and public open space” [11]. These problems had provoked anti-GRT prejudice in the area (characterised by the judge as “community tension”) and caused temporary school closures. The judge described efforts to engage with the defendants, which had failed.

The authorities sought “a district wide injunction” [16]. It is not explicit in the judgment exactly what such an injunction would forbid, but it can be inferred that it is the establishment of any encampments by the defendants on public land. The judge said at [17]:

It is, of course, a matter of fact and degree as to whether a district wide order, as is sought, is proportionate. I have no doubt, as a result of the circumstances which I have set out, that the order sought is both necessary and proportionate. First, there has been a clear breach of planning control for some 17 months and it is reasonable to apprehend further breaches should no further action be taken. Second, persistent efforts by the public authorities to deal with the problem by other means have failed. Third, the approach of the local authority hitherto has been expensive to the public purse, both in terms of money, but more significantly in terms of time spent without any visible change to the behaviour on behalf of the defendants. Third [sic], the consequences of the unlawful behaviour and breach of planning control are not conducive to the best interest of the other law abiding residents within the district.

She went on to say that the balance of convenience was “heavily” in favour of granting the injunction. She made the order, effectively requiring the defendants to leave Harlow.

Three points emerge from this case that are of broader relevance. First, the defendants were not represented. Although counsel for the authorities would under such circumstances be under a duty to raise any facts or legal principles required to enable the court to reach a just decision, there was no one to tell the local GRT community’s side of the story. Second, Harlow council was in the position of having to deal with the symptoms of a systemic problem: the “policy void” where Essex’s provision of sites for GRT encampments should have been. While antisocial behaviour of the kind described in the judgment cannot be excused, the proximity of encampments to schools and public amenity land appeared to be a result of there being nowhere more suitable to stop. Third, relatedly, in as much as the presence of unauthorised encampments represented a problem for Harlow council, requiring the campers to leave Harlow did not so much solve that problem as move it on to another local authority area, unless and until that authority either applied for and secured its own district-wide injunction or had sufficient sites on which GRT families could legitimately stop.

The second case I think we should look at is called London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12; [2020] PTSR 1043 (I will call it Bromley). This judgment of the Court of Appeal was handed down on 12 January 2020, nearly five years after Harlow. The judgment of Lord Justice Coulson, with whom the Senior President of Tribunals (Sir Ernest Ryder) and Lord Justice Haddon-Cave agreed, is long, but once again it is worth reading in full because it is an accessible and detailed treatment of some important and complex issues. The history of this case is that Bromley council applied for a borough-wide injunction, similar to that successfully sought in Harlow, prohibiting encampment on any public spaces in Bromley. The council was successful in securing an interim injunction. Nine months later, it sought to convert this into a final injunction that would last for five years. The High Court (Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge) declined to do so: [2019] EWHC 1675 (QB). The transcript of the ex parte judgment in the High Court can be read here. With the benefit of submissions from London Gypsies and Travellers, a charity that intervened in the proceedings, the judge found that an injunction prohibiting encampment would be disproportionate, but she did order an injunction prohibiting fly-tipping. Bromley appealed to the Court of Appeal, and a number of interested local authorities intervened, as well as Liberty, the civil liberties charity, and once again London Gypsies and Travellers.

Coulson LJ reported that, since the Harlow decision, there had been something of a “feeding frenzy” of local authorities applying for borough-wide injunctions against encampment. At the start of 2020, there were 38 such injunctions in place [10]–[11]. However, the hearing before Ms Mulcahy had been the first at which the GRT community had been represented (by a lawyer or otherwise). This gave her, and now gave the Court of Appeal, the opportunity to take a step back and assess the new phenomenon.

Coulson LJ set out the relevant law, dealt with the appeal before the court, and then gave general guidance on the issue. As to the first point, among other matters, he highlighted at [40]–[48] the House of Lords decision in South Bucks District Council v Porter and another [2003] UKHL 26; [2003] 2 AC 558 and the decisions of the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 399, Connors v United Kingdom (2005) 40 EHRR 9 and Buckland v United Kingdom (2013) 56 EHRR 16. These cases, together, set out the level of protection that GRT individuals enjoy as a result of Article 8 of the European Convention on Human Rights in respect of their homes and their cultural traditions. As to the second point, the appeal was dismissed. Coulson LJ considered that there had been no error in Ms Mulcahy’s approach to the proportionality exercise and that she had been entitled to reach the conclusion that she had reached.

As to the third point, Coulson LJ made some general statements about the law in this area, avowedly reluctantly, at the request of the parties [99]. These statements can easily be read in full at [100]–[109] but can be summarised as follows:

  • The lack of designated transit sites has prevented local authorities from solving their problems. The provision of such sites is the only way to resolve the tension between the Article 8 rights of the GRT community and the common law of trespass [100].
  • Local authorities need to engage with their local GRT community, certainly before applying for a borough-wide injunction. If the local authority cannot demonstrate such engagement, for example in the form of an equality impact assessment for a proposed injunction, an application is likely to be refused [102]–[103] [108(d)].
  • Injunctions against persons unknown are exceptional measures because of the onerous burden they place on individuals not present or represented in the courtroom [104(a)].
  • Local authorities should understand and respect GRT culture, traditions and practices [104(b)].
  • When considering an application for an injunction, a court will take into account the status of the GRT community as a vulnerable protected minority, the local authority’s efforts to provide suitable accommodation, and the cumulative effect of injunctions elsewhere [104(c)–(e)].
  • Borough-wide injunctions, and injunctions for longer than a year, are unlikely to be granted [105]–[106].
  • Evidence of criminal conduct or of risks to health and safety supports an application for a wide injunction [107].
  • Applications for injunctions should evidence alternative suitable encampment sites, or run the risk of being disproportionate [108(a)–(c)].

The judgment concludes at [109] with these sweeping words: “Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.”

Bromley represented a recognition of the unsustainability of the widespread adoption by local authorities of anti-encampment injunctions. If one accepts the narrative that unauthorised encampments on public land cause unavoidable problems, moving those encampments from one local authority area to another only moves the problems elsewhere and unsettles the displaced GRT community. Yet if a local authority area becomes disproportionately affected by unauthorised encampments because GRT individuals have been pushed out of other areas by injunctions, applying for a similar injunction itself appears to be the simplest solution.

This brings us to the Barking case. These proceedings began when the Enfield council applied for an anti-encampment injunction: London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB). Mr Justice Nicklin declined to order an injunction and adjourned the application to enable the issues arising in the case and others to be properly considered. That was on 2 October 2020. Two weeks later, it was decided to join all the claims in which anti-encampment injunctions had been granted. This means that dozens of local authorities were parties to the proceedings (they can be identified in Appendix 1 of the High Court judgment). In late January 2021, there was a hearing before Nicklin J in order to review existing injunctions against new developments in the law relating to injunctions against persons unknown. These conjoined proceedings are the Barking proceedings. One of the key issues that had to be decided was whether a final (that is, not interim) anti-encampment injunction could bind newcomers. Newcomers are individuals who at the date of the judgment do not fall within the definition of those affected by the injunction, but who by their actions later come within that definition. For example, if an injunction is granted on 1 April 2021 against persons unknown forming unauthorised encampments in the borough, a newcomer is someone who forms an unauthorised encampment in the borough after 1 April 2021. The question was whether such individuals could be bound by a final injunction. This is important because interim injunctions are generally limited in time by a return date on which the court reviews the injunction, and operate in principle only until the court resolves the dispute between the parties, while final injunctions are generally in place for longer and are a substantive remedy.

On 12 May 2021, Nicklin J produced a long judgment ([2021] EWHC 1201 (QB)). On the key issue that we are concerned with, namely whether final anti-encampment injunctions bound newcomers, Nicklin J gave the answer no. Nicklin J considered that two authorities, Attorney General v Times Newspapers Ltd (No. 3) [1992] 1 AC 191 and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802, established the principle that a final injunction operates only between parties to proceedings. Anti-encampment injunctions did not fall within an exception to that principle. See the judgment in summary at [121]–[124], and in detail at [161]–[189]. In the light of this and other decisions on legal points in the judgment, Nicklin J discharged a number of existing anti-encampment injunctions that he had decided were impermissible [244]. Finally, he set out, at [248], rules for claims against persons unknown generally.

The local authorities appealed to the Court of Appeal. The court was asked to deal with a number of issues, but principally the question whether final anti-encampment injunctions could bind newcomers. In a word, Sir Geoffrey Vos MR, with whom Lord Justice Lewison and Lady Justice Elisabeth Laing agreed, decided that the answer was yes. Nicklin J had been wrong to decide otherwise.

Sir Geoffrey Vos summarised a number of recent authorities at [21]–[58]. He then summarised and analysed Nicklin J’s judgment. Among other things, he said that Nicklin J had drawn a “fundamental difference” between interim and final injunctions that was not supported by the cases [74]. Rather, “there is no meaningful distinction between an interim and a final injunction” [77]. He also said that Nicklin J’s proposition that it was a fundamental principle that a court could not grant a final order against someone not party to proceedings had no basis in authority [75]. As far as the Court of Appeal’s decision in Canada Goose meant that, it was wrong. Instead, the Court of Appeal’s decisions in South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 and Ineos Upstream Ltd v Persons Unknown and others [2019] EWCA Civ 515; [2019] 4 WLR 100 made clear that final injunctions could be granted against newcomers, and Nicklin J should have followed those cases [99]. The guidance that Nicklin J gave at [248] “requires reconsideration” as a result [108].

That was the main point established in the judgment. Of the rest of the judgment, the most relevant passage to us is at [102]–[108], where Sir Geoffrey Vos addressed the broad terms of the guidance given by Coulson LJ in Bromley with some scepticism. He said at [105] that it is GRT individuals, and not any community, that has Article 8 rights, and that those rights do not lead to an automatic conclusion in any application for an injunction, but must be balanced against other rights in the circumstances of the specific case, such as a landowner’s right under Article 1 of Protocol 1 to the peaceful enjoyment of their property. The same goes for Coulson LJ’s statement at [109] that “the gipsy and traveller community have an enshrined freedom not to stay in one place but to move from one place to another”. That right, protected by Article 8, is qualified, not absolute, and must be balanced against the rights of others and the public interest in each case [106].

What are we to make of this? First, given the contradictory judgments by the Court of Appeal, this authoritative decision by the Master of the Rolls is to be welcomed at least for the certainty that it brings to local authorities and others (notwithstanding any application for permission to appeal to the Supreme Court). Second, the emphasis on everything-depends-on-the-circumstances is legally sound but little practical guidance is offered to help courts considering applications for injunctions to balance the rights of GRT individuals in encampments with the rights of other local residents that are violated by unauthorised encampments. Even if everything depends on the circumstances, an authoritative judgment can set out a useful starting-point, a list of factors to consider and how to weigh them. Third, it is now clear that anti-encampment injunctions can apply to newcomers, meaning that their reach is not limited to those who have already unlawfully encamped on public land. Anti-encampment injunctions have not lost their sting. Although the decision in Bromley may have encouraged courts to take a more measured approach, local authorities may return to their use of these injunctions as a key tool to oppose any antisocial behaviour associated with unauthorised encampments. Between this phenomenon and Part 4 of the Police, Crime, Sentencing and Courts Bill (if passed), GRT individuals leading a traditional itinerant lifestyle will find the number of spaces on which they can safely stop continue to shrink. A real solution to this problem on a strategic level, or even a desire among policymakers to look for one, is nowhere in sight.

What I’ve been doing this week

I hope it doesn’t give too much away about my character (that readers haven’t already gleaned) if I say that I have fallen in love with Frasier. The simple stories, screamingly funny lines and loving skewering of pretentiousness is just what I need after, before or during a day of law. I’m on season 5. I have no idea how the reboot will work but I will be there for it.

Section 21 and the Supported Housing Sector

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In April 2019 Theresa May’s Government announced its plans to repeal Section 21 of the Housing Act 1988 (as amended by the Housing Act 1996) and put an end to so-called ‘no fault evictions’. Long controversial, Section 21 allows landlords to evict tenants who have assured shorthold tenancies (ASTs):

  1. after a fixed term tenancy comes to an end, provided there is a written contract; or
  1. during a periodic tenancy (i.e. a tenancy with no fixed end date).

The landlord must give the tenant 2 months’ notice in writing but does not have to provide any reason for the eviction.[1] The provision is subject to some caveats and safeguards to protect the rights of tenants but, even taking these into account, it still allows for the eviction of tenants who have taken good care of a property, kept up with rent payments, and abided by all the conditions of their tenancy. This is in contrast with the provision under Section 8 of the 1988 Act, which states that a landlord can only commence proceedings to take possession of a property let on an assured tenancy if one of the limited range of grounds in Schedule 2 of the Act applies.

Being required to move with only 2 months’ notice would no doubt be a headache for anyone, but it can take a particular toll on families with school-age children, disabled people, people living in rural areas with a shortage of rented accommodation, and people living in poverty, who may struggle to find alternative accommodation within their budget and can ill afford to pay the extra costs associated with moving. It is no surprise therefore that the announcement that the Government planned to abolish Section 21 was widely celebrated by housing charities and campaigners.

Coming up to three years later, however, and the provision remains in force, despite the pledge to repeal it being repeated in the Conservative manifesto for the 2019 general election.[2] The 2021 Queen’s Speech promised that the Government would respond to its 2019 consultation on the issue and publish a White Paper by the end of the year, but in October 2021 it was announced that the White Paper would be delayed until 2022.[3] Meanwhile, analysis of Ministry of Justice figures by the Big Issue Foundation found that some 25,000 Section 21 notices were issued between the April 2019 announcement and November 2021, while campaigning organisation Generation Rent have suggested that rising eviction rates since Covid-related protections were removed could result in one no-fault eviction every 32 minutes this winter. This is an especially grim state of affairs given that, for a while, it seemed that the pandemic had shifted the conversation on poverty and homelessness and highlighted the inequities and insecurities faced by private renters, especially those living at the lower end of the market.

But if the focus of the promised reform is on protecting private renters, what does all this have to do with supported housing? It turns out quite a lot, as I discovered when I spent a year working in the policy team at the National Housing Federation between September 2019 and September 2020, covering supported housing among other policy areas. The NHF is the trade body for England’s housing associations, representing around 900 members ranging from major social landlords managing over 100,000 homes, to small specialist providers with just a handful of properties.

Many of its members also provide supported housing, either exclusively or alongside general needs accommodation. This wide-ranging term can be used to refer to any accommodation where housing-related support is provided as part of a tenancy. Housing associations deliver around 70% of England’s supported housing, including sheltered and extra care housing for older and disabled people, homeless hostels, mental health stepdown units and domestic abuse refuges.[4] Of the rest, around 20% is owned and managed by local authorities, and the remaining 10% by a mixture of private and voluntary sector organisations. The kinds of support offered in these schemes vary widely, but they include job coaching and skills development training, counselling and wellbeing checks. They are all aimed at helping residents maintain their tenancies and live as independently as possible. For many residents in supported schemes, the only viable alternative would be residential care, hospital or another secure institution.

For a type of housing designed to meet the needs of some of the most vulnerable groups in society, it might seem strange to learn that supported housing providers quite often let properties via ASTs. One might assume that security of tenure would be paramount in such schemes and indeed many supported homes, especially sheltered and extra care housing for older people, are let on a lifetime basis. However, there are a number of reasons why supported housing providers might need to take possession of a property urgently, even where a resident has not fallen behind on their rent or otherwise breached their agreement with the landlord. They can be roughly divided into four themes, though there is some overlap.[5]

  1. Loss of support

Funding for support services in supported accommodation can be withdrawn for planned or unexpected reasons. Commissioning cycles have a role to play, local authority-commissioned services often being made available to clients for a maximum period of two years, after which they are expected to be able to live independently or their landlord is expected to help them find appropriate accommodation to move onto. In these circumstances, it is always understood that the tenancy will only last for the maximum period for which support is available. Sometimes, however, support may be withdrawn unexpectedly. This can occur where support services are funded or directly provided by an external agency, which suddenly ceases to operate for reasons beyond the control of the housing association. Whether or not the cessation of funding is anticipated, the fact remains that many residents in supported housing are not in a position to maintain their tenancies without the correct support services in place. Tenancies which continue unsupported risk breaking down in a chaotic way which can be harmful and traumatic for residents and costly for social landlords.

  1. Residents’ changing support needs

Different types of supported housing offer different services, some much more intensive than others. Sometimes during the course of a tenancy, a resident’s support needs may evolve. They might start out in a high-support service and over time discover that they are able to live more independently. Conversely it may become apparent that they require a greater level of support than their current housing provider is able to offer. Ideally residents in this position will be able to move into more appropriate accommodation by mutual consent, but sometimes a resident might be understandably reluctant to move. In such circumstances housing providers may seek to terminate a tenancy, in the interests of ensuring that residents are properly supported and that very limited supported housing stock is allocated as fairly and effectively as possible.

  1. Safety of other residents

Some client groups in supported housing can suffer from serious mental and physical health challenges, substance misuse issues and potentially chaotic behaviour. In services designed to be temporary, residents with very high support needs, which pose a potential risk to their own safety or that of others, will often be given a licence to occupy rather than a tenancy agreement. However, in certain circumstances, even in schemes which are intended to offer long-term or lifelong support, staff may feel that they need to evict a resident at short notice for the protection of other residents. Section 21 is far from an ideal mechanism in such circumstances, but it does offer greater speed than Section 8 proceedings and greater certainty than an application for an emergency injunction. 

  1. Long-term unavailability of the property

Supported housing schemes can sometimes have rather complex operational models, whereby buildings are leased and services such as care, mental health provision, housing management support or skills training are subcontracted to other organisations. It is far from unusual for a scheme to have a housing association landlord but a charity or private agency providing housing management and support services. Likewise, it is common for housing associations to lease supported housing properties from a freeholder for a number of years, after which it must be restored to the freeholder with vacant possession, or to lease properties the value of which is affected by ‘planning blight’ because they are in the proposed path of a significant publicly-funded infrastructure project. All of these models allow providers to keep services running in a very challenging funding environment, but they also mean that it is not always possible for landlords to guarantee their residents full security of tenure.

If Section 21 is repealed and no thought is given by Government to the peculiarities of supported housing provision, there is a risk that providers may start to offer more licences and fewer tenancies, giving residents even less security than they would have under an AST. Worse still, providers dealing with especially complex leasing arrangements or precarious funding streams might simply stop providing services altogether. It is therefore to be sincerely hoped that the anticipated White Paper will give serious consideration to the issue.

When we consulted with members during my time at the NHF, there were a range of opinions on potential ways forward. There was fairly widespread agreement that Section 21 is a blunt instrument, which is not especially well-suited to the requirements of the supported housing sector, but also a high level of concern over what the impact might be if all supported housing tenancies effectively became lifetime tenancies overnight.

There was a degree of enthusiasm for the idea of creating a specific new ‘supported housing tenancy’, which might sit alongside some of the other specialist provisions considered in the Government’s 2019 consultation document, for example relating to private lettings to students, the sub-letting of farm buildings by tenant farmers, and the letting out of property designed for use by religious workers during periods of non-use for that purpose.[6] The idea was that the existence of the tenancy might be tied in some way to the ongoing provision of support services. However, it quickly became apparent that creating a single tenancy type to cover the vast array of service models encompassed by the term ‘supported housing’ was likely to be all but impossible.

Retaining ASTs for supported housing providers, while abolishing them for everyone else, seemed highly unlikely to be acceptable to the Government, and would leave social landlords in the morally questionable position of offering less security of tenure than private renters would automatically enjoy after the new measures came into force. Excluding tenancies in supported housing schemes from assured status, and therefore from statutory security, by adding them to the list of exclusions in Schedule 1 of the 1988 Act, would raise even greater moral objections. Schedule 1 sets out a range of tenancies which cannot be assured, including student lettings which are specifically tied to a course of study, holiday lets and licensed premises. Such tenancies can be terminated by a simple notice to quit. While potentially rather practical, adding accommodation for some of the most vulnerable people in society to the list of tenancy types which cannot be assured would be difficult to defend from a political and moral perspective.

That leaves adding a new mandatory ground for possession to Schedule 2 of the 1988 Act as the most workable solution. This schedule sets out a range of grounds on which a landlord can issue a notice seeking possession under Section 8 of the Act. Some, such as Ground 7A concerning anti-social behaviour and Ground 8 concerning serious rent arrears, relate to breaches of the tenancy agreement by an assured tenant. Others deal with circumstances where possession is legally necessary, even if the tenant has done nothing wrong. For example, Ground 2 allows for possession by a mortgagee where the landlord has defaulted on payments on a mortgage on the property which predates the tenancy.

While Section 8 proceedings are not as expeditious as a Section 21 notice, introducing a new mandatory ground for possession for supported housing would at least ensure that providers had some mechanism for moving residents on in circumstances where funding for support had been withdrawn, resident safety demanded it, or a building was no longer available. In its response to the Government consultation on this issue, the NHF provided some suggested wording for the proposed ground and suggested that it ought to apply only to non-profit landlords (namely charities and community benefit societies), to prevent poorly regulated for-profit providers from exploiting it as a loophole in the new law. In practice, it seems probable that any such provision would have to be worded in such a way as to encompass local authority landlords too. Crucially, however, the new ground would be limited to circumstances where

  1. the purpose of granting the tenancy is from the outset explicitly limited to that of providing temporary accommodation (specifically defined); or
  2. the tenancy is a designated short-term tenancy; or
  3. the tenant relies for the successful maintenance of the tenancy or for their own safety and wellbeing on support that is provided by or for the landlord by means of funding by an agency independent of the landlord and not subject to its influence or control, or is provided directly by such an agency, and the agency ceases to fund or provide the support; or
  4. the tenant relies for the successful maintenance of the tenancy or for their own safety and wellbeing on support and this support is no longer available; or
  5. the support that is provided to the tenant is not in line with the tenant’s needs. [7]

In any of these circumstances, the tenant would also need to have been given written notice in the tenancy agreement, or in a separate document served at the same time, that this ground might be used. The idea behind drawing the circumstances in which the proposed ground would apply fairly narrowly is to ensure that supported housing residents would only be subject to no-fault possession in very limited circumstances in which housing could not otherwise be provided for them.

This seems like a relatively fair compromise and, crucially, does not leave thousands of extremely vulnerable people with less security of tenure than they have at present. Nevertheless, what struck me very strongly while working on the Section 21 repeal consultation with members at the NHF, and afterwards reading the briefing that my colleagues produced on the subject, was how many of the challenges facing the supported housing sector as a whole have been thrown into sharp relief by the proposed abolition of no-fault evictions. If the supported housing sector enjoyed adequate and consistent revenue funding, then residents would not be required to leave at short notice because support services had been unexpectedly terminated. If there was capital funding available to increase the supply of purpose-built accommodation, then providers would not be so acutely constrained by the need to manage their limited stock effectively. If local authority commissioners took a strategic approach to assessing the need for housing-related support services and commissioned them accordingly, perhaps the sector would be less reliant on piecemeal lease-based arrangements. A recent House of Commons Library briefing paper on Section 21 at least acknowledged the need to consider supported housing tenancies when implementing legislative changes in this area. It is to be hoped that one of the tangential consequences of the forthcoming White Paper will be to foster a new appreciation for the sector.

What I’ve been reading….

Over Christmas I read The Topeka School, a semi-autobiographical novel by American poet and author Ben Lerner. Lerner’s roots as a poet definitely show. The novel is beautifully written, offering vivid portraits of the lives of its cast of characters as it jumps between perspectives and time periods. It is also fascinated by the idea of language itself, its many uses and the power it can bestow on those who know how to use it well. And it’s extremely funny. Definitely recommended.

[1] It should be noted that, due to the Covid-19 pandemic, the notice periods that landlords were required to give tenants were temporarily extended for landlords who gave their tenants notice between 26 March 2020 and 30 September 2021.

[2] Conservative Party Manifesto 2019, p. 29.

[3] For a full timeline and summary of the measures consulted on to date, see House of Commons Library Research Briefing by Cassie Barton & Wendy Wilson, ‘The end of ‘no fault’ section 21 evictions‘, 29 December 2021.

[4] The figure is taken from the DWP & DCLG Supported Accommodation Review, November 2016, but it seems unlikely that it has changed significantly in the intervening years.

[5] Further detail can be found in NHF Renters’ Reform strategy: Proposal for providers of supported housing and temporary accommodation, June 2021.

[6] See MHCLG, A New Deal for Renting Resetting the balance of rights and responsibilities between landlords and tenants: A consultation, July 2019, pp. 40–43.

[7] NHF Renters’ Reform strategy: Proposal for providers of supported housing and temporary accommodation, June 2021, p. 19.

Image credit: “Key to the open door” by Tawheed Manzoor is licensed under CC BY 2.0

Part 4 of the Police, Crime, Sentencing and Courts Bill and Article 14 of the ECHR

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The Police, Crime, Sentencing and Courts Bill (which I will simply call the bill) is nearing the end of the Parliamentary ping-pong process. It is at the report stage in the House of Lords, having had its three readings in the House of Commons. Although there is still time for further amendments, it is highly likely that the bill will be passed in something resembling its current form. Many aspects of the bill have been seriously controversial and experts have commented at length on the merit or otherwise of the proposed legislation. I would like to ask an analytical question. How would Part 4 of the bill, if enacted, be interpreted by courts? In particular, is it compatible with Article 14 of the European Convention on Human Rights, which guarantees freedom from discrimination?

Part 4 is entitled “Unauthorised encampments”. The long title of the bill appears to allude to Part 4 somewhat euphemistically as aiming “to make provision about the removal, storage and disposal of vehicles”. The aim of Part 4 is to address the perceived problem of members of the Gypsy, Roma and Traveller communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. (I will use GRT as shorthand for Gypsy, Roma and/or Traveller, without wishing to elide the differences between distinct cultures.) Part 4 seeks to achieve this aim by creating a new offence, which is again named euphemistically the “offence relating to residing on land without consent in or with a vehicle”, and by creating associated powers for the police to confiscate property, including vehicles, belonging to anyone suspected of committing an offence.

The formal history of these proposals, in brief, is that the government consulted from April to June 2018 on proposed powers to deal with unauthorised development and encampments. The then Secretary of State for Housing, Communities and Local Government, the late James Brokenshire, published a consultation response in February 2019. This did not propose the creation of a new offence. Later in the year, a second consultation was launched, this time by the Home Office. This consultation ran from November 2019 to March 2020. This consultation proposed the criminalisation of unauthorised encampments. The Home Secretary, Priti Patel, published a response in March 2021. This coincided with the publication of the bill. Interested readers can compare the responses to the 2019 consultation questions with the 2021 government response and the proposals in Part 4 of the bill.

Part 4 of the bill comprises three clauses. They were originally numbered 61 to 63 but are now numbered 63 to 65, which is how I will refer to them. The bill can be read in its current form here. It is mainly clause 63 (that is the original clause 61) with which we must concern ourselves.

Clause 63 inserts a new offence at section 60C of the Criminal Justice and Public Order Act 1994, entitled the “Offence relating to residing on land without consent in or with a vehicle”. I will simply call this the offence. Clause 63 also adds sections 60D and 60E to the CJPOA. Section 60D creates powers for police to seize and retain property involved in the suspected commission of the offence. Section 60E provides for forfeiture orders in cases of conviction of the offence.

The new offence created by the proposed section 60C is a little fiddly, but the main part of it, which is formed by clause 63(1)–(4) at pp. 58–59 of the bill, can be summarised as follows:

A person P, who is over 18, commits an offence if:

  1. P resides, or intends to reside, on land without the consent of the occupier, O, and
  2. P has, or intends to have, a vehicle with them on the land, and
  3. O or a police officer requests P to leave the land and/or remove P’s property from the land, and
  4. Either
    1. P fails to comply with the request, or
    2. P enters the land within 12 months of the request with the intention of residing there with O’s consent and with a vehicle on the land, and
  5. Either
    1. P’s residence on the land has caused or is likely to cause significant damage or disruption, or
    2. P’s offensive conduct on the land has caused or is likely to cause significant distress.

In summary, the proposed section 60D means that, if a police officer reasonably suspects that the offence has been committed, they may seize any relevant property, including any relevant vehicle, to be retained for three months. If notice is given that no prosecution will be brought, the property must be released, but if a prosecution is brought, the property may be retained until the conclusion of proceedings.

In summary, the proposed section 60E means that, if someone is convicted of the offence, any property that was seized under the proposed section 60D may be subject to a forfeiture order. Forfeiture means that the property is permanently taken from the offender.

As I have already said, the aim of these proposed provisions is to address the perceived problem of members of the GRT communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. GRT communities are culturally distinct groups which share some traditions, primarily a nomadic lifestyle that is nowadays predominantly maintained in caravans (although not all GRT individuals lead a nomadic lifestyle). GRT communities are the subject of a high level of racism in the UK, which is more widely socially accepted than most forms of racism and which is in large part based on a prejudiced association between GRT individuals and crime and antisocial behaviour. The situation of GRT families is complicated by a long-standing shortage of allocated sites for encampment, following the abolition (by section 80 of the Criminal Justice and Public Order Act 1994) of the statutory duty (in section 6 of the Caravan Sites Act 1968) on local authorities to provide such sites. 

That is the context of the proposals. Their effect at face value is that, if a traveller family were to move their home onto a patch of land, and a police officer reasonably suspected that they had been asked to go away and had refused to do so, and they also suspected that the family’s presence was causing significant disruption, the officer could seize the family’s home and all its contents and hold onto it for three months, or until it was certified that no one in the family was to be prosecuted, or until the conclusion of proceedings if they were prosecuted and acquitted, or potentially forever if they were prosecuted and convicted.  

The context is relevant because it might inform how a court would interpret the proposed provisions. The offence, while applying to everyone, targets a specific group of racial and cultural communities. This raises the question whether there is anything in the United Kingdom constitution that could influence the interpretation of the offence in order to avoid a discriminatory effect.

The UK constitution is famously characterised by Parliamentary sovereignty. There is no written bill of rights that limits legislative power. The orthodox view is that primary legislation that tramples on fundamental rights, any way conceived, remains legally valid, with possible exceptions around institutional questions such as attempted abolition of courts. However, there is one well-established constitutional safeguard against discriminatory legislation. It is provided by section 3 of the Human Rights Act 1998, which requires courts to interpret legislation as far as possible so that it is compliant with the rights contained in the ECHR, which, at Article 14, include the right to non-discrimination in the enjoyment of the other protected rights. There is a second, more speculative, constitutional protection from discrimination. This is the constitutional principle of equality to be found in the common law. It is controversial whether such a principle exists, and, if it exists, what are its content and nature. Even if its existence were accepted, it would be unlikely to produce a different outcome in this case from Article 14 of the ECHR. Analysis of it is best left for another day.

In the recent Court of Appeal decision of R (Kaitey) v Home Secretary [2021] EWCA Civ 1875 at paragraph [91], Singh LJ summarised the process to be followed when section 3 of the Human Rights Act might come into play as follows.

91. I would summarise the approach which needs to be adopted in the following order:

(1) First, ascertain the ordinary meaning of legislation, having regard to all the usual aids to interpretation. This is not a purely linguistic exercise but seeks to give effect to the purpose of the legislation. The aids to interpretation include the presumption that Parliament does not intend to put the UK in breach of its international obligations, including those under the ECHR.

(2) If – but only if – that ordinary interpretation would give rise to an incompatibility with the Convention rights, section 3 requires a different interpretation so far as possible. This is a strong form of interpretation, which is not the same as ordinary interpretation.

(3) If, even then, it is not possible to give the legislation a meaning which is compatible with Convention rights, the court has a discretion to make a declaration of incompatibility under section 4 of the HRA (if it is one of the courts specified in that section).

So the first stage is to find the ordinary meaning of the legislation. This we have done. The second stage is to see whether that meaning is incompatible with Article 14. The Joint Committee on Human Rights of the House of Commons and the House of Lords published a report on 2 July 2021, which states, at paragraph 39, that it is “likely” that the proposed provisions would contravene Article 14. (The report also raises the possibility of  incompatibility with other Articles of the ECHR, but we will not discuss that today.) The report does not contain any structured analysis of Article 14, which would be necessary to establish incompatibility. We can do this ourselves. The relevant four-stage test was given by Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at [8] as follows:

In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.

Before addressing the four-stage test, we need to identify precisely the different treatment or difference in treatment, the hypothetical claimant, and their comparator. This is stage zero.

The European Court of Human Rights has held that Article 14 prohibits indirect discrimination, that is a general measure that has a disproportionately prejudicial effect on a particular group: DH v Czech Republic (2008) 47 EHRR 3 at [175]. This means that we do not need to frame the different treatment clumsily as: GRT individuals are subject to criminalisation and the confiscation of property for pursuing their traditional way of living, that is nomadism, to a greater extent than other individuals are penalised for pursuing their traditional way of living, that is permanently in settled accommodation. Instead, we can say: The offence has a disproportionately prejudicial effect on GRT individuals because it criminalises behaviour associated with their traditional way of living, that is nomadism. Our hypothetical claimant is a GRT individual who commits the offence, because they must be demonstrably affected by the impugned measure: Buckley v United Kingdom (1997) 23 EHRR 101. Their comparator is an individual who occupies or intends to occupy another’s land without a vehicle and who causes or is likely to cause significant disruption. For the sake of example, a wild camper in a tent. The vehicular element is the distinguishing feature of the offence and of the way of living threatened by the offence.

Does the offence fall within the ambit of a Convention right? Yes. This is a low hurdle. The ambit of a Convention right consists of both the rights protected by an Article of the Convention and any additional rights falling within the scope of an Article that a state decides to protect: Fábián v Hungary (2018) 66 EHRR 26 at [112]. It is established that Article 8 (right to private life) protects the right of GRT individuals to practise their itinerant cultural tradition: Chapman v United Kingdom [2001] 33 EHRR 399 at [96]. The offence makes it more difficult for GRT families to do so, and it interferes with their use of their homes. So it seems that the offence falls within the ambit of both Article 8 and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) of the ECHR.

Is the difference in treatment on the ground of a characteristic listed in Article 14? Yes. The difference in treatment is on the ground of “association with a national minority”, because GRT individuals are members of a minority group in the UK, and the criminalised behaviour is associated with that minority group.

Are the hypothetical claimant and their comparator in analogous situations? Yes. Again, this is a low hurdle. Unless there are obvious relevant differences between the (hypothetical) claimant and the comparator, we should proceed to the fourth stage of the test: AL (Serbia) v Home Secretary [2008] UKHL 42; [2008] 1 WLR 1434 at [25]. There are no obvious relevant differences between a GRT individual who occupies another’s land with a vehicle and causes or is likely to cause significant disruption and a camper who causes or is likely to cause significant disruption. It cannot be argued that the presence of a vehicle makes a difference because that is more disruptive, since both hypotheticals involve actual or likely significant disruption.

Is the difference in treatment objectively justified? Then burden now passes to the state to show that the difference in treatment is objectively justified. This involves the application of well-trodden proportionality analysis. The relevant four-stage test was given by Lord Reed in in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39; [2014] AC 700 at [74] as follows:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the right, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom is applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

In an Article 14 case, it is not the measure as a whole, that is the offence, that must be justified. Rather, the different treatment itself has to be justified: A and others v Home Secretary [2004] UKHL 56; [2005] 2 AC 68 at [68].

Finally, the state enjoys a margin of appreciation with respect to justification, which means that its decisions about when differences justify different treatment must be accorded a level of respect that depends on the circumstances: Carson v United Kingdom (2010) 51 EHRR 13 at [61]. Different factors within the whole set of circumstances may pull in different directions in this regard: R (SC, CB and eight children) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428 at [130].

With these points established, we can undertake the four-stage proportionality analysis.

Is the objective of the measure sufficiently important to justify the limitation of a protected right? The government’s March 2021 consultation response, referred to above, introduced “the case for action” as follows:

Unauthorised Encampments can, in some cases, cause harm and misery to those affected by them and it can be time-consuming and costly for local communities to have them removed.

Some of the harms and problems that are caused can include:

  • interference with electricity, water or gas supplies
  • animals out of control or attacking people using the land or passing nearby
  • animals defecating on the land without owners subsequently clearing up
  • excessive noise pollution as a result of behaviour such as playing loud music or revving the engines of motor vehicles
  • improper deposit of human waste or sewage (such as bath water)
  • failure to remove excessive litter
  • disposal of clinical waste

The response also refers to the costs incurred by local authorities and private individuals in addressing the enumerated harms and problems.

The objective of addressing these problems, which can collectively be described as antisocial behaviour associated with unauthorised encampments, at first appears to be sufficiently important to justify the limitation of the right to non-discrimination. However, it would have to be demonstrated by evidence that these problems are in fact associated with unauthorised encampments, that is with trespassers with vehicles, as opposed to those without vehicles: Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164; [2018] 4 WLR 60 at [109]. Analysis of such evidence is beyond the scope of this blog post, but it would be necessary for a state seeking to discharge the burden of justification to base its case on evidence. The association of unauthorised encampments with antisocial behaviour of the kinds described by the government, if based on anything less than indisputable evidence, would simply constitute racial prejudice against GRT individuals. The aim of addressing the problems associated with unauthorised encampments would then not be legitimate. We can proceed with the analysis, not assuming that such evidence exists, but in order to know what the answer to our question would be if it did exist.

Is the measure rationally connected to the objective? The measure intends to dissuade the establishment of unauthorised encampments and to quickly bring to an end any that are established. This would contribute to the achievement of the objective of preventing antisocial behaviour associated with unauthorised encampments. Again, if and only if the state can show based on evidence that unauthorised encampments are associated with the problems it describes, there would be a rational connection.

Could a less intrusive measure have been used? Three alternative approaches to addressing the problem present themselves. First, if the police powers associated with the offence were less harsh, for example if pre-conviction or even pre-charge confiscation were not available, the effect on GRT families would be reduced. Those who would temporarily lose their homes could, in theory, be limited to those genuinely causing significant disruption. This would be less intrusive, although still seriously intrusive. However, it is arguable that the deterrent effect of the offence would then be reduced. Second, the perceived problem of unauthorised encampments is capable of being addressed through the planning process rather than through the criminal law. If local planning authorities allocated sufficient sites for GRT encampments, there would be no need for unauthorised encampments. Third, the requirement of being on land with a vehicle could be removed. This would still criminalise being seriously disruptive on another’s land, but it would not target GRT individuals in any way. This would significantly reduce, if not eliminate, the discriminatory effect of the proposed provisions. However, it is unclear if this would qualify as a suitable substitute measure, since the objective of the provisions is to address the antisocial behaviour associated with unauthorised encampments specifically. Given the complexity of this issue, it is likely that a court would refrain from putting itself into the place of the legislative decision-maker by deciding that an alternative measure would have been equally effective. But this is uncertain.

Has a fair balance been struck between the offence’s effects on GRT individuals’ rights and the importance of the objective? We have reached the crux of the proportionality exercise, where the margin of appreciation is relevant. The greater the margin of appreciation, the less convincing must be the objective justification of the measure. In cases involving general economic or social policy, such as welfare benefits cases, the court applies a manifestly without reasonable foundation standard. This is a wide margin of appreciation, where a measure will only be held to be disproportionate if it is manifestly without reasonable foundation: R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 at [92]–[93]. This is not such a case. On the contrary, this case concerns discrimination on the basis of ethnic origin, which is considered a form of racial discrimination, and which, whether direct or indirect, requires a very narrow margin of appreciation to be accorded to the state: Biao v Denmark (2017) 64 EHRR 1 at [94], [131] and [138]. Very weighty reasons unrelated to ethnic origin must be shown to justify the discriminatory effect of the offence.

How severe are the effects of the measure on GRT individuals’ right to non-discrimination? They are severe indeed: GRT individuals can lose their homes because a police officer suspects that they intend to reside on another’s land without the occupier’s consent and that this would cause significant disruption. GRT individuals can suffer life-changing consequences as a result of a police officer’s suspicion. That suspicion could be informed by anti-GRT prejudice. Even if a decision by a police officer to confiscate property were later shown to be flawed because it was based on prejudice and so not on reasonable suspicion, serious damage would already have been done to the family whose home was confiscated. This harm applies overwhelmingly to GRT individuals because the requirements of the offence apply overwhelmingly to those who lead a nomadic lifestyle that is part of GRT communities’ cultural heritage. In short, the discrimination is very grave.

How important is the objective to the extent that the difference in treatment will achieve it? The harm that persistent antisocial behaviour can cause should not be underestimated. Addressing that is an important objective. However, it is the choice to specifically criminalise GRT individuals that must be justified. Given the level of justification the state must show in a case of discrimination on the basis of ethnic origin because of the inherently unacceptable nature of such discrimination, and the gravity of the effects of the discrimination in this case, the objective of addressing antisocial behaviour associated with unauthorised encampments is not sufficiently important to justify the discrimination at hand. In other words, the discrimination is disproportionate.

That is the end of the Article 14 analysis. Since we have concluded that a court is likely to find that the proposed provisions are incompatible with Article 14, we can move on to Singh LJ’s stage 2 of statutory interpretation (see Kaitey above). We apply section 3 of the Human Rights Act to interpret the provisions to avoid incompatibility, if this is possible.

There is a lot of case-law on what kind of interpretation is considered possible under section 3. In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607; [2016] ICR 903, Underhill LJ quoted Sir Andrew Morritt C’s summary of the law from Vodafone 2 v Her Majesty’s Commissioners of Revenue and Customs [2009] EWCA Civ 446; [2010] Ch 77 at [37]–[38]. In short, a section 3 interpretation can depart from the literal meaning of legislative words and can read in additional words. However, a section 3 interpretation must be compatible with the underlying thrust of the legislation. Nor can it require the court to make decisions which it is unequipped to make. 

How could the proposed provisions be interpreted in order to avoid the discrimination that we have found? The problem is that the provisions are directly, although not explicitly, targeted at GRT individuals. The discrimination is not a side-effect of the legislation. It is a fundamental feature. This means that a section 3 interpretation is unlikely to be possible. Interpretive amendment of the provisions would need to create some kind of exception for GRT individuals, which would entirely defeat the purpose of the legislation. It would go against the grain because the grain is discriminatory.

This means that a court’s only remedy would be to make a declaration of incompatibility under section 4 of the Human Rights Act. This would not have the effect of striking down the provisions or otherwise rendering them ineffective. Under the UK constitution as predominantly understood, that is not possible. It would send a message to the government, to Parliament, and to the public about the non-compliance of the legislation with human rights.

As we have seen, the discrimination against ethnic minority individuals inherent in this legislation is remarkable. It may be that it prompts the courts to take an unusual step in the defence of the constitutional value of equality, which is at least arguably ambient in the common law as well as crystallised in Article 14 of the ECHR. However, the law as we understand it would permit the proposed offence and the attached police powers to be effective. The constitutional function of section 4 of the Human Rights Act in such a situation is to encourage the legislature to think carefully about whether it wishes to legislate contrary to human rights. Analyses such as this, if they are sufficiently rigorous, can pre-emptively serve a similar purpose in an informal way. It remains to be seen whether this Parliament is susceptible to such encouragement.

Image from Friends, Families & Travellers.

What I’ve been doing over the holidays…

My new year’s project is to learn to play chess properly. This is proving to be harder than I thought it would be and probably much harder than if I had taken it seriously ten or fifteen years ago. I have made a start on Fundamental Chess Openings by Paul van der Sterren, which is very engaging so far. Recommendations of books, strategies or states of mind are most welcome.