I congratulate my noble friend Lady Whitaker on her powerful and persuasive speech introducing her amendments and opening this debate, as we expected it would be. As the noble Earl, Lord Attlee, said, my noble friend has been a determined campaigner on behalf of the Gypsy and Traveller communities.
As has been said, Part 4 relates to unauthorised encampments, which it criminalises, creating an offence if someone resides or intends to reside on land without consent in or with a vehicle. The Bill also gives landowners a role in criminalising a person who is trespassing, strengthens police powers to deal with unauthorised encampments, prohibits a person re-entering land without a reasonable excuse within 12 months and gives the police the right to seize property, including people’s caravans, which could be a family’s primary residence. The Bill also amends police powers associated with unauthorised encampments in the Criminal Justice and Public Order Act to lower the threshold at which they can be used, allow the police to remove unauthorised encampments on or partly on highways and prohibit unauthorised encampments that are moved from a site returning within 12 months.
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The Bill’s provisions will primarily—as has been said on more than one occasion—affect the Gypsy, Roma and Traveller communities. To back up the point my noble friend Lady Chakrabarti just made, the 2011 census indicated that there were approximately 58,000 people who identified as Gypsy or Irish Traveller in England and Wales, accounting for 0.1% of the resident population.
The amendments in this group to which my name is attached provide that a constable can use the powers under this clause in respect of a person leaving land or removing their property only if the person has been offered a suitable pitch in a caravan site in the local area. The amendments provide that a police officer does not have the power to seize a vehicle that is a person’s home and limit the new offence to where damage and disruption has been caused, rather than to where it is deemed likely to be caused or to where conduct has been deemed likely to take place. The first two of those three issues are based on recommendations by the Joint Committee on Human Rights.
Amendment 151, which is also in my name, is based on a Delegated Powers and Regulatory Reform Committee recommendation and provides that guidance issued by the Secretary of State in relation to police powers in respect of trespasses on land must be subject to parliamentary scrutiny under the negative procedure, and not just be a matter for the Secretary of State.
Failure to comply with a police direction to leave land occupied as part of an unauthorised encampment is already a criminal offence, but the proposals under the Bill create a new offence of residing on land without consent in or with a vehicle. The penalties are imprisonment of up to three months or a fine of up to £2,500 or both. I wonder whether the Minister can say what will happen under the terms of this Bill to a Traveller family in a single vehicle who are residing on a highway and have nowhere else to go.
This part of the Bill is clearly targeted at Gypsy, Roma and Traveller communities and may well breach the Human Rights Act 1998 and the Equality Act 2010, since we are talking about a recognised ethnic group. When the powers in the Criminal Justice and Public Order Act 1994 were debated in Parliament, it was stated that the powers were intended to deal with “mass trespass.” However, under this Bill, even a single Gypsy or Traveller travelling in a single vehicle will be caught by this offence. The Criminal Justice and Public Order Act 1994 requires six vehicles.
These measures to increase police powers in relation to unauthorised encampments are not even backed by the police. More than 80% of the police responses to the government consultation did not support the criminalisation of unauthorised encampments. The views of the National Police Chiefs’ Council were clearly put in its submission to the 2018 government consultation:
“Trespass is a civil offence and our view is that it should remain so. The possibility of creating a new criminal offence of ‘intentional trespass’…has been raised at various times over the years but the NPCC position has been—and remains—that no new criminal trespass offence is required. The co-ordinated use of the powers already available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”
The NPCC told the Bill Committee in the Commons that the group
“strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around… The view of our group is that the existing legislation is sufficient to allow that to be dealt with, and we have some concerns about the additional power and the new criminal provision and how that will draw policing further into that situation.” —[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/05/21; col. 15.]
The Joint Committee on Human Rights was told by a deputy chief constable that
“where we have an increasing number of”
authorised
“sites, we have a direct correlation with a reducing number of unauthorised encampments”.
The committee was also told by the chair of the National Association of Gypsy and Traveller Officers, a representative body for local government officers who work with Travellers, that
“while public authorities did need to deal with some cases of crime and serious harm, the vast majority of encampments did not present any significant challenges”,
and that:
“The current law is fine”.
The Government seem determined to put on the statute book legislation that will probably result in Gypsies and Travellers being locked up against the advice of their own police. As of January 2020, just 3% of Gypsy and Traveller caravans in England were in unauthorised encampments and, of that 3%, 60% were on not-tolerated sites and 40% were on tolerated sites. Tolerated sites are where the local authority has decided not to seek the removal of the encampment, so it is likely to remain indefinitely.
Some 184 of the 285 authorised sites in operation today were built following the passage of the Caravan Sites Act 1968, from 1968 to 1994, when there was a statutory duty to establish authorised sites with funding from central government. The Criminal Justice and Public Order Act 1994 repealed this provision, since when there have been fewer than three authorised sites built in England, on average, every year. As a result, without that statutory duty, there has been a lack of assessment of the needs of Gypsies and Travellers and a failure to identify appropriate land where they might be accommodated and apply for and obtain planning permission. In reality, it is very difficult for Gypsies and Travellers to secure planning permission.
As my noble friend Lady Whitaker said, there has been an overall 8.4% decrease of pitches on local authority Traveller sites over the last 10 years, and an overall decrease of 11% in permanent pitches on local authority and registered social landlord sites. As my noble friend also said, research in January 2020 found that only eight out of 68 local authorities in the south-east of England had identified a five-year supply of sites for Gypsies and Travellers, while 15 had no identified need for new sites.
The police currently have discretion to decide whether to use their powers under the Criminal Justice and Public Order Act but, under this Bill, they will be duty-bound to act when they are informed by a private citizen that a criminal offence has taken place. The term “significant distress” is highly subjective, and we run the risk of seeing numerous reports of criminal offences being committed based on someone—a private citizen—saying that they are significantly distressed by an encampment, which could lead to the criminalisation of an individual who refuses to leave a piece of land. At the very least, the police should be able to use their powers in relation to a person leaving land and removing their property only if the person has been offered a suitable pitch at a caravan site in the local area.
The Bill creates conditions for an offence to have been committed, including that
“significant damage or significant disruption has been caused or is likely to be caused”
or would cause “significant distress”, or that the person
“has, or intends to have, at least one vehicle with them on the land”.
Some of those words are open to very subjective interpretation, including “likely to”. We need clarity in the language of the law, particularly in the contentious provisions we are discussing. My amendments would limit the new offence to where damage and disruption has been caused, rather than where it is deemed “likely to” be caused or where conduct is deemed “likely to” take place.
The draft Statutory Guidance for Police on Unauthorised Encampments gives a very broad set of examples of where the term “likely to” might be met. It indicates its wide-ranging scope and does not bring much clarity to the law on this issue. It also states, as my noble friend Lady Lister of Burtersett said, that
“the police, alongside other public bodies, should not gold-plate human rights and equalities legislation.”
That gives a strong hint about how the Government want the police to interpret the guidance.
The Bill also gives the police the right to seize the property of people living on unauthorised encampments, including their caravans, which could be their primary residence. Would it ever be proportionate to seize a person’s primary residence, and effectively render them homeless and unable to pursue their way of life? That could also involve making children homeless.
The police expressed concerns to the Joint Committee on Human Rights around the police’s intended role in potentially making a family homeless. Amendment 147 would provide that a police officer did not have the power to seize a vehicle that was a person’s home, and was in line with a recommendation from the Joint Committee on Human Rights.
The Victims’ Commissioner told the Public Bill Committee in the Commons that
“unless there is proper provision of authorised encampments, you have two sets of victims. I quite agree with you that the people who are distressed, damaged or whatever by an unauthorised encampment are victims of that. There is no doubt of it … but I want you to take into account the difficulty of finding somewhere to camp in a lot of places, which forces people into an unlawful place.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 20/5/21; col. 120.]
However, the Government do not want to take that into account. Instead, as I have said, they seem determined to enact legislation that will probably lead to Gypsies and Travellers being locked up against the advice of the police. Given the levels of prejudice shown towards Gypsies and Traveller communities, that is quite likely. It is a prejudice personified by the Conservative MP who, in Committee in the Commons on 8 June this year, said:
“The Travellers I am talking about are more likely to be seen leaving your garden shed at 3 o’clock in the morning, probably with your lawnmower and half of your tools. That happens every single time they come to”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 8/6/21; col. 410.]
and then gave the name of his constituency.
A lead member of the Local Government Association told the Public Bill Committee in the Commons that:
“There has to be a commitment from local authorities that those sites are allocated. The statutory legislation that already exists for these protected characteristics needs to be taken seriously. We should be meeting the obligations that are already set in statute, which says that we should have adequate sites for these
communities, but we just do not.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 68.]
I do not dismiss the point made by the noble and learned Lord, Lord Garnier, but the Government should focus more on ensuring that local authorities have the resources they need to provide more space for Traveller communities to reside legally, with decent facilities, as a solution to unauthorised encampments, rather than focusing on at least some of the provisions in this section of the Bill. I hope the Government will reflect on what has been said in this debate tonight.