TAT NEWS E-BULLETIN
Newsletter of the Travellers Advice
Team
at Community Law Partnership
No. 5 – December 2013
Travellers Advice Team national telephone helpline for Gypsies and
Travellers
0121 685 8677
Monday - Friday 9am - 5pm
No operator service. Get straight through to an expert.
I am an Indian and am looked on by the whites as a foolish man; but it must be because I follow the
advice of the white man – Shunka Witko (Fool Dog).
Do not judge me by my successes, judge me by how many times I fell down and got back up again –
Nelson Mandela.
Everyone loves a funfair
R(J) v Worcestershire CC & ECHR [2013] EWHC 3845 (Admin)
The first paragraph of this judgment of Holman J is memorable:
Everyone loves a funfair. They are part of the tapestry of our national life. But there would be no
funfairs without the travelling families who own the rides and amusements, erect them, man them,
and then take them on to the next site or pitch. This case concerns one such family, but all counsel
agree and submit that the issue which arises is one of widespread and general importance to all
local authorities and many travelling or itinerant families.
Later, Holman J stated (at para 9):
It must be a hard life and a hard working one, but it is a good life and an honourable one, which
brings fun and joy to many people. And it is the life of the family’s culture and choosing.
J had Down’s syndrome. His father and mother travelled with a fair. They were based in
Worcestershire but travelled around the country outside of the winter months. J’s father owned a
helter skelter and a bungee trampoline. The family argued that Worcestershire County Council
(WCC) had the power to provide services for J even when they were outside the area of WCC.
WCC said that they did not have that power.
The relevant provision is Children Act 1989 s17(1) which states:
It shall be the general duty of every local authority…
a. To safeguard and promote the welfare of children within their area who are in need;
and…
b. …
By providing a range and level of services appropriate to those children’s needs.
Holman J concluded that ( at para 55):
…under section 17(1) of the Children Act 1989, pursuant to assessment of the claimant’s needs
made at times when he is actually present in their area, the Worcestershire County Council do
have the power, for so long as he remains a child who is a child in need, to provide a range and
level of services appropriate to his needs both inside and outside their area, and at times when the
claimant is not physically within their area …(judge’s emphasis).
This is a very important decision not only for Travelling Showpeople families but for all Gypsies
and Travellers.
Death By Consultation
As mentioned in the supplementary November E-Bulletin, over the past year CLP has taken part in
the following submissions of evidence, consultation meetings and consultation responses (and we
also provide below an update on what has happened or what is awaited in terms of these matters):The Low Commission
This Commission is an independent enquiry into Access to Justice and Legal Aid. CLP made two
written submissions of evidence and had a meeting with Lord Low and two members of the
Commission at the CLP offices. The final report from the Commission is expected in January
2014.
Joint Committee on the draft De-Regulation Bill
CLP put in written submissions. The report of the Committee is awaited.
Joint Parliamentary Committee on Human Rights Civil Legal Aid Enquiry
CLP put in a general written submission and two written submissions of evidence. The final report
of the Inquiry is awaited.
Department for Communities and Local Government (DCLG) Temporary Stop Notices
CLP put in a consultation response and attended a consultation meeting in London. Unfortunately,
despite the strong representations from Gypsy and Traveller Support Groups and representatives,
the changes to Temporary Stop Notices were brought in.
Ministry of Justice Judicial Review : Proposals for Reform
This was the first of three consultations on Judicial Review. Despite extremely strong
representations, most of the proposed changes were brought in, including the reduction of the time
limit for planning judicial reviews to six weeks. CLP put in a consultation response.
Department for Education Improving Educational outcomes for children of travelling families
CLP put in a consultation response. The result of this consultation is still awaited.
DCLG Review of Planning Practice Guidance
CLP put in a consultation response. Any amendments to guidance are awaited.
Welsh Government Implementing the Mobile Homes Act 1983 on local authority Gypsy and
Traveller Sites
CLP put in a consultation response. The MHA 1983 has now been brought into force on Welsh
local authority sites and there are a few differences from the situation in England (e.g. there is a
limited right of assignment in Wales unlike in England).
MOJ Transforming Legal Aid : Delivering a More Credible and Efficient System
CLP put in a consultation response and several members of CLP attended a MOJ road show in
Birmingham. Though, following this consultation, the MOJ did decide to bring in certain matters
such as the residence test, they also decided that they would need a further consultation on the
Judicial Review proposals (see below).
Welsh Government Proposed Revision of the Welsh Government Managing Unauthorised Camping
Guidance
CLP put in a consultation response. The finalised guidance is expected before the end of the year.
MOJ Judicial Review : Proposals for further reform
CLP put in a consultation response and attended a meeting with Lord McNally in the company of
Lord Avebury and Baroness Whitaker. The Government decision on this is awaited.
DCLG Park Homes – Making Site Rules
CLP put in consultation response. The final response from DCLG is awaited.
DCLG Streamlining the Planning Application Process
CLP put in a consultation response. Since June 2013, apart from in major cases, Design and Access
Statements are no longer compulsory in England and, therefore, this was a very useful change for
Gypsy and Traveller applicants, saving a great deal of time and expense.
Additionally five further consultation processes are mentioned in this E Bulletin! See further below.
Still behind closed doors
Amongst other things, the MoJ consultation Judicial review: proposals for further reform proposes
the withdrawal of legal aid for appeals under sections 288 & 289 of the Town and Country Planning
Act 1990. CLP put in a Freedom of Information Act (FOIA) with regard to this. . We were not
satisfied with the initial response and appealed that decision – see November E Bulletin ‘ Behind
Closed Doors’ and the Travellers Times blog:
http://www.travellerstimes.org.uk/blog.aspx?n=a342f1d5-8241-4aaf-a1d8e0cfec48eb5f&h=False&c=f1b1c82c-0f3c-4edf-98cd-502ea80ed8fa&
We have now had the response to that appeal which we reproduce here (in bold):
Thank you for your Internal Review request dated 11 November 2013 regarding a
Freedom of Information request in which you asked for:
We are grateful for your answers to questions 1 & 2 but note that you
assert that you do not need to answer questions 3-7. To remind you,
questions 3-7 are as follows:3. Were Gypsies and Travellers discussed during the preparations for
and writing of the consultation papers “Transforming Legal Aid” and
“Judicial Review: Proposals for further reform?”
4. If so, please provide all relevant documents including memoranda,
minutes of meetings, e-mails, correspondence and reports;
5. In the last 3 years, how many section 288 and 289 Town and Country
Planning Act 1990 appeals have there been and in how many of those
has the appellant been in receipt of legal aid?
6. In those cases where the appellant in a section 288 or section 289
appeal has had legal aid, how many of those appellants have been
Romani Gypsies or Irish Travellers?
7. If that information is not available, how many of the cases have
involved Gypsy site cases?
We seek a review against the decision not to answer questions 3-7 and
ask that you consider the information below.
Questions 3 & 4
If the answer to questions 3 & 4 was ‘Gypsies and Travellers were not
discussed’ then it is our view that you should just say that – your
refusal to answer leads us to the presumption that they were discussed.
Following a meeting between our Chris Johnson, Lord McNally, Lord
Avebury & Baroness Whitaker on 30th October 2013, Lord McNally
confirmed that the planning parts of the judicial review consultation
paper came directly from the Department for Communities and Local
Government (DCLG). If it is the case that two ethnic groups have,
effectively, been targeted then it is clearly in the public interest that this
is revealed. This is especially when it is very difficult to think of any
other groups or individuals who might obtain legal aid for such cases.
Questions 5, 6 & 7
These questions are not about policy formulation and do not in any way
interfere with policy formulation and your failure to answer questions 5
to 7 is inexplicable. It is astonishing that you have sought to set out the
arguments in favour of disclosure and those against disclosure when
these questions were very simple requests for statistics. We fail to see
how the public interest is better served by withholding the requested
information. These were just requests for statistical information
obviously designed to find out how many section 299 and 289 cases
that received legal aid were cases involving Gypsies and Travellers.
These questions were not related to policy formulation.
The purpose of an Internal Review is to assess how your Freedom of Information
request was handled in the first instance and to determine whether the original
decision given to you was correct. This is an independent review: I was not involved
in the original decision.
I have reassessed your case and after careful consideration I have concluded that
the initial response that was sent to you was compliant with the requirements of the
FOIA. An explanation of my decision follows.
Your original request, reference FOI/85611 asked 7 questions of the department.
Questions one and two of your request were answered, it was confirmed that
information on the remaining five questions was held by the department, but that the
information was exempt from disclosure under section 35(1)(a)(formulation of
Government policy) of FOIA. You were then provided with information as to why that
decision had been made.
Question 3 of your request was not a request for recorded information (rather it
required a yes or no answer,) and as such does not fall within the FOIA, therefore no
inference can be drawn from the answer provided in the response to your request in
the way you suggest. When exercising their functions, Ministers are under a statutory
duty (under section 149 of the Equality Act 2010) to have regard to the need to
1. Eliminate unlawful discrimination, harassment and victimisation and other
prohibited conduct under the Act;
2. Advance equality of opportunity between different groups (those who
share a protected characteristic and those who do not); and
3. Foster good relations between different groups.
The protected characteristics for the purpose of this duty are race; sex; disability;
age; sexual orientation; religion or belief; pregnancy and maternity; and gender
reassignment. As set out in the response of 5 November, each of the proposals and
decisions set out in:
(i) Transforming Legal Aid: delivering a more credible and efficient system;
(ii) Transforming Legal Aid: Next Steps; and
(iii) Judicial Review: Proposals for further reform
were drawn up taking into account obligations under the 2010 Act. Accordingly,
equalities analyses were published alongside each of these documents. From this it
should be clear that a number of discussions on the potential impacts of proposals on
all different groups therefore took place in order to inform those analyses.
Officials and Ministers considered potential impacts and in each consultation paper
sought further views on the equality impacts of their proposals on all those with
protected characteristics. Ministers’ equality considerations in relation to proposals
contained in Judicial Review: Proposals for further reform, remains ongoing and will
take into account representations received, including in relation to gypsies and
travellers. Where potential impacts were identified from any particular proposal, these
were recorded in the relevant analyses. However, there is no basis to infer, as you
have done, that any particular ethnic group has therefore been “targeted” by any of
the proposals. The availability of legal aid under LASPO in respect of appeals under
sections 288 and 289 of the Town and Country Planning Act 1990 applies equally to
gypsy and travellers (unless they are trespassing) as to any other category of
person.
Question 4 of your request asked for copies of the relevant documentation in relation
to question 3. Questions 5,6 and 7 of your request relate solely to question 8 in the
consultation paper Judicial Review: Proposals for further reform, which sought views
on whether legal aid should continue to be available for challenges under sections
288 and 289 of the Town and Country Planning Act 1990 (other than where a failure
to fund such a challenge would result in a breach or risk of a breach of the legal aid
applicant’s ECHR or EU rights ) These parts of your request were exempted under
section 35(1)(a)(formulation of Government policy) of FOIA.
Section 35 (1) (a)
The consultation paper does not make any firm proposal regarding the restriction or
removal of legal aid for these types of challenges. Rather, it asks an open question
seeking views on the case for further reform in this area. Following publication of the
consultation paper, further work has been undertaken to build up a more detailed
picture of the current caseload and information provided in responses to the
consultation. At the time of your request, this process remained underway, and final
and comprehensive data was not available. As such, the data that was held at that
point provided only an incomplete and partial picture.
The policy for which the information you have requested relates, is still live and will
continue to be until responses have been analysed and final decisions have been
made. The information falls into the class of data which relates to the formulation and
development of Government policy and as a result the information requested is
exempt from disclosure by virtue of section 35(1)(a) of FOIA. Section 35 requires the
consideration of the public interest in withholding or disclosing information.
In considering whether or not to release the data requested, despite the exemption
being applicable, officials conducted a public interest test, and in this case,
concluded that the information should be withheld. In respect of your request for
internal review I have reconsidered the public interest test and remain satisfied that
the decision was correct for the following reasons:
The data on numbers of cases is relevant to ongoing policy development and
future Ministerial decisions on next steps, which will not be set out until
publication of the Government Response in early 2014. As such the policy is
in the midst of development, where the preservation of a safe space for the
provision of advice is at its highest.
Officials were continuing to gather information. Release of any information
that was held at that point could give only a partial and incomplete picture,
which could have been misleading or indeed detrimental to the policy
formulation process.
Release of the information at that stage would impair the Department’s ability
to present its findings to Ministers and might generate misinformed debate in
areas where decisions have not been finalised.
Disclosure at that stage of the information that was then held could lead to
less effective and well-developed policy. This could result in further costs to
the Government and the taxpayer. As this policy remains live, it was
considered important that the space required to take final policy decisions
using the best evidence available was maintained.
We do not think this is a satisfactory response. We believe that Gypsies and Travellers have been
targeted. We believe that questions 5 – 7 are merely requests for statistical information. We will be
appealing to the Information Commissioner.
Human Rights
The Council of Europe’s Committee of Experts on the reform of the European Court of Human
Rights (ECtHR) is holding an open court for information, proposals and views on the issue of the
longer term reform of the system of the European Convention on Human Rights and the ECtHR.
This process follows on from the Brighton Declaration adopted in April 2012. It is intended to be
open and inclusive, allowing questions to be raised and examined concerning all aspects of the
Convention system and the Court. For further information see
http://www.coe.int/t/dghl/standardsetting/cddh/reformechr/consultation_EN.asp .
The deadline for submissions is midday (12.00 pm French local time) on Monday 27th January
2014.
Making submissions concerning the European Convention is a big task. TAT will be suggesting
that all Gypsy and Traveller Support Groups and representatives link together to produce a joint
submission thus making use of all the range of knowledge we have on this subject. Those who are
interested in participating please email us at:- [email protected]. We will be
sending a separate email about this following on from this E-Bulletin.
Zoumbas – v – Secretary of State for the Home Department [2013] UKSC 74, Supreme Court
27th November 2013
This case involved an appeal against a refusal of asylum. Though Mr Zoumbas was unsuccessful in
his appeal, the case provides an important reminder that the best interests of the child are a primary
consideration in any such decision.
The Duty to Provide Sites
The Housing (Wales) Bill includes within it a provision to re-introduce the duty on local authorities
to provide sites for Gypsies and Travellers where a need has been identified. This is a very
important development in Wales. The Communities, Equality and Local Government Committee is
undertaking an enquiry into the general principles of the Housing (Wales) Bill. Submissions should
be sent in by 17th January 2014. If you wish to submit evidence (and we would urge people to do so
on the question of the duty to provide sites) please send an electronic copy of your submission to:[email protected] or, alternatively, write to:The Committee Clerk
Communities, Equality and Local Government Committee
National Assembly for Wales
Cardiff Bay
CF99 1NA
CLP will attempt to put together a draft submission in advance of the deadline in case people might
find that useful.
Planning (Wales) Bill
We reproduce below an e-mail from Trudy Aspinwall of Save the Children Wales.
Hi everyone
…..
I’m looking to set up a workshop session to consider the implications of the new Draft Planning
(Wales) Bill whose consultation has just been launched by the Welsh Government
http://wales.gov.uk/consultations/planning/draft-planning-wales-bill/?lang=en
… I have asked… colleagues at Planning Aid Wales to help us understand what some of the
implications might be for Gypsies and Travellers so that we can ensure that issues likely to affect
them in the new Planning Bill are raised with the Welsh Government during the consultation which
closes on the 26 February – to date there is no equality impact assessment as far as I am aware – if
we could all bring expertise to the table that would be helpful
We also talked about the idea of piloting some information sessions for Gypsies and Travellers
around Wales about planning issues so maybe we could pick this up too
Anyone interested please let me know and if you can say if Friday the 17th January is a possibility
or one of the days of the week beginning 20th January– we could book a room at Save the Children
for a couple of hours
Thank you
Trudy
Trudy can be contacted at: [email protected]
R (Eastwood) – v – The Royal Borough of Windsor and Maidenhead [2013] EWHC 3476
(Admin), 13th November 2013
Mrs Eastwood was unsuccessful in her planning appeal before the Planning Inspector but the
Inspector extended the period for compliance by 18 months stating:I find that a period of 18 months would be more reasonable as this would enable alternative
accommodation and site provision arrangements to be progressed. The council indicated that the
development plan documents, which will result in the identification of sites, will be reaching
fruition by 2013, and an extended period of compliance will provide a period of settlement, and
provide an opportunity for the occupants to be fully involved in this process.
On the 11th February 2013 this period of time came to an end. Three days later, on 14th February
2013, the local authority resolved that enforcement action pursuant to Section 178 of the Town and
Country Planning Act 1990 should be taken. The local authority meeting also recorded that
notwithstanding efforts, not one single further pitch had been provided by the local authority during
this period of time.
This was the hearing of the permission application to decide whether the matter should go through
to a full hearing. Mr Justice Mostyn stated:With some misgivings I have decided that the decision by the meeting to disregard the fundamental
premise of the decisions of the Inspector and the Secretary of State is arguably perverse and I
therefore give permission on the sole ground that ‘the decision of the local authority made on 14th
February 2013 and confirmed on 10th April 2013 was perverse in that it failed to give any
meaningful weight to the failure of the local authority to provide alternative pitches in
circumstances where both the Inspector and the Secretary of State in 2011 had expected that it
would.’
The matter now proceeds to a final hearing on this point. The solicitors for Mrs Eastwood are
Lester Morrill and the Barrister is Stephen Cottle of Garden Court Chambers.
Leicester City Council – v – Shearer [2013] EWCA Civ 1467, 19th November 2013
This is not a Traveller case but is an important reminder that a judicial review challenge can be
successful even in cases involving trespassers.
The facts were quite complicated but, to simplify them somewhat, Mrs Shearer ended up living in
the property that had been the tenancy of her husband. Her husband had committed suicide. Her
husband had already succeeded to the tenancy and a second succession in terms of council tenancies
of houses and flats is not possible. However, the Council had a policy for direct letting of specific
properties in certain circumstances. Nevertheless, from the outset, the Council made it clear to Mrs
Shearer that she would not be able to obtain the tenancy of the property she was living in. The
Council requested further information from Mrs Shearer but she did not supply that information
since the Council had made it clear they would not consider a direct let and she only wanted to
remain in the property she was in.
Lord Justice Jackson, giving the leading judgment and upholding the lower court’s decision to
dismiss the possession action, stated:The facts of the present case, however, are exceptional. In the desperate situation in which the
defendant found herself in 2011 she had a respectable case for receiving the benefit of a direct let
under.....the Allocations Policy. The Council officials to whom she spoke did not tell her this.
Indeed they told her precisely the opposite.
A public authority cannot rely upon an applicant’s non-compliance with procedural requirements,
when the authority itself has caused that non-compliance.
An additional feature of the present case is that the Council was well aware of the defendant’s
circumstances. It already knew all of the matters of which it was requesting formal proof (identity
of the applicant, details of the children and current address). This is a case in which the Council
wrongly allowed form to prevail over substance....
Mr Carter [Counsel for the Council] has addressed to us an ingenious argument to the effect that
the exchange of emails does not record or evidence a decision against making a direct let to the
defendant. He points out that one department at the Council was dealing with possession
proceedings, whereas another department would be responsible for deciding whether to make a
direct let. The Housing Services Department had decided to ‘regain possession of 35 Martival from
Mrs Shearer’....that decision did not, however, preclude the possibility of the Housing Options
Department making a direct let to the defendant. I do not accept that argument. It would be absurd
for one department of the Council to obtain a court order evicting the Defendant from 35 Martival
and then for another department of the Council to grant her a tenancy of the same property.
Park Homes, Site Licensing Consultation
In England, the Mobile Homes Act 2013 has introduced measures that provide for a modern
reformed local authority licensing regime to ensure that local authorities are properly funded and
have sufficient tools and powers to take enforcement action. In particular local authorities will be
given discretion to refuse to grant a licence or transfer one from one party to another which at
present they do not have. A consultation is taking place on the new rules that are being proposed.
Copies of the consultation document can be obtained on request by email to:[email protected]. The deadline for comments is 6th January 2014.
European Union Framework for National Roma Integration Strategies
Congratulations to the National Federation of Gypsy Liaison Groups (NFGLG) who have obtained
limited funding to undertake a review of the lack of a proper UK strategy (the term Roma in these
circumstances includes Gypsies, Roma and Irish Travellers). NFGLG will be using community
interviewers on this work.
For further information contact NFGLG at:[email protected]. Updates will be available on the Travellers Times and
NFGLG website.
The Council of Europe Employment, Social Policy, Health and Consumer Affairs Council have
produced a report, Council recommendation on effective Roma integration measures in the member
states (December 2013) – see:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/139979.pdf
This is a very positive document but it must be pointed out that (yet again in an EU document) there
is virtually no reference to the position of nomadic Gypsies and Travellers ( there is passing
reference to ‘stopping places’ and reference to ‘forced evictions’ – though the latter could relate to
sedentary Roma as well).
R (AB) – v – The Secretary of State for the Home Department [2013] EWHC 3453 (Admin) 7th
November 2013
This was a deportation case but it contains an extremely important decision on the question of the
applicability of the Charter of Fundamental Rights of the European Union in the UK Courts. The
British and Polish Governments secured, at the negotiations on the Lisbon Treaty, an opt out from
the incorporation of the Charter into their domestic law. The 7th Protocol to the Lisbon Treaty
provides as follows:Article 1 paragraph 1. The Charter does not extend the ability of the Court of Justice of the
European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the
laws, regulations or administrative provisions, practices or action of Poland or of the United
Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
Paragraph 2. In particular, and for the avoidance of doubt, nothing in...the Charter creates
justiciable rights applicable to Poland or the United Kingdom except insofar as Poland or the
United Kingdom has provided for such rights in its national law.
Mr Justice Mostyn concluded, on this point:However, my view that the effect of the 7th Protocol is to prevent any new justiciable rights from
being created is not one shared by the Court of Justice of the European Union in Luxembourg. In
Secretary of State for the Home Department – v – ME and Others (21 December 2011) it was held
in paragraph 120 that:-
‘Article 1 (1) of [the 7th] protocol explains Article 51 of the Charter with regard to the scope
thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the
obligations to comply with the provisions of the Charter or to prevent a Court or one of those
member states from ensuring compliance with those provisions’.
The constitutional significance of this decision can hardly be overstated. The Human Rights Act
1998 incorporated into our domestic law large parts, but by no means all, of the European
Convention of Human Rights. Some parts were deliberately missed out by Parliament. The
Charter of Fundamental Rights of the European Union contains, I believe, all of those missing
parts and a great deal more. Notwithstanding the endeavours of our political representatives at
Lisbon, it would seem that the much wider Charter of Rights is now part of our domestic law.
Moreover, that much wider Charter of Rights would remain part of our domestic law even if the
Human Rights Act were repealed.
To give just one example from the Charter, Article 7 states:Everyone has the right to respect for his or her private and family life, home and communications.
Importantly this is not a qualified right.
Mr Grayling, the Secretary of State for Justice, has indicated that he is looking for a test case to
challenge the decision in AB. In the meantime, the decision in AB should be used and we advise
our readers to get acquainted with the Charter of Fundamental Rights.
See
http://ec.europa.eu/justice/fundamental-rights/charter/ .
And, whilst talking about the Charter, see the article below from Marc Willers of Garden Court
Chambers.
The Government’s balance of competences review on fundamental rights
Introduction
The Ministry of Justice (MOJ) issued a call for evidence for a review on the balance of competences
between the UK and EU in relation to fundamental rights on 21st October 2013. The deadline for
submitting evidence is 13th January 2014.1
In essence the Government seek evidence and views upon the EU’s framework for ensuring that its
member states respect fundamental rights and on its work to promote fundamental rights (through
the Fundamental Rights Agency).
One commentator has said that:
…the Fundamental Rights Review is potentially very important – the stated aim of the Balance of
Competences reviews is to audit what the EU does and how it affects the UK government and those
residing within the UK more generally. The main website can be found here. ...
The Review puts fundamental rights in a somewhat negative light, as a restriction on Member State
action: on p10 it says “The key point is that EU fundamental rights constrain what the EU and, in
certain circumstances, its Member States can do.” But that is not the key point of fundamental rights
at all – the key point is protecting or guaranteeing rights for individuals, organisations, etc., and
the UK needs a coherent and strong policy in order to ensure that the rights of individuals and
businesses within the UK are properly protected. The EU influences fundamental rights protection
in different ways – for example, its institutions and Member States may be constrained to ensure
protection of fundamental rights; national courts must follow the CJEU in relation to fundamental
rights when interpreting or applying legislation, or considering the lawfulness of public authority
action that implements EU law; and the EU’s Fundamental Rights Agency carries out campaigns
and educational programmes to promote rights.2
In my view it is essential that Gypsies and Travellers and those representing and protecting their
interests respond to the Government’s call for evidence and emphasise just how important it is for
them: that EU law is implemented in a way which is compatible with fundamental rights; and that
the valuable work of the Fundamental Rights Agency is recognised and supported by the UK.
The EU Fundamental Rights Framework and the Charter
The requirement to respect fundamental rights as a matter of EU law has been consistently
recognised by the Court of Justice of the EU (CJEU) since the late 1960s. In 2000, the EU and its
Member States adopted the Charter of Fundamental Rights (‘the Charter’). Essentially, the Charter
draws together the rights that member states have already committed to respect in other
international conventions and covenants (including the European Convention on Human Rights).
Indeed, the preamble to the Charter states that:
1
2
See http://eutopialaw.com/2013/11/25/fundamental-rights-and-the-uks-balance-of-competences-review/ for a summary of the Review.
See Catherine Taroni at http://eutopialaw.com/2013/11/25/fundamental-rights-and-the-uks-balance-of-competences-review/
The Charter reaffirms…the rights as they result, in particular, from the constitutional traditions
and international obligations common to the Member State…the European Convention for the
Protection of Human Rights and Fundamental Freedoms as well as the Social Charters adopted by
the Community as well as by the Council of Europe.
The list includes all the civil and political rights contained in the European Convention on Human
Rights as well as a number of economic, social and cultural rights.
When the Lisbon Treaty came into force in 2009, the Charter became a legally binding document
with which EU institutions are bound to comply; and with which EU member states must also
comply when they implement EU law. Article 51(1) of the Charter states that:
The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the
Union with regard for the principle of subsidiarity and to the Member States only when they are
implementing EU law. They shall therefore respect the rights, observe the principles and promote
the application thereof in accordance with their respective powers and respecting the limits of the
powers conferred on it in the treaties.3
As a consequence individuals now have the right to complain that EU law, or national legislation
that implements EU law, breaches the Charter. Complaints relating to a member state’s compliance
with the Charter, when implementing EU law, can be brought before the national courts (which can
then seek guidance from the CJEU on the correct interpretation through the preliminary reference
procedure).
My understanding is that up until now there have been few cases where Gypsy and Traveller
claimants have relied upon the Charter.4 That position may change as those representing them
become more familiar with its provisions and its scope.
The Fundamental Rights Agency
The EU promotes respect for fundamental rights through the work of the Fundamental Rights
Agency (FRA). I think it is vital that we highlight the excellent work done by the FRA on
promoting and protecting the fundamental rights of Gypsies, Travellers and Roma throughout
Europe by producing important data and research which demonstrates the inequalities and
discrimination that they face as vulnerable members of society.5 For example, see:
•
•
•
FRA’s ‘multi annual Roma programme’
http://fra.europa.eu/en/project/2013/multi-annual-roma-programme
Analysis of FRA Roma survey results by gender
http://fra.europa.eu/en/publication/2013/analysis-fra-roma-survey-results-gender
The FRA report ‘The situation of Roma in 11 EU Member States’
http://fra.europa.eu/en/publication/2012/situation-roma-11-eu-member-states-survey-resultsglance
The UK Government along with Poland sought an ‘opt out’ from the Charter through Protocol No. 30 to the Lisbon Treaty on the application of the
charter to Poland and the UK. Whether the Protocol has any substantive effect is questionable. In N.S. v Secretary of State for the Home Department,
the Advocate General of the Court opined that it did not amount to an opt out. He held that the wording of Article 1(1) of the Protocol effectively
repeated what all member states had already committed to in Article 51.
4
By way of example, the Charter was used in legal argument by Jan Luba QC, when acting on behalf of the Equality and Human Rights Commission
in the important recent case of R(J) v Worcestershire County Council [2013] EWHC 3845 (Admin) as a guide to the interpretation of section 17 of the
Children Act 1989 – though the point did not find its way into the judgment (which begins with the words ‘Everyone loves a funfair. They are part of
the tapestry of our national life... ). See http://www.bailii.org/ew/cases/EWHC/Admin/2013/3845.html
5
See http://fra.europa.eu/en/theme/roma
3
•
The FRA report ‘Housing conditions of Roma and Travellers in the European Union Comparative report’
http://fra.europa.eu/en/publication/2011/housing-conditions-roma-and-travellers-europeanunion-comparative-report and
•
The ‘EU-MIDIS Data in Focus Report 1: The Roma’
http://fra.europa.eu/en/publication/2009/eu-midis-data-focus-report-1-roma
Without research and data such as that produced by the FRA we would not have had the April 2011
Communication from the Commission to the EU Parliament, An EU Framework for National Roma
Integration Strategies up to 2020, which sets goals for Roma inclusion in education, employment,
health and housing across the EU.6
To that end, EU Member States were asked to adopt National Roma Integration Strategies (‘NRIS'),
which specify how they would contribute to the achievement of the goals and the FRA was given
the important role in monitoring and assisting EU-wide efforts to implement the EU’s plan for
Roma integration.
Unfortunately, the UK Government’s response to the EU’s requirement that it adopt a NRIS has
been disappointing. Rather than adopt a NRIS in name it published a Progress Report7 in April 2012
which included 28 ‘commitments’. However, many of those commitments seem to fall well short of
the explicit measures that would need to be adopted in order to prevent and compensate for the
disadvantages that Gypsies, Travellers and Roma face within our society.8
Conclusion
We need to ensure that the UK Government respects fundamental rights when it implements EU
law and that the FRA continues to be given the support and funding it needs so that it can promote
the rights of Gypsies, Travellers and Roma and help eradicate the discrimination and social
exclusion that they face as some of the most marginalised and vulnerable members of our society.
Help to achieve those goals by responding to the MOJ’s call for evidence.
Please send your response to the
[email protected]
MOJ
by
midday
on
13th
January
2014
to
Marc Willers
Garden Court Chambers
6
See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0173:FIN:EN:HTML
See http://ec.europa.eu/justice/discrimination/files/roma_uk_strategy_annex2_en.pdf
8
See the article by Willers and Greenhall at http://www.gypsy-traveller.org/wp-content/uploads/2012/01/TATNews-Roma-Strategies-18.3.2012.pdf
7
Incompatibility Cases
TAT have been running two incompatibility challenges where we are challenging pieces of
legislation under the Human Rights Act 1998.
The first challenge involves the fact that the Land Compensation Act 1973 does not allow Gypsies
and Travellers who are forced to move from pitches to automatically receive home loss payments
(unlike the situation for council tenants in houses and flats). This challenge is ongoing.
We had another challenge involving the fact that there is no right of exchange for Gypsies and
Travellers on pitches. Our challenge involved two cases where the exchange that had been
requested was between a council tenancy of a house/flat and a pitch. Unfortunately, after a long
struggle, we have failed to obtain legal aid to bring this challenge any further forward.
Nevertheless we are very interested in pursuing a challenge further if it arises in cases involving
attempts to exchange between pitches on local authority sites. We would be very interested to hear
of any such cases.
Essential Reading for Lawyers
For lawyers amongst our readership two very important notes here regarding costs issues.
Most people will have heard of Andrew Mitchell MP and the ‘Plebgate’ controversy when he was
alleged to have called a police officer at the gates to Downing Street a “ f*****g pleb”. Following
the Sun publishing an article about this, Mr Mitchell took a defamation action. Mr Mitchell’s
lawyers failed to file a Costs Budget with the court within the stipulated 7 days before the Case
Management Conference (CMC). Indeed they only produced the Costs Budget on the day of the
CMC. They explained that there had been problems with staff shortage. The Master disallowed the
Costs Budget (which amounted to some £500,000!!) and ordered that they should only be paid for
the court fees! An appeal to the Court of Appeal was dismissed – see Andrew Mitchell v News
Group Newspapers Ltd [2013] EWCA Civ 1537. Essential reading for lawyers.
Despite legal aid lawyers not having Costs Budgets for cases (we are talking multi-track cases here)
that involve similar figures to the above (we wish!), we are still subject to the same rules
(unfortunately – and a little bizarrely since they clearly weren’t created with us in mind!).
Our second note on costs concerns applications for costs when a judicial review application has
been settled. The Ministry of Justice, following on from the case of M v Croydon [2012] EWCA
Civ
595,
has
produced
guidance
on
this
issue
in
November
2013:
http://www.justice.gov.uk/downloads/courts/administrative-court/aco-costs-guidance-nov-13.pdf
More essential reading for lawyers! However please note that some lawyers question the accuracy
of this guidance – see also the case of R(Bahta) v SSHD [2011] EWCA Civ 895.
Other readers may want to read all this to confirm their feeling that it was a good decision not to go
into the law.
Travellers Times
Marc Willers, Simon Ruston and Chris Johnson do a regular law blog on the TT website
(sometimes collectively and sometimes individually) – here is an example of a recent one:http://www.travellerstimes.org.uk/blog.aspx?n=2cd5b6cd-e017-4101-8a1a4d70cd452640&h=False&c=f1b1c82c-0f3c-4edf-98cd-502ea80ed8fa&
Marc, Simon and Chris always welcome feedback on their blogs.
CLP Website
On our website you can find:
 News items about Gypsy and Traveller issues:
http://www.communitylawpartnership.co.uk/noticeboard/news
 Updates on campaigns and consultations:
http://www.communitylawpartnership.co.uk/noticeboard/campaigns-and-consultations
 Recent Gypsy and Traveller legal cases:
http://www.communitylawpartnership.co.uk/noticeboard/gypsy-and-traveller-cases
 Judgements and reports on our leading cases:
http://www.communitylawpartnership.co.uk/our-leading-cases
 Links to Gypsy and Traveller groups:
http://www.communitylawpartnership.co.uk/links/travellers
 And , of course, the latest edition of TAT News and previous TAT News E Bulletins:
http://www.communitylawpartnership.co.uk/links/tat-news
 Plus lots of information about the Housing and Public Law Teams who, amongst other
things, represent Gypsies and Travellers in housing and homeless Gypsies and Travellers
who are seeking housing in the Midlands and surrounding areas. For full details of the
Housing Team see: http://www.communitylawpartnership.co.uk/our-services/housing-law
And the Public Law Team see: http://www.communitylawpartnership.co.uk/our-services/public-law
The Travellers Advice Team consists of Chris Johnson, Parminder Sanghera and Sharon Baxter.
Thanks to our TAT Administrator, Emma Westwood, for organising this December E Bulletin.
Thanks to members of the Housing Team for their help on the TAT Advice Line. Thanks to Marc
Willers of Garden Court Chambers for the article he contributed. Thanks to the other barristers,
aside from Marc, who act in most of our Gypsy and Traveller cases: Stephen Cottle; Tim Jones;
Alex Offer; and Jamie Burton.
Happy Christmas and Happy New Year to all our readers and supporters.
Until Next Time
We hope you find our E-Bulletin useful. All and any comments very welcome.
Don’t forget our national self-funded advice line for Gypsies and Travellers:
0121 685 8677
Monday to Friday 9am to 5pm
Keep up the good fight! Best wishes to all our readers. Kushti bok!
The Travellers Advice Team
Part of The Community Law Partnership
Solicitors
4th Floor, Ruskin Chambers
191 Corporation Street
Birmingham B4 6RP
Tel: 0121 685 8595
Fax: 0121 236 5121
E-mail: [email protected]
Website: www.communitylawpartnership.co.uk