Rhion Jones comments:-

We already have a controversial consultation affecting Travellers’ encampments in England. Then, last week, we receive a Court of Appeal judgment that will make many Councils pause for thought. It strikes a rather different note, and explicitly recommends as good practice, the preparation of an EIA before local authorities consider injunctions to curb Travellers’ activities. Should this cause the suspension of the consultation?  We asked our Legal and Parliamentary Officer, Stephen Hill to examine the issue in detail ….

Article:

A couple of weeks ago, the Institute reported on concerns about a consultation in Grimsby, and a separate government consultation on strengthening police powers to deal with unauthorised encampments[1] which had been accused by some of being heavy-handed and potentially discriminatory.

Now the issue has risen again, and another potential fly been put in the ointment by a judgment from the Court of Appeal rejecting an appeal by the London Borough of Bromley against the High Court’s refusal to grant an injunction prohibiting encampments or occupations of any accessible public spaces in Bromley with the exception of cemeteries and highways.[2] Coulson LJ upheld the judgment of the lower court, in the first major case of its type where the Gypsy and Traveller communities have been represented before a court. The vast majority of cases of this type are brought euphemistically against ‘persons unknown’, which whilst it is a broad-brush term, is fairly generally acknowledged in these circumstances as an allusion to the travelling community.

The Court of Appeal upheld the original judgment, refusing the application for the injunction on the grounds that its scope was too broad, its duration too long, and that it would amount to a borough-wide ban on encampments in an area where frequent use of such injunctions has already meant that there are few safe places for Travellers and Gypsies. The rights of Travellers and Gypsies to exercise their traditional ways of life are protected under both the Equality Act 2010 and the European Convention on Human Rights, and it was perhaps notable that in this case, the judge highlighted the need for a focus on procedural fairness in cases where ‘unknown persons’ go unrepresented, in addition to the need for up-to-date equalities impact assessments.

What effect will or should this judgment have on the Government’s consultation?

Although it deals with a separate matter, the potential cumulative effect of increased police powers to move gypsies and travellers on, a lack of designated sites for them to stay on, and the potential that courts might be less inclined to give injunctions to local authorities should not be underestimated. It is undoubtedly a delicate balancing act.

The Government’s consultation seems very much to be geared towards redefining trespass for the purpose of occupation or the creation of an unauthorised encampment as a criminal offence. Trespass against land is generally a civil matter in the absence of statutory provisions otherwise. Councils are fond of using injunctions to prohibit occupancy on unauthorised sites. With a dearth of suitable provision by local authorities for ‘approved’ sites (some studies suggest that Gypsies and Travellers are more than 7.5 times more likely to suffer housing deprivation than white British households), there is a severe risk that attempts to keep Gypsies and Travellers off public land will fall foul of equalities concerns and, as in the Bromley case, accusations of disproportionality.

The aggressive approach being taken by the Government also runs contrary to what seems like a basic logical deduction: if you want fewer problems with unauthorised encampments, then make sure there are enough authorised ones. The MPs for both Hammersmith and Stretford & Urmston made this point in a debate called on the matter in Parliament only this week, before pointing out that even the police in responding to the consultation neither wanted the proposed new power nor thought the existing ones were insufficient.

For years, councils have justified injunctions and restrictions by referencing fly-tipping, concerns about criminal activity and public safety. However, with the courts seeming to be taking a slightly more sympathetic view towards the genuine problems faced by Gypsies and Travellers would it be advisable to consider a different approach? Should the government’s consultation be suspended until they can better support the needs of an embattled minority group that has long been the subject of NIMBYisms and hostile words? Striking the balance is never going to be easy and achieving a lasting solution that suits all parties harder still. It is too early to tell what the long-term impacts of this judgment will be, but with cover from the Court of Appeal, we wouldn’t be surprised to see more courts taking a similar line on injunctions in the future. Highlighting these tensions, Coulson LJ identified the necessity of full engagement:

“It, therefore, follows that local authorities must regularly engaged with the Gypsy and Traveller community… Through a process of dialogue and communication… it should be possible for the need for this kind of injunction to be avoided altogether.”- Coulson LJ, para 102