Authors:Marc Willers QC and Chris Johnson
Created:2022-08-26
Last updated:2023-09-18
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Marc Willers QC and Chris Johnson reflect on the key battles to protect the rights of Gypsy and Traveller communities over the past 20 years and beyond, and LAG’s role in supporting the small band of lawyers willing to take this fight on.
Congratulations to LAG on reaching its 50th birthday. We are grateful to
Legal Action for giving us the opportunity to report regularly on case law, legislative and policy developments affecting Gypsies and Travellers for more than 20 years. We also wish to thank LAG, particularly Esther Pilger, for agreeing to edit and publish our book,
Gypsy and Traveller Law (now in its
third edition), which has helped spread vital information among Gypsies and Travellers and the NGOs that support their communities, giving them the knowledge and power to challenge decisions that affect them and to vindicate their rights.
The writing team as we know it today has its roots in Chris’s and Dr Angus Murdoch’s ‘Travellers law update’ article in the July 2002 issue (previous update articles had been written by Rachel Morris, and before her, Professor Luke Clements, with contributions from Chris and Ravi Low-Beer). Marc came on board for the August 2004 ‘Gypsy and Traveller law update’, and more recently, Tessa Buchanan and Owen Greenhall have joined the team. As for the book, it would never have been written without valuable contributions over the three editions from Angus, Owen and Tessa, as well as Sasha Barton, Sharon Baxter, Stephen Cottle, Murray Hunt, Tim Jones, Mike McIlvaney, Desmond Rutledge and David Watkinson.
Gypsies and Travellers are some of the most marginalised people in the UK. Evidence consistently shows that they face difficulties across all areas of life, from accessing healthcare and education to experiencing racist abuse and overt discrimination. A recent report found that Gypsy and Traveller communities experience ‘the worst outcomes of any ethnic group across a huge range of areas, including education, health, employment, criminal justice and hate crime’.
1House of Commons Women and Equalities Committee, Tackling inequalities faced by Gypsy, Roma and Traveller communities. Seventh report of session 2017–19, HC 360, 5 April 2019, page 3.Chris Johnson (left) and Marc Willers QC (middle) attend the Romani Roots Festival in September 2007 to promote the second edition of Gypsy and Traveller Law
Many of the problems experienced by Gypsies and Travellers result from the historic and systemic failure on the part of national and local government to make adequate provision of caravan sites and stopping places for traditionally nomadic and caravan-dwelling communities, which makes it difficult for them to live their traditional way of life without falling foul of the law.
That context sets the scene for many legal battles we have reported on since 2000. Here are just some of the highlights:
•In 2004, the European Court of Human Rights gave judgment in
Connors v UK App No 66746/01, 27 May 2004; August 2004
Legal Action 13 and held that the eviction of Mr Connors from the local authority site on which he lived, without him being able to argue his case in court, was a breach of his rights under article 8 of the
European Convention on Human Rights. Eventually, the government implemented the judgment and gave residents on local authority caravan sites protection and security of tenure under the existing mobile homes legislation (in England in 2011 and in Wales in 2013). This brought with it various other important rights (eg, as to succession and the provision of written statements) that Gypsies and Travellers on local authority sites had not previously enjoyed.
•In
Wrexham CBC v National Assembly for Wales and Berry [2003] EWCA Civ 835 (see July 2006
Legal Action 21), the Court of Appeal decided that those Gypsies and Travellers who had stopped travelling for reasons of age or ill health did not come within the then definition of Gypsies for planning purposes and could not rely on positive policy when seeking planning permission for their own caravan sites. After a concerted campaign, the then Labour government amended the definition to include those who had stopped travelling either temporarily or permanently due to age, ill health or education of children.
2Office of the Deputy Prime Minister Circular 01/2006, Planning for Gypsy and Traveller caravan sites, 2 February 2006. Unfortunately, in 2015, the Conservative government removed the word ‘permanently’ from the definition.
3Planning policy for traveller sites, Department for Communities and Local Government, August 2015. Thus, Gypsies and Travellers who had retired or were too ill to continue travelling were, effectively, denied the chance to obtain planning permission for a caravan site on which to live in accordance with their traditional and cultural way of life. A challenge to the 2015 policy definition on grounds that it unlawfully discriminates against elderly and disabled Gypsies and Travellers was rejected by the High Court (
Smith v Secretary of State for Housing, Communities and Local Government and others [2021] EWHC 1650 (Admin); April 2022
Legal Action 38). An appeal against that ruling was recently heard by the Court of Appeal and its decision is awaited.
•A series of cases involving the Forestry Commission culminated in
Secretary of State for Environment, Food and Rural Affairs v Meier and others [2009] UKSC 11; June 2010
Legal Action 27, where the Supreme Court concluded that a landowner could not obtain a possession order covering parcels of land in their ownership other than the parcel of land where the Travellers were encamped but that a wide injunction covering those other parcels of land could be granted instead. That reasoning was invoked in 2015 when Harlow DC obtained a wide injunction prohibiting Travellers stopping on a very large number of parcels of land in its area (
Harlow DC and Essex CC v Stokes and others [2015] EWHC 953 (QB)).
•The lawfulness of borough-wide injunctions affecting Gypsies and Travellers was first considered, at an appellate level, in the case of
Bromley LBC v Persons Unknown and others [2020] EWCA Civ 12; March 2020
Legal Action 34. A Traveller NGO intervened in the case and had successfully argued before the High Court that the local authority’s application for a borough-wide injunction, which would have restrained Gypsies and Travellers from camping on 171 pieces of land in Bromley, was disproportionate (
[2019] EWHC 1675 (QB); November 2019
Legal Action 21). The Court of Appeal dismissed an appeal by the local authority and it also gave general guidance about when such injunctions should be granted.
•By the end of 2020, in what was described by the Court of Appeal at para 11 of the
Bromley case as a ‘feeding frenzy’, 38 local authorities had obtained wide injunctions. Those orders were then the subject of review by Nicklin J in
Barking and Dagenham LBC and others v Persons Unknown and others [2021] EWHC 1201 (QB); July/August 2021
Legal Action 35. He gave a scathing judgment, holding that such injunctions could not bind ‘newcomers’, ie, Gypsies and Travellers who had not been served with the proceedings by the time the hearing took place but who came onto the land at a later date. However, the judge’s decision was overturned by the Court of Appeal in January 2022 (
[2022] EWCA Civ 13; April 2022
Legal Action 37). Three Traveller NGOs are now seeking leave to appeal to the Supreme Court.
•When the first update was written in 2002, we were in the middle of an ongoing legal battle to challenge the use of draconian powers of eviction introduced by the Criminal Justice and Public Order Act (CJPOA) 1994. Fast forward 20 years and we have just witnessed parliament enact the retrograde Police, Crime, Sentencing and Courts Act (PCSCA) 2022, which gives the police even greater powers to evict Gypsies and Travellers from unauthorised encampments.
4The PCSCA 2022 inserts the new eviction powers into CJPOA 1994 ss60C–60E. For more details, see April 2022 Legal Action 37. No doubt there will be general and specific legal challenges to this new legislation on which we will report in future
Legal Action articles.
5See also Helen Mountfield QC, Marc Willers QC, Tessa Buchanan and Owen Greenhall, An opinion on the rights of Gypsy and Traveller communities, Good Law Project, 30 June 2022. That said, such challenges can only be brought if there are lawyers willing and able to work in this vitally important field. Our articles and textbook give the necessary information and guidance on arguments that can be advanced in court, but we need more lawyers to take up these cases.
We recognise the fact that there has been no increase in civil legal aid rates in all the time that we have been writing for Legal Action (indeed, there was a 10 per cent cut following the Legal Aid, Sentencing and Punishment of Offenders Act 2012), not to mention the bureaucratic difficulties associated with obtaining legal aid, as well as the fact that legal aid providers now start a judicial review at risk and will only be paid if permission is granted or the matter is settled before permission is dealt with at the discretion of the Legal Aid Agency. However, important cases are still being pursued by a small band of committed and battle-hardened lawyers who have found representing people from these most vulnerable groups in our society enriching and rewarding. We hope that more members of the legal profession will join them and ensure that this vital work will continue in the future.
Meanwhile, with the continued support of LAG, we will carry on providing both old and new members of this band of lawyers with the ammunition they need to defend the rights of Gypsies and Travellers to pursue their traditional way of life for many years to come.