Gypsies and Travellers: A litmus test not of democracy but of civil society

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Beatrice Taylor
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1 Gypsies and Travellers: A litmus test not of democracy but of civil society 1. [T]here is force in the observation attributed to Václav Havel, no doubt informed by the dire experience of central Europe: "The Gipsies are a litmus test not of democracy but of civil society". 1 So said Lord Bingham of Cornhill in the House of Lords in South Buckinghamshire DC v Porter (No 1) It is not surprising that litigation involving Gypsies and Traveller has played a major role in human rights litigation both in the European Court of Human Rights and in UK courts. The European Convention on Human Rights was a response to the horrors of the Second World War, not least the holocaust. The ethnic group that suffered the second largest number of murders in that Holocaust 3 was the Gypsies (or Roma and Sinti). What is more surprising is the time that it took before their human rights came before the European Court of Human Rights. Strasbourg jurisprudence 3. The Convention right that has most often been cited in UK cases affecting Gypsies and Travellers is article 8 (Right to respect for private and family life): 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. 1 The full quote is The Gypsy problem is a litmus test not of democracy but of a civil society. The two are certainly two sides of the same coin; one is unthinkable without the other. One means legislation to enable the people to vote and make them the source of power. The civil society is related to human behaviour. New York Times 10 th December [2003] UKHL 26, [2003] 2 AC 558, HL (EW). Porrajmos in Romani, literally "devouring" or "destruction". 1

2 4. Buckley v. United Kingdom 4 established that article 8 covered a Gypsy s home stationed on land without planning permission. 5. The matter was taken further in the often-cited decision of the Grand Chamber in Chapman v United Kingdom. 5 Paragraph 73 extended article 8 s cover in Gypsy and Traveller cases from home to also include private and family life : The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant's stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition. 6. Chapman paragraph 96 explained that there was a positive obligation (i.e. an obligation on the State to act in a particular way, not merely one to refrain from acting in a particular way) towards traditional Gypsies: Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life. 4 Application No /92 23 EHRR 101, [1997] 2 PLR 10, [1996] JPL 1018, The Times , Independent , [1996] HRCD vol. VII 833 (The Commission proceedings are at [1994] JPL 536, [1995] JPL 633; 19 EHRR CD20) 5 Application No /95 33 EHRR 399 [2001] 10 BHRC 48, [2001] Times 30 January, ECtHR (GC) (also [1998] HRCD IX 386). See also Beard v United Kingdom (2001) 33 EHRR 442; Coster v United Kingdom (2001), 33 EHRR 479; Smith (Jane) v United Kingdom (2001) 33 EHRR 712; and Lee v United Kingdom (2001) Application No 25289/94. 2

3 7. Connors v United Kingdom 6 held that the lack of security of tenure of Gypsy tenants or licenses of caravan sites as compared with that of non-gypsies constituted a violation of Art.8 of the Convention. 8. In DH v Czech Republic, 7 the Grand Chamber considered education provision for Roma children in the Czech Republic 8 and held that there had been a violation of Art.2 of Protocol No.1 read with Art.14 of the Convention. Its judgment included (omitting footnotes): 175 The Court has established in its case law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, Art.14 does not prohibit a Member State from treating groups differently in order to correct factual inequalities between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article. The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation. 176 Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures Application No /01) (2005) 40 EHRR 9, ECtHR. Application No /00, (2008) 47 EHRR 3, ECtHR (GC). (2008) 47 EHRR 3, ECtHR (GC). 3

4 177 As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified 180 As to whether statistics can constitute evidence in more recent cases on the question of discrimination, in which the applicants alleged a difference in the effect of a general measure or de facto situation, the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations. Thus, in the Hoogendijk decision the Court stated: [W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule although formulated in a neutral manner in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination. 181 Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. In Chapman v United Kingdom, the Court also observed that there could be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community. British case law 9. Under the former regime of the Caravan Sites Act 1968 Part II, declarations were granted against local authorities for breach of duty. 9 In 1994 the CSA duty to 9 R v Secretary of State for the Environment ex p Lee (1987) 54 P&CR 311; R v Secretary of State for the Environment ex p Smith [1988] COD 3. The duty was to exercise their powers under section 24 of the 4

5 provide sites was repealed and replaced with planning advice that the need for sites ought to be assessed and that local planning authorities should allocate land to meet that need. While the details of government policy have changed, these broad principles have remained. 10 There has been extensive litigation, much of it fact specific. Some cases are however of wide importance. 10. Traditional Gypsies and Travellers are protected by equality legislation In R v Lincolnshire County Council ex p Atkinson 12 Sedley J. dealt with material considerations in public law. Detailed analysis of those passages and debate about what legal force, if any, an advisory circular of that kind possessed had been made unnecessary by the realistic concession of counsel for both local authorities that whether or not they were spelt out in a departmental circular the matters mentioned in the paragraphs quoted [i.e. health, welfare and education] would be material considerations in the public law sense that to overlook them in the exercise of a local authority's powers under sections 77 to 79 of the Act of 1994 would be to leave relevant matter out of account and so jeopardise the validity of any consequent step. The concession was rightly made because those considerations in the material paragraphs which where not statutory were considerations of common humanity, none of which could properly be ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security. 12. South Buckinghamshire DC v Porter (No 1) 13 established that, when a court is deciding whether to grant a planning injunction, it was not a rubber stamp for the view of a local planning authority, but must apply its own judgment. Their Lordships proceeded to give guidance on the correct approach to applications for planning injunctions. Caravan Sites and Control of Development Act 1960 (provision of caravan sites) so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area DoE 1/94, ODPM 1/06, Planning Policy for Traveller Sites (DCLG 2012). CRE v Dutton [1989] 1 QB 783, CA [Roma and Welsh Kale]; O Leary v Allied Domecq (2000) 29 August (Case No CL ), Central London County Court, HHJ Goldstein [Irish Travellers]; MacLennan v Gypsy Traveller Education and Information Project (2009) [Scottish Travellers] (1996) 8 Admin LR 529, [1997] JPL. Above. 5

6 13. South Buckinghamshire DC v Porter (No 2) 14 laid down general principles for considering inspector s reports 36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. 14. It also held that the fact that an application was retrospective could have a limited (but only a limited) effect: I do not accept that the unlawfulness of development can never properly militate against the retrospective grant of planning permission (but only, as in Ex p Pothecary [1998] JPL 335, in its favour). Rather it seems to me that wherever the occupier seeks to rely upon the very fact of his continuing use of land it must be material to recognise the unlawfulness (if such it was) of that use as a consideration operating to weaken his claim. Take this very case and assume that Mrs Porter had been relying on her long period of residence to assert that her removal from the site now would cause her particular hardship beyond that resulting from removal after a 14 [2004] UKHL 33, [2004] 1 WLR 1953, HL(EW). 6

7 substantially shorter period of occupation; hardship, for example, by breaking a number of local ties and friendships. Such a claim would seem to me to raise issues closely analogous to those arising on an article 8 claim and to require substantially the same approach to the lawfulness or otherwise of the period of occupation as the European court adopted in the Chapman case 33 EHRR In general however it is immaterial whether an application is retrospective or prospective. There is a good reason for this. Needs should be met in the best location. If a retrospective site is better than a prospective one, the former should be chosen. 16. R. (European Roma Rights Centre) v Immigration Officer, Prague Airport 15 was a major case on race discrimination. The correct approach to considering the issue of race discrimination is was set out in the speech of Baroness Hale: 73. The underlying concept in race discrimination laws is that individuals of all races are entitled to be treated equally The ingredients of unlawful discrimination are (i) a difference in treatment between one person and another person (real or hypothetical) from a different racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant circumstances are the same or not materially different; and (iv) that the difference in treatment is on racial grounds. However, because people rarely advertise their prejudices and may not even be aware of them, discrimination has normally to be proved by inference rather than direct evidence. Once treatment less favourable than that of a comparable person (ingredients (i), (ii) and (iii)) is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race of the complainant. If there is no, or no satisfactory explanation, it is legitimate to infer that the less favourable treatment was on racial grounds 74. If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do 15 [2004] UKHL 55. 7

8 indeed have such characteristics, a process sometimes referred to as stereotyping. 75. The complaint in this case is of direct discrimination against the Roma. Indirect discrimination arises where an employer or supplier treats everyone in the same way, but he applies to them all a requirement or condition which members of one racial group are much less likely to be able to meet than members of another This is only unlawful if the requirement is one which cannot be justified independently of the race of those involved But it is the requirement or condition that may be justified, not the discrimination. This sort of justification should not be confused with the possibility that there may be an objective justification for discriminatory treatment which would otherwise fall foul of article 14 of the European Convention on Human Rights 90. It is worth remembering that good equal opportunities practice may not come naturally. Many will think it contrary to common sense to approach all applicants with an equally open mind, irrespective of the very good reasons there may be to suspect some of them more than others. But that is what is required by a law which tries to ensure that individuals are not disadvantaged by the general characteristics of the group to which they belong. In 2001, when the operation with which we are concerned began, the race relations legislation had only just been extended to cover the activities of the immigration service. It would scarcely be surprising if officers acting under considerable pressure of time found it difficult to conform in all respects to procedures and expectations which employers have been struggling to get right for more than quarter of a century. 17. Stevens v Secretary of State for Communities and Local Government 16 held that the best interests of the child were a primary consideration, although not necessarily determinative. However, no other consideration had to be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. 18. There is litigation under way in respect of the Secretary of State recovering Gypsy and Traveller appeals for his own determination and then making decisions 16 [2013] EWHC 792 (Admin), [2013] 2 EGLR 145, [2013] JPL. 8

9 less favourable than the recommendation of planning inspectors. 17 The Equality and Human Rights Commission has intervened in support of the Romani Gypsy claimants. Secretary of State Pickles proposals The definition for Town and Country Planning 19. Consultation on changes in planning guidance has just finished. The specific proposals in this consultation would be to the disadvantage of Gypsy and Traveller 20. The definition of gypsies and travellers in town and country planning in England 18 is: Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family s or dependants educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling showpeople or circus people travelling together as such. 21. The consultation paper proposes removal of the words or permanently. Hence people who cease travelling permanently because of educational or health needs or old age would be taken out of the definition. There will be few (if any) who cease travelling permanently for educational reasons. That means that most (if not all) of those who would suffer from this proposed change would be those whose health is sufficiently bad or who are sufficiently old to cease travelling permanently. An elderly retired Gypsy who wanted to obtain a pitch next to a son or daughter would be less likely to obtain planning permission for this than at present. 22. In housing legislation the old and the ill are considered in greater need (all other things being equal) than others and the following have a priority need for accommodation under the Housing Act 1996 s189 (1)(c): a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside. The proposal would mean that, while the old and the most ill in house-dwelling population in need of accommodation would be treated more Moore v Secretary of State and Coates v Secretary of State (CO/2812/2014 & CO/2914/2014). Planning policy for traveller sites (DCLG 2012) Apart from the courtesy of using capitals for Gypsies and Travellers, Welsh Guidance in WAG circular 30/77 is the same. 9

10 favourably, their equivalent in the Gypsy and Traveller population would be treated less favourably. I am not aware of any explanation why this should be so. 23. Before 2012 government policy provided that New gypsy and traveller sites in the Green Belt are normally inappropriate development. In 2012 the government deleted the word normally. That made little difference in most cases it was always clear that a Gypsy site on land that had previously been agricultural was inappropriate development. It did however make a difference where the land was previously developed. If a Gypsy site on such land did not harm the openness of the Green Belt, it would have not been inappropriate. Meanwhile Secretary of State Pickles has maintained the old approach for housing. He has held that building new houses on the former BRE sites in the Green Belt in St Albans district is not inappropriate because it is on previously developed land. The difference in treatment between those developing housing and those developing Gypsy sites may give rise to litigation. Conclusions 24. Despite efforts to provide sufficiently accommodation, neither the publicsector approach under the Caravan Sites Act 1968 Part II, nor the post-1994 privatesector approach using planning guidance has met the need for Gypsy and Traveller accommodation. Secretary of State Pickles current proposals will make it substantially more difficult for Gypsies and Travellers to find pitches for their caravans. It is therefore likely that much of the need will continue to be unmet for years to come and that there will be further litigation in both the UK courts and in Europe. Tim Jones No5 Chambers Victoria Hutton No5 Chambers + 44 (0) (0) tj@no5.com vh@no5.com 10

CHAPMAN v. THE UNITED KINGDOM JUDGMENT 1. Note of judgment prepared by the Traveller Law Research Unit, Cardiff Law School 1.

CHAPMAN v. THE UNITED KINGDOM JUDGMENT 1 Chapman v UK Note of judgment prepared by the Traveller Law Research Unit, Cardiff Law School 1. On 18 th January 2001 the European Court of Human Rights gave judgment