Leeds approach to unauthorised encampment vindicated by Court of Appeal Judgement
In a decision keenly awaited by Leeds GATE members the Court of Appeal has issued its judgement in the case of Bromley Borough Council v Persons unknown, London Gypsies and Travellers (LGT) and others. The case featured an appeal by Bromley Borough Council, against the decision of the High Court to refuse an application for a borough-wide injunction against so called ‘unauthorised encampments’; or in other words against camping by Gypsy and Traveller people. LGT, Liberty and several other local authorities intervened in the case. Perhaps unusually, the outcome is an encouraging one for Gypsy and Traveller people.
Leeds GATE have been awaiting the decision with bated breath being only too aware of the desperate effect that such injunctions have on our members as they travel up and down England. We hear upsetting personal testimony from Leeds GATE members who find themselves literally hounded from one county to another, to another, on the basis of injunctions granted. Most notable areas relying on such injunctions are in the Midlands and South of England but we are not without examples in the North, Rochdale providing a particularly egregious example.
“In order for proportionality (or an equilibrium) to be met in these cases, it is important that local authorities understand and respect the Gypsy and Traveller community’s culture, traditions and practices, in so far as those factors are capable of being realised in accordance with the rule of law. That will normally require some positive action on the part of the authority to consider the circumstances in which the article 8 rights of the members of those communities are ‘lived rights’ i.e. are capable of being realised”.
Of the West Yorkshire authorities, only Leeds has applied for any injunctions. However, far from being ‘area-wide’, the Leeds injunctions apply to only five very specific small pieces of ‘sensitive’ land, and are equitably balanced by a city wide policy of dialogue and engagement with Gypsy and Traveller people under a locally developed policy known as ‘Negotiated Stopping’.
Within their judgment the judges expressed concern about the cumulative effect of successive injunctions granted to local authorities across England without evidence of sufficient or appropriate long and short term stopping places being available to thus displaced Gypsy and Traveller people. Area-wide injunctions, in the view of the Judges, present a significant challenge to the right of Gypsy and Traveller people to assert their identity, and to enjoy private and family life, via an “enshrined freedom not to stay in one place but to move from one place to another”.
“When injunction orders are sought against the Gypsy and Traveller community, the evidence should include what other suitable and secure alternative housing or transit sites are reasonably available. This is necessary if the nomadic lifestyle of the Gypsy and Traveller community is to have effective protection under article 8 and the Equality Act”.
In very good news for our communities - and for those few courageous local authorities who have resisted racist and exclusionary narratives in their responses to Gypsy and Traveller accommodation need - the judgment makes clear that authorities need to have regard to the legal rights of Gypsy and Traveller people; including via the Public Sector Equality Duty, the Equality Act and Article 8 of the Human Rights Act (right to respect for home, private and family life) The judgment noted ...“The equitable doctrine of ‘clean hands’ may require local authorities to demonstrate that they have complied with their general obligations to provide sufficient accommodation and transit sites for the Gypsy and Traveller community”.
“the clean hands doctrine or the dirty hands doctrine,[1] is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy because the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint—that is, with "unclean hands".[2] The defendant has the burden of proof to show the plaintiff is not acting in good faith. The doctrine is often stated as "those seeking equity must do equity" or "equity must come with clean hands". This is a matter of protocol, characterised by A. P. Herbert in Uncommon Law by his fictional Judge Mildew saying (as Herbert says, "less elegantly"), "A dirty dog will not have justice by the court".
- Wikipedia
How many local authorities across the whole United Kingdom can claim to have ‘clean hands’ in this regard? Not very many. This comment in particular vindicates the approach taken to Gypsy and Traveller accommodation by Leeds City Council, working with Leeds GATE and its’ membership to develop the Negotiated Stopping approach to encampments. It is particularly encouraging that this specific approach adopted by Leeds in preference to punitive application of law was referenced in the judgement.
“In particular, there was evidence of a policy of ‘negotiated stopping’ which demonstrated both a degree of flexibility and a willingness to engage which, on the judge’s findings in the present case, was absent here”.
Other authorities might do well to follow their example; including more explicitly in those areas, including those in West Yorkshire outside of Leeds which, whilst not necessarily pursuing area-wide injunctions, are demonstrably doing nothing to suggest compliance with their legal obligations outlined by the Judges in this case.
In a comment which might prove very helpful in putting a stop to the ‘over the border’ mentality (which ultimately punishes any local authorities meeting their obligations) the judges commented that ...”The submission that the Gypsy and Traveller community can “go elsewhere” or occupy private land is not a sufficient response, particularly when an injunction is imposed in circumstances where multiple nearby authorities are taking similar action”, and went further to say …”it would be wrong to ignore the plain fact that a neighbouring authority’s successful injunction potentially narrows the options for everyone else, including other local authorities and the Gypsy and Traveller community itself. If every local authority obtains an injunction, the community has literally nowhere to go”.
The authorities should consider approaches specifically tailored to the needs of the Gypsy and Traveller community [128] and should consider Gypsy and Traveller groups as part of “an outcast community and of the socially disadvantaged groups”, who “may need assistance in order to be able effectively to enjoy the same rights as the majority population”
Finally the judgment referenced the highly significant judgment previously obtained by Leeds GATE member Jim Connors
“In Connors v United Kingdom (2005) 40 EHRR 9, the ECtHR again emphasised the vulnerable position of Gypsies and Travellers as a minority, reiterating that “some special consideration should be given to their needs and their different lifestyle” to the extent that there is a positive obligation on the State to “facilitate the gypsy way of life” as well as referencing Home Office guidance published in 2006 which “emphasised at paragraphs 9 and 77 that local authorities had an obligation to carry out welfare assessments on unauthorised campers to identify any welfare issue that needed to be addressed before taking enforcement action against them. In addition, paragraph 83, entitled ‘Avoiding unnecessary enforcement action’, requires landowners to consider “whether enforcement is absolutely necessary” and identifies alternatives to eviction action”.
So, where does all this leave Gypsies and Travellers, and local authorities here in West Yorkshire? Whilst not applying themselves for injunctions Calderdale, Kirklees, Wakefield and Bradford might assume they can dismiss the implications of this judgment. They cannot.
The Judgment also further referenced DoE Circular 18/94 [which] states that “it is a matter for local discretion whether it is appropriate to evict an unauthorised Gypsy encampment” (paragraph 6); where there are no authorised sites but an unauthorised encampment is not causing a level of nuisance which cannot be effectively controlled, the authorities should consider providing basic services (paragraph 6); that local authorities should try and identify possible emergency stopping places … where Gypsy families would be allowed to camp for short periods (paragraph 7); that, where Gypsies are unlawfully camped, it is for the local authority to take any necessary steps to ensure that the encampment “does not constitute a hazard to public health” (paragraph 8); and that “local authorities should not use their powers to evict Gypsies needlessly…local [authorities] should use their powers in a humane and compassionate way”.
In other words authorities wishing not to find themselves on the wrong end of a court judgment would do well to look toward the example set by Leeds, and, when they do, Leeds GATE is here to help.
We’ll end this article quoting Leeds GATE Community worker Mags Price. When informed of the court decision Mags had this to say;
“I feel very proud of being from Leeds because we've got the negotiated stopping. When I visit people in other places I think to myself 'Our camps are being kept cleaner; we've got more children in school.' People need to think of the vulnerable people, the old people. If there were places for people to go there wouldn't be a need for injunctions".
nb All quotes in this article are taken from the Judgement, apart from the ‘clean hands’ definition which is taken from Wikipedia and this above from Mags Price, Leeds GATE Community Worker.