Jersey Unreported Judgments

[2003]JRC058

royal court

(Samedi Division)

 

27^th March, 2003 

 

 

 

 

 

Appeal to the Royal Court, under Article 12(1) of the Housing (Jersey) Law 1949, against the decision of the Respondent Committee of 22^nd January 2001, refusing consent to the lease of a property to the Appellant, on the grounds that the Respondent Committee is not satisfied that hardship would be cause to the Appellant if such consent were not granted.

 

 

Advocate P.C. Sinel for the Appellant.

The Solicitor General for the Respondent Committee.

 

 

judgment

the commissioner:

Introduction

1.        This is an appeal by Mrs. Catherine Glazebrook under Article 12(1) of the Housing (Jersey) Law 1949 from the rejection by the Respondent States Housing Committee of an application by her dated 14^th November 2000 under the Housing (General Provisions) (Jersey) Regulations 1970, Regulation 1 paragraph (1) (g).  Mrs. Glazebrook had applied for consent to enter into a lease of a property in the parish of St. Martin known as Church End, La Rue au Croix au Maitre.  The ground of her application was what may, as a matter of convenient short-hand, be described as 'hardship'. For reasons that will appear in due course we refer to this as the 'Second Application'.

2.        Regulation 1(1)(g) is one of several categories in respect of which the States Housing Committee is empowered and required to grant applications for, in effect, consent to buy or rent property in Jersey. The relevant portion of the Regulation (as amended) reads as follows:

'Subject to the provisions of this Regulation, for the purposes of Article 10 of the Law [the 1949 Law], consent to the sales or transfers of land or registered contracts of lease shall be granted by the Housing Committee in any case where-

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(g) the Committee is satisfied that the hardship (other than financial hardship) which would be caused to the purchaser, transferee or lessee or to persons ordinarily resident in the Island if consent were not to be granted outweighs the fact that he does not fall within any sub-paragraph of this paragraph.'

3.        Mrs. Glazebrook is the daughter of Deputy Frederick ('Bob') and Mrs. Ann Hill of Catel Cottage in the parish of Trinity.  She has a son, Mathew, who was some eight years old at the time of the Second Application. She has been divorced from her husband since 1995. Church End, the property the subject of the application, was purchased by Deputy and Mrs. Hill in 1997.  It lies about a mile and a half from Catel Cottage.

4.        The history of this appeal is complex, but may be summarised for present purposes as follows.

5.        Mrs. Glazebrook first applied for Regulation 1(1)(g) consent in November 1998 ('the First Application'): the background to that application is of some importance and will have to be examined later. On 13^th November 1998 her application having initially been refused by the Housing Committee (to which, from here on, we refer simply as 'the Committee') was then the subject of (i) a further inquiry and report by a Sub-Committee in January 1999, (ii) a recommendation by an Administrative Board of Appeal in April 1999 that the Committee re-consider the matter, and (iii) further consideration by the Committee in May and June 1999.  On 14^th June 1999 the Committee re-affirmed its earlier decision.

6.        In December 1999 an appeal by Mrs. Glazebrook from the Committee's decision (treated, for technical reasons, as an application for judicial review) was heard and refused by the Royal Court (Sir Peter Crill, KBE and Jurats Potter and Le Brocq).

7.        On appeal by Mrs. Glazebrook from that decision to the Court of Appeal in October 2000, matters took an unexpected turn when the Court pointed out that the original application to the Committee had been defective in that it had only been formulated as an application 'in principle' and not in respect of any specific property (a common but - as the Court of Appeal held - an impermissible basis on which to make a Regulation 1(1)(g) application).   The result was that all decisions of the Committee to date in respect of the original 'application' were held to be null and of no effect; that an order was made   giving Mrs. Glazebrook leave to make a further application (provided this was done promptly); and that it was directed that any such application should be considered by the Committee in the light of all the circumstances existing in June 1999 - a direction that has had significant practical implications for subsequent proceedings. The judgment of Southwell J.A., reported at 2000 JLR 381, gives a fuller account of the circumstances leading to this decision.

8.        On 14^th November 2000 a second application was lodged by Mrs. Glazebrook with the Committee seeking consent under Rule 1(1) (g), this time specifying Church End as the property which she wished to lease (for a period of six years from 1^st December 2000). On 22^nd January 2001 that application was also refused by the Committee.  Mrs. Glazebrook then served a Notice of Appeal to the Royal Court and it is that appeal with which we are presently concerned.

9.        The grounds of appeal and the Committee's response have been the subject of extensive written submissions stretching over a period of some twenty months. The hearing itself took place over a period of four days in January 2003. Evidence-in-chief was for the most part given by affidavit, the Court having made certain rulings as to admissibility (in July 2002 by the Bailiff in Chambers) and, in the exceptional circumstances of the case, as to cross-examination within specified limits (in November 2002 by the Commissioner).  This may well be the last appeal of its kind to be governed by Part XII ('Appeals from Administrative Decisions') of the Royal Court Rules 1992, a new regime having been established by Practice Direction No.8 of 2002. Counsel were agreed that these new provisions do not apply to the present proceedings.

10.      A threshold issue raised by Mr. Sinel on behalf of Mrs. Glazebrook, was whether this appeal should - as he contended - be approached by the Court de novo, or - as the Solicitor General on behalf of the Committee contended - as an ordinary appeal.  For reasons that will appear in due course, the point is of no practical significance and does not require exploration in this particular judgment.

11.      Although it was developed under a considerable number of different heads, Mr. Sinel's attack on the Committee's decision to refuse Mrs. Glazebrook's Second Application was founded essentially on contentions (i) that the decision was vitiated by bias; (ii) that the Committee failed to give proper weight to certain factors or evidence and gave undue weight to others; (iii) that, in applying the hardship test provided by Regulation 1(1)(g), the Committee assumed that there was a real shortage of housing in Jersey when the truth was otherwise; (iv) that the Committee's decision was out of line with its decisions in other 'hardship' cases; and (v) that the decision fell foul of the European Convention on Human Rights in various ways.

The States Housing Committee

12.      It is necessary at this point to touch briefly on the workings and composition of the Housing Committee.  Although its functions are closely allied in some respects with those of some of the other Committees such as the Planning Committee, it is the Housing Committee that is charged with the responsibility of making decisions under Regulation 1(1)(g).  Its membership consists, at any given moment, of a president and six other States Members.  It is served by, among others, three full-time professional officers: the Chief Executive Officer to the Committee, who throughout the events with which we are concerned was Mr. Eric Le Ruez; the Director of Housing (formerly known as the Law and Loans Manager), Mr Peter Connew; and the Senior Law and Loans Officer, Mr. William Sugden.

13.      The Committee meets fortnightly and can have as many as fifteen applications under Regulation1(1)(g) to consider.  In the course of a year it will usually deal with something of the order of a hundred and fifty such applications. The meetings are normally attended by Mr. Le Ruez  and Mr. Connew.

14.      The membership of the Committee at the time when Mrs. Glazebrook's Second Application came up for consideration in January 2001 was not the same as it had been in June 1999 at the time of the decision on her earlier application.  In particular, while the president at the time of the first decision had been Deputy S. Baudains, by the time of the Second Application, the presidency had passed to Deputy Terence Le Main. He had been a member of the Committee under the presidency of Senator Corrie Stein in 1997 and 1998 when the story in this case begins, but had not been a member of the Baudains committee in June 1999.

      Hardship as a concept

15.      In opening and closing his submissions on behalf of Mrs. Glazebrook, Mr. Sinel laid stress on the fact that this was, as he put it, a 'hardship' case.  As a convenient label, that description was not unfair. But his formulation of the central issue that the Court has to decide as "whether or not hardship was to be suffered or was suffered by Mrs. Glazebrook and Mathew (and to a lesser extent by Deputy and Mrs. Hill)" was incomplete in that it failed to emphasise that Regulation 1(1)(g) requires not just proof that refusal of consent would cause hardship (to "the purchaser, transferee or lessee or to persons ordinarily resident in the Island") but also that such hardship "outweighs the fact that [the applicant] does not fall within any sub-paragraph of this paragraph" (in other words, any of  the other heads specified by Regulation 1(1)). Refusal of consent in the present case was clearly going to entail hardship of some kind for Mrs. Glazebrook and her son.  The crucial points are, first that what is involved in the application of this particular provision is not an absolute determination of fact but is a balancing exercise between competing considerations, one of which is the nature and extent of hardship that would be entailed in any refusal of consent; secondly that the body entrusted with conducting that exercise is the Housing Committee; and thirdly that consent under this particular head is to be granted only where the Committee "is satisfied" that the element of hardship outweighs the absence of qualification under any other head.

16.      In the course of the hearing there was some discussion of what exactly 'hardship' means in this context.  The terms of the Regulation itself exclude 'financial' considerations but otherwise attempt no definition.  Mr. Sinel was critical of the Committee for attempting to operate the provisions of Regulation 1(1)(g) without adopting a definition of hardship, but when pressed by the Court to say exactly what that definition should be was unable to provide a formulation that really carried the matter any further, it merely being proposed that hardship could be said to occur when "The circumstances of the applicant and/or other person ordinarily resident in the Island of Jersey are such as to cause identifiable, physical and/or psychological and/or emotional difficulties."  In our view 'hardship' in this context is a concept that neither requires any definition (beyond that expressly entailed in the exclusion of financial considerations) nor benefits from any judicial attempt at reformulation or exposition. Whether and to what extent it will or is likely to arise is a question of fact to be determined in the light of the circumstances of each particular case. 

17.      Although critical of the Committee in the respect already noted, it was Mr. Sinel's case that, however 'hardship' might be defined, Mrs. Glazebrook's and Mathew's circumstances in June 1999 fell squarely within any such definition.

The history of the case

18.      Much of this was not in dispute and was the subject of an agreed statement of facts.  Deputy Hill was born in Jersey and attended St.Martin's Central School.  He left the Island in 1960 and served for many years with distinction as an officer in the Metropolitan Police in England.  In the course of that service he was awarded the British Empire Medal. On his retirement in October 1991 he returned with Mrs. Hill to live in Jersey at Catel Cottage, doing much of the re-construction work themselves on what was then a near- derelict property.  In the 1993 General Election he successfully contested the seat for St. Martin's.  Mrs. Hill was born in England, and it was there that she had met and married Deputy Hill. Even when living in England the Hills had maintained close contact with Jersey and had regularly returned to Jersey for holidays on Deputy Hill's parents' farm in St.Martin's. Since moving to Jersey, both Deputy and Mrs. Hill have been active in both parish and Island affairs.

19.      Mrs. Glazebrook was born in England on 22^nd July 1965 but was christened in St. Martin's Parish Church. Her god-father is a Jerseyman.  As a child she spent her summer holidays staying on her grandparents' farm in St. Martin's and visiting other relations in the Island.  In 1984, at the age of nineteen, she moved to Jersey and two years later married her boyfriend, David Glazebrook, who had followed her to Jersey from England.  In 1987, however, they returned to live in England, and in February 1990 Mathew was born.

20.      Subsequently, following a miscarriage by Mrs. Glazebrook, the marriage ran into difficulties, Mr. Glazebrook left home and in 1996 there was a divorce.  As part of the divorce settlement Mrs. Glazebrook became the owner of a house outside Canterbury the subject of a mortgage.

21.      Following her divorce, a variety of personal difficulties of one kind and another led to Mrs. Glazebrook suffering from depression and anxiety.  She was a single mother without the support of any family nearby, her nearest relations, geographically, being a sister in Greenwich and an aunt some seventy miles from Canterbury.  Mr. Glazebrook failed to make any maintenance contributions in respect of Mathew until he was made the subject of an order by Canterbury Magistrates in June 1998.  He made little attempt to keep in touch with Mathew.   In 1997 the difficulties of coping in these circumstances led her to move to Jersey in order to be close to her parents, who - she felt - would be able to provide her and Mathew with (as it was put in the agreed statement of facts) "emotional, logistical, financial and other support". Ownership of the house in Canterbury was retained but it was let in order to help pay for the mortgage.

22.      In Jersey Mrs. Glazebrook and Mathew moved in with the Hills at Catel Cottage.  This, however, was plainly intended to be no more than a temporary state of affairs.  At about the same time, in July 1997, Deputy and Mrs. Hill decided to purchase Church End, and in November 1997 the contract of sale was passed before the Royal Court.  It was planned that the house would be let to the Hills' niece, Miss Kelly De La Haye, and that Mrs. Glazebrook and Mathew would take up residence there as Miss De La Haye's lodgers.  Both Mrs. Glazebrook herself and the Hills were well aware that she was not residentially qualified to own or rent Church End herself.  For a tenant to take in a genuine lodger who has no residential qualifications is, however, perfectly legitimate.  Had the intended arrangement worked out, it may well be that it would not, in practice, have aroused any adverse comment and this litigation would never have come about.  But this was not to be.

23.      Completion of the purchase of Church End was delayed and it was not until February 1998 that everything was in place and it had been re-furbished and redecorated (largely by Deputy Hill with some assistance from Mrs.Glazebrook).  While this was going on Mrs. Glazebrook and Mathew continued to live at Catel Cottage. In the meantime Miss De La Haye's plans evidently changed, an opportunity to work abroad causing her to decide at the last moment not to rent Church End after all.  Mr. James Amy, a friend of both Miss De La Haye and Mrs. Glazebrook, agreed, however, to take her place and become the tenant of Church End.  Mrs. Glazebrook, as before, was to be a lodger in the house. In early February 1998, Mr. Amy and Mrs. Glazebrook, together with Mathew, accordingly moved into Church End.  Mr. Amy occupied the bed-room and bathroom on the second (top) floor and Mrs. Glazebrook and Mathew the bed-rooms and bathroom on the first floor.  The kitchen, sitting-room and cloakroom on the ground floor were shared.

24.      It is common ground that around this time Deputy Hill - who at that stage had been a member of the Housing Committee since 1996 - had quite frequently mentioned the subject of Mrs. Glazebrook's and Mathew's housing needs, and his plans to buy another property, to Mr. Connew  and had sought the latter's advice.  Deputy Hill recalled in particular speaking to Mr. Connew about Mr. Amy replacing  Miss De La Haye and asking him if this was in order, to which Mr. Connew said it might be better if Mrs. Glazebrook were 'shacking up' with Mr. Amy - a response that he found distasteful but did not pursue.  As this was - according to Deputy Hill - as far as Mr. Connew's response went, he assumed that there was nothing untoward in the proposed arrangement.  Mr. Connew, for his part, said that he warned Deputy Hill that any proposal that involved a person acquiring a property in order to accommodate his residentially unqualified daughter as the lodger of someone with housing qualifications was risky, especially if - as in Deputy Hill's case - he was a member of the States and the Housing Committee, and he advised Deputy Hill to seek independent legal advice in connection with any specific arrangement that he had in mind. Arrangements of the kind that Deputy Hill envisaged are not infrequently, Mr. Connew said, the subject of inquiry as to their lawfulness.  He would certainly not, he said, have used the expression 'shacking up', but he might have said that a situation in which an unqualified person was living as a couple with someone who was residentially qualified would be less likely to drift into an unlawful transaction. Whatever else may or may not have been said on the subject in these conversations, it is difficult to see how Deputy Hill - even on his own account of the discussion about his plans to let the house to Mr. Amy -  could have derived any sense of comfort from what Mr. Connew is supposed to have said and could not have been alive to the need to deal with the situation on a more formal footing with the benefit of legal advice.  It was at this point that things started to go wrong.

25.      Mr. Amy, together with Mrs. Glazebrook and Mathew, had only been in residence at Church End for a matter of days when, on Friday 13^th February 1998, Deputy Hill was informed by the then-President of the Housing Committee, Senator Stein, that the Housing Department had received an anonymous telephone call alleging that Mrs. Glazebrook was illegally occupying Church End.  Deputy Hill's immediate reaction was to protest that his daughter's proposed occupation of Church End was common knowledge among the members of the Committee, that Church End was in a prominent part of the parish, that if there were thought to be anything amiss it should have been mentioned long since, and that if there were now to be any investigation it should take place immediately.  As a result of this conversation, on the following Monday morning, Mr. William Sugden (the senior Law and Loans Officer) conducted an inspection of Church End and an interview with Deputy Hill.  Two days later Mr. Sugden paid an un-announced visit to Mr. Amy at his place of work and also interviewed him. In a subsequent written report to the Committee dated 18^th February 1998 Mr. Sugden summarised his conclusions as follows:

 "In my opinion the above facts would not support a successful prosecution but there is no doubt in my mind Deputy Hill has studied the law very carefully and in theory is just on the right side of it.  However the department has always been advised by the Crown Officers that where an unqualified person owns the shares in a Share Transfer property and somehow manages to occupy it, there is usually a scheme or device somewhere.  I feel that this is in a very similar category, and does not give the right signals to the general public."

26.      Having seen that report, Senator Stein wrote to Deputy Hill the same day alluding to it - though not enclosing a copy - and observing:

 "Whatever your own views are on this matter I feel that you are looking at it as a father rather than as a member of the Housing Committee.  I have every sympathy for your situation but as politicians we must always ensure that we act in the public interest and I feel that you may have compromised your position as a Committee Member by not acting within the spirit of the Law".

27.      On Friday 20^th February 1998 the Committee met.  Deputy Hill was at first requested to leave the room while Mr. Sugden's report was considered but, in the end, he stayed, the report was distributed and openly discussed. According to Deputy Hill he read the report as vindicating his position, while considering that it contained a number of factual inaccuracies and regarding Mr. Sugden's observation about being "just on the right side of the law" as an unwarranted slur on his integrity.   Beyond this we know little of what transpired other than that Deputy Hill appears to have left before the meeting's conclusion.

28.      A few days later Deputy Hill gave an interview to a journalist from the Jersey Evening Post which resulted in a lead article in the paper the following day under the headline "Member asked to resign" and, on 3^rd March 1998 he made a personal statement in the States confirming his belief that he had acted with complete propriety and stating that he did not consider it appropriate that he should resign from the Committee.  That statement was followed by a spate of articles and correspondence in the press, some supportive of his position, others adverse. There was speculation that Senator Stein would herself resign if Deputy Hill did not.

29.      On 6^th March 1998 Mr. Connew wrote to the then Attorney General, enclosing the relevant documentation and seeking advice as to whether the Department or the Committee should be taking any further action.   By that stage Senator Stein had received a letter dated 4^th March 1998 from Advocate Guy Le Sueur, a member of the Jersey Bar, who had been involved with the sale of Church End to the Hills as curator of the vendor, in which he expressed support for Senator Stein's position and robust criticism of the arrangements, as he understood them, regarding Mrs. Glazebrook's residence at Church End.  In evidence before us Deputy Hill claimed that this letter was prompted by malice on the part of Advocate Le Sueur arising out of a prior difference or dispute between the two men; but there was nothing to corroborate this suggestion and, for reasons that we give later, it is hardly surprising that a letter in the sort of terms in which this one was expressed was written.  Deputy Le Main also made clear to Deputy Hill at around this time that he shared Advocate Le Sueur's views and believed that Deputy Hill's continued membership of the Committee was untenable.

30.      On 10^th March 1998, after further consideration, Deputy Hill delivered letters of resignation to the Bailiff and to Senator Stein and announced his decision in a personal statement at a press conference in which he vigorously defended his own conduct, expressed a number of concerns arising out of the way in which the matter had been handled and the adverse impact that it had had on the working of the Housing Committee, and concluded: "I have reconsidered my position and am now resigning from the Housing Committee as my presence on the Committee, aggravated by the President's ambiguous position, is impeding this vital work. I hope that the points that have emerged from this matter will be seriously addressed and the right lessons learnt". In a letter the same day, the Solicitor General, responding to Mr. Connew's request to the Attorney General for advice, (i) stated that she agreed with Mr. Sugden's opinion that the facts outlined in his report dated 18^th February 1998 would not support a prosecution, (ii) said that she was not surprised at Advocate Le Sueur's observations but a prosecution could not be based on suspicion or on breach of the spirit rather than the letter of the law, and (iii) suggested other possible lines on inquiry that might merit consideration.  She also mentioned that she had received a separate consignment of some of the same documentation, including Advocate Le Sueur's letter, direct from Deputy Le Main.

31.      After this the controversy appears to have quietened down.  Mr. Amy and Mrs. Glazebrook - with Mathew - continued to live at Church End. 

32.      Then, in September 1998, Mr. Amy decided that he wished to move elsewhere and gave a month's notice of intention to leave. Deputy Hill was aware that another young man, Mr.Andrew Bale, was looking for somewhere to live in the area, and in due course contact was made, inspection of the property took place, and Mr. Bale indicated that he would like to take on the tenancy of Church End with Mrs. Glazebrook and Mathew as lodgers. The requisite application for housing consent was signed by Mr Bale and delivered to the Housing Department on 30^th October 1998 by Deputy Hill in person, he having spoken the previous day to Mr. Le Ruez.  However, news of this development prompted immediate concern within the Housing Department, as a result of which Mr. Sugden telephoned Mr. Bale's place of work with a view to interviewing him. In the event, the call was passed to Mr. Bale's brother, Mr. William Davies, and it was Mr. Davies who met Mr. Sugden later that morning at the offices of the Housing Department. Mr. Bale - who did not give evidence - is, it seems, a person of a reserved and nervous disposition, whose affairs are largely looked after by his brother.

33.      Later the same morning Mr. Davies telephoned Deputy Hill and told him that Mr. Bale would not be going ahead with the proposed tenancy. According to Deputy Hill he was told by Mr. Davies that this was because Mr. Le Ruez had said that his brother would be prosecuted if he allowed Mrs. Glazebrook to lodge at Church End.  Having heard the evidence, it is plain that, whatever impression Deputy Hill may have been left with as a result of his conversation with Mr. Davies, no such statement was ever made by Mr Sugden.  According to Mr. Sugden's own affidavit evidence, as to which there was no application to cross-examine, he did no more than explain the law concerning the respective rights and obligations of tenants and lodgers and inquire about the arrangements between Deputy Hill and Mr. Bale.  Mr. Davies, who was cross-examined on his affidavit, substantially confirmed Mr. Sugden's account of the meeting, including in particular the accuracy of Mr. Sugden's manuscript notes. He described the meeting as "very informative".  Mr. Sugden had, he said, explained the legal position very clearly, giving examples of various practical considerations:

 "Mr. Sugden gave examples of making sure if you took on a lease and you were the main leaseholder, you were able to.... As the leaseholder you should be able to chose your own lodger.  You should have the free run of the total house.  Your responsibility is a lot greater than just renting part of it".

Mr. Sugden had, he added, behaved entirely correctly. The decision not to proceed had been made by Mr. Bale and his family because they themselves were concerned that the proposed arrangements might be unlawful. Asked by the Court whether his evidence was that Mr. Sugden had gone as far as to advise him in terms that the proposed arrangements would be unlawful, or whether Mr. Sugden had simply explained what a lawful lodging arrangement would entail and Mr. Davies had then concluded that he was not happy with what was proposed, Mr. Davies was in no doubt that the latter was what had happened.  We found him a straightforward and credible witness.

34.       Mr. Davies also spoke of an occasion some three years later in October 2001 when he had had been approached by Deputy Hill at his stall in the Central Market in St Helier to ask whether he would be prepared to give a formal statement to the effect that his brother had been threatened by the Housing Department in connection with the proposed arrangements at Church End.  This, Mr. Davies declined to do, stating emphatically that this was not true. In evidence before us Mr. Davies, while accepting that it was possible that Deputy Hill might have got the impression from his conversation with Mr.Davies on 30^th October 1998 that there had been a threat of prosecution, was adamant that this had not in fact been the case.  According to him, he was not pleased by Deputy Hill's approach and told him that he should stop wasting tax payers' money.  Deputy Hill, by contrast, recalled the meeting as having been an entirely amicable one and denied Mr Davies's account of it.  Mr Davies had, he said, explained that he did not want to get involved in litigation and he - Deputy Hill - had accepted this and left the matter there.

35.      Having learnt that Mr. Bale would not be going ahead with the arrangements previously agreed, Deputy Hill spoke by telephone to Mr. Le Ruez, wanting to know why Mr. Bale was unacceptable as a tenant when - as far as he could see - there had been no objection to Mr. Amy.  In the course of that conversation - according to Deputy Hill - Mr. Le Ruez said "there was no way that Catherine would ever be able to lodge at Church End".   Mr Le Ruez, however, denied in his affidavit that he did anything more than relay the advice that he had received from the Crown Officers as contained in his letter to Deputy Hill dated 2^nd November 1998.  He was not cross-examined on the point and there was no mention of any such statement in any immediately ensuing correspondence. But, for our part, we see the point as of little consequence either way: there would have been nothing improper or surprising in it if Mr. Le Ruez had, one way or another, left Deputy Hill in no doubt that the housing officers were of the view that arrangements of the kind that he had tried to put in place with a succession of three different tenants of Church End were illegitimate.

36.      Mr. Amy finally left Church End on 31^st October 1998 and Mrs. Glazebrook and Mathew moved back to Catel Cottage to live with Deputy and Mrs. Hill.

37.      On 2nd November 1998 Mr. Le Ruez wrote to Deputy Hill referring to their recent telephone conversation and confirming the advice that the Housing Department had received from the Law Offficers as to what constitutes a 'scheme or device' to circumvent the Housing Law.  Whether Deputy Hill ever took his own legal advice on the matter or on the specific arrangements under which Mrs. Glazebrook might have lived at Church End as a lodger is unknown: there was no evidence that he did so.

38.      Two days later, on 4^th November 1998 Mrs. Glazebrook wrote at some length to the Housing Department requesting consent under Regulation 1(1)(g) to occupy (unspecified) property in the Island (the 'First Application').  The letter laid stress, among other things, on her historic Jersey connections, problems resulting from her divorce, Mathew's particular difficulties and needs, the limitations of living with her parents at Catel Cottage, and the shortage of suitable alternative accommodation in the Island. 

39.      At the Housing Committee meeting on 13^th November 1998 it was decided that there were insufficient grounds to warrant granting the application. But it seems that the door was left open for further consideration of the matter, and at a meeting on 16^th December 1998 it was agreed to invite Senator R.J. Shenton to attend before a Sub-Committee in order to make representations on behalf of Mrs. Glazebrook - a meeting, which, in the event took place on 11^th January 1999 and was also attended by Mrs. Glazebrook and Mrs. Hill. 

40.      On 18^th January 1999, the Committee, having received a report from the Sub-Committee, rejected the application.  The minute of that meeting records the following:

 "The Committee considered at length the submissions made with regard to the hardship being suffered by all parties concerned by not granting housing qualifications.  However, having regard for the large number of persons in not dissimilar circumstances suffering a degree of hardship, and the shortage of suitable accommodation available for persons with residential qualifications, the Committee was of the opinion that consent could not be justified in this case." 

Mrs. Glazebrook was notified of the decision in a letter from Mr. Connew dated 21^st January 1999. 

41.      At the request of Mrs. Glazebrook the matter was then referred to a three-person Administrative Board of Appeal constituted under the Administrative Decisions (Review) (Jersey) Law 1982.  On 21^st April 1999 there was a public hearing before the Board and on 7^th May 1999 the Board issued findings which culminated in a statement of belief that the Housing Committee had been "unduly oppressive and unreasonable in its decision not to grant consent to Mrs. Glazebrook and that excessive hardship would result" and a request that the Committee reconsider its decision within the next three months. On 17^th May 1999 the matter accordingly came back before the Committee for further consideration, the upshot of which was that the Committee asked (i) for research to be conducted into certain categories of comparable cases and (ii) for further information about Mathew's medical condition. On 14^th June 1999 the Committee once again addressed the matter, with the benefit of the additional medical evidence that it had requested and lists of other Regulation1(1)(g) cases, but without in the end departing from its previous decision.  It was the Committee's view that Mrs. Glazebrok's case was no worse in terms of hardship than many other cases that had been rejected in the past.  The decision was communicated to Mrs. Glazebrook in a letter dated 18^th June 1999 from Mr. Connew.

42.      At about the same time a telephone conversation took place between Mrs. Glazebrook and Mr Le Ruez in the course of which, according to the former, Mr. Le Ruez described her case as a difficult one because of who her father was.  Her recollection was based on a manuscript note that she had made on a letter form the Housing Committee dated 17^th May 1999, though she was somewhat confused initially as to when the conversation had taken place.  Mr. Le Ruez, for his part, said that he was conscious of the fact that the Committee was concerned that the case should be treated with total objectivity and that the identity of the applicant's father should have no bearing on the result: he might well, he said, therefore have said something to this effect.

43.      We have already recounted in outline the subsequent proceedings before the Royal Court by way of judicial review and in the Court of Appeal, but there are a number of additional incidents that require mention.

44.      On 23^rd December 1999, shortly after the hearing before the Royal Court, another telephone conversation of alleged significance took place, this time between Mrs. Glazebrook and Deputy Le Main (who by then had succeeded Deputy Baudains as President of the Committee). According to Mrs. Glazebrook the conversation concluded with her saying to Deputy Le Main "No matter how I appeal or how strong a case I have on hardship grounds, you will never grant me qualifications because of who I am" and him replying "What would it look like if we gave the daughter of a States Member her qualifications?"  Deputy Le Main denied saying any such thing. He remembered the conversation well because Mrs. Glazebrook had been in a distressed state and had been unbridled in her use of language. Mrs. Glazebrook did not accept that there had been anything amiss with her language but she readily accepted that she had been at the end of her tether, in part because of the stress of the Royal Court hearing, in part because of having to pack up Church End just before Christmas and, most recently, because of an unwelcome message that she had just received from her former husband cancelling his previous arrangements to have Mathew for the New Year.  She had telephoned Deputy Le Main out of anger.  But at the same time, she had, as she frankly acknowledged, never claimed that the Housing Committee was the cause of her problems: "The cause of my problems was the break-up of my marriage and the conduct of my ex-husband."  It is also difficult to know what to make of her main complaint about this conversation, given that in the course of her cross-examination she also described Deputy Le Main as robustly rejecting the suggestion that it was her father's identity that had resulted in the refusal of her application:  "He said "Oh, you know, of course not."  He said "You know, we've judged it on its own merit.  Of course not"".  Plainly Mrs. Glazebrook did not think this was the case and said as much; but her suggestion that Deputy Le Main concluded the conversation with the words "What would it look like if we gave the daughter of States Member her qualifications?" is, we suspect, more imagined than real.  According to Deputy Hill, he came home shortly afterwards to find Mrs. Glazebrook distressed because of the message from her former husband. She gave him an account of her conversation with Deputy Le Main, the two points that he remembered most vividly being (i) that Deputy Le Main had made reference to the tenant of Church End living in "the attic", and (ii) that Deputy Le Main had (supposedly) said that there was no way in which Mrs. Glazebrook would ever get the consent sought.  But, while Deputy Hill's letter the next day to Deputy Le Main took specific issue with the first of these two points, it was silent on the second.

45.      Secondly, in the wake of the Royal Court proceedings, in May 2000 Deputy Hill lodged a number of formal complaints with the States Human Resources Committee concerning the alleged conduct of Mr. Connew and Mr. Le Ruez in connection with Mrs. Glazebrook's case.  One complaint amounted to an allegation that the officers had perjured themselves in the proceedings in the Royal Court: this resulted in a police investigation and, in due course, the complete exoneration of Mr. Connew and Mr. Le Ruez.  The other seven complaints, in the nature of allegations of professional misconduct, were the subject of an independent inquiry by Mr Brian Grady which eventually reported in early 2001, concluding that there were certain respects in which things might have been better handled, but that there were no grounds for disciplinary action against either Mr. Connew or Mr. Le Ruez.  A press release on the 7^th February 2001 quoted the investigation as having found that the two officers had "displayed the high standards of professional conduct and integrity which is expected of their office".

       The Second Application

46.      Mrs. Glazebrook's Second application, dated 5^th November 2000, was accompanied by a set of written submissions drafted by Philip Sinel & Co. and a bundle of supporting materials.  There are a number of features of those submissions that deserve particular mention:

(i)        they proceeded on the premise that, if consent were refused, the only practical course for Mrs. Glazebrook and Mathew would be to return to England;

(ii)       they relied, among other things on a number of arguments based on the European Convention on Human Rights ("the Convention");

(iii)      the section on Convention arguments is notable for including a passage reading as follows:

 "[The] degree of linkage between Mrs. Glazebrook and Church End is very high. Her parents bought it for herself and Mathew to live in. There is no question [but] that it was intended to be their home for the future. Deputy and Mrs. Hill have made their wills, under which all their property will pass to Mrs. Glazebrook and her sister.  They have not let the property to anyone else.  It has remained empty since November 1998. Mrs. Glazebrook has a right to live in Church End as her home under Article 8";

(iv)      it was contended that it was open to the Committee to limit the consent sought to a right for Mrs. Glazebrook to live at Church End (an odd submission, given that the application was, by its nature, specific to Church End) because Church End had been empty since November 1998 and granting consent would not, therefore, involve any loss to the relevant pool of housing; or - as it was subsequently put in the Contentions on behalf of Appellant filed in May 2001 -

"Because it was never Deputy and Mrs. Hill's intention to rent or sell Church End to anyone else, the property was not in the pool of accommodation available to other residentially qualified individuals.  Therefore, the prevailing housing conditions were irrelevant to the Appellant's application and should not have been taken into account"; and

(v)       the accompanying materials included certain schedules of other 'comparable cases'.

47.      As result, among other things, of the Convention arguments advanced by Sinels, the Committee sought and received advice from the Solicitor General, principally by way of written Advices dated 5^th January 2001 and 19^th January 2001 but also orally at the Committee meeting itself on 21^st January 2001.  Although that advice has been criticised in these proceedings as being incorrect and misleading in certain respects, it appears to us to have been substantially sound.

48.      The Committee's reasons for refusing this Second Application are formally recorded in the Committee's Act of 22^nd January 2001 and were  conveyed to Mrs. Glazebrook in a five page letter addressed to Philip Sinel & Co. by Mr. Connew dated 1^st February 2001, and substantially reiterated later in a document headed "The Committee's Statement" dated 12^th March 2001. That decision and reasoning has been challenged on this appeal on a large number of grounds, including allegations of bias or potential bias on the part of certain members of the Committee and Messrs. Connew and Le Ruez.

The Appellant's case on bias.

49.      Parts of the Re-Amended Contentions on behalf of the Appellant (Mrs. Glazebrook's pleading, in effect) appeared to suggest that a case of actual, if unconscious, bias was to be run.  But Mr Sinel's submission at trial, both in opening and closing, was that there was "at least an appearance of bias", a formulation that reflected the somewhat unsatisfactory way in which the question of actual bias was hinted at but never quite tackled head-on at trial as it should have been if it were going to be alleged as part of the case against the Committee.   

50.      In the event, we unreservedly reject any suggestion or innuendo of actual bias on the part of any member of the Committee involved in the decision under appeal, including in particular Deputy Le Main.  The same goes for the two housing officers, Mr. Connew and Mr. Le Ruez.  We do so for the following reasons:

(i)        Deputy Hill claimed under cross-examination that Deputy Le Main had long held a grudge against him arising out of some occasion (it was said) on which he had helped someone whom Deputy Le Main strongly disliked, that it was Deputy Le Main who had been responsible for the anonymous telephone call in February 1998, and that it was this that had been behind Deputy Le Main's attitude towards Deputy Hill in March 1998.  But this allegation was never pleaded as such; nor was it put to Deputy Le Main when it came to his cross-examination or otherwise substantiated.

(ii)       The closest that Mr. Sinel got to raising anything of this kind in cross-examination was in suggesting to Deputy Le Main that his motives for sending documents to the Solicitor General in March 1998 must have been malicious, given that advice from the Attorney General had already been sought by Mr. Connew. But any such impropriety (which was denied by Deputy Le Main) appeared to us to be improbable, given that it was Deputy le Main's (unchallenged) evidence that he was not aware that Mr. Connew had already written to the Attorney General and that it is difficult to see how any ulterior motive could have been served by Deputy Le Main sending documents to the Solicitor General if he had known that they had already been the subject of a letter from Mr. Connew to the Attorney General.  We have no hesitation in accepting his evidence that he was properly concerned to know whether Advocate Le Sueur was right and, if so, to be able to consider his own position on the Committee should Deputy Hill choose to remain a member. Apart from this, the only direct attack on Deputy Le Main's integrity in cross-examination was, in effect, that he and others on the Committee at the time of the Second Application in January 2001 were influenced by concerns about what the media and others would say if they were to accede to this particular application by the daughter of a States Member.  But this too had not been pleaded or opened.

(iii)      The Committee took proper care to ensure that its decision was made in the light of full legal advice from the Solicitor General both in writing and, very unusually, in person.

(iv)      Mr. Le Brocq, who was the only other member of the Committee involved in the decision under appeal to give evidence - as a witness for Mrs Glazebrook - did not suggest that there had been anything improper or untoward in the way in which the matter had been handled by the Committee or in the conduct of any member of the Committee or any of its officers.  He rejected the construction put on his affidavit evidence by Counsel for Mrs. Glazebrook to the effect that those members of the Committee who had been involved in considering the First Application had not bothered to read the papers when it came to the Second Application in January 2001:  that was not, he said, a correct reading of his affidavit.

(v)       We accept Deputy Le Main's robust rebuttal of the suggestion that his part in the Committee's consideration and decision on Mrs. Glazebrook's Second Application was motivated by any grudge against or prejudice towards Deputy Hill or his family.  It is to be observed, in this connection, that in June 1999 Deputy Le Main in his capacity as president of the Freedom of Information Committee wrote to Mr. Le Ruez expressing strong support for Deputy Hill's attempts to obtain access to his personal files held at the Housing Department in connection with Mrs. Glazebrook's application for housing consent.

51.      We also reject the case advanced by Mr. Sinel on apparent bias.  With one immaterial exception, to which we come below, all the factors relied on - the history relating to the occupation of Church End, the 'anonymous' telephone call to the Housing Department in March 1998, the stance taken by Deputy Le Main at that time, his communication with the Solicitor General, his conversation with Deputy Hill at the time when Mr. Amy was on the point of replacing Miss De La Haye, and the conversations said to have taken place between Mrs. Glazebrook and  Mr. Le Ruez in June 1999 and Mr. Connew in December 1999 - were all known to Mrs. Glazebrook and Deputy Hill at the time of the Second Application. According to Deputy Hill's evidence in cross-examination, the family's problems, including Deputy Hill's belief that Deputy Le Main was biased, had been discussed at home, along with the family's other problems, on innumerable occasions.  But no objection of any kind was made to the involvement of Deputy Le Main, or any other member of the Committee, in the consideration of Mrs. Glazebrook's Second Application - either then or at the earlier point in time when, in October 2000, the Court of Appeal gave leave for Mrs. Glazebrook to make a new application to a Committee the President of which was, by then, known to be Deputy Le Main and the members of which included others who had also been on the Committee back in March 1998.   Where there are known grounds for being concerned that there may be a problem of apparent bias, it is, we think, only right and fair as a matter of principle that the point, if it is to be raised at all, should be taken before or, at the very latest, at the relevant hearing and not later, once the tribunal - of whatever kind it may be - has reached its decision.  This is in line with the English authorities of R v. Nailsworth Licensing Justices ex parte Bird [1953] 2 AER 652 and Lochabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] QB451 at 481.

52.      In the present case it was not until the proceedings in the present appeal that the matter was raised for the first time.  Asked by the Court why this was so, Mr. Sinel said he was unable to recall. Eventually he suggested that it might have been because there was a concern not to antagonise the Committee, but that hardly seems probable given Deputy Hill's allegations of perjury against Mr. Connew and Mr. Le Ruez. In any event, it would not be an answer to the point.  For this reason alone we rule out the case on apparent bias in so far as it is now directed at Deputy Le Main (or any other member of the Committee) and also so far as it affects Mr. Connew and Mr. Le Ruez.

53.      In the case of the two housing officers, it is true that some reservation about the prospect of them advising the Committee in connection with Mrs. Glazebrook's Second Application was expressed in correspondence between Mr. Sinel on the one hand and Mr. Connew and the Solicitor General on the other in November and December 2000, on the ground that there might be a material 'conflict of interest'.  But the reservations appear, in practice, to have focussed on the (unfounded) perjury allegations made by Deputy Hill and the suggestion that these might have left Mr. Connew and Mr. Le Ruez with an 'axe to grind'  rather than on any of the matters now under consideration.  They also fell short of registering any definitive objection to their future participation in the case:

"It might be suggested that high standards of public administration could best be served in this case by the Committee considering whether or not it should be and/or wishes to be advised by Messrs. Connew and Le Ruez in relation to Mrs. Glazebrook's application"

(paragraph 7 of Mr. Sinel's letter dated 15^th December 2000). In the event, when it came to the Committee's meeting on 22^nd January 2001, the question whether Mr. Connew and Mr. Le Ruez should or should not be present during the consideration of Mrs. Glazebrook's application was discussed as a preliminary matter in their absence, the conclusion of that discussion being recorded in the Committee's Act in the following terms:

"The Committee agreed that it ought to follow the procedure which it followed when considering other applications, and that the officers should therefore be present, as they were in every other instance.  The Committee further agreed that there were neither legal nor moral grounds to demand the removal of the officers from the proceedings and that to do so would both demonstrate a lack of faith in the officers' integrity and would isolate Mrs. Glazebrook's case from the usual procedural practice."  

In our view this was an entirely proper conclusion to reach.  (This earlier concern about the potentially prejudicial effects of the unsustained perjury allegation has played no part in the present case of apparent bias.)

54.      The one point of exception, referred to earlier, concerns an e-mail sent by Mr. Connew to Mr. Sugden early on the morning of 31^st October 1998, a document that Mrs. Glazebrook and her advisers would probably not have seen until the present proceedings were under way.  That message read as follows

"Can you liaise with Eric following Bob Hill's telephone call to him yesterday.  Clearly he must be in breach of the law as his house is only available to a tenant who will continue to take his daughter.  I think we should write to him (under Eric's signature) reminding him of the legal position, maybe with Stephanie's advice. If we do have to take any further action we shouldn't risk being prejudiced by his claim to have 'cleared it' with Eric".

It was suggested in Mr. Sinel's opening skeleton argument that this revealed that the housing officers had pre-judged the outcome of Mr. Sugden's inquiry (his interview with Mr. Davies not having taken place at that point) and, thus, the question whether the arrangements under which it was proposed that Mr. Bale should become the tenant of Church End was lawful or unlawful, and that it accordingly gave rise to a risk of bias on their part when it came to dealing with Mrs. Glazebrook's subsequent applications under Regulation 1(1)(g). But the matter was not mentioned as such at the hearing itself and Mr. Sinel made no attempt to cross-examine Mr. Connew on it despite having specifically sought and been granted leave to do so in pre-trial directions. There is, in any event, no substance in the point.    But the fact that it was taken at all, and the various attacks made upon the integrity of the two housing officers and others, calls for a number of observations that have a  bearing both on this specific point and on  the Appellant's allegations of bias more generally.

55.      First, the arrangement under which it had originally been hoped that Miss De La Haye and Mrs. Glazebrook would occupy Church End was always a precarious one in the sense that it failed to take account of what might happen if Miss De La Haye should ever decide to pull out of it, as in the event she did.  As already observed, it may very well be that had she not done so, the circumstances of Mrs. Glazebrook's residence at Church End with her cousin would never have attracted any particular attention.  But once it became clear, as it did, that although 'tenants' might come and go the 'lodger' would always remain constant, it is hardly surprising that questions began to be voiced about the legitimacy of the arrangement.  It is no part of the task of this Court to express any definitive judgment on the lawfulness or otherwise of the circumstances in which Mr. Amy and Mrs. Glazebrook occupied Church End or the circumstances in which it was proposed that Mr. Bale should take Mr. Amy's place when he left: the point has not been argued in detail and we have not heard sufficient evidence to deal with it.  But a situation in which a property in the Island was avowedly purchased for the principal (at least) purpose of accommodating the owners' residentially-unqualified daughter and grandchild and in which outward appearances strongly suggested that that property was intended to become and remain their residence come-what-may irrespective of any change in 'tenant', was one that was bound to court controversy.  The repeated assertion made in these proceedings on behalf of Mrs. Glazebrook that Church End would remain empty were she refused consent to live there (a statement made with a view to advancing the contention that granting Mrs. Glazebrook 'hardship' consent would have no impact on the Island's relevant housing stock) has only served to add fuel to the fire.

56.      Secondly, in these circumstances it is not in the least surprising that the Housing Department received a letter of the kind that it did from Advocate Le Sueur or that the matter attracted the attention and strength of feeling that it did.  Nor, in our view, was there anything in the least improper in any of the housing officers holding views one way or the other as to the likely legitimacy of the tenancy/lodging arrangements at Church End:  that, among other things, is part of their job and was certainly no indication of potential bias in relation to a subsequent application under Regulation 1(1)(g) by Mrs. Glazebrook.   Similarly, it would be quite wrong to construe the stance taken by Deputy Le Main in March 1998 as indicative of any risk of bias or grudge on his part towards Deputy Hill and his family.  By the time the issue had been canvassed in the press as extensively as it was, there can have been hardly any Member of the States who did not legitimately hold a view on it one way or another.

57.      Thirdly, this case is an object lesson in the dangers for anyone involved in any aspect of government or adjudication drawing conclusions, or making assumptions, concerning his or her own personal affairs on the basis of informal discussions with fellow members or officers of a committee or other relevant body on which he/she serves, however well-intentioned such discussions may be.  Such things are always best dealt with formally, at arm's length and preferably through professional intermediaries, if they are not to run the risk of misunderstandings of one kind or another.

58.      Fourthly, Deputy Hill's evident failure to recognise these things and his readiness to claim that he and his family have been victims of malice and injustice from the outset, as well as perjury along the way, is the product, as it seems to us, of an unfortunate degree of mis-judgment: a state of affairs born, no doubt, of frustration at his inability to accomplish what he believed was the best thing for his daughter and grandson, but which resulted in him losing sight of the wider picture.

59.      Even if it were open for a claim of apparent bias to be advanced on behalf of Mrs. Glazebrook at this late stage, on the basis of the test laid down in R v. Gough [1993] AC 646 (assuming for present purposes that that is the appropriate test), we would not, for these reasons, find any such case established. And lest it be suggested that in examining the several components of this part of Mrs. Glazebrook's case we ourselves have failed to stand back and look at the position overall, the answer is that we have indeed done that and have come to the same conclusion.  Having dealt with the matter of alleged bias at some length, as the specific nature of some of the allegations has obliged us to do, we now turn to the other grounds on which the Committee's decision on the Second Application is said to have been wrong.  It is to be emphasised that in doing so we have wholly set on one side, as being irrelevant to these further issues, the various observations that we have made in the immediately preceding paragraphs. 

Hardship in the present case

60.      The position as at mid-June 1999, the date at which we are bound by the Court of Appeal's ruling to address the matter, may be summarised as follows.

61.      Mrs. Glazebrook and Mathew having left England in July 1997 had, by June 1999, been living in Jersey for some 23 months, 9 of which had been spent at Church End (early February to the end of October 1998) and the remainder at Catel Cottage with her parents (July 1997 until early February 1998, and the end of October 1998 until June 1999).  After returning to Catel Cottage on 30^th October 1998 she had left her furniture at Church End and had continued to make use of it with Mathew during the day but had not slept there.

62.      Her separation and divorce had deprived her of the support of a husband and left her a single parent with the all-too-frequent problems that that condition brings.  In her case those problems were compounded by Mathew's own particular behavioural and emotional difficulties and were further aggravated by her former husband's lack of concern for his son and unwillingness or inability to fulfil his financial obligations towards them.

63.      Shortly after arriving in Jersey, Mathew had found a place at St. Martin's Primary School.  This appeared to suit him well, though his behavioural difficulties persisted.  From an early stage he received periodic counselling from Dr. Carolyn Coverley, Consultant Child and Adolescent Psychiatrist in the Child and Family Services department. By June 1999, however, his condition had deteriorated.  At the same time, he had by then undoubtedly benefited from having the support of a wider family around him. In particular, he had established a close relationship with Deputy Hill, who had considerable past experience of dealing with young people during his time in the Metropolitan Police and, it seems, a natural aptitude for such work, having spent seventeen years in the Lambeth Division Juvenile Bureau.

64.      Mrs. Glazebrook had found part-time employment shortly after arriving in the Island and was able to rely on her father collecting Mathew from school on those days when she worked until 5.00pm.  By June 1999 she was working more or less full time, with average monthly earnings, before deductions, of £1,250.

65.      Church End had suited Mrs. Glazebrook and Mathew well.  It was close enough to Catel Cottage for them to see Mrs. Glazebrook's parents easily and regularly.  By contrast, Catel Cottage itself, a three-bedroom property, was too small to accommodate Mrs. Glazebrook and Mathew comfortably as well as the Hills during the periods that they were all together there.  The difficulties of limited space were aggravated by Mrs. Hill's deteriorating health and by Mathew's tendency to erratic and demanding behaviour.  Following Mrs. Glazebrook's return to Catel Cottage at the end of October 1998, life there became increasingly difficult and resulted in frequent rows and friction between mother and daughter: for Mrs. Glazebrook and Mathew to have continued to live there on a long-tem basis was not a viable option.

66.      Efforts had been made by both Mrs. Glazebrook and her father to explore the possibilities of alternative accommodation elsewhere but they had found nothing that was (i) suitable for a mother and child (children not being welcome in many places), (ii) reasonably proximate to Catel Cottage and St. Martin's School, and (iii) regarded as affordable (though the evidence as to exactly how far the Hills would have been able and willing to help if Church End had been let was unclear).

67.      It was contended on behalf of Mrs. Glazebrook that in reaching its decision on 22^nd January 2001 the Committee failed to take account, or at least, adequate account, of (i) the evidence of Dr. Coverley concerning Mathew; (ii) Mrs. Hill's ill-health; (iii) Mrs. Glazebrook's ties with Jersey; (iv) the views of the Administrative Board of Appeal, and (v) "the hardship caused to Catherine and/or Mathew and/or Deputy and Mrs. Hill".

68.      In considering these contentions it is important to note that the Committee accepted the submission made on behalf of Mrs. Glazebrook to the effect that refusal of consent would leave her with no alternative in practice but to return to England, and it is in the context of this conclusion that the question of hardship has to be addressed. Mr. Le Brocq, in his affidavit suggested that among the various reasons given by other members of the Committee for refusing consent to Mrs. Glazebrook was that they could not see why she and Mathew could not go on living at Catel Cottage; but that is not something that is reflected in any record of the Committee's reasons, and it is dangerous to attach weight to the recollection of one member of a body such as the Committee as to who said what.  The decision of such a body results form an exchange of views some of which will often have a moderating or even decisive effect on others. Absent some suggestion of bias or impropriety - which Mr. Le Brocq did not begin to suggest - the only proper place to look for that body's decision is in its formal pronouncements:  see the observations of Le Quesne J.A. in Burt v. States 1996 JLR 1 at 8.

69.      Dr. Coverley's evidence:  There is nothing to suggest that there is any substance in the contention that this was not adequately taken into account.  The relevant correspondence had been supplied to the members of the Committee as part of the voluminous supporting materials accompanying Sinel & Co.'s 5^th November 2000 submissions.  Mr. Le Brocq disclaimed any suggestion on his part that those members of the Committee who had sat on the earlier application had not bothered to read the papers.  The Committee's 'reasons' letter dated 1^st February 2001 made specific reference to "the needs of Mathew as specified at paragraph 23 of [Sinel's] submissions".   Those submissions contained a nine-point summary of Dr. Coverley's four letters.  In the present appeal we have also had the benefit of an affidavit from Dr. Coverley, who is quite plainly someone of very considerable expertise and experience in the field of child psychiatry and whose views deserve respect.  This affidavit, which was not before the Committee, pulls together the various points previously made in her correspondence, in some respects with greater detail and emphasis, but is substantially to the same effect.

70.      Mrs. Hill's declining health:  There is no dispute that throughout the relevant period Mrs. Hill had the misfortune to suffer increasingly serious ill-health, a condition diagnosed in the course of 1998 as likely to be multiple-sclerosis, and that this was one of the factors that made life at Catel Cottage stressful when Mrs. Glazebrook and Mathew were living there. But beyond this, the history and detail of her illness is of only marginal relevance.   This is because the Committee does not argue with the proposition that it was not going to be possible for Mrs. Glazebrook and Mathew to continue to live at Catel Cottage indefinitely, because her illness was a pre-existing fact in June 1999, and because it was not suggested that refusal to grant Mrs. Glazebrook's application - with the inevitable consequence that she would have to return with Mathew to England - would have serious adverse implications for Mrs. Hill's already poor health.  Sinels' written submissions to the Committee in November 2000 emphasised the need for her to avoid stress (as recommended by her General Practitioner, Dr. Margaret Bayes) and the potential benefits that would accrue if Mrs. Glazebrook and Mathew were to have their own home.  But it made no specific claim as regards any consequence of that home being in England rather than Jersey beyond contending that it was likely to be increasingly difficult for Mrs Hill to travel outside the Island, that flying to London was expensive, and that "Catherine's isolation is of great concern to her parents".  Given the lightweight treatment of this particular line of argument in Sinels' submissions it is not surprising that the topic is only fleetingly touched on in the Committee's 1^st February 2001 letter. The Solicitor General's Supplementary Advice to the Committee did, however, specifically point up the fact that Mrs Hill's state of health might make travelling difficult for her as something to which the Committee should give consideration.

71.      Before us, the highest that the point was put in Mr. Sinel's opening submissions was

"[Had] Catherine and Mathew returned to England, Mrs. Hill would have lost the benefit of their company and would have worried greatly about their isolation in England.  It was important for her to have her family around her".

The evidence in support of this was, however, minimal, being confined to one sentence in Mrs. Hill's own affidavit reading "The fact that Catherine and Mathew were no longer going to be living close to us in Jersey caused me additional worry and stress", the opinion of Mr. Le Brocq - on the basis of his own experience - of the benefits for someone with multiple sclerosis having his/her family around him, and affidavit evidence from Dr. Bayes of the desirability of avoiding stress. Even then, the thrust of the medical evidence and of Mrs. Hill herself as regards stress was directed almost entirely at the situation that obtained in those periods when Mrs. Glazebrook and Mathew were living at Catel Cottage: consent or no consent, that was something that was going to change once they moved out.

72.      Mrs. Glazebrook's ties with Jersey and length of residence: Under current legislation in June 1999 someone such as Mrs. Glazebrook who was born of Jersey parents had a head-start over others not so born in that she only had to establish ten years' residence in Jersey as against twenty (now seventeen) years.  We also heard evidence that it is by no means uncommon for non-Jersey-family applicants for Regulation 1(1)(g) consent to be still waiting for consent after ten or more years. At the time of the Committee's decision Mrs. Glazebrook had accumulated some four and a half years' residence. In this context, the fact that the Committee took the view that Mrs. Glazebrook's period of residence was 'relatively short' seems to us not unreasonable.

73.      Politically, the question of the extent to which members of Jersey families should be accorded preference in matters of residential qualification independently of length of residence is controversial.  There is a body of opinion that thinks that this should be so, a view that may have been shared by the members of the Administrative Board of Appeal whose report included the following passage:

"The Board considers that, in Mrs. Glazebrook's case, it would be more appropriate for her as a member of a Jersey family to be granted consent than it would be for a person without local connexions to be allowed to gain residential qualifications".

The Board's immediately following comments, which in fact go to the question of hardship, leave us in some doubt as to the precise point that the Board was seeking to make here. On this appeal it was acknowledged by the Committee that there could be cases in which being a member of a Jersey family might in certain circumstances increase the element of hardship that would arise from a refusal of consent. But if the intention were to suggest that Jersey connections per se were or are a distinct factor of additional relevance, there is in our view no warrant for such an approach given that the legislation already allows a specific and substantial dispensation for the children of Jersey-born parents: "This", as it was put in the Solicitor General's principal Advice to the Committee, "must be taken to represent the extent of the significance which the States wish to attach to family connections", a view which appears to have been taken by the Royal Court on the occasion of Mrs. Glazebrook's appeal on her First Application in December 1999.   To this extent, the Solicitor General's advice to the Committee that the Board had misdirected itself, while put more dogmatically than this Court would have expressed the matter, correctly identified a point that needed to be drawn to the Committee's attention.

74.      Nor is there anything to suggest that the Committee was blind to Mrs. Glazebrook's Jersey connections, so far as they might have any legitimate bearing on their decision. They were, in particular, emphasised by the Sinel November 2000 submissions at paragraph 30.4 as part of the contention that to refuse Mrs. Glazebrook's application would violate Article 8 of the Convention. The Committee's letter of 1^st February 2001 also dealt with this in terms which included a specific reference to that paragraph. 

75.      The Board of Administrative Appeal:  The Committee was said to have been in error for taking the position, on the advice of the Solicitor General, that it was "not required to have regard to the views of the Board" (letter of 1^st February 2001, paragraph 14) because (i) the discretion to grant consent under Regulation 1(1)(g) had been granted by legislation to the Committee, not the Board; (ii) the Board, while emphasising considerations of hardship, did not appear to have carried out the requisite exercise of balancing that factor against Mrs. Glazebrook's lack of qualification under any other head, or if it had attempted such an exercise was ill-qualified to do so by comparison with the Committee as regards knowledge of relevant housing conditions; and (iii) had misdirected itself as regards the significance of the Jersey-family factor.  This criticism is in our view largely unfounded. For our part we might have added the comment that it was not likely to be helpful for the Committee to concern itself with what the Board had said in the context of the previous application, when the matter was now under fresh consideration on a new application with the benefit of legal representation on both sides: that certainly is the view that this Court has taken on this appeal.

76.      Alleged failure of the Committee to take proper account of the hardship to Mrs. Glazebrook, Mathew, and the Hills: So far as Deputy and Mrs. Hill are concerned, we have already touched to some extent on Mrs. Hill's situation in the context of the discussion of her illness. More generally, it must have been obvious to the Committee - as it is to us - that for Mrs. Glazebrook and Mathew to move back to England would no doubt leave the Hills with considerable feelings of frustration and disappointment; would deprive them of the pleasure of seeing one of their daughters and their grandson on a daily basis and affording them a measure of support; and, in the case of Deputy Hill in particular, would deny him the satisfaction of making up, in part, for the absence of Mathew's father. To that extent refusal of consent to Mrs. Glazebrook's application could be said to entail an element of emotional hardship for the Hills. We are not, however, greatly impressed by the supposed practical difficulties and expense of flying to and from England every so often: Mrs. Hill was accustomed, it seems, to flying to London from time to time for medical treatment; Mrs. Glazebrook and Mathew were well able to fly to Jersey; and if the Hills had chosen to do so they were in a position to earn an income from letting Church End that would have more than covered the cost of such travel. A suggestion made at one point that Mrs. Hill was reliant on the former for assistance with a variety of domestic tasks was not supported by any evidence presented to this Court.  For the rest, it is misleading to appeal to the difficulties of having Mrs. Glazebrook and Mathew living in the house with them and to Mrs. Hill's ill-health as relevant 'hardship': these were pre-existing conditions, not the prospective consequences of a refusal of consent.

77.      It is Mrs. Glazebrook herself, and Mathew above all, whose circumstances lie at the heart of the hardship issue.  Although the position could be elaborated at much greater length the essential considerations appear to us to be as follows.  As regards Mathew, it is plain that moving back to England would be disruptive of his home life, though both the living conditions and the atmosphere at Catel Cottage in June 1999 were plainly far from ideal. He would lose the benefit of frequent contact with his grandfather with whom he had established a close relationship and for which there would be no substitute in England and also the opportunity of regular encounters with cousins and Mrs. Glazebrook's god-parents. The move would also entail a change of school and, no doubt, friends.  And all this for a child who had been deeply affected by his father's abandonment of his family and apparent disinterest in his son, who was emotionally disturbed, and for whom common sense, as well as medical evidence, suggested that stability was of particular importance and an upheaval of this kind undesirable and potentially harmful. As regards Mrs. Glazebrook, moving back to England would nullify many if not all of the considerations that had motivated her move to Jersey in 1997: the desire to be closer to her parents and to have the benefit of the emotional support that they could offer her and Mathew.  It would mean finding a new job for herself, re-settling Mathew into a new school, and generally re-establishing life in Canterbury.

78.      As against this, there was at least still a house for Mrs. Glazebrook to return to.  This had originally been let out, while she was in Jersey, on a six-month renewable basis; but the tenants had given notice in about February 1999 that they would not be renewing the tenancy and had been living there subsequently on a month to month basis. Whether they had actually departed by mid-June is unclear, Mrs. Glazebrook's evidence as to this being vague and inconsistent.  But that particular aspect of the matter is of no consequence. The essential point is that there would have been no legal or physical bar to her returning to her former home, if not immediately at least within the foreseeable future. Whatever the other draw-backs of the move might, it would at least also result in Mrs. Glazebrook no longer having to share her property with anyone else - her independence, in this context, being a matter of some importance to her it seems. Nor was it suggested to the Committee that there was any insuperable difficulty about finding a new school for Mathew. 

79.      There is no reason whatever to suppose that the Committee were not alive to these considerations. In particular, Mathew's special circumstances and needs had been spelt out clearly in Sinels' written submissions to the Committee; the Solicitor General's Supplementary Advice was specifically devoted to Mathew's position, telling the Committee in terms that it should take into account everything put forward in the documents supporting Mrs. Glazebrook's case as evidencing hardship to Mathew; and the Committee's letter of 1^st February 2001 made specific reference to Mathew's needs.  But, when it came to weighing these considerations against Mrs. Glazebrook's absence of residential qualifications, the Committee did not regard them as "adding sufficiently to the level of hardship" (by which we read them as meaning pre-existing hardship) to justify granting consent under Regulation 1 (1)(g).  We turn now to the other side of the 'balance'.

80.      The state of the housing market:  As already noted, one of the contentions advanced before the Committee was that Church End did not form part of the pool of housing that was going to be affected one way or the other by the grant of Mrs. Glazebrook's application because, if she were denied the facility of living there, it would stay empty (a claim, incidentally, that the Committee would in our view have been justified in treating with some scepticism).  There may possibly be circumstances in which the intrinsic nature of a particular property would make such a line of argument legitimate. But, in principle, it cannot possibly be right that an owner of property can help to advance the application by a residentially-unqualified member of his family for 'hardship' consent to live in that property by declaring it off-limits to anyone else. The Committee rightly, in our view, rejected such a proposition as liable to set an undesirable precedent. If and insofar as the Committee's decision in the case of Mr. P (nine years previously in 1992), which was particularly relied on in support of Mrs. Glazebrook's case to the Committee and in this Court, might be regarded as having already set such a precedent, the Committee was right not to be influenced by it.  In that respect at least it is an unfortunate decision that ought not to be followed.

81.      Mr. Sinel also mounted a major attack on the Committee's decision on the basis that the generally received wisdom, and the premise on which the Committee operated, that there was a serious shortage of relevant accommodation in the Island, was false.  There was, he submitted, "no, let alone no acute, housing shortage."   His basis for this submission was the expert evidence of Mr. Mark Boleat of Boleat Consulting contained in an affidavit accompanied by a substantial body of exhibits.  Mr. Boleat is a man with a wide range of experience. He is a director of companies engaged respectively in house building and development, in software, and in life insurance (subsidiaries of Abbey National plc).  He is a member of the National Consumer Council, the Gibraltar Financial Services Commission and the Court of Common Council of the City of London.  He described himself as running an independent consultancy business concentrating on the handling of public policy issues and the financial services and housing markets, and as having considerable experience in analysing public policy issues in Jersey, including housing issues.

82.      Mr. Boleat challenged, among other things, the validity or usefulness of a number of the conventional housing shortage 'indicators' (including in particular the States Rental Waiting List) and the analysis and reasoning of certain aspects of some of the Housing Committee and States reports on the state of housing in Jersey.  He made much of the paucity of statistical evidence in a number of areas (some of which were acknowledged by Deputy Le Main and Mr. Le Ruez) and pointed out, among other things, what appears to have been a significantly erroneous understatement of the Island's housing stock for the year 1996 in published figures said to have been drawn from census data.  But when all is said and done there are a number of fundamental factors that stand in the way of this Court acceding to Mr. Boleat's thesis, and Mr. Sinel's corresponding submission, that it is a myth that there was any 'real shortage' of housing in June 1999 (Mr. Boelat's definition of that term being "a situation in which a significant proportion of the population was badly housed, there was a long waiting list for subsidised rented housing and widespread dissatisfaction with housing conditions.'' )

83.       In the first place, Mr. Boleat's evidence was essentially a statistical and economic study that was profoundly at odds, in its conclusion, with the evidence of those with front-line experience of day-to-day housing issues. Deputy Le Main, Mr. Connew and Mr. Le Ruez, were all in no doubt whatever that there was and continues to be a shortage.  They testified to this in terms that it is impossible to brush aside, terms moreover which are also reflected in innumerable States Committees' reports, press-cuttings and the readiness of the Royal Court to take judicial notice of the existence of a housing shortage in the Island in the course of the December 1999 hearing. 

84.      Deputy Le Main in particular spoke again and again, in cross-examination by Mr. Sinel, of receiving almost daily representations of one kind or another on the subject:

"I can say categorically that in my time as the President of the Housing Committee there is a great shortage of family homes, affordable family homes, in the market. There are no family homes available to ordinary families.  The rents are far beyond their affordability and, yes, I am well aware.  I am written to virtually on a daily basis by people desperate to be able to rent a home for their children and they are not available". 

And

"I know that some people had been waiting for years, for several years now, had been waiting for years, who are living in overcrowded accommodation where we have not been able to supply affordable three and four bedroom accommodation.  That is still the case today until we build some more social homes in land that can be re-zoned."

And again, a little later,

"In the private sector, apart from the numerous letters and correspondence and calls that I get virtually on a daily basis - again this morning - I can only be advised that there is still a severe shortage, not only now but in the last two or three years....''

 He also spoke of his own personal experience of talking to estate and accomodation agencies.  Mr. Connew, in a section of his affidavit on which he was not cross-examined, spoke of the seriously unsatisfactory conditions in which many people live, emphasising that this statement was

 "not simply based upon paperwork and statistics, but upon regular meetings with applicants living in circumstances described above and on occasions visiting homes''. 

Mr. Le Ruez, who was in no doubt that the States Rental Waiting List was a valid indicator (among others) of the balance between supply and demand, gave evidence to similar effect. It was not, of course, a matter of people having to live on St. Ouen's beach, as Mr Sinel colourfully put it: the problem was to a large extent a dearth of accommodation of a reasonable standard:

[Mr. Le Ruez] "The evidence of the shortage, though, I think is very clear, in that you would not have people waiting for quite long periods to have what we today would term purely "adequate" accommodation if there was no housing shortage in the Island''

 [Advocate Sinel] "Well where are they waiting in the meantime?''

 [Mr. Le Ruez] "Well, they are waiting in unsatisfactory accommodation.  It may be overcrowded conditions.  It may be that they are living with family.  For those with medical factors, it may mean that they may be captives in their own home.  It is these sort of people who are forced to register and seek assistance from the States and are indicative of a much wider housing shortage''.

85.      Secondly, to displace such evidence would take a far wider-ranging investigation than could properly be conducted within the compass of the present proceedings, and far more compelling evidence than anything that has been presented to us. It was, we have to say, unrealistic for matters of this kind - and, in particular, questions of policy of the kind to which we refer below - to have been made an issue on this appeal; all the more so as they were not in issue at the time of the hearing before the Committee.

86.      Thirdly, Mr. Boleat's evidence failed, as it seemed to us, to grapple directly with the very real question of 'affordability': the scarcity of accommodation at the more modest end of the price-scale.  Paragraph 16.1 of his affidavit illustrates the point:

"There was no shortage in the private qualified sector as the price mechanism ensured that the demand was met by supply.  In other words, people who wanted to buy were able to, provided they had the financial resources to do so.  However, there was clearly an "apparent shortage" in the sense that some people who wanted to purchase or rent in the private qualified sector were unable to do so at all or were unable to purchase as much housing as they wanted because they lacked the financial resources''

 - a euphemistic formulation that half-acknowledged the problem, but left unexplored the circumstances in which those who were unable to afford suitable accommodation might be living, and failed to explain why a shortage of the kind acknowledged in the second sentence is more 'apparent' than 'real'.

87.      Fourthly, much of Mr. Boleat's evidence was directed not so much to questions of fact concerning the existing housing position (in June 1999) as to matters of opinion as to how effective or otherwise the Housing Regulations have been in achieving their objectives and how the situation might be improved with the adoption of different housing policies.  For example, explaining "why the Housing Regulations largely fail in the objectives to control immigration and pressure in the housing market'' his affidavit says this:

"[The] most important reason is that the wrong variable is targeted.  If there is perceived to be a shortage of housing then the appropriate response is to increase supply by building more houses directly or operating a planning system that does not constrain supply, or to restrict demand either by raising the price or by rationing the amount of housing that people can occupy.  In fact, the various policy instruments do neither.''

These are essentially political issues, with potentially far-reaching consequences, more appropriate to debate in the States than this Court and unnecessary to the decision in this case.

Comparable 'hardship' cases

88.      The Committee's decision was also the subject of criticism on behalf of Mrs. Glazebrook on the ground that it was inconsistent with other "strikingly similar cases such as [the case of Mr.P] and other comparable cases" (section (8) of Mr. Sinel's Skeleton argument).

89.      The materials submitted to the Committee on behalf of Mrs. Glazebrook included three schedules compiled by the Housing Department:

(i)        A twenty-five page schedule of category 1(1)(g) applications considered by the Committee between January 1997 and November 1998.  According to Mr. Connew, this list had been before the Committee on the occasion of its consideration of the First Application in June 1999.  Only the most summary details of the applicant's circumstances were given.

(ii)       A three page schedule entitled "1(1)(g) requests from persons qualifying under 1(1)(a) and 1(1)(h) considered by the Housing Committee since January 1997 where ten years' residence is not yet achieved".  These two categories cover applicants who were born in the Island or who are the child of a person who falls within one of the other qualifying heads.  This showed 3 approvals and 10 rejections. According to Mr. Connew, this was also before the Committee in June 1999.

(iii)      A two-part, eight page schedule entitled "Requests for early consent under Regulation 1(1)(g) - (h)'', the first part headed "Granted'' and the second "Rejected''.  This gave somewhat fuller details of most if not all of the cases in the schedule previously mentioned and a number of others as well, covering - as it did - a longer period of time up to November 1999. It showed a total of 5 applications granted and 19 rejected.

90.      Also included among the materials submitted to the Committee with Mrs. Glazebrook's application in November 2000 was a further schedule in three parts compiled by Deputy Hill from his own examination of the Committee's minutes.  The first section was headed "G Consents 1997'' and the second "G Approvals for 1998". The third, unheaded, gave his own summary of consents given in the case of applicants who would in due course have qualified after ten years under head (a) or head (h). With the exception of the case of Mr. P in 1992, they were all also included in the Committee's own schedules. They were, Deputy Hill explained, merely examples of cases where consent had been given.  In response to questions from the Court, however, he very fairly accepted that some of the cases listed involved severe hardship and had in his view been rightly been the subject of a consent - some cases involving an even greater degree of hardship than "ours".  Pressed to identify those cases in which he considered the degree of hardship was markedly less than that in his family's case he listed a total of nine in addition to the case of Mr. P.  Mr. Sinel, for his part, had drawn the particular attention of the Committee in his November 2000 submissions to a total five specific cases where the circumstances were said to be similar to Mrs. Glazebrook's case but, unlike hers, consent had been granted: of these, three featured in Deputy Hill's list. 

91.      Southwell J.A., in his judgment in the Court of Appeal in October 2000, with which Calcutt and Smith JJ.A. concurred, commented on the subject of "comparables" (on which both sides had evidently relied heavily in that Court) as follows:

"It is the duty in law of the Housing Committee to aim for a reasonable degree of consistency in the decisions which it makes under sub-para.(g).  But these matters need to be kept in mind: (a) Many of the decisions will have been reached by operation of the procedure which this court holds to be not legally competent, and such decisions may provide little useful guide for future decision-making. (b) It is difficult to make any useful comparison without knowing enough of the facts and circumstances relating to the other cases said to be comparable.  The Housing Committee will not be able to engage in transparent decision-making unless it discloses to an applicant the details concerning earlier cases which it might propose to take into account.  But this would be likely to involve the Committee in breaches of the duty of confidence owed to other applicants.  (c) In the absence of adequate knowledge of the details of other cases, supposed comparables may well be misleading". 

These observations were duly drawn to the attention of the Committee hearing the Second Application in the Solicitor General's written advice of 5^th January 2001.  But, for reasons with which we have some sympathy, she expressed a measure of difficulty in being sure how in practice the obligation of reasonable consistency was to be accomplished.  Her resulting advice was that the Committee should not regard the previous cases as setting binding precedents, nor should it embark upon an exercise of point by point comparisons with earlier cases; it could, however, rely upon comparables as giving a general indication of the parameters within which it has previously regarded applicants as suffering hardship sufficient to outweigh the fact that they are not residentially qualified and the levels at which hardship has not been regarded as sufficient to outweigh the fact that the applicant is not residentially qualified; comparables would also serve to show whether the Committee's ultimate decision was so inconsistent with previous decisions as to be open to challenge on the ground of inconsistency. Of course, this formulation still begs the question how you establish in practice which, if any, earlier cases may be useful as indicating parameters of relevance to the case in hand, but this aspect of the Solicitor General's advice to the Committee, unlike others, was not the subject of any criticism from Mr. Sinel.

92.      To what extent any of the lists of comparables made available to the Committee or any individual case was in fact the subject of specific discussion is unclear.  Mr. Le Brocq said he could not recall any being discussed, but it is plain from Mr. Connew's letter of 1^st February 2001 that some reference to the lists is likely to have been made if only to consider the matter of length of residence.  Paragraph 16 of that letter referred to the Solicitor General's advice and paragraph 17 to the Committee's views on the potential relevance of length of residence to both hardship and the housing situation.  Paragraph 18 reads:

"The Committee approached the comparables on the basis of the advice given it. It had regard to the fact that Mrs. Glazebrook's period of residence was relatively short."

93.      When it came to the hearing in this court there was little enthusiasm on either side for any detailed consideration of the specific cases identified by Deputy Hill and Sinels as being of particular relevance.  In her case, the Solicitor General made it clear, given the observations of the Court of Appeal, that there was little to be gained from doing so, although she did go on to conduct a brief review of them.  Mr. Sinel, for his part, only touched briefly on one or two of the cases, the main thrust of his oral argument on comparables being that the brevity of detail contained in the Committee's schedules made them useless as an aid to consistency - a proposition that involved something of a departure from his earlier written contention  that the lists "provided the Committee with sufficient details of previous decisions to enable it to gauge its consistency in this case in the light of its previous decisions''.  In inviting this Court to reach its own conclusion de novo on Mrs. Glazebrook's application, Mr. Sinel also appeared to be satisfied that we had sufficient material before us to enable us to reach a proper view on the matter.  

94.      In fact, examination of the circumstances of the handful of cases specifically high-lighted by Deputy Hill and Mr. Sinel, as recorded in the schedules, suggests that in almost every one there are factors of one kind or another that would distinguish it to some extent at least from Mrs. Glazebrook's case. In four cases, for example, the applicants had been resident in the Island for, respectively, 17, 10, and, in two cases, 8 years; and each had one or more children who had been born in the Island. In one case, the disruptive behaviour of a young man - who had been resident in the Island for almost 8 ½  years and would qualify in his own right under category (h) in 19 months time - had resulted in a situation in which the entire family was at risk of being evicted unless the applicant was able to live elsewhere. In two cases, there appear to have been exceptional employment considerations: one where the Department of Electronics wanted to employ the applicant and he was the only candidate with the necessary qualifications and another involving someone engaged in working with abused children (the hardship element here presumably being the disadvantage that would be experienced by those who would be deprived of the services of these people in the absence of consent).  In another case a 60 year old man who long cared for his mother of 87 in serious ill-health was liable to be unable to continue to live in her home if she were permanently hospitalised.

95.      While our knowledge of these particular cases is insufficient to make a fully informed comparison with the present one, it is by no means evident that any of these cases was less deserving of consent than Mrs. Glazebrook's application.  There are, moreover, two other considerations that weigh heavily with us. First, if there were a serious case of inconsistency to be made, we would expect to have seen it clearly reflected in Mr. Le Brocq's evidence.  Plainly he disagreed with his fellow Committee members on the final decision.  But if he had not merely taken a different view but had felt strongly that their conclusion was badly out of line with the trend of earlier decisions, there can be little doubt that it would have found expression at some point in his affidavit or oral evidence.  Secondly, it is once again impossible to ignore the compelling evidence of Deputy Le Main under cross-examination in the witness-box to the effect that, on the basis of his considerable experience of these applications, Mrs. Glazebrook's case did not appear to be an exceptional or high priority one by comparison with many others:

"Most applicants that come to the Committee, Sir, are applicants that have to do the full amount of years, which is currently 17 years;  many of them with Jersey born children, who know no other place than Jersey as their home, living in absolute abysmal conditions, crucified by high rents, paying 70% or 80% of their wages in lodging houses, and this case paled into insignificance compared to many of the other cases where people have done longer terms of residence with Jersey born children, who had known nothing else but Jersey as their home."

96.      We are not satisfied that any case of significant inconsistency has been demonstrated in relation to the Committee's decision on Mrs. Glazebrook's application.  Nor are we persuaded that there is any substance in Mr. Sinel's more generalised submission that the Committee was ill-equipped in terms of information and procedures to do the job entrusted to it. We are satisfied, on the evidence that we heard from Mr. Connew and Mr. Le Ruez and the documents that we have seen, that new-comers to the Committee were provided with both written materials to assist them and were briefed by one or other of the housing officers; that periodically-updated schedules giving summary details of earlier decisions under Regulation 1(1)(g) were supplied to Committee members; and that where additional information in relation to particular cases was required, the housing officers would supply it.  No definition of hardship was required.  And although a wealth of, accurate, up-to-date statistical information and economic analysis is an essential part of policy-making, the same is not true to the same extent for the purposes of reaching fair and just decisions on the numerous hardship applications that come before the Committee every two weeks: of equal if not greater importance is a sensitive, well-informed understanding of the conditions under which people are living and the range and frequency of circumstances that compel them to seek the special dispensation afforded by Regulation 1(1)(g). 

97.      The one area in which Mr. Sinel's criticisms had, in our view, some force was that of published guidelines - or the paucity of them in June 1999 - for those making 'hardship' applications.  Subsequent to the Committee's decision in the present case, prompted by recommendations made by Mr. Grady in relation to Mr. Connew's and Mr. Le Ruez's professional conduct, the Committee resolved in April 2001 to adopt certain measures with a view to establishing and publishing key criteria of relevance to these applications and handling medical evidence in a way that would, it was hoped, help in maintaining a reasonable degree of consistency between decisions.  Such improvements can only be welcomed.  But there is no warrant whatever for treating the mere fact that it was recognised that things could, in some respects, be better handled in future, as necessarily indicative of any substantial injustice in the procedure or outcome of applications in the past. 

The European Convention on Human Rights and Fundamental Freedoms.

98.      A number of submissions were made by Mr. Sinel to the effect that refusal of Mrs. Glazebrook's application involved a breach of one or more of the articles of the Convention.  In his written case to the Committee on behalf of Mrs. Glazebrook in November 2000 the submissions were confined to Article 8 which provides as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

 2. 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 well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

It was said that a refusal of consent would violate Mrs. Glazebrook's right "to live in Church End as her home" and "her family rights", and would also breach Deputy and Mrs. Hill's rights to family life.

99.      The Human Rights (Jersey) Law 2000, which was passed in February 2000, has not yet been brought into force and accordingly did not at the time of the Committee's decision and still does not create any substantive rights in Jersey Law.  In her advice to the Committee, however, the Solicitor General recommended that regard should, nonetheless, be had to the Convention, as an aggrieved applicant who had exhausted all domestic remedies would be able to pursue a case in the European Court of Human Rights.  The advice thus given appears to us to have involved both a fair summary of the relevant considerations, and a careful weighing of those considerations against the facts of the case in hand. Her conclusions, with which we agree, and which it is unnecessary to recite here at length, may be stated shortly as follows:

(i)        Church End could not be said to be Mrs. Glazebrook's 'home' within the meaning of Article 8.  Gillow v. United Kingdom 1986 11 EHRR 335 is distinguishable on its facts.  Mrs. Glazebrook took up residence there when residentially unqualified to do so other than as a lodger of a qualified third party.  She had only been in residence for some seven months (nine, in fact) when she moved out at the end of October 1998.  As at 14^th June 1999 she had not lived in the house for over seven months.  To these reasons we would add, by way of emphasis, firstly that Mrs. Glazebrook's departure from Church End was not brought about by any wrong-doing on the part of the Housing Department and from that point onwards she did not even have the benefit of an operative lodging agreement; and secondly, that although it may have been her original expectation that Church End should become 'home' for her and Mathew, it was not within her power to bring about that state of affairs, her ability to reside there depending - as it did - on there being a tenant who was willing to have her as a lodger.

(ii)       Even assuming (as the Solicitor General advised the Committee that it should do) that Mrs. Glazebrook's right under the Convention to respect for family life could be regarded as encompassing a right to the support of her parents, and also assuming that refusal of consent would be an interference with that right, such  refusal would be proportionate and justifiable having regard to the purpose of the Regulations and the exercise that the Committee has, in any event, to conduct in applying Regulation 1(1)(g).  The legitimacy of restrictions imposed by the housing legislation in Jersey has been the subject of unsuccessful challenges under the Convention before.

(iii)      Similar considerations apply to the alleged infringement of Deputy and Mrs. Hill's rights to respect for their family life (not, in any event, that either of them was or is a party to these proceedings).

100.   In this Court, Mr. Sinel also advanced three further arguments. First, that the refusal of consent involved depriving Deputy and Mrs. Hill of their right to peaceful enjoyment of Church End and thus constituted a breach of Article 1 of the First Protocol to the Convention. But this contention depended on a view of the housing situation that has not been made out, and also depended on the assertion that Church End did not form part of the relevant pool of housing that would be affected by any grant of consent - something that we have already rejected. (These points also have bearing on some of the arguments advanced in relation to Article 8.) In any event, Deputy and Mrs. Hill are not parties to these proceedings.  Secondly, it was said that the Committee's refusal of consent involved an element of discrimination contrary to Article 14 of the Convention.  We disagree.  The argument adds nothing to the considerations that already arise under Regulation 1(1)(g).

101.   Thirdly and finally, it was submitted that Regulation 1(1)(g) does not satisfy the principle of legal certainty, in that its operation was arbitrary and uncertain.  Again we disagree.  We have already touched on the subject of improved guidelines for applicants, but the fact that published guidelines at the time may have been limited did not render this regulation arbitrary in operation.  It is in the nature of a provision of this kind that it should be capable of applying to a whole range of disparate circumstances; that striking the  balance required by the regulation itself will often be very difficult; that trying to making comparisons between one case and another - particularly where there is a substantial interval of time between them - will often be equally difficult; and that inherent limitations of this kind are always liable to leave those responsible for administering them open to accusations of inconsistency and uncertainty. The fact that the exercise of judgment that is called for in the operation of the 'hardship' provision is entrusted by the legislature to the majority decision of a Committee rather than an individual is in itself an important safeguard against capricious or arbitrary behaviour.

Conclusions

102.   In the present case it seems to us that every possible care was taken to ensure that the Committee's approach to its task was fair and correct. There can have been very few similar applications in which the case for the applicant has been as fully presented - with moreover the benefit of legal representation - or in which the relevant considerations have been as extensively reviewed as they were in the Solicitor General's advice to the Committee.  There is nothing in the evidence that we have heard that would warrant the conclusion or even suspicion that the Committee's consideration of Mrs. Glazebrook's application was anything other than fair.

103.   We see no basis on which we could properly conclude that the decision of the Committee was ill-founded or otherwise involved any injustice within the parameters of the current law, however hard the result may appear to have been for the young man and his mother in the present case.  Were we to proceed on the basis of considering this whole matter afresh (de novo), as Mr. Sinel invited us to do, we would reach precisely the same conclusion. 

104.   We should emphasise, by way of footnote, that the abnormal amount of time that has been devoted overall to this application, and the length of this judgment, are reflective of the exceptional history of the case and the breadth of the assault on the Committee's decision rather than the particular circumstances of the applicant. They should not be viewed as setting any sort of precedent for cases of this kind, particularly in the light of the new Practice Direction No. 8 of 2002.

 

 

 

 

 

 

Authorities

Housing (General Provisions) (Jersey) Regulations 1970: Regulation 1(1)(g).

Glazebrook -v- Housing Committee [2000] J:R 381.

R -v- Nailsworth Licensing Authorities ex parte Bird [1953] 2 All Er 652.

Lochabail (UK) Ltd -v- Bayfield Properties Ltd [2000] QB 451 at 481.

Burt -v- States 1996 JLR 1 at 8.

Gillow -v- United Kingdom (1986) 11 EHRR 335.