Roma Rights 1, 2010: Implementation of Judgments
26th, July, 2010
Gypsies and Travellers in the United Kingdom and Security of Tenure
Chris Johnson, Andrew Ryder and Marc Willers1
Gypsies and Travellers living in caravans on local authority-run sites in the United Kingdom (UK) do not yet enjoy security of tenure, despite the fact that in 2004 the European Court of Human Rights (ECtHR or the Court) held in the case of Connors v The United Kingdom2 that the lack of security violated Article 8 of the European Convention on Human Rights (ECHR). This paper explores the reasons why the UK Government has failed to implement the ECtHR’s judgment in Connors.
In 1968, the UK Parliament passed the Caravan Sites Act (CSA).3 The CSA 1968 imposed a statutory duty on certain local authorities to provide sites for Gypsies and Travellers residing in or resorting to their area.4 Having imposed a statutory duty on local authorities to provide sites, the CSA 1968 also gave local authorities the power to evict Gypsies and Travellers from such sites. The legislation simply requires that a local authority gives a resident four weeks notice in written form and that it obtains a possession order from the court before eviction takes place. There is no requirement imposed on a local authority to prove any grounds for seeking possession5 and there is no opportunity for Gypsies and Travellers to contest an application for possession proceedings (other than in the rare circumstances where it might be possible to argue that the decision to seek possession was perverse and therefore unlawful).
Following the enactment of the CSA 1968 approximately 350 local authority sites were built in England and Wales. However, many local authorities failed to comply with their statutory duty to provide sites and successive governments failed to use their powers to force them to make provision.6
Then, in 1994, the Conservative Government decided to abolish the statutory duty and privatise Gypsy and Traveller accommodation provision. While doing so it issued planning guidance which encouraged Gypsies and Travellers to make their own provision and required local authorities to quantify the need for caravan sites and identify land on which such sites could be located.7 However, few, if any, local authorities complied with the government guidance and as a consequence, Gypsies and Travellers found it very difficult to obtain planning permission for their own sites. The repeal of the statutory duty coupled with the failure of the Government’s privatisation policy led to a severe shortage of sites which is still acute today.8
In 2004, the Commission for Racial Equality (CRE) estimated that there were between 200,000 and 300,000 Gypsies and Travellers living in the UK.9 Approximately one third of those people pursues a nomadic or semi-nomadic way of life and lives in caravans.10 In England, 38% of those Gypsies and Travellers living in caravans reside on Gypsy/Traveller sites administered by local authorities11 and in Wales the figure is 64%.12
As has been shown, those Gypsies and Travellers residing on local authority sites have no real security of tenure; they live in a state of vulnerability, powerless to prevent their own eviction.
Their predicament contrasts starkly with the position of occupiers of caravan sites which are not run by local authorities, who are afforded security of tenure by the Mobile Homes Act (MHA) 1983,13 and the position of tenants of local authority housing who are afforded protection by the Housing Act (HA) 1985.14 Both statutes provide that possession will not be granted except on proof of certain grounds and in circumstances where the court considers it reasonable to make such an order.
This unjustified difference in treatment has been highlighted by campaigners for Gypsy and Traveller law reform in the Parliament and UK courts. For example, in 2002 the Cardiff Law School drafted the Traveller Law Reform Bill15 in an attempt to persuade the government to change the law. Simultaneously, a number of unsuccessful attempts were made to challenge the provisions of the CSA 1968 on human rights grounds in UK courts.16 Thereafter, in Parliament Baroness Whitaker drew attention to the problem in a debate on the Tenancy Deposit Scheme 2004 in the House of Lords with the following story:
[T]his is the reality for Tom Sweeney, Co-Chair of the Irish Travellers’ Movement: “[…] my licence states that I can be given as little as seven days notice […]. This creates for me and my family a real lack of ownership in our site, we feel like we are under continual probation. Our home does not feel like a home. I have lived on my site for fourteen years and have been engaged in a whole range of charity and community work with bodies like the Catholic Children’s Society. I have put something into the community but what has the community given Travellers like me in return?”17
Though no progress was made on law reform in the UK, the ECtHR did get the opportunity to address the issue in May 2004 when it issued the Connors judgment.18 Mr Connors and his family are Irish Travellers and they had lived for many years on a local authority site. Their licence to occupy the site was terminated as a result of allegations of nuisance. Though Mr Connors disputed the allegations he was unable to do so in the possession proceedings and his application for judicial review of the local authority’s decision to seek his family’s eviction failed. A possession order was granted and Mr Connors and his family were evicted from the site. Thereafter Mr Connors complained to the ECtHR that the eviction breached his rights under Article 8 of the ECHR. In its judgment, the ECtHR held that:
- there was a positive obligation on the United Kingdom to facilitate the Gypsy way of life;
- the eviction was a serious interference with Mr Connors’ Article 8 rights and it required particularly weighty reasons of public interest by way of justification;
- there was no particular feature of local authority Gypsy/Traveller sites which would render their management unworkable if they were required to establish reasons for evicting long-standing occupants;
- the power to evict without the burden of giving reasons which were liable to be examined on their merits by an independent tribunal had not been convincingly shown to respond to any specific goal or to provide any particular benefit to members of the Gypsy/Traveller community;
- the eviction could not be justified by a “pressing social need” or be said to be proportionate to the legitimate aim pursued; and
- judicial review was not an adequate remedy as it provided no opportunity for examination of the facts in dispute.
As a consequence, the ECtHR concluded that there had been a violation of Article 8 and awarded Mr Connors just satisfaction.
Following the decision in Connors, Parliament enacted the Housing Act (HA) 2004, which amended the CSA 1968 so as to enable judges to suspend possession orders against Gypsies and Travellers residing on local authority sites for periods of up to 12 months.19 However, the amendment did not address the main breach of Article 8 identified by the ECtHR in Connors20 - namely the lack of any independent examination of the merits of the case for possession and proportionality - and in November 2004 the government sent a memorandum to the Council of Ministers in which it stated:
Ministers have accepted during the passage of the Housing Act 2004 that tenure on local authority Gypsy and Traveller sites is out of line with tenure in bricks and mortar social housing, and that public sites have strong similarities to social housing in terms of client profile, landlord profile and management needs […] Ministers have indicated that the most suitable way to take any proposals forward would be as part of future legislation on tenure reform relating to bricks and mortar housing.21
One local authority felt it did not necessarily need to wait until legislation was introduced by central Government to give Gypsies and Travellers living on local authority sites security of tenure. When Oxfordshire County Council produced new licence agreements for their six sites in July 2005 they included clauses on security of tenure, succession, assignment, right to exchange and repairing obligations which will continue to have effect until the Government introduces proper security of tenure. Unfortunately, however, this innovative action was not replicated elsewhere.
Thereafter, little, if any, progress was made by the Government on the issue. In May 2006, the Law Commission produced its consultation document “Renting Homes: The Final Report” on the reform of security of tenure for tenants of dwelling houses.22 Notwithstanding the memorandum sent by the government to the Council of Ministers, the report failed to address the situation on local authority Gypsy/Traveller sites.
As a consequence campaigners took steps to raise the profile of the issue. In 2006 the Gypsy and Traveller Law Reform Coalition commissioned the preparation of a ten minute rule bill23 which was designed to show the government just how easy it would be to adapt the security of tenure provisions that apply to tenants of local authority houses and flats in order to meet the needs of Gypsies and Travellers living on local authority sites.24 Though the bill had no chance of being enacted it did put additional pressure on the Government to bring in the necessary reforms.
In January 2007, Julie Morgan MP highlighted the continuing vulnerability of Gypsies and Travellers living on local authority sites at the launch of a campaign entitled “Equal Tenancy Rights for Gypsies and Travellers”, stating:
Why should the statutory protection afforded to tenants in council housing not be available to a Gypsy or Traveller occupying a pitch on a permanent local authority site in the same circumstances? Living with the fear of losing one’s home, with the risk of children being taken into care, is a constant stress, not just for the tenant or licensee of a pitch but for the whole family.25
Finally, on the 15 November 2007, the Government announced that it would address the issue in the Housing and Regeneration Bill by bringing local authority Gypsy and Traveller sites within the scope of the MHA 1983.
In 2008 the House of Lords gave its judgment in Doherty v Birmingham City Council.26 The facts of the Doherty case were very similar to those in Connors. The Council evicted an Irish Traveller from a local authority site by using the provisions of the CSA 1968. When allowing Mr Doherty’s appeal, their Lordships indicated that had it not been for the fact that the Government was now in the process of amending the law, they would have declared the legislation to be incompatible with Article 8 of the ECHR.
The Housing and Regeneration Act (H&RA) was passed in 2008. H&RA 2008 Section 318 amends MHA 1983 Section 5 so as to extend the security of tenure provisions in MHA 1983 to cover Gypsies and Travellers residing on local authority sites.
However, the government decided that H&RA 2008 Section 318 should not be brought into force until an extensive consultation process on supplementary matters (such as assignment and succession) had been concluded. While it was understandable that the Government consult on such matters, campaigners were frustrated by the further delays caused by the process and questioned why the provision relating to security of tenure could not be brought into force in isolation. Their frustration was compounded on 10 February 2010 by an e-mail communication to a number of organisations in which the Department of Communities and Local Government (CLG) indicated that there was not enough time to debate the statutory instrument required to bring the amendment into force before the dissolution of Parliament for the forthcoming General Election.
That frustration was expressed by Julie Morgan MP in a parliamentary question put to the Parliamentary Under-Secretary of State for the CLG in the following terms:
I am dismayed that Gypsies and Travellers as yet have no security of tenure, bearing in mind that the Connors judgment in the European Court was six years ago and the Government’s proposals to change the law using the Mobile Homes Act 1983 were more than two years ago. There has been intensive discussion with Gypsies and Travellers and with support groups and I wish to express my extreme dismay. What hope can the Government give Gypsies and Travellers who are living in uncertain situations and who had great hopes of this Government?27
Since then campaigners have written to Government ministers and presented Downing Street with a petition urging the government to take immediate action.28 In addition, two residents of a local authority site have instituted proceedings for judicial review of the Government’s decision not to bring H&RA Section 318 into force. However, that case will not be decided for some time and the pleas for immediate action seem to have fallen on deaf ears.
Those campaigning on behalf of Gypsies and Travellers for equality of treatment and security of tenure must keep up the pressure on the new coalition government. The UK has been in breach of the ECtHR judgment in Connors for six long years and it will need to be reminded of that embarrassing fact at every available opportunity in order to ensure that the law is reformed without further delay. The next review of this judgment by the Council of Europe’s Committee of Ministers, which oversees execution of ECtHR judgments, is scheduled for November 2010; campaigners should not miss this opportunity to bring outside pressure on the UK government.
- Chris Johnson is a solicitor and partner at the Community Law Partnership in Birmingham and head of the firm’s Travellers Advice Team (TAT) that has acted in many of the leading cases in this area of law. Mr Johnson drafted the Caravan Sites (Security of Tenure) Bill (July 2006) and he also acted for the Gypsies and Travellers in the Oxfordshire County Council licence agreement negotiations. He is a co-editor of Gypsy and Traveller Law (Legal Action Group, 2007). Andrew Ryder is a researcher and campaigner for Gypsy and Traveller rights and was formerly Policy Officer of the Gypsy and Traveller Law Reform Coalition and Irish Traveller Movement in Britain. At present he is the lead researcher for the Traveller Economic Inclusion Project. Marc Willers is a barrister and specialises in representing Gypsies and Travellers. He has appeared in a number of the most notable cases in this area of law and he is a co-editor of Gypsy and Traveller Law (Legal Action Group, 2007).
- European Court of Human Rights (ECtHR), Connors v The United Kingdom, Application no. 66746/01, 27 May 2004.
- The CSA 1968 was originally promoted as a private members’ bill by the Liberal MP Eric Lubbock (now Lord Avebury).
- Chris Johnson and Marc Willers, Gypsy and Traveller Law (Legal Action Group, 2007).
- See CSA 1968, Sections 2 and 3.
- Jo Richardson and Andrew Ryder, “New Labour’s policies and their effectiveness for the provision of sites for Gypsies and Travellers in England,” in Contemporary Romani Politics: Recognition, Mobilisation and Participation, Trehan and Sigona, ed. (London: Palgrave Macmillan, 2010).
- Department of the Environment (DoE) Circular, January 1994.
- In 2006 the Labour Government recognised that the policy in Circular 1/1994 had failed and published new planning guidance in the form of Office of the Deputy Prime Minister (ODPM), Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites (ODPM 2006), which was designed to address the shortage of sites.
- Commission for Racial Equality (CRE), Gypsies and Travellers: A Strategy for the CRE (2004).
- Colin Clark and Margaret Greenfields, Here to Stay: the Gypsies and Travellers of Britain (University of Hertfordshire Press, 2006).
- Department of Communities and Local Government (CLG), 2009.
- Welsh Assembly Government, 2009.
- United Kingdom, Mobile Homes Act, RSC 1983, Sch.1, Part 1, paragraphs. 4-6.
- United Kingdom, Housing Act, RSC 1985 S. 84 and Sch. 2.
- United Kingdom, Traveller Law Reform Bill, RSC 2002, available at: http://www.publications.parliament.uk/pa/cm200102/cmbills/171/2002171.htm.
- United Kingdom, High Court of England and Wales, Somerset County Council v Isaacs and Secretary of State for Transport, Local Government and the Regions,  EWHC 1014 (Admin); and United Kingdom, High Court of England and Wales, R (Albert Smith) v Barking and Dagenham LBC and Secretary of State for the Office of the Deputy Prime Minister,  EWHC 2400 (Admin).
- “Tenancy Deposit Schemes”, Hansard Commons Debates Volume 664, Col 1408 (6 September 2004), available at: http://hansard.millbanksystems.com/lords/2004/sep/16/tenancy-deposit-schemes#S5LV0664P0_20040916_HOL_902.
- ECtHR, Connors v The United Kingdom, Application no. 66746/01, 27 May 2004.
- CSA 1968 Section 4 was amended by HA 2004 Section 211.
- A point made by the House of Commons Joint Committee on Human Rights in its 13th report.
- Johnson and Willers, Gypsy and Traveller Law, 67.
- Law Commission, Law Commission Report No.297, 5 May 2006, available at: http:www.lawcom.gov.uk/renting_homes.htm.
- The ten minute rule is a parliamentary mechanism that allows individual members of parliament to introduce legislation. Seldom are such bills enacted into law. United Kingdom, The Caravan Sites (Security of Tenure) Bill, RSC July 2006.
- The bill was based on the security of tenure provisions for local authority tenants contained in HA 1985.
- Travellers Law Reform Project, press release, 30 January 2007.
- United Kingdom, House of Lords, Doherty v Birmingham City Council,  UKHL 57.
- “Gypsy and Traveller Sites”, Hansard Commons Debates Volume 507, Col 142 (9 March 2010), available at: http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100309/debtext/100309-0002.htm#10030993000021.
- For more information, see: Travellers’ Times, available at: www.travellerstimes.org.uk.