My Lords, I am proud to open the debate on these amendments. They are a means of addressing another very serious departure from the principles of social justice by the Government. I support most of the amendments in the group, which are mostly different ways of tackling the same problem.
I will speak to Amendments 133 and 149 in my name and those of the right reverend Prelate the Bishop of Manchester, and the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, for whose support I am very grateful. The lengthy trajectory of this Committee has prevented the noble Lord, Lord Alton, speaking in person, and the rail disruption after the sad accident near Salisbury has also derailed the noble Lord, Lord Bourne, who told me that he considers our amendments proportionate, sensible and wholly right.
I declare interests as president of Friends, Families and Travellers, co-chair of the All-Party Parliamentary Group for Gypsies, Travellers and Roma, and other positions as noted in the register. I am also grateful to the Joint Committee on Human Rights for its percipient report devoted wholly to the significant difficulties of Clause 62.
Our Amendment 149—the main one—would do away with the problem that the harsh and probably illegal provisions of Clause 62 purport to solve. If agreed, Clause 62 will not be the cruel anomaly that it is. The problem is, of course, the lack of authorised encampment sites, both permanent and transit, whether publicly or privately owned. Our amendment would oblige local authorities to provide adequate accommodation for Gypsies and Travellers residing in or resorting to their area—that is, permanent and transit sites as required. They are already required to assess the need for sites under planning law, so they should know what will be required in law. This means that Gypsies and Travellers would be treated on a par with other homeless families, except, of course at much lower cost than building housing, but because very many authorities have been so negligent in even making assessments, we have also provided a power of ministerial direction if need be.
The Home Secretary does not appear to understand the situation. On 8 March she wrote:
“As of January 2020, the number of lawful traveller sites increased by 41%”.—[Official Report, Commons, 8/3/21; col. 21WS.]
The error here is that this increase refers to transit pitches for individual caravans for a limited period of time. It actually resulted in only 10 additional transit pitches a year, not permanent pitches on permanent sites. There had in fact been an 8.4% decrease in the number of local authorities permanent pitches, as shown in Ministry of Housing, Communities and Local Government figures. Will the Minister apologise for this mistake on behalf of the Government?
The real picture is that, in January last year, for example, only eight of the 68 local authorities in south-east England had identified a supply of permanent deliverable sites to meet the unmet need. That means that 60 had not complied with the Government’s planning policy for Traveller sites. In January this year, there were at least 1,696 households on the waiting lists for permanent pitches in England. As of last March, the last funding round for applications for Traveller sites had awarded funding for only two schemes across the whole country, and that was only for new transit sites. In the context of the overall housing shortage, these numbers may not look large but they are huge in relation to the small number of Gypsies and Travellers who still travel—for instance, in January last year, there were only 694 of them—and to those who need to stay on permanent sites while their children are in school or their elders receive medical care.
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It should also be recognised that living on caravan sites is part of the traditional culture of Gypsies and Travellers. They may no longer live a completely nomadic life but, as elsewhere in the world, they suffer distinct and often severe mental health problems when forced to live like the majority, and their suicide rate is high. As our judges have said, we do not have the right to deprive them of this aspect of their culture. Fitting up sites with electricity, mains drainage and rubbish collection is much cheaper than the cost of evictions. An arrangement for negotiated stopping sites in Leeds, where basic amenities were provided for a limited time, saved the local authority more than £2,038,350 a year.
The Bill makes no acknowledgement of these indisputable and bleak statistics. Instead, it criminalises trespass without any assurance of a legal alternative. It will deprive people of the only home they have and all their domestic possessions. This provision therefore deprives any people thus criminalised of their right under Article 8 of the European Convention on Human Rights to respect for their homes and for their private and family life, which, by law, includes respect for their traditional ways of life. Because it applies overwhelmingly to Gypsies and Travellers—the Minister was unable to tell me in our helpful meeting before Second Reading which other people had been the cause of complaint—it also breaches the right not to be discriminated against indirectly or directly in the enjoyment of other human rights.
As long ago as 2001, the ECHR ruled that there was
“a positive obligation on Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.”
Since 1995, the UK has been a signatory to the Framework Convention for the Protection of National Minorities, Article 5 of which states:
“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture”.
Scant respect is paid to this obligation by making it impossible for Gypsies and Travellers to have sites to live on. Our judges have struck down local authorities’ wide injunctions to deprive Gypsies and Travellers from using sites, saying this in 2020:
“It is a striking feature of many of the documents that the court was shown that the absence of sufficient transit sites has repeatedly stymied any coherent attempt to deal with this issue. The reality is that, without such sites, unauthorised encampments will continue and attempts to prevent them may very well put the local authorities concerned in breach of the Convention.”
I refer the Minister to the JCHR report, and the report of the Constitution Committee on exactly that point—and also to the police, who certainly understand the issues as they actually work out in practice, and said in their evidence to the Government’s consultation:
“In summary, we believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”
Some 93% of the police who responded to the Government’s consultation on the Bill called for more site provision as a solution to unauthorised encampments.
Finally, government action to redress the lack of sites is not at all a new idea. The Caravan Sites Act 1968, brought in by the much-lamented Lord Avebury, resulted in a large number of new sites, but it was shamefully repealed in 1994. Our amendment therefore restores this obligation, thus incidentally reflecting both Welsh and Irish solutions to the problem; the Government are out on a limb here, as elsewhere in this Bill. It was clear across the House at Second Reading that the Bill’s proposal is wrong—wrong in law, wrong economically, wrong logically and wrong morally. Our amendment would remove its main fault.
Amendment 133 is supported by the same distinguished cross-party list as Amendment 149. The difficulty with Clause 62 as it stands is the fact that a person would commit a criminal offence simply by failing to comply with a request by a private individual, rather than by a police officer or other authority. I think this is almost unheard of. Of course, landowners have a right to ask anyone to leave their property, but we do not in this country invite them to decide who is a criminal and who is not. The terms “significant damage”, “significant destruction” and “significant distress” are not defined and are highly subjective. Previous case law has decided that “squashed grass” can amount to damage. I need hardly add that this provision can elevate prejudice to a very odd status indeed. All well-informed people will know that there is an abundance of prejudice towards Gypsies and Travellers. Even earlier today in your Lordships’ House, the noble Lord, Lord Carrington, referred to “Travellers or tinkers”, which is acknowledged to be a pejorative term in this context, in connection with theft.
This amendment makes it clear that it is only a police officer, with all the training that they receive, their local experience and their publicly validated authority and accountability, who can make this request as a matter of law. I beg to move.