Looking for some legal eagles who know more than most about the way law affects Gypsies andTravellers. Look no further. Travellers Times Online’s legal bloggers, Chris Johnson and Angus Murdoch haven’t just read the lawbooks, they’ve helped write them!
INTO THE SEA
The Travellers Advice Team are currently representing two New Travellers who have just been given Leave by the House of Lords to take their appeal through to a final hearing. They are appealing against a Court of Appeal Judgment given against them on 31st July 2008.
In 2007 they and other New Travellers were encamped on woodland managed by the Forestry Commission on behalf of the Secretary of State for the Environment, Food and Rural Affairs (SSEFRA). The Forestry Commission decided not only to attempt to get a Possession Order with regard to the piece of woodland that the Travellers were on but also to seek a wider order covering pieces of woodland located in an area of Dorset which measures some 30 miles from East to West and 20 miles from North to South. They also sought an injunction effectively banning the Travellers from all those pieces of woodland.
We had previously fought a case on the question of wider Possession Orders all the way to the Court of Appeal (Drury – v – SSEFRA [2004] 1 WLR 1906). In that case the Court of Appeal had decided that wider Possession Orders covering other bits of woodland could be made in exceptional circumstances.
When the current case came before Mr Recorder Norman at Southampton County Court, although he granted the Order for the particular piece of woodland on which the Travellers were encamped (indeed the Travellers conceded that a Possession order for that piece of woodland must be granted), he refused to grant the wider order covering the other pieces of woodland and refused to grant the injunction. He stated:-
“The concern that I have had is that the Forestry Commission were asked by Dorset County Council before they issued proceedings to consider the effect of rapid and regular eviction….although [the Government Guidance] is addressed principally to local authorities and the police, it is guidance which the Forestry Commission as a public authority can be expected to take into account……If the Forestry Commission exercises its discretion in such a way as to result in repeated and rapid evictions without considering the acceptability of the site in question against the criteria spelt out in [the Government Guidance] it is leaving out of account a relevant consideration”.
With regard to an injunction he stated that and “injunction would have had the undesirable effect of criminalising these Defendants”.
Unfortunately on appeal the Court of Appeal disagreed with Mr Recorder Norman and allowed the wider Possession Order and the injunction. Lady Justice Arden stated:-
“If the Court is concerned with any of the factors in the Government Guidance, the appropriate time for the Court to consider them is when the Court is considering the date for enforcement of the Possession Order. Accordingly, in my judgment, the Recorder should have extended the Possession Order to the further sites and it is not a breach of his public law obligations for the Secretary of State to apply for an extended Possession Order at this stage”.
By a majority of 2:1, the Court of Appeal held that, if there were grounds for granting a wider Possession Order, then there would also be grounds for granting an injunction.
This case is not only crucial for our clients, Sharon Horie and Lesley Rand, who are now taking their case onwards to a full hearing in the House of Lords, but also crucial to all Gypsies and Travellers who have to resort to roadside encampments or who might have to resort in the future to roadside encampments. People will be aware that, if Gypsies or Travellers are encamped on private land, it is extremely unlikely that there will be any defence to possession action. If large public landowners obtain wider Possession Orders and injunctions as in this case, then Gypsies and Travellers who are resorting to roadside encampments will have nowhere to go but into the sea.
SSEFRA – v – Meier and Others [2008] EWCA Civ 903
Postscript: I have had to have a break in my law blogging due to the fact that my Mum, Tessie Johnson, passed away on 28th January 2009. She was just a few days short of her 95th birthday. She instilled all her four sons with a great sense of social justice. She also, right up until her death, used to make sure that she cut out any articles that she read (she was a great reader) in newspapers or magazines about Gypsies and Travellers and posted them to me. My older brother, Mick, has promised he will keep up this tradition. I don’t know what I would do without my newspaper cuttings!!
LIMBO LAND
In May 2004 the European Court of Human Rights in its Judgment on the case of Connors – v – UK decided that the eviction of Mr Connors without him being able to defend his case in court (due to the lack of security of tenure on local authority Gypsy/Traveller sites) was a breach of article 8 of the European Convention on Human Rights (the right to respect for private and family life and home). Since that Judgment a debate (not just dealing with the position of Gypsies and Travellers) has raged as to how far article 8 can be raised as a defence to possession proceedings where a landlord or a landowner has an apparently absolute right to possession. Most people believe that the European Court has by now (following a line of cases including Stankova – v – Slovakia, McCann – v – UK and Ćosić – v- Croatia) made it absolutely clear that article 8 must be dealt with when seeking a possession order and that there must be sufficient procedural safeguards in place to ensure that the ‘proportionality’ of any decision is considered by the court.
Regular readers of this blog may recall that in its Judgment on the case of Doherty – v – Birmingham City Council, the House of Lords on 30th July 2008 did not go as far as the European Court (see ‘Mr Doherty gets justice at last’ ). It had previously been accepted that a possession action could be potentially challenged by way of Judicial Review and, if so challenged, the possession action would then be put on hold whilst a Judicial Review application was made to the High Court.
One of the main grounds of Judicial Review that a Defendant might be relying on would be the so called ‘Wednesbury’ test (named after a previous court case). The test centres on whether the actions or decisions of the local authority could be said to be actions or decisions that no reasonable local authority would take. This is a high hurdle for any Defendant to attempt to cross.
In the Doherty Judgment, the House of Lords substantially changed the potential methods of challenging a possession action by indicating that any Judicial Review challenge would now be made by way of defence in the court of first instance (usually the county court) and would involve an examination of the facts (and, therefore, the calling of evidence and disclosure of relevant documents). Additionally the defence put forward by the Lords in their Judgment seems to lie somewhere between the ‘Wednesbury test’ and a full ‘proportionality test’ (that would arise from what might be called an article 8 defence). This was the Lords’ answer to how to deal with what might be called the ‘Connors problem’ (i.e. the situation dealt with previously by the European Court of Human Rights where Mr Connors was evicted without being given the opportunity to put his case in court).
Mr Doherty had been unable to rely on the amendment brought in by Housing Act 2004 Section 211 to the Caravan Sites Act 1968 Section 4 which allowed (for the first time) Gypsies and Travellers who are facing possession actions with regard to their local authority licence to ask for the Order against them to be suspended. This amendment had been brought in on 18th January 2005.
In a case decided by the Court of Appeal before the Judgment of the House of Lords in Doherty (Smith – v – Evans [2007] EWCA Civ 1318 ), the Court of Appeal effectively decided that the amendment to the Caravan Sites Act 1968 Section 4 had answered the ‘Connors problem’. Following the Doherty Judgment, most people had presumed that it was now absolutely clear that (until such time as the Mobile Homes Act 1983 is finally brought into force on local authority Gypsy and Traveller sites (see the previous blog ‘Safe as houses’ )) Gypsies and Travellers on local authority sites facing possession actions should be allowed to put a proper defence in court and that this defence would be as outlined in the Doherty Judgment.
Most unfortunately, in the case of Doran – v – Liverpool City Council [2009] EWCA Civ 146, the Court of Appeal has returned to the reasoning of the Smith – v – Evans case. In other words they have effectively stated that since a Gypsy or Traveller can ask for a possession order to be suspended, that that is sufficient and that a full defence will only be allowed to go forward in the most exceptional of circumstances. It is hoped that Ms Doran will be seeking to petition the House of Lords.
At the same time as the British Courts seem extremely reluctantly to fully grasp the article 8 nettle, it is noted that the Irish High Court in a decision involving a non-secure tenant (Dublin City Council – v – Gallagher [2008] IEHC 354) has accepted that the attempt to evict Mr Gallagher without allowing him to put forward a defence was a breach of article 8 (and also a breach of article 6 – the right to a fair hearing).
NO PLACE LIKE HOME
A Gypsy or Traveller is, in most cases, homeless if they have no authorised place to put their caravan. If they are also in priority need (e.g. they have children or are in ill health or are elderly etc) and if they are not homeless intentionally (e.g. having left conventional housing without good cause), then the local authority will owe them a duty to accommodate them.
Ever since the case of R (Price) – v - Carmarthenshire County Council [2003] EWHC 42 (Admin), there has been discussion as to how far local authorities should go in trying to provide authorised pitches for such homeless Gypsies and Travellers. The case of Kathleen Lee is the latest in the line of cases on this subject.
The Gypsy homeless appellant was offered a house and appealed against that offer. She ultimately took her case to the Court of Appeal. She argued that she had a cultural aversion to bricks and mortar accommodation. Given the Judgment of the Court of Appeal, Lord Justice Longmore stated:-
“Homelessness applications are expected to be determined within a short timeframe by dealing at least within 33 days of an acceptance of a requisite duty. If a new site is to be acquired for stationing a caravan for residential purposes, that will usually mean a new use which would typically require planning permission. That rule will require determination by the local authority planning committee, especially if it means a departure from the local development plan, which it may well, and any decision so made is liable to be appealed. After all that, land would have to be bought if it is not already owned by the local authority itself. All this is, in my Judgment, inconsistent with the manner in which homelessness applications are expected to be dealt with by the housing department, and especially since they are expected to be dealt with, with a degree of promptness”.
He concluded:
“All that is not to say that there might not be unusual circumstances in which the local housing authority might be expected to do more than consider availability and sites within their own area. If, for example, there was a question of an applicant being at risk of suffering psychiatric harm, it might well be that the local authority should take that consideration into account, specifically in deciding what, or what further, enquiries they should make. In the present case, however, there is no risk of any such psychiatric harm……”.
The court’s Judgment in this case is disappointing and Ms Lee is petitioning the House of Lords for Leave to Appeal. Those that represent Gypsies and Travellers have long been arguing that there ought to be some relation between the provision of homelessness accommodation for Gypsies and Travellers under the homelessness legislation and the mechanism for planned provision for Gypsy and Traveller sites laid down in the relevant government guidance (namely ODPM circular 01/2006 and Welsh Assembly Government Circular 30/2007). It is argued that local authorities ought to be doing far more to locate sites for those Gypsies and Travellers who have applied to them for accommodation as homeless persons, even if such sites provide no more than a temporary respite from the precarious nature of life on roadside encampments. It is argued that provision of such temporary sites could be accomplished quickly outside normal planning processes.
The Travellers Advice Team at Community Law Partnership operates a Community Legal Advice funded telephone helpline (0845 120 2980) which operates from 10am-1pm and 2pm – 5pm.
Deja Vu?
The third anniversary of Circular 1/2006 will doubtless pass without fanfare at the beginning of February 2009. This seems to provide a good opportunity to reflect on how far – or otherwise – we have come since then. Hailed as a new dawn for Gypsies and Travellers, 1/2006 was supposed to ensure that, for the first time, the real extent of the need for further Gypsy and Traveller sites was assessed, leading to suitable, affordable and lawful site provision on an area by area basis. Where a need was shown to exist, Councils could no longer rely on ‘criteria based’ policies – which for so many years had simply thwarted site provision: they had to actually allocate sufficient sites. If Councils failed to make those allocations, then the Government could Direct them to – compel them to abide by the law.
So what has happened since then? To be frank, not enough: most Councils dragged their feet with the needs assessment business for as long as possible and even then tried all manner of shenanigans to ensure that as low a figure of need as possible was found. This was partly because the Government has asked the foxes to count the chickens but it was also because there was precious little real data to compare the need with.
If assessing need was an unpopular ‘problem’ for Councils, imagine then their horror at having to allocate land for sites once that process was complete! Only now are we seeing many Councils true colours where site provision is concerned: even though significant levels of need have been revealed, Councils such as Basildon, Thurrock, Southampton and Southend are point blank refusing to provide enough sites. Some are ready to challenge the Government in Court over the issue. This is to be contrasted to the position when the two Council sites that were on land that was needed for the London Olympics had to be moved: suddenly several sites were found in the middle of London within a relatively short period of time! All that is needed now is sufficient political will to ensure that enough sites are provided elsewhere too.
The answer lies in the Government issuing Directions to defiant Councils, compelling them to obey the law. Similar powers existed under the old Caravan Sites Act 1968 but were rarely used and never followed through. Now is the time to show that this time round, the Government has the political will to make sure that all local authorities do their fair share of site provision and end the appalling situation that currently exists where some 25% of all Gypsies and Travellers in caravans have nowhere lawful to live.
Dr. Angus Murdoch, Travellers Advice Team, Community Law Partnership Solicitors
Dr Angus Murdoch is the resident planning expert at CLP and will blog about developments in Planning as it affects Gypsies and Travellers. This article reflects his own views only.
Mr Doherty Gets Justice at Last
Out of site: Gypsies and Travellers currently have no security of tenure on local council Gypsy sites
Whilst residents on local authority Gypsy/Traveller sites await the bringing into force of the Mobile Homes Act 1983 with regard to those sites (see Safe as Houses), at present those residents have no proper security of tenure. That is, the local authority can simply give them 28 days notice and then go to Court and get a Court Order without having to prove any grounds against the resident in question or having to prove that the obtaining of such an Order is or is not reasonable.
By a strange co-incidence, on the very same day (24 May 2004) that the European Court of Human Rights decided that the eviction of Mr Connors from a local authority site without him being given the opportunity of putting his case in Court was a breach of his human rights, Birmingham City Council lodged a possession action against Mr Doherty, a resident of their Gypsy/Traveller site.
Mr Doherty is an Irish Traveller and has lived on the site with his family for some 18 years. The Council had decided that they wanted to refurbish the site and then set the site up as a transit site (without providing Mr Doherty and his family with any alternative accommodation).
Originally the Council made certain allegations against Mr Doherty which Mr Doherty strenuously denied. However, when the Council brought the matter to Court, they did not rely on these allegations or any other factual matters but simply relied on their right to terminate Mr Doherty’s licence. In December 2004 the Birmingham High Court awarded a Possession Order against Mr Doherty despite the decision of the European Court of Human Rights in the case of Mr Connors.
Ultimately Mr Doherty had to fight his case all the way through to the House of Lords (the highest Court in the land) and, on 30 July 2008, the House of Lords decided that the Possession Order should be quashed and that, if the matter is to return to Court again and if the Council insist on pursuing possession action against Mr Doherty, Mr Doherty should be allowed to have his say and his day
This decision was on the basis that the granting of a Possession Order against Mr Doherty without giving him the ability to have his say was a breach of Article 8 of the European Convention on Human Rights (The right to respect for private and family life and home). Though a local authority or other public authority might be able to justify what appears to be a breach of Article 8, the House of Lords held that Birmingham City Council could not justify the breach in the circumstances of this case.
Mr Doherty has now suggested to the Council that a roundtable meeting take place so that this matter can be resolved without the need for further Court action. We hope that the Council now sees sense after forcing Mr Doherty to fight this matter for so long.
Mr Doherty’s case is not only of importance to those Gypsies and Travellers on local authority sites who still do not (at present) have security of tenure but also of importance to those Gypsies and Travellers who have still to resort to roadside encampments.
Additionally it may be important when Gypsies and Travellers are facing eviction from their own land when they have been unable to obtain planning permission and when the attempts at gaining planning permission have come to an end. Mr Doherty’s case is also of importance to non-Gypsies and Travellers who do not have proper security of tenure e.g. introductory local authority tenants, people living in homeless accommodation, people with what are called demoted tenancies etc.
Well done to Mr Doherty for winning his case and for fighting so hard to retain his licence.
Community Legal Advice Travellers’ Helpline (run by the Travellers’ Advice Team at Community Law Partnership): 0845 1202980
Postscript: When dealing with planning matters for Gypsies and Travellers, I will be asking my esteemed colleague, Dr Angus Murdoch, who is one of the leading planning experts in England and Wales, to take over for those blogs. Watch out for a planning blog soon!
Safe as houses
In 2004 the European Court of Human Rights decided that the eviction of Mr Connors from a local authority site in Leeds without him being able to argue his case in court - his family was accused of nuisance which he denied - was a breach of his rights under Article 8 of the European Convention on Human Rights (the right to respect for home and private and family life).
After this decision, the government said they would have to change the law.
I remember talking to a senior civil servant in the Gypsy and Traveller Unit (naming no names and she has now moved on from the Unit in any event) shortly after the judgment in Mr Connors’ case and suggesting that the easiest thing to do would be to amend section 5 of the Mobile Homes Act 1983.
Section 5 excludes local authority Gypsy/Traveller sites from the protections provided by the 1983 Act. I was given short shrift. I was very amused, therefore, when in late 2007 the government finally announced that they would be complying with the Connors judgment by….yes, you’ve guessed it!
The new amended section is to be brought into force in 2009 and will mean that Gypsies and Travellers on local authority sites will, for the first time in the history of such sites, have security of tenure just like other mobile homes residents and very similar to the security of tenure enjoyed by local authority tenants of houses and flats.
Basically what this means is that, if a local authority want to seek to evict a resident of their site, they will have to prove the facts they are relying on in court (and the resident will have the opportunity to put his/her case in response, of course). The judge will then decide who he/she believes on the facts and go beyond that to decide whether he/she feels it is reasonable for a possession order to be granted.
Many people will be aware that the delay in implementation has been caused by a consultation procedure to decide how some of the other aspects of the 1983 Act will or will not apply to local authority sites e.g. assignment, succession, written agreements etc
In the meantime residents on such sites are in a strange limbo where, on the face of it, they still have no chance to put their case in court if faced with eviction action. This is where the House of Lords’ decision in Doherty v Birmingham City Council (July 2008) comes in and I will look at that in the next blog.
Have a good week
Chris Johnson
Residents of other Mobile Home Parks (other than Gypsies and Travellers on local authority sites) but including Gypsies and Travellers on private mobile homes parks have proper security of tenure as do, of course, local authority tenants in houses and flats.
Happy New Year
Happy New Year to all TT readers.
A lot of developments took place on the legal front re Gypsy and Traveller Law in 2008. My colleague in the Travellers’ Advice Team at Community Law Partnership, Angus Murdoch and myself together with Marc Willers from Garden Court Chambers are publishing a two part update covering all developments in Legal Action magazine in the February and March editions.
As ever the year provided ups and downs. Probably the biggest ‘up’ was when Mr Doherty won his case in the House of Lords in July when the possession order against Mr Doherty was quashed and the Lords held that, to a certain extent, Article 8 of the European Convention on Human Rights (the right to respect for private and family life and home) can be used in defending a possession action .
Possibly the biggest ‘down’ was the decision of the Court of Appeal in SSEFRA v Meier where the Court of Appeal held that the Forestry Commission can obtain possession orders for other bits of woodland and not just the bit of woodland that the Gypsies or Travellers are encamped on and can also obtain an injunction to stop the Gypsies or Travellers from camping on all those pieces of woodland.
The implications of this judgment are very alarming - what if all public authorities obtained orders like this covering vast swathes of land? Two of the Travellers are now petitioning the House of Lords for permission to take this through to a full appeal -fingers crossed!
In December the Court of Appeal heard the case involving the Dale Farm Travellers and the judgment is awaited on that - fingers crossed again!
The Travellers Advice Team has had a well earned break over Christmas and New Year (albeit that I have been the lucky holder of the emergency phone -OK, it only rang once), and I have taken the opportunity of doing some wider reading for a change.
Standing Bear succesfully used the US courts to argue that he shouldn't be put on a reservation.
In the course of (for the second time) reading the excellent ‘Bury my heart at Wounded Knee’ by Dee Brown I was reminded of the case of Standing Bear v Crook ( US 1879). Standing Bear, chief of the Poncas tribe, attempted to avoid being forced onto a reservation by arguing that an American Indian was a ‘person’ within the US Constitution.
Judge Dundy decided in favour of Standing Bear:
‘The Poncas ware amongst the most peaceable and friendly of all the Indian tribes…If they could be removed to (the reservation) by force, and kept there in the same way, I can see no reason why they might not be taken and kept by force in (any jail)…I cannot think that any such arbitrary authority exists in this country’.
Unfortunately due ,it seems, to a failure to inform others about this decision and a total lack of (white) lawyers who might assist the various tribes (Standing Bear’s case was fought voluntarily by two committed white lawyers), this case did not stop the virtual destruction of the American Indian way of life by the end of the 19th century. However it does show the importance of using the law when it can be used and the importance of a little bit of imagination when using the law.
I notice a query in the comments section from Steve Stuart with regard to the recent excellent McLennan decision in Scotland which held that Scottish Gypsy-Travellers are an ethnic group for the purposes of the Race Relations Act. The central feature, Steve, is the question of ethnicity and someone who has taken up travelling but does not come from an ethnic Gypsy or Traveller background will not be able to rely on this. However Article 14 of the European Convention deals with discrimination in the appliance of the various articles of the Convention and can be relied on by a group (such as New Travellers potentially) regardless of their ethnicity.
Finally my intention in this blog is to avoid drowning you in boring, complex law ( I can hear people saying ‘you’ve done that already’!!) by writing (hopefully on a weekly basis but don’t quote me on that!!) about any recent developments over that week and on a recent (or even not so recent) significant legal case.
I am, of course, happy to answer general queries arising from this blog but if you have a particular legal problem yourself please contact the Travellers Advice Team (Community Legal Advice funded) helpline on 0845 120 2980 - open from Friday 2nd January at 10am- or contact a local solicitor or CAB.
And don’t forget (plug, plug) the Legal Action book on Gypsy and Traveller Law of which I am co-editor with Marc Willers. Keep up the good fight and I hope to post a blog from now every Sunday if possible (but, once again, don’t quote me on this!!)
TTFN
Chris Johnson