Landmark decision The decision of the Supreme Court in the joined appeals Donegan v. DublinCity Council, Ireland and the Attorney General and Dublin City Council v. Gallagher  IESC 18 is a landmark decision because it was the first occasion on which the Supreme Court has made a declaration of incompatibility in relation to a statutory provision pursuant to s. 5 of the European Convention on Human Rights Act 2003 (the Act of 2003). Although the decision of McKechnie J. in the High Court in Foy v.An tArd Chlaraitheoir & Ors.  IEHC 470 was the first occasion on which a declaration of incompatibility was granted, an appeal in that case was subsequently withdrawn in June 2010. Coincidentally, in the Donegan/Gallagher appeal the judgment, with which the other four Judges of the Supreme Court (Murray J., Hardiman J., Fennelly J. and Finnegan J.) concurred, was delivered by McKechnie J.
What is interesting about the Donegan/Gallagher decision is that the statutory provision under scrutiny there, s. 62 of the Housing Act 1966 (the Act of 1966), had been the subject of much judicial scrutiny prior to the coming into operation of the Act of 2003.
Section 62 is to be found in Part III of the Act of 1966, which deals with the provision and management of housing authority dwellings and it specifically provides a mechanism whereby a housing authority could recover possession of dwellings. Section 62 was amended by s. 13 of the Housing Act 1970 but such amendment was not materially relevant to the issue with which the Supreme Court was concerned on the Donegan/Gallagher appeal. Accordingly, as McKechnie J. did, I propose setting out the relevant provisions of s. 62 without incorporating that amendment. Sub-section (1) of s. 62 provides:
there is no tenancy in –
a dwelling provided by a housing authority under this Act,
any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act . . .
whether by reason of the termination of a tenancy or otherwise, and
there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver up possession of the dwelling or building or part thereof on a demand being made therefor by the authority . . ., and
there is a statement in the demand of the intention of the authority . . . to make application under this subsection in the event of the requirements of the demand not being complied with,
the authority . . . may (without prejudice to any other method of recovering possession) apply to the justice of the District Court having jurisdiction in the district court district in which the dwelling or building is situate for the issue of a warrant under this section.”
Sub-section (3), which contains the crucial provision for present purposes, provides:
“Upon the hearing of an application duly made under subsection (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection (1) has been duly made, issue the warrant.”
Sub-sections (4) and (5) deal with procedural and evidential matters and were clearly designed to make life easy for the housing authority.
Judicial scrutiny of s. 62 prior to the Act of 2003
A policy statement issued by the Irish Human Rights Commission published in March 2009 listed some of the reported and unreported cases in which s. 62 had been considered by the courts (cf. page fn. 5). I propose considering two of them.
The earlier is the decision of the Supreme Court in The State (O’Rourke) v.Kelly  I.R. 58. The facts in that case were that District Justice Kelly had issued a warrant pursuant to subs. (3) of s. 62 for the recovery by Dublin Corporation of a dwelling occupied by the prosecutor, Mr. O’Rourke. Mr. O’Rourke obtained a conditional order of certiorari in the High Court quashing the order of the District Justice. However, the High Court allowed the cause shown by the State parties and discharged the conditional order. Mr. O’Rourke appealed to the Supreme Court and on the appeal he submitted that subs. (3) of s. 62 was invalid having regard to the provisions of the Constitution because it constituted an interference with the function of the District Court in the administration of justice by depriving the District Justice of any real discretion in determining an application under subs. (1) of s. 62. The Supreme Court held, in disallowing the appeal, that the mandatory issue by a District Justice of a warrant pursuant to subs. (3) of s. 62 is dependent upon proof of the circumstances specified in subs. (1) of that section and rejected Mr. O’Rourke’s submission that the section was invalid. The judgment of the Court was delivered by O’Higgins C.J. The judgment was very brief, in effect comprising only two paragraphs. Having quoted subs. (3) O’Higgins C.J. stated:
“It will be seen that it is only when the provisions of sub-s. 1 of s. 62 have been complied with and the demand duly made to the satisfaction of the District Justice that he must issue the warrant. In other words, it is only following the establishment of specified matters that the sub-section operates. This is no different to many of the statutory provisions which, on proof of certain matters, make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas. The Court, therefore, rejects the complaint that the section is invalid having regard to the provisions of the Constitution on the ground alleged.”
It is recorded in the report that, in delivering reserved judgment on 3rd July, 1968 in Corporation ofDublin v. McDonnell (High Court: 3rd July, 1968), Henchy J. held, inter alia, that a condition precedent to the issue of a warrant pursuant to s. 62(3) was proof of the following matters:-
that the dwelling was provided by a housing authority under the Act of 1966;
(b) that there is no tenancy in the dwelling;
(c) that possession of the dwelling was duly demanded;
that the occupier failed to give possession of the dwelling; and
that the demand included a statement of the intention of the housing authority, if the demand was not complied with, to apply for the issue of a warrant for possession of the dwelling.
While there was no challenge to the constitutionality of s. 62 in the later case, Dublin Corporation v. Hamilton  2 I.R. 486, Geoghegan J., in the High Court, considered the decision of the Supreme Court to be relevant. The facts in that case were that Dublin Corporation was seeking a warrant against Ms. Hamilton, its tenant, pursuant to s. 62. Ms. Hamilton’s counsel argued that the Judge was not entitled to assume an application had been “duly made” and issue a warrant pursuant to s. 62 simply because the formal proofs required by subs. (1) were in order, but could only issue a warrant once satisfied that Dublin Corporation had, at first, given due consideration to its statutory duties contained in ss. 9 to 11 of the Housing Act 1988 in respect of Ms. Hamilton and, secondly, considered her constitutional rights to equal treatment, fair procedures and bodily integrity as guaranteed by Articles 40.1 and 40.3 of the Constitution. The provisions of ss. 9 to 11 of the Act of 1988 made it mandatory upon every housing authority to regularly assess the housing needs in its area, draw up a list prioritising those most in need and make arrangements for the provision of alternative accommodation to satisfy the need. The matter came to the High Court by way of case stated. Geoghegan J. answered the questions posed in the case stated on the basis that the District Court had no discretion once the necessary proofs had been complied with, holding that it was both reasonable and constitutional that a housing authority have available to it a rapid method of recovering possession of a dwelling without the provision of reasons for it so doing. This was particularly so considering that an authority had to consider its overall management of housing and owed its statutory obligations, not just to the person the subject matter of a warrant but to all persons in need of housing.
As an aside, I would draw attention to the various procedural avenues by which the s. 62 issue has come before the Superior Courts. In some cases it has been by way of judicial review, in others by case stated from either the District Court or the Circuit Court. The process variety was maintained in Donegan/Gallagher cases at first instance. Donegan was a plenary action for declaratory and injunction relief, whereas Gallagher came to the High Court by way of case stated from the District Court.
Chink of light
Following the coming into operation of the Act of 2003 on 31st December, 2003, legal advisers who were faced with eviction as a result of the enforcement of a warrant under s. 62 began looking to that Act for a solution. In Dublin City Councilv. Fennell  1 I.R. 604, the Supreme Court, on foot of a case stated from the Circuit Court (Linnane J.) had to consider whether the Act of 2003 could be invoked on the facts there. What had happened was that Dublin City Council had served notice to quit on its tenant, Ms. Fennell, demanding possession on 1st September, 2003. Ms. Fennell having remained in possession after 1st September, 2003, Dublin City Council brought proceedings in the District Court pursuant to s. 62. On 12th December, 2003, the District Court made an order for possession, which was appealed to the Circuit Court the notice of appeal having been lodged on 23rd December, 2003. The issue raised by the Circuit Court on which the opinion of the Supreme Court was sought was whether, by virtue of s. 2 of the Act of 2003, the Court had to interpret s. 62 in a manner compatible with the European Convention where the proceedings had been commenced before the Act of 2003 had become operative. The Supreme Court held that the Act of 2003 could not be seen as having retrospective effect or as affecting past events and, on the facts, Ms. Fennell could not invoke it.
There was a chink of light, however, in the following observations of Kearns J., with whom the other four Judges of the Supreme Court agreed, which were clearly obiter:
“For many years, therefore, it is clear that the statutory process involved in an application for possession by a housing authority under s. 62 of the Act of 1966 has survived constitutional and judicial scrutiny, not least because of the obvious need of a housing authority to be able effectively to manage and control its housing stock without being unduly restricted or fettered whilst so doing. Obviously a housing authority must not abuse its powers of discretion when exercising those powers and where it does so the proper remedy is that of a judicial review application to the High Court.
It goes without saying therefore that the position of the tenant of a housing authority compares unfavourably with that of a private law tenant under contract or under the Landlord and Tenant Acts, the Rent Restrictions Acts or a variety of other statutes. It may also be seen that the summary method whereby possession of such dwellings may be recovered, notably in circumstances where the tenant is regarded as having through misbehaviour brought about the termination of his own tenancy and thus forfeited the right to any alternative accommodation, may arguably infringe certain articles of the Convention, and in particular, articles 6, 8 and 13 thereof, and also article 1 of Protocol 1 (protection of property) of the Convention.”
Section 62 tsunami
In 2008 and 2009 the High Court considered s. 62 in the context of the Convention in four cases:
(1) Leonard v. Dublin City Council  IEHC 79, a decision of Dunne J., which was considered by McKechnie J. in the Donegan/Gallager decision (at para. 150 to 152 inclusive) where McKechnie J. concluded that the fact that Dunne J. was satisfied that there was no violation of Article 8, was specifically related to the factual context which he had outlined and on that basis he stated that the decision had no wider meaning or implications than that.
Donegan v Dublin City Council  IEHC 288, which I will consider by reference to the judgment of McKechnie J. in the Supreme Court.
Dublin City Council v. Gallagher  IEHC 354 (O’Neill J.), which I will also consider by reference to the judgment of McKechnie J. in the Supreme Court.
Pullen v. Dublin City Council  IEHC 379 (Irvine J.) and Pullen v. Dublin City Council (No. 2)  2 ILRM 484.
I think it is reasonable to surmise that it was envisaged by the various parties involved that the Pullen decisions would be the seminal decisions on s. 62. The first and second plaintiffs, Laurence and Carol Pullen, were former tenants of Dublin City Council. The third and fourth plaintiffs were the minor children of Carol Pullen. The Irish Human Rights Commission participated as amicus curiae. The Attorney General was a notice party. In her judgment in the second module reported in  2 ILRM 484, Irvine J. (at p. 488) summarised the conclusions she reached on the hearing of the first module, the outcome of which was a finding that there had been a breach of Article 8 of the Convention. Having found that Dublin City Council, in its decision to evict the plaintiffs from their home based on a finding of anti-social behaviour, was destined to interfere with their rights under Article 8 and that having regard to the magnitude of that interference and its consequences, it was obliged to justify such interference as being not only in pursuit of legitimate aims identified in Article 8(2) but also as being necessary in a democratic society. The kernel of the rationale of the existence of a breach of Article 8 is to be found in the conclusion –
“That the use of s. 62 . . . to interfere with the plaintiffs’ right to respect for their home following an in-house investigation, in circumstances where such procedure did not afford the plaintiffs any opportunity to dispute the lawfulness or the proportionality of the defendant’s decision to evict them, was not justified as being necessary in a democratic society and was disproportionate to the defendant’s stated aims having regard to the significance of the rights interfered with.”
Irvine J. also found that, Dublin City Council, in performing its functions as a organ of the State, had failed to have regard to the plaintiffs’ rights under Article 6(1) of the Convention.
In the second module of the Pullen case, notwithstanding that finding, the Court refused to grant the Pullens an injunction restraining Dublin City Council from taking any further steps to recover possession from the Pullens on foot of any order made pursuant to s. 62, holding that, other than declarations pursuant to ss. 3(1) and 5(1) of the Act of 2003, the only remedy provided for in that Act was an award of damages pursuant to s. 3(2) and the possibility of an ex gratia payment of compensation under s. 5(4).
The final word on the compatibility of s. 62 with the Convention
Before analysing the rationale of the Supreme Court’s finding that s. 62 is incompatible with the Convention, it is useful to consider the facts of the Donegan case and the Gallagher case.
Donegan case – the facts
Mr. Donegan was a tenant of Dublin City Council (the Council) in a house in the north inner city, in which he lived with his son. The tenancy was effectively a tenancy from week to week. The tenancy agreement contained a provision that neither the tenant nor any member of his household should “cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to Council staff”. It conferred on the Council a right to re-enter and resume possession of the dwelling for breach, non-performance and non-observance of any of the provisions therein. It also provided that the tenancy might be terminated at any time on giving four weeks notice by the tenant or the Council.
The root cause of Mr. Donegan’s problems was a search by An Garda Síochána of the house on foot of a search warrant under the Misuse of Drugs Acts 1977 – 1984 on 28th November, 2003, which was reported to the Council through a community source. While no unlawful drugs were found, the Garda report stated that substantial evidence had been uncovered in the son’s bedroom during the search which indicated that heroin was being prepared and packed for sale on the streets. The Council obtained the Garda report and initiated an investigation into alleged “serious anti-social behaviour”. There were various meetings between Mr. Donegan and Council officials between February 2004 and September 2004. The position adopted by the Council was that Mr. Donegan’s son was a drug dealer, whereas Mr. Donegan’s position was that he was a drug addict, who was endeavouring to deal with his problem. From the outset, the Council threatened Mr. Donegan with proceedings for repossession of the house. At the first meeting in February 2004, as an alternative to seeking possession of the property, they gave Mr. Donegan the option of taking out an order against his son excluding him from the premises. However, Mr. Donegan was not prepared to do that. Eventually, in October 2004 the Council served notice to quit on Mr. Donegan, which sought possession and expired the following February. Proceedings under s. 62 were initiated in the District Court in March 2005, because Mr. Donegan had not surrendered possession. Those proceedings were adjourned from time to time pending the outcome of Mr. Donegan’s proceedings.
One aspect of the factual background which McKechnie J. referred to as being of “some significance” was that, while throughout its dealings with Mr. Donegan the Council had persisted in giving Mr. Donegan the option of seeking an order to exclude his son from the house, by the time the notice to quit was served a statutory provision amending s. 3 of the Housing (Miscellaneous Provisions) Act 1997 had come into force which permitted the Council itself to apply for an exclusion order, if the tenant did not intend to do so “for whatever . . . reason”. As McKechnie J. pointed out, the Council could have made the application itself to exclude Mr. Donegan’s son, but such an application would have entailed an examination on the merits of the complaint against the son, and of the son’s and Mr. Donegan’s response to it.
Finally, as is recorded in the judgment of McKechnie J., apart from the issues which arose from the Garda report in relation to his son, Mr. Donegan had no dispute with the Council. In fact, he was an employee of the Council. He had been a tenant of the Council for almost twenty years, who had always paid his rent and discharged his obligations as tenant. At the time the Garda search took place his son was twenty three years of age.
The Gallagher case – the facts
Mr. Gallagher’s mother was the tenant to the Council of a house in the North city area for several years prior to her death. The essential terms of the tenancy agreement were similar to the terms to be found in Mr. Donegan’s tenancy agreement referred to earlier. However, there was an additional provision under which the rent payable was “differentially calculated”, in other words, it was calculated by reference to the income of the persons living in the premises. It was common case that Mr. Gallagher did not live in the premises between August 1995 and May 1997 and that his name was removed from the rent account in relation to the premises in August 1995 and was not re-entered at any time thereafter. Mr. Gallagher’s contention that he resided in the premises from May 1997 to July 2005 was disputed by the Council.
After the death of Mr. Gallagher’s mother in July 2005, Mr. Gallagher made an application to the Council to succeed to her tenancy, but the application was rejected by the Council on the basis that he did not fulfil either of the criteria set out in the Council’s Scheme of Letting Priorities for succession to tenancies, created under s. 60 of the Act of 1966, which were that:
he had resided at the address for a period of two years immediately prior to his mother’s death; and
he was on the rent account for the premises during the same two year period.
Despite a meeting, at Mr. Gallagher’s request, with the Council and the submission of additional documentation to the Council, following what McKechnie J. described as his “unsuccessful effort at persuasion” the Council issued and served a notice to quit and a demand for possession on Mr. Gallagher and on the personal representatives of his mother’s estate. A summons under s. 62 was then served to recover possession of the property. In the course of the proceedings in the District Court, the Judge made certain findings of fact, including:
that, save for the period between August 1995 and May 1997, Mr. Gallagher had continuously lived with his mother in the house and had regarded the house as his permanent residence, and
that he had not been on the rent account or assessed for rent in respect of the property since August 1995.
It was argued on behalf of Mr. Gallagher in the District Court that the Act of 2003 imposed a requirement of evidentiary and fair procedures on the Council when seeking a warrant for possession under s. 62. Arising out of that submission, the Judge of the District Court sought the opinion of the High Court by way of case stated in which four questions were posed. McKechnie J. (at para. 27) has succinctly summarised the thrust of the four questions as follows:
“In essence, advice was sought as to whether s. 2 of the Act of 2003, placed an obligation on the District Court to interpret s. 62 of the Act of 1966, insofar as possible, in a manner compatible with the State’s obligations under the Convention, and if so, to what extent could the District Judge enter into the merits of the decision to seek delivery of possession of the relevant dwelling.”
The Act of 2003
The provisions of the Act of 2003 which have been invoked in the cases in which s. 62 has been scrutinised by reference to the Convention are ss. 2, 3 and 5 thereof.
Section 2 deals with the interpretation of laws, meaning any statutory provision or common law rule, and provides in subs. (1) as follows:
“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.”
Section 3 deals with the performance of its functions by an organ of the State and provides that, subject to any statutory provision or rule of law, every organ of the State shall perform its functions “in a manner compatible with the State’s obligations under the Convention provisions”. Sub-section (2) of s. 3 provides for a remedy in damages for a person “who has suffered injury, loss or damage as a result of a contravention of that requirement”.
Section 5 empowers the High Court, or the Supreme Court when exercising its appellant jurisdiction, in any proceedings to make a declaration of incompatibility, and that power, as formulated in subs. (1) provides that the Court may –
“. . . having regard to the provisions of sub-section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration . . . that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions.”
However, subs. (2) provides, inter alia, that a declaration of incompatibility –
“shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made.”
There is a requirement in subs. (3) of s. 5 that the Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order. Further, subs. (4) provides that the Government, in their discretion, may make an ex gratia payment of compensation to a party to proceedings in which a declaration of incompatibility is made who has applied for compensation “in respect of any injury or loss or damage suffered by him or her as a result of the incompatibility concerned”.
Issues/relevant law identified by the Supreme Court
In addressing the issues in the Donegan and Gallagher appeals, McKechnie J. addressed:
the interpretation of s. 62;
the impact, if any, which s. 2 of the Act of 2003 has on such interpretation;
Aticle 8 of the Convention and the relevant European Court of Human Rights case law on it;
the U.K. case law;
sufficiency of judicial review; and
Articles 6, 13 and 14 of the Convention.
He then set out his conclusions on Article 8 and the application of s. 5 of the Act of 2003.
Construction of s. 62
As regards the construction of s. 62, McKechnie J. summarised the position as follows (at para. 93):
“. . . an occupier has no right or entitlement to raise any defence to such an application, other than by way of challenging the housing authority on these formal proofs. In addition, the absence of judicial discretion means that the personal circumstances of such occupier must be disregarded as being irrelevant; equally so with questions regarding the reasonableness or fairness of making the Order: these simply have no part in this statutory procedure.”
Impact of s. 2 of the Act of 2003
When considering the impact of s. 2 of the Act of 2003 on the meaning of s. 62(3), McKechnie J. (at para. 98) considered what would have to be read into that provision to give the District Court a discretion which would meet the facts of the appeals and posed a number of rhetorical questions:
“Could it be read in such a way that the District Court could adjudicate on issues, including issues of fact, which are extraneous to the specified requirements of the section, and, depending on its findings, could the Court, as a result, refuse to make the order sought; in the case of Mr. Donegan, could the District Court resolve the factual conflict, and if decided in Mr. Donegan’s favour, have a discretion to refuse the order on that ground; in the case of Mr. Gallagher, could the District Court resolve the residency dispute and, if decided in his favour, have the discretion to refuse the order on that ground, despite the agreed position on the rent issue.”
In identifying the scope of s. 2 of the Act of 2003, McKechnie J. emphasised that when the Court is applying that provision it is doing so “subject to the rules of law relating to such interpretation and application”. He specifically referred to the principles in relation to the interpretation of statutes laid down by the Supreme Court in McGrath v. McDermott  I.R. 258 and Howard v. The RevenueCommissioners  1 I.R. 101. McKechnie J. concluded (at para. 106) that applying those principles, one could not read into s. 62(3) jurisdiction on the part of the Court to adjudicate on issues, including issues of fact, extraneous to this specified requirements of the section and to exercise discretion of the type envisaged in the questions he had posed earlier. In short, he concluded that s. 2 of the Act of 2003 has no effect on s. 62(3) (para. 106).
Article 8/Strasbourg decisions/U.K. decisions
The kernel of the decision of the Supreme Court is the application to the operation of s. 62(3) of Article 8 of the Convention, which provides that everyone has “the right to respect for his private and family life, his home and his correspondence”, and, in particular, paragraph 2 of Article 8 which provides:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for protection of health or morals, or for the protection of the rights and freedom of others.”
In considering the application of Article 8, McKechnie J. pointed to two decision of the Strasbourg Court as “the primary source of the application of the instant appeals”. He considered it was not necessary or desirable to consider U.K. case law on the application of Article 8. The two Strasbourg authorities in question are:
Connors v. United Kingdom  40 E.H.R.R. 189; and
McCann v. United Kingdom  E.C.H.R. 385, the decision in which post-dated the Donegan decision at first instance.
It is interesting to note that before embarking on a consideration of the Connors decision, the McCann decision and the decision of the Strasbourg Court in Blecic v.Croatia  41 E.H.R.R. 13, McKechnie J. clearly defined the core issue in each case as follows (at para. 107):
“The issue in each case was thus narrowed to whether the interference was ‘necessary in a democratic society’. This requirement has two aspects to it, one of substance and one of procedure (para. 49 of McCann). It is the latter which this judgment is concerned with, as in the instant cases, the area of concern, under the Article 8 challenge, is confined to this net point.”
Adequacy of judicial review remedy
On the procedural aspect, McKechnie J. pointed out (at para. 122) that the availability of any legal means by which disputes may be resolved, in a domestic context, is a factor to be considered when assessing the adequacy of the safeguards demanded by Article 8 of the Convention. He pointed out that the only one of relevance in this jurisdiction is that of judicial review. He emphatically rejected the submissions made on behalf of the Council and the Attorney General that, in this jurisdiction, judicial review provides an adequate safeguard, pointing out that very simple and straightforward conflicts required resolution on the facts of both appeals. Was Mr. Donegan’s son a drug addict or a drug pusher? Was Mr. Gallagher residing with his mother for the period in question or was he not?
In addressing whether those issues could be resolved on judicial review, he stated (at para. 124):
“It is therefore difficult to see how a remedy like judicial review, modelled in the manner in which it is, could in any way make a decision or reach a conclusion on these issues. At most, it could set aside a decision unlawfully made but such would leave quite unresolved the basic dispute. It could never, of itself, substitute its own findings of fact for those made by a decision-maker. Therefore, judicial review is not, in any meaningful sense, a forum to which recourse can be had in the presenting circumstances.”
Similarly, with regard to any challenge based on unreasonableness, he pointed out that the challenger would have to meet the requirements laid down by the Supreme Court in State (Keegan) v. Stardust Tribunal  I.R. 642 and O’Keeffe v. An BordPleanála  1 I.R. 39. Again, even if judicial review could be engaged, the underlying dispute would remain unresolved.
Articles 6, 13 and 14
As regards the other Articles of the Convention invoked by Mr. Donegan and Mr. Gallagher (Articles 6, 13 and 14), McKechnie J. held that they were not applicable to the appeals. The outcome was determined entirely by the application of Article 8.
Conclusions on the application of Article 8 to the operation of s. 62(3)
The general principles to be applied in assessing the compatibility of s. 62(3), having regard to the requirements of Article 8, were summarised by McKechnie J. in para. 143. I think it would be helpful to quote in full what he said about the application of Article 8 in the context of the facts before the Supreme Court, because it is indicative of the reasoning process in dealing with an issue of compatibility of a law with the Convention. Having stated that Article 8 affords to every person the right to respect in his private and family life and, as relevant to the case before the Supreme Court, his home, he stated:
"4(i) Under Article 8 there shall be no interference with this right save: –
as is in accordance with law,
as is necessary in a democratic society, and
as in pursuance of a legitimate aim.
(ii) The obtaining of a warrant under s. 62 of the Act of 1966, and its execution, is undoubtedly such an interference with the right given by Article 8: accordingly, by reason of that fact Article 8 is engaged. Whether any preceding step, such as the decision to serve a Notice to Quit and its actual service also constitute such an interference is a question not necessary for determination.
When a warrant is issued, by virtue of s. 62 of the Act of 1966, it is issued in accordance with law,
The objective of obtaining such a warrant can be regarded as being within the scope of the legitimate aims referred to in para. 2 of Article 8, such as, amongst others, in the interest of good estate management, in the protection of the rights of others, including of the landlord and neighbouring tenants,
The phrase ‘necessary in a democratic society’ is understood to mean that such will be satisfied if it answers a ‘pressing social need’ and if the interference is proportionate to the aim pursued.
(5) It is accepted that by reference to the constituent elements in Article 8, only those referable to necessity and proportionality are relevant to the instant cases.
(6) In determining whether an interference is Article 8 compliant, the regulatory framework within which the measure has been established and operates will be assessed. Questions such as, (i) is the framework procedure sufficient to afford true respect to the interests safeguarded by the Article, (ii) is the decision making process fair in such a way as to respect that right, (iii) has the affected person an opportunity to have any relevant and weighty arguable issues tested before an independent tribunal and, (iv) has that person an opportunity to have such an issue considered against the measure, to determine its proportionality.
(7) Where any one or more of these requirements, when considered collectively and having regard to the margin of appreciation, is absent, it may be considered that the safeguards necessarily attendant on Article 8 for the purposes of its vindication have not been satisfied. A violation in such circumstances may follow.
(8) The suggested procedural safeguard as applying in this jurisdiction is the remedy of judicial review; as above-established, s. 62(3) cannot be relied upon in this regard. . . .
(9) It is accepted, and I so hold, that on a judicial review application the court cannot substitute, for the facts presented, its own view as to what they should be. Moreover, the court is not fact finding and thus cannot resolve conflicts in this regard. This limitation, applies even if the challenge is one of unreasonableness in the O’Keeffe sense.”
Application of principles to the Donegan case
Having recorded (at para. 147) the reason, or at least part of the reason, which was admitted on behalf of the Council in its submissions for not applying for an exclusion order against Mr. Donegan’s son, as it could have before serving notice to quit, which was to avoid a hearing involving a contest on the merits, and having noted that the interview process which the Council engaged in with Mr. Donegan was “ad hoc, unstructured and unregulated” and “solely in the nature of an investigation” so as not to be regarded as of value within the safeguarding procedures as demanded by Article 8, McKechnie J. continued (at para. 149):
“Apart from such interview process, Mr. Donegan has had no opportunity of having his argument as to his son’s condition aired or determined before an independent body. The issue is one of extreme simplicity but requires a mechanism to determine factual conflicts. If determined in his favour it must be that the Council could not pursue the eviction order which it presently seeks. It would be entirely contrary to their reasoning justifying such a move, were they to do so. Therefore, a resolution of this matter is of the highest importance to Mr. Donegan. Given the enormous significance which this interference, by way of eviction, would have on his right to have due respect shown for his home, it follows, that the existing process by which such eviction may be sought, constitutes an inadequate safeguard in that respect and therefore, his Article 8 rights have not been respected.”
Application of principles to the Gallagher case
While recognising that the position of Mr. Gallagher was, in one respect, similar to that of Mr. Donegan, in that there was a factual dispute as to whether he was resident in his mother’s home between 1997 and 2005, McKechnie J. distinguished Mr. Gallagher’s position on another factual basis. He pointed out that there was no conflict with regard to the second requirement for succession to a tenancy, namely, that the applicant successor was on the rent account for the premises during the two years preceding the tenant’s death, because it was common case that he was not. Indeed, if he had been residing in his mother’s home from 1997 to 2005, the rent paid by his mother had been less than it should have been. McKechnie J. also distinguished the position of Mr. Gallagher by reason of the fact that he had never been a tenant of the Council and his occupancy, such as it was, was in breach of his mother’s tenancy agreement. He never had any proprietary estate or interest in the property, and he had no legal right to reside there. McKechnie J. summarised Mr. Gallagher’s situation as follows:
“In Mr. Gallagher’s situation, noting the circumstances which I have described, his optimum position is to plead with the Council to have requirement number two disregarded for the purposes of succession. I do not think that Article 8 rights can be invoked for this purpose. That being the situation, and notwithstanding the residency conflict, I do not believe that the safeguards required have been substandard so as to violate his Article 8 rights. Consequently, I would refuse to grant any relief in his case.”
The remedy in the Donegan case
McKechnie J. set out the remedy to which Mr. Donegan was entitled as follows (in para. 159):
“Finally, in relation to the relevant remedy in the case of Mr. Donegan, in light of the decision given above and noting the absence of any other adequate legal remedy, I would issue a Declaration of Incompatibility in relation to s. 62(3) of the Act of 1966, pursuant to s. 5(1) of the Act of 2003.”
Whither now for Mr. Donegan?
Lest the Donegan case comes back before the High Court in the future, I think it would be inappropriate for me to speculate on the answer to that question. However, for those who wish to speculate, a report by Paul Cullen in the Irish Times on 4th April, 2012 may be instructive. It had stated:
“The Government is to consider making an ex gratia payment to Lydia Foy, who fought a 14-year legal battle to secure official recognition as a woman, despite being born with male physical characteristics and having lived her early life as a man.
The Cabinet yesterday agreed that a payment might be appropriate in the case of Dr. Foy, whose efforts have prompted the Government to promise the introduction of laws recognising the acquired gender of transgender people. On the recommendation of the Minister for Social Protection, Joan Burton, an adviser is to be appointed to assess what level of compensation might apply in her case. The matter will return to Cabinet for a final decision. . . .
In the case taken by Dr. Foy, the High Court ruled that the failure to provide recognition contravened the Convention. An advisory group subsequently recommended changes to the law, which Ms. Burton plans to introduce shortly.”