Dr Helen O'Nions, associate professor at Nottingham Law School, looks at the role of local government in preventing discrimination against travelling communities.
The Gypsy, Roma and traveller community in England and Wales continues to experience extensive levels of racism and discriminatory treatment. The Centre on the Dynamics of Ethnicity recently reported that 62% of the Gypsy and travellers and 47% of Roma had experienced a racial assault. This corroborates earlier findings of the traveller organisation GATE where 78% of those surveyed described racism and crime as an almost daily occurrence.
Sadly, Part IV of the Police, Crime, Sentencing and Courts Act 2022 along with comments from elected politicians and public figures normalises and legitimises hostility. Local authorities are working against this challenging backdrop to ensure that GRT are not further marginalised. The survival of the nomadic lifestyle which is at the core of British Gypsy and traveller identity, has necessitated strategies of avoidance and distance. However, the limited availability of stopping places and increased eviction powers has forced travelling people into greater conflict with sedentary communities and law enforcement.
Since the abolition of the statutory duty to provide sites there are parts of the UK where travelling people can find no lawful place to stop. At the time, it was anticipated that privately owned sites would replace local authority provision, yet travellers experience uphill battles in the planning system and typically face organised local opposition at every stage. In 2017 the BBC reported that there was an urgent need for 6,000 pitches with half of England’s councils not creating any in 2012 and 50 having no pitches at all notwithstanding central government funding. The shortfall had been made worse by a change in the definition of travellers in 2015 to exclude those not regularly travelling for work meaning that plans may not consider their needs. Last year the Court of Appeal found this change to constitute unlawful discrimination against disabled and elderly travellers.
Nevertheless, many authorities have proactively continued to address the needs of travellers through their development plans. The negotiated stopping place policy introduced in Leeds has the potential to benefit both local authorities and nomadic GRT. The partnership approach can be deployed to reduce discrimination and community tensions, allowing local authorities to better plan, save in clean- up costs, and provide appropriate services. Others have taken a hard-line, most evidently seen through the increase in borough or county wide ‘persons unknown’ injunctions. These injunctions are currently awaiting the outcome of the Supreme Court challenge in London Borough of Barking and Dagenham and Others v Persons Unknown 2022.
The right for GRT to reside in a caravan is recognised by the right to a home and family life protected by the Human Rights Act 1998. However, the qualified nature of Article 8 has often meant that it is outweighed by planning and (loosely defined) environmental considerations.
Suspicion of authority is a survival mechanism and the introduction of new criminal offences and enhancement of existing eviction powers which include the power to ban travellers from returning to an area for 12 months, threaten only to worsen the situation. The new s62A CJPOA allows a senior police officer to direct a person to leave in much wider circumstances triggered by only one vehicle on a subjective assessment of ‘significant damage, disruption or distress’. Vehicles and property left behind can be removed and confiscated. The SPO must first consult every local authority where the land is situated as to whether there is a suitable pitch. Such pitches should be available for three months, except where the trespasser is expected to depart sooner. The obvious problem here is that GRT are coerced to leave the land to take up an alternative site but may find themselves evicted after three months and banned for returning to the area for a further nine months. Local authorities already have powers under s77 CJPOA to direct travellers to leave highways, unoccupied land, or land without an owners’ consent.
Anecdotally it would appear that neither police nor local authorities are seeking to use the enhanced powers. There is perhaps a reality check here. According to the January count in England, there are approximately 25,000 GRT living in caravans in England. There are 3,187 living on unauthorised encampments but only 471 are on land that is not owned by travellers themselves, of which half are on tolerated sites. This is a statistically small group of people and it is thus difficult to comprehend why additional draconian powers were considered so important as to justify considerable parliamentary time and resources.
The Strasbourg court has repeatedly referred to the positive obligation to recognise and facilitate the Gypsy way of life. If more local authorities and police forces use banning powers, there will be less space to enable the Gypsy way of life. This in turn is likely to inflame tensions and lead travelling people to find more isolated and unsuitable pockets of land.
There is an inescapable tension between Article 8 and the common law of trespass as recognised by Coulson J in the Bromley case. The obvious solution is to remove one half of the tension altogether through the provision of more sites. Given the difficulties local authorities can face from residents, this can only be operationalised if the statutory duty is reinstated (and accompanied by sanctions for non-compliance). The overwhelming majority of consultation respondents did not want the duty to be scrapped, including such unlikely allies as the police and farmers union. Residents are less likely to exhibit concern when travelling people occupy official stopping places with basic amenities. This would also enable local authorities to work together and to arrange for proper amenities while planning adequately for statutory health and welfare obligations. Leeds city council estimated that negotiated stopping had generated budgetary savings of £230,000. This would also align with the Welsh approach pursuant to s103 of the Housing (Wales) Act 2014 which provides a duty to meet assessed needs through adequate pitches.
