Monday, March 29, 2010

From Lord Avebury

020-7274 4617

March 25, 2010

Dear Caroline,

I attach a response to the Conservative Green Paper on Gypsies and Travellers.

The Conservatives evidently failed to seek advice from established experts or members of the Gypsy and Traveller community, contrary to good practice in policy formation generally, and on ethnic minorities in particular.

There is no acknowledgement of the exclusion suffered by Gypsies and Travellers, which as the EHRC and others have demonstrated is primarily caused by a national shortage of sites - made worse by the last Conservative Government’s repeal of the duty to provide sites contained in the Caravan Sites Act 1968. The issue of Gypsy and Traveller site provision is a sensitive one which arouses the worst prejudices, but consensus has been laboriously established on a framework for site delivery. Your Green Paper would destroy this achievement at a stroke.

If this document is used by Conservatives in local or national election campaigns, it will provoke community tensions, as occurred at the last general election when negative Conservative policies, less extreme than the present Green Paper, aroused great concern among Gypsies and Travellers and an increase in racism in schools and the wider community. The attached note shows that your Green Paper is based on false assumptions and little if any research. I respectfully urge you to meet Gypsy and Traveller representatives and established experts in planning and race relations including the EHRC, and that in the meanwhile you put this flawed policy on ice.

Ms Caroline Spelman MP,

House of Commons,

London SW1A 0AA

cc David Cameron MP, John Denham MP, Dan Rogerson MP, Julie Morgan MP, Trevor Phillips EHRC



A RESPONSE by Lord Avebury, Chris Johnson (Community Law Partnership), Marc Willers, barrister, David Joyce BL and Andrew Ryder

Extracts from the paper are in bold and our comments on them are in italics.

Planning rules should ensure fairness between the settled and the Traveller communities. Local authorities have a role to ensure the provision of suitable authorised sites to tackle genuine local need for their area in consultation with local communities. In addition, recent UK case law has clarified councils’ need to provide authorised sites locally if they are to be able to take effective action against unauthorised sites, even though enforcement still remains a major problem.

Since the Caravan Sites and Control of Development Act 1960, central and local government have accepted that adequate site provision, both permanent and transit, is the answer to the problem of unauthorised encampments. Until the Caravan Sites Act 1968 was repealed in 1994, it ensured that 350 or so local authority Gypsy and Traveller sites were provided in England and Wales., But there is still a shortfall, caused by the failure of successive central governments and local authorities to ensure adequate provision. This has led to the endemic situation of unauthorised encampments and unauthorised developments, and it is essential that agreement is maintained on the existing framework, based on the policy of ensuring adequate site provision.

Where, therefore, councils have made appropriate provision for authorised sites in their area, which reflect local need and historic demand, we will provide them with stronger enforcement powers to tackle unauthorised development and illegal trespass. In addition we will introduce a new criminal offence of intentional trespass.

If there was adequate site provision, unauthorised encampments would be eliminated. However, local authorities may need to provide more or fewer that the apparent need as measured solely by the local situation, because some redistribution of the burden is necessary as illustrated by the example of Basildon.

There is simply no need for further enforcement powers. There are already sufficient enforcement powers in place. However there is a need for central government to enforce against those local authorities which are avoiding their duty to provide for adequate land under the planning system for the provision of sites.

At the same time, it is important that settled council taxpayers do not foot the bill for the construction of new authorised sites. We will also therefore reform the situation of Traveller site funding to Councils so that Councils are properly compensated for new sites and require Travellers to make a contribution to the appropriate cost of services on authorised sites.

If this paragraph means that 100% funding will continue to be provided for new sites then we are sure that that would be welcomed by local authorities. Gypsies and Travellers already pay rent for such sites and it is difficult to see what further contribution could be expected

The Human Rights Act affects all the planning, eviction and enforcement decisions made by all public authorities, including Councils and the Police. It has made it more difficult and expensive to evict trespassers from private and public property, and has overridden planning law by allowing travellers to go ahead with unauthorised developments. We will replace Labour’s Human Rights Act with a new British Bill of Rights, which will help address these problems.

It is not clear how the Conservative Party proposes to repeal the Human Rights Act when the enforcement of the European Convention on Human Rights in domestic law is an obligation of the UK Government to the European Union. It is not correct to say that the Human Rights Act has “overridden planning law by allowing travellers to go ahead with unauthorised developments”. No Planning Inspectorate or Court decision supports this assertion. The Human Rights Act is a matter to be taken into account in eviction and enforcement actions but the assertions made here are incorrect.

The Labour Government has used the regional planning system and top-down targets to force local planning authorities to build new traveller camps often on Green Belt land and, if necessary, using their compulsory purchase powers to obtain land for these new Traveller sites. Conservatives disagree with top-down building targets, be it for traveller camps or new houses.

There is no evidence that compulsory purchase powers have been used albeit that they could be used. The sensible accommodation assessment process of identifying suitable locations for sites will be thwarted by this complete change of direction, which will have disastrous consequences for the systematic provision of adequate land for Gypsy sites.

As part of the abolition of regional planning and Regional Spatial Strategies, targets for the provision of traveller camps will be scrapped. In addition we will also scrap John Prescott’s controversial guidance on travellers.

Scrapping of targets and guidance will reverse the process of ensuring adequate site provision. This section of the Green Paper does recognise the need for adequate site provision, but is silent on how this can be achieved without targets or guidance. A great deal of work has been done not only in putting together the targets and guidance, but also in getting them generally accepted through consultation. In a recent briefing note for the Institute for Race Relations (Avebury, Acton , Ryder and Willers, IRR, 2010) it is argued that scrapping the Regional Spatial Strategy will cause huge confusion and derail the timetable to deliver new sites, leading to a continuation of unauthorised encampments and developments and increased community tensions.

The abolition of Regional Spatial Strategies will also wreck the mechanisms created whereby the site targets for some areas with large Gypsy and Traveller communities such as Basildon have been reduced by redistribution of pitch targets through the Regional Spatial Strategy (RSS). The end of such policies of redistribution are implied in the line already quoted in Conservative policy which states councils should make appropriate provision which ‘reflect local need and historic demand’. Redistribution via RSS has proven popular with a number of Conservative councils who have seen their pitch targets greatly reduced and neighbouring authorities compelled to develop sites, who it has been argued with some justification managed to avoid their obligations to Gypsies and Travellers in the past. This begs the question of how widely the Green Paper has been discussed within the Conservative Party itself.

In addition, our promise to limit the concept of retrospective planning permission will also ensure that another route by which the planning system has been abused by those seeking to use unauthorised sites will be curtailed.

The Government Task Force on Enforcement and Site Provision concluded that, especially since retrospective planning permission applied across the whole spectrum of planning cases, that this right should not be withdrawn. We fully support the Task Force conclusion and the reasons given by them for their conclusions. A large number of very eminent experts on planning were represented in the Task Force and it is most alarming that their conclusions should be dismissed in this way.

As a result we will have introduced a legal framework, similar to that which exists in the Irish Republic, to enable Councils to remove unauthorised dwellings. This will allow Councils to tackle the problem of unauthorised sites including both those built on land which is owned by travellers and land which is not.

The Irish Republic system relies, as we do, on the concept of adequate site provision. And as in Britain, only when adequate site provision is achieved, will the situation of unauthorised encampments and unauthorised developments be resolved. Unlike in England and Wales, Irish local authorities have a duty under the Housing (Traveller Accommodation) Act 1998 to adopt a Five Year Traveller Accommodation Programme which includes both housing and transit sites.

In Ireland, S 19 of the Criminal Justice (Public Order) Act 1994 as amended by S 24 of the Housing (Miscellaneous Provisions) Act 2002, the 'Trespass law' allows for the removal of objects including a caravan placed on private or public land without the consent of the owner. It does not apply to temporary dwellings placed on land owned by a Traveller, roadside land, or land to which little or no public amenity is attached.

S 10 of the 1992 Housing (Miscellaneous Provisions) Act as amended by S 32 of the Housing Traveller Accommodation Act 1998, the most commonly used method of evicting Travellers, allows a local authority to get the owner of a caravan on an unauthorised encampment on public land within a five mile radius of a site managed or controlled by a local authority to move that caravan to a vacant place on that council site, or on any other council site within the council’s functional area. The local authority also has power to serve a notice on a Traveller whose caravan is stationed without authorisation on public land, requiring the owner to move it to a vacant pitch on any council-owned site that is within one mile. Such provisions would hardly ever work in England and Wales, because there would not be a vacant place to which the Traveller could be directed

Suppose it is conceded, however, that proportionately more evictions do occur in Ireland than in England and Wales. The Centre on Housing Rights and Evictions (COHRE), an international non-governmental organisation mandated to protect and promote housing rights throughout the world, having special consultative status with the Economic and Social Council of the United Nations, reported in 1995 that in Ireland

“The number of evictions recorded – whether official or unofficial - is extremely high considering that the Department of Environment estimates that 700 Traveller families currently live by the roadside, while another 350 are sharing accommodation with relatives to avoid eviction from the roadside. Evictions are severely disruptive to children’s education and have a severe impact on the mental and physical welfare of the Traveller families. Sustainable access to services such as health and social welfare is made exceedingly difficult.

Five years later, it was reported that in the year 2000, about 500 families were served with eviction notices without being offered alternative accommodation. The effect of making it easier to evict Travellers was not to reduce unauthorised encampments, but to disrupt the lives of Traveller families still further and make it even more impossible for them to play a useful role in society. This would be the experience in Britain too, if Irish policy on evictions is imported.

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