Luke Clements - Turning the Tide

10 May 2003

For more than 20 years I have been representing Roma and Travelling People before domestic UK courts and the European Court of Human Rights in Strasbourg. Over this period, there appear to have been enormous changes and yet, at times, it appears very little has changed; plus ça change as the French say.

As many readers will know, in the UK many Roma define their ethnicity - in part by their travelling way of life. Few UK Roma would call themselves "Roma", often describing themselves as "Gypsies" or "Travelling People"; many of the UK's Travelling People would not be considered by ethnologists to be Romani - being of Irish Traveller, Scottish Traveller, or Welsh Traveller descent - albeit ethnic groups in their own right. Unfortunately, definitions are in this story important. UK legislation defines a "Gypsy" as someone of "nomadic habit of life regardless of his race or origin" - and I will, in this article, generally use the phrase "Travelling People".

My colleague Rachel Morris and I have elsewhere² argued that the UK's post-war legislative history, as it has impacted upon Travelling People, can be subdivided into three distinct phases: the incremental period (until 1969); the consensus years (1970-1992) and most recently, the rise of a new intolerance. Aspects of these different periods can be seen in the legal systems of many other European states.

In relation to the first period, we have suggested that although it has had the most negative consequences for Travelling People, what marked it out (from previous periods) was the fact that this was not deliberate. The raison d'ętre for each law that negatively impacted on the way of life of Travelling People (be it in the arena of planning control, highway use or caravan site regulation) was not a deliberate curtailing this lifestyle; the severe restrictions that these laws created were, in large measure, unintended consequences.

It was because of these severe (if unintended) problems that, in 1968, a law was passed which obliged local councils to provide adequate accommodation for "Gypsies" in their area. We have characterised the period between 1968 and 1994 (when the law was repealed) as the consensus years. During this period, all the UK's major political parties agreed that the state should provide decent accommodation for Travelling People despite there being enormous public hostility towards site provision. The 1968 law was slow to make a real impact "on the ground". However, in retrospect, its achievement was impressive. When it came into force, 80% of Travelling People had nowhere to live; on its repeal (and despite an apparent quadrupling of the number of Travelling People during this period) this had been reduced to 30%.

We consider that the repeal of the 1968 law (in 1994) heralded the present legislative phase, characterised by "the rise of a new intolerance that views Travelling People as the 'problem' rather than the problem being the social regulatory system that has outlawed their way of life".

Twenty years ago, when this story commences, UK law still obliged local councils to provide adequate accommodation for Travelling People who lived in their area. Few councils complied with this obligation and those that did provided sites often in isolated and environmentally unsuitable areas and with minimal facilities. The obligation was nevertheless of considerable value. In a series of legal cases, the courts severely restricted the eviction powers of councils that had failed to provide their adequate quota of sites. During these early years, lawyers like myself were able to use this principle to stop needless evictions and provide some possibility for Travelling People to remain long enough to access health and social care services and enable their children to enter local schools.

In response to these legal successes, the councils began a systematic policy of engineering works to render inaccessible most of the places at which Travelling People traditionally camped. Each time a group moved, the council would arrive and dig ditches or erect fences or make earth barriers to ensure that they could not return. Fewer and fewer safe places remained and those that did were in increasingly unsuitable locations and occupied by ever larger groups of Travelling People.

Domestic UK courts were - in large measure - unsympathetic to complaints about this action and refused to intervene to protect the traditional way of life of many Travelling People. Accordingly, it seemed appropriate to look to the European Court and Commission of Human Rights. About fifteen years ago, I started making applications; I imagine that the lawyers in Strasbourg were both intrigued and threatened by these complaints. Intrigued because they raised interesting questions under Article 8 of the Convention, but threatened because issues concerning minority rights (and those of Roma in particular) are highly controversial.

These early complaints were given sympathetic hearings but were rejected by the Commission - since then, none of the UK's many complaints on behalf of Travelling People have succeeded before the Court. However, the fact that some of these cases have nearly succeeded has meant that local and central governments in the UK are much more hesitant about taking any action that adversely affects the rights of Travelling People. Additionally, there is now a widespread network of excellent UK lawyers willing to act for Travelling People and more and more cases are coming before the courts.

Towards the end of the last decade, I realised that the Court in Strasbourg was as imperfect as the courts in the UK and that although a litigation strategy was important, promoting real change required action in other non-legal dimensions. I became a part-time academic at the Cardiff University in Wales where, together with my colleague Rachel Morris, have gathered important evidence to promote political change. One of the most influential programmes has been a five-year initiative in which UK Travelling People have (at regional and national meetings) formulated a policy for removing discriminatory practices that originate in the statutory and regulatory regime. This policy has now been formalised in a proposal for change, in what is known as the Traveller Law Reform Bill (which if approved by Parliament will become binding law). The proposal was introduced into Parliament last year and it seems likely that some aspects will be accepted by the Government and brought into law. One key provision concerns the reintroduction of an obligation on local authorities to provide adequate accommodation for Travelling People; indeed this idea has attracted cross-party support and been championed by a number of Conservative Members of Parliament whose party, when in government, did exactly the opposite by repealing the duty under the 1968 law.

It is in this context that one can suggest that everything and nothing has changed over the last twenty years. During this period, a duty to provide adequate accommodation has been repealed - causing great harm to Travelling People, especially their children's health and education - and yet now it seems likely to be reinstated in one form or another. During this period, I have tried to articulate the injustices experienced by my clients in the language of UK domestic law and the European Convention on Human Rights - arguments that have both intrigued and threatened domestic and European Court judges. The courts seem as incapable today of making courageous or imaginative judgements as they were twenty years ago.

Nevertheless there have been major changes. Many more Travelling People in the UK are becoming politically active and collaborating to promote radical change. The education of Travelling children has improved immensely, largely as a result of the dedication of their parents and a specialist "Traveller Education Service" that now exists in most parts of the UK. Fine organisations like the ERRC have become established and highly respected and have tirelessly challenged governments over their appalling treatment of Roma throughout Europe. Increasingly, judges too are voicing their concern about the historic and present injustices Roma/Travelling People experience: these judges are still in a small minority but the tide has undoubtedly turned and their views will, with time, inevitably become part of the mainstream.

I think, therefore, that there is room for some optimism. It cannot, however, obscure the daily hardship and distress still experienced by thousands of Travelling People in the UK and the millions of Roma across the water, as we say, on the Continent.

Endnotes:

1. Luke Clements is a solicitor in the United Kingdom. In 1996, Mr Clements acted as counsel for Ms June Buckley in the first case involving a Gypsy/Romani applicant to be heard before the European Court of Human Rights in Strasbourg (see Roma Rights, Autumn 1996). He is also a research fellow at the Traveller Research Unit at the University of Wales (Cardiff Law School) and author of a practitioner's guide to the European Convention on Human Rights entitled "European Human Rights: Taking a Case Under the Convention" (London: Sweet and Maxwell, 1994). Luke Clements is a member of the Legal Advisory Network of the ERRC.
2. Morris, R. & L. Clements. At What Cost? Bristol: Policy Press, 2002, p.11.