An emerging consensus on the special needs of minorities: the lessons of Chapman v. UK
On January 18, 2001, the European Court of Human Rights rendered judgement in the case of Chapman v. UK, together with four associated cases.1 A sixth case (Varey v. UK) was settled by the UK government before it reached the Court and hence no formal judgement was given in this case.
Chapman v. UK is the latest in a series of important cases taken by lawyers in the UK and the Netherlands2 challenging restrictions placed upon the accommodation opportunities available to Roma. At first sight, these cases appear to be only of relevance to those European countries where Roma continue to live a predominately nomadic way of life.3 However, in fact the cases raise issues of significance for all Roma.
The facts in Chapman v. UK were similar to those in the first Romani case that the European Court of Human Rights considered, namely Buckley v. UK (1996).4 Mrs Chapman lived with her family in their caravan, which they parked on land that she owned. The land was on the edge of a small village and although Mrs Chapman had sought permission to site it on her land, the council had refused (even though she had lived in the area for very many years and had nowhere else to live). Mrs Chapman had challenged this refusal in the UK courts but had failed.
The facts in Varey v. UK were similar. The complainants too were Roma and had bought land on which to site their caravans. The land had, however, traditionally been used by Roma as a camp and Mr and Mrs Varey's application for planning permission was initially approved but then overturned by a government minister.
In the UK, a defining feature of the Romani ethnicity for the majority of Roma is the nomadic lifestyle and, in particular, the long tradition of living in caravans and other mobile dwellings. Mrs Chapman contended that it was becoming virtually impossible for Roma to obtain permission from the municipal authorities to park their caravans in the open countryside even on land that the Roma themselves owned. The Court was told that whilst almost 80 percent of non-Roma who sought permission to build houses on land that they owned were successful, only 20 percent of applications by Roma for permission to place a caravan on land that they owned succeeded.
Mrs Buckley's complaint failed in 1996 because the court considered that the UK authorities had not been shown to have acted disproportionately. They had offered Mrs Buckley an alternate place to live and the action taken against her had not been particularly punitive â€? i.e., the fine levied had been relatively small. Mrs Chapman's complaint differed to the extent that she had been more heavily fined and the authorities had made no offer of alternate accommodation.
1.1 The majority
The decision in Chapman, by a narrow 10:7 majority, was that there had been no violation of the European Convention on Human Rights. This is closer than the Buckley v. UK (1996) majority (which was 6:3) and shows that the UK is having an increasingly difficult task in succeeding in these cases. Indeed, had it not settled Varey out of court, it would by now have most probably lost its first Roma rights case in Strasbourg.
1.2 The changing approach to minority rights
A key issue in the case concerned the extent to which European "norms" in respect of the treatment of minorities had become firmly established. The majority thought they had not reached a critical stage of maturity such as to dictate an adverse finding against the UK; the minority considered that they had. Implicit in this disagreement is that at some time in the future it is likely that these norms will be sufficiently firmly established to enable the Court to make such an adverse finding. In essence, therefore, the judgment is a stay of execution for the UK. Unless there is a significant improvement in the domestic treatment of Roma over the next few years, the court is virtually certain to find against the UK - on the basis that such treatment is no longer tolerable.
1.3 Since the acceptability of the UK's actions as measured against general European standards was such an important issue, it is interesting to analyse the way the judges voted, having regard to their origins. Of the seventeen judges, ten could be described as coming from Western European countries and seven from Eastern and Central Europe (including Turkey). Of the seven from Central and Eastern Europe, all but one5 voted against a violation, whereas the majority of the West Europeans (6:46) considered that Mrs Chapman's rights had been violated. The implication being that from a West European perspective, the UK had fallen below "acceptable standards".
II. Mrs Chapman's legal arguments
2.1 Mrs Chapman's lawyers advanced two basic submissions. Firstly they sought to convince the Court that the facts of this case were materially different from those in Buckley v. UK (1996). Secondly they argued (with the support of the ERRC)7 that since 1996 there had emerged a growing consensus amongst international organisations about the need to take specific measures to address the position of Roma, inter alia, concerning accommodation and general living conditions. Articles 8 and 14 should be interpreted therefore in the light of the clear international consensus about the plight of the Roma and the need for urgent action (see judgment at para 89).
2.2 In addition, the lawyers sought to clarify certain aspects of the Court's 1996 judgment in Buckley. Of most importance in this respect was the legal question of whether state action to force a Romani individual to move her caravan engaged Article 8 - guaranteeing the right to respect for private and family life, home and correspondence - merely because it interfered with her enjoyment of her home, or whether it raised Article 8 issues because of the wider and more personal issue of an interference with "private and family life".
III. The Court's approach
3.1 As noted above, the Court was divided in its decision, but it unanimously held that planning enforcement action to remove a caravan involved an interference under Article 8 not merely with the enjoyment of a home, but also of private and family life where what was a stake was a traditional way of life.
3.2 This is of significance since the Court has widened the impact of such evictions, accepting that they materially interfere with family life and not merely the siting of a home. The practical significance relates to the issue of the duration of the encampment. The Court had previously indicated that for the right to "respect for one's home" to arise in such cases, the caravan had to be unlawfully sited on the land for some time (i.e. the right did not exist where stays were of short duration). However, according to the Court's approach in Chapman, the issue of "family life" now means that any such evictions will engage Article 8, because the existence of family ties are independent of the length of time of any particular encampment.
3.3 The majority view
The majority of the Court considered that Mrs Chapman's circumstances were not materially different to those in the Buckley case. Whilst the European Court of Human Rights is not bound by the custom of precedent to follow its previous decisions, it does try to be consistent.8 The subtext for the judgment in this regard is that Romani issues are considered controversial and the Court is reluctant to get involved unless the actions of the state are manifestly unreasonable. In the parlance of the Court, this is expressed as allowing the Member State a "wide margin of appreciation".
3.4 The Court has traditionally taken this approach in order to avoid making determinations in highly contentious areas (which involve qualified rights such as the right to a private life, freedom of expression or the peaceful enjoyment of possessions). It has, however, made clear that there are limits to the principle and emphasised that the more serious the potential violation, the smaller the available margin of appreciation. Decisions as to planning permission are therefore ones in which the Court is likely to give the state a wide margin of appreciation. The Court is likely to be less generous where the dispute concerns such issues as discrimination in relation to educational provision or, possibly, municipal housing.
3.5 Importantly, in the Chapman judgment, the Court agreed that if a generally accepted standard for the treatment of minorities did exist throughout Europe, then it could require the UK to conform to this. In this regard it stated (at para 93–94):
There may 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. […] However, the Court is not persuaded that the consensus is sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation.
3.6 Whilst this assessment is depressing, it is clear that the Court would be prepared to reach a different decision in this case, when these standards have become sufficiently concrete. It must only be a matter of time before this occurs: the pace is quickening. Recent measures include a number of important Council of Europe recommendations9, the widening of Article 14 of the Convention via Protocol 1210, the OSCE report11, the Framework Convention for the Protection of National Minorities12 and the EU Race Equality Directive.13
3.7 Whilst the seven judges in the minority rejected this view, even the majority accepted that the failure of the UK to live up to its domestic and international obligations could reasonably be described as "deplorable" (at para 100):
The issue for determination before the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom's undertakings in international law, but the narrower one of whether the particular circumstances of the case disclose a violation of the applicant's, Mrs Chapman's, right to respect for her home under Article 8 of the Convention.
In making such a strong statement about the lamentable treatment of Roma by the UK, the Court was aware that the situation had also been the subject of condemnation by British judges; for example, a bench opinion that it constituted "an affront to the national conscience."14
3.8 Of great potential importance for future decisions is the fact that, while ruling in Chapman, the Court reaffirmed its decision in Thlimmenos v Greece (2000)15 that unlawful discrimination can occur where a state applies the same sanctions against people in materially different situations. Unfortunately, although the Court was prepared to see the strong similarities between the treatment of Mrs Chapman and Mr Iakovos Thlimmenos, perversely, it found a violation in the Greek case and (having regard to the "margin of appreciation") no violation in the UK case.
3.9 Classically, discrimination has tended to concentrate on governments' failure to treat similar people in the same way. Thlimmenos concerned a person who had served a term of imprisonment for refusing military service on religious grounds. He was subsequently barred from becoming a chartered accountant because of this criminal conviction. The Court held that this action failed to distinguish people who had convictions due to dishonesty from those who had convictions for religious or other conscientious reasons. The same principle should apply to Roma who find themselves breaching planning control due to their cultural way of life, as opposed to other people whose breach arises for quite different reasons.
3.10 The dissenting minority
The fact that seven judges were prepared to rule that a violation had occurred is significant since it means that the UK was closer to failing in this case than in the earlier Buckley decision.
3.11 In the Buckley judgment, a particularly powerful dissenting opinion was provided by the French Judge Pettiti, who stated, amongst other things:
The Strasbourg institutions' difficulty in identifying this type of problem is that the deliberate superimposition and accumulation of administrative rules (each of which would be acceptable taken singly) result, firstly, in its being totally impossible for a Gypsy family to make suitable arrangements for its accommodation, social life and the integration of its children at school, and secondly, in different government departments combining measures relating to town planning, nature conservation, the viability of access roads, planning permission requirements, road safety and public health that, in the instant case, mean the Buckley family are caught in a "vicious circle".
3.12 The minority in Chapman also delivered a powerful dissenting opinion, rejecting the assertion that there was no firm European approach to the treatment of minorities, stating (at para 3 of their Opinion):
There is an emerging consensus amongst the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle […] This consensus includes a recognition that the protection of the rights of minorities, such as gypsies, requires not only that Contracting States refrain from policies or practices which discriminate against them but that also, where necessary, they should take positive steps to improve their situation through, for example, legislation or specific programmes. We cannot therefore agree with the majority's assertion that the consensus is not sufficiently concrete or with their conclusion that the complexity of the competing interests renders the Court's role a strictly supervisory one.
3.13 The minority concluded (at para 5 of their Opinion) that the long-term failures of local authorities to make effective provision for Gypsies in their planning policies was evident from the history of implementation of measures concerning Gypsy sites, both public and private, that the UK Government was well aware that the legislative and policy framework did not provide in practice for the needs of the Gypsy minority and that their policy of leaving it to local authorities to make provision for Gypsies had been of limited effectiveness. On this basis they considered that:
It is disproportionate to take steps to evict a gypsy family from their home on their own land in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to them [...]
and that local authorities should therefore accordingly,
[...] adopt such measures as they consider appropriate to ensure that the planning system affords effective respect for the home, private life and family life of gypsies such as the applicant.
3.14 The Maltese Judge, Giovanni Bonello, delivered a separate dissenting Opinion. In this, he sought to expose the inappropriateness of focussing on Mrs Chapman's failure to comply with UK planning law, when the Government itself was in breach of its international commitments towards minorities, and the local authority had failed to comply with its duties even under domestic UK law (the Caravan Sites Act 1968). He stated:
- A public authority owes as great an obligation to comply with the law as any individual. Its responsibility is eminently more than that of individuals belonging to vulnerable classes who are virtually forced to disregard the law in order to be able to exercise their fundamental right to a private and family life – individuals who have to contravene the law due to the operation of the prior failures of the public authorities.
- In the present case, both the public authorities and the individual had undoubtedly trespassed the boundaries of legality. But it was the public authority's default in observing the law that precipitated and induced the subsequent default by the individual. That failure of the authorities has brought about a situation which almost justifies the defence of necessity. Why a human rights court should look with more sympathy at the far reaching breach of law committed by the powerful, than at that forced on the weak, has not yet been properly explained.
- Here we are confronted with a situation in which an individual was 'entrapped' into breaking the law because a public authority was protected in its own breach. A court's finding in favour of the latter, to the prejudice of the former, is, I believe, a disquieting event. A human rights court, in finding that an authority, manifestly on the wrong side of the rule of law, has acted "in accordance with the law" creates an even graver disturbance to recognised ethical scales of value.
IV. Practical Action
In individual cases:
4.1 By basing its judgement on the national state's "wide margin of appreciation" in deciding where a fair balance lies between the rights of Roma and the interests of the wider community, the European Court is stating that difficult planning decisions of this nature should generally be made by domestic courts, and that only if their decisions are for some reason perverse would the Strasbourg court be prepared to intervene.
4.2 It follows that Strasbourg did not hold that the UK's treatment of Roma was acceptable (indeed, as noted above, it considered that the treatment was "deplorable"). This means that national courts cannot hide behind the decision. They must themselves carefully scrutinise such cases and whatever discretion they allow authorities cannot be as wide as the margin of appreciation permitted by the Strasbourg court.
Cases pertaining to areas that are not "environmentally sensitive"
4.3 The Chapman case concerned development in a particularly sensitive area, known in the UK as "Green Belt" (the other four cases also involved either similarly "protected landscape" or areas where, the UK alleged, there were other suitable sites available for Roma). Essentially the planning regime places a high priority in ensuring that UK cities do not sprawl into surrounding countryside. Mrs Chapman wanted to place her caravan in one of the most protected areas, the Green Belt surrounding London, where almost any development is prohibited. It follows that the court's decision is of much less relevance to cases where the proposed development would be on land which was not so environmentally important.
Cases with fact profiles different from those in Chapman
4.4 The majority of the Court emphasised that the court's role was to scrutinise the implementation of the planning policy in practice, stating:
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.
4.5 Three important principals potentially stem from this approach:
- Firstly, the criteria for ruling on individual planning applications adopted where Roma are at issue may need to be materially different from that applied in non-Romani cases.
- Secondly, the Court will in all likelihood view very seriously any material irregularity or unfairness that occurs during implementation of planning permission rules. This is the situation that occurred in the Varey v. UK complaint. In this case, the local judicial officer (known in the UK as a "Planning Inspector") had investigated the application for planning permission and decided that it ought to be granted. The Minister, however, had overruled this decision. The UK government appreciated (given the particularly sensitive nature of Romani cases) that the European Court of Human Rights would not have tolerated this act of unfairness. It accordingly offered a friendly settlement of the case - involving payment of all legal costs plus payment of Ł60,000 compensation - to which the applicant agreed.
- Thirdly, that the Court may intervene in a case in which the eviction process is materially different to that in Chapman or Buckley. For example, if the action against the unlawful development involved seizure of the caravan, very severe fines or imprisonment or peremptory removal from the land without any possible alternative accommodation, etc.
Wider political action
4.6 Romani organisations need to put pressure on European governments to take positive action to comply with their international commitments towards minorities, so that these can then be considered to be accepted in practice by most member states.
4.7 It is only a matter of time before the Court itself finds a violation in such cases. This may be 4 or 5 years from now, although if a case with particularly compelling facts emerges, the time scale may be appreciably shorter. There is therefore a need for all Governments to take action to improve the accessibility of suitable accommodation for Roma. In the UK, Romani organisations have taken the initiative in this respect by preparing a draft "Traveller Law Reform" proposal which they are seeking to have approved by Parliament.16
4.8 The proposed legislation does not seek special treatment for Roma. On the contrary, it aims to overturn the legal and administrative practices that indirectly discriminate against Roma in the UK. Thus it extends the present governmental subsidies for public housing construction to include similar grants to cover the cost of Roma caravan site accommodation. Likewise it contains provisions in areas such as education, eviction, planning, police powers, and racial discrimination.
- Luke Clements is an attorney, a research fellow at the University of Cardiff, Wales, Co-Director of the Traveller Law Research Unit, based at the University of Cardiff, and a member of the ERRC’s legal advisory board. He has been heavily involved in human rights cases concerning Roma. He can be contacted at: Traveller Law Research Unit, Cardiff Law School, PO Box 427, Museum Avenue, Cardiff, United Kingdom: firstname.lastname@example.org.
- All five cases can be found on the Council of Europe web site at: http://hudoc.echr.coe.int/hudoc/default.asp. When searching this site, type in the name of the case in the “Text” box (for example, “Chapman UK”) and ensure that the “sorted by” box is set at “date (new first)”.
- For a review of these earlier cases see Clements, Luke, et al, “The Rights of Minorities: A Romany Perspective”, OSCE Bulletin, Fall 1996 Vol.4 No. 4.
- Such as the UK, Ireland, France and, to a lesser extent, the Netherlands.
- 23 E.H.R.R. 191.
- Mrs V. Strážnická (the Slovak judge).
- The four included the “ad hoc” UK Judge, Lord Justice Schiemann.
- See “ERRC amicus curiae brief in U.K. Gypsy housing case”, at: http://errc.org/rr_nr2_2000/legalde2.shtml.
- The Court, however, emphasises that the Convention is a living instrument — in effect, that as social attitudes change, the Court is prepared to review its decisions to ensure that they reflect these new standards of acceptable behaviour.
- For example, the 1998 European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies.
- ETS no. 177 opened for signature on November 4, 2000.
- Organisation for Security and Co-operation in Europe (OSCE), Report on the Situation of Roma and Sinti in the OSCE Area, OSCE (2000).
- ETS no. 157, which entered into force in February 1998.
- Directive 2000/43/EC, “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin”.
- R v. Hereford and Worcester County Council and Surrey County Council, ex parte Smith and Others — Henry J (1988, unreported).
- 6 April 2000; No. 34369/97.
- Copies of which can be obtained from the Traveller Law Research Unit, Cardiff University, e-mail: email@example.com.