Successive central and local governments have failed to ensure adequate site provision, so that some 25% of the Gypsy and Traveller population who live in caravans are on unauthorized encampments and unauthorized developments, through no fault of their own. The Community Law Partnership, on behalf of Gypsies and Travellers, have requested that the House of Commons urge the Government to ensure that Legal Aid in the Legal Aid, Sentencing and Punishment of Offenders Bill is available for Gypsies and Travellers to defend evictions from unauthorized encampments and to be advised and represented in County Court and High Court planning matters.
The bill has come up against strong opposition in the House of Lords. Yesterday Lord Avebury and Baroness Whitaker moved amendments concerning Gypsies and Travellers. The full debate can be watched here with Gypsy and Traveller discussion starting around 3.15 pm, or read the transcript below, followed by the Community Law Partnership's commentary. A summary can be found on the BBC here.
Lord Avebury: I am most grateful to my noble friend. I was saying that it would have a catastrophic effect on the provision of advice and representation to Gypsies and Travellers on issues relating to their accommodation. I am sure that I do not need to remind your Lordships that in the most recent survey by the DCLG in England, almost one in five of the caravan-dwelling population of Travellers was homeless, and that in terms of health, education, life expectancy, employment and access to public services they are the most deprived ethnic minority in our country. The tragic events at Dale Farm in Hertfordshire brought the plight of residents there to the attention of the whole country as their eviction was played out on TV day after day, at an estimated cost to the taxpayer, and to the council tax payers of Basildon, of £18 million.
Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted by the Irish Traveller Movement in Britain.
At the same time, because of the unsympathetic attitude to Travellers who want to provide their own accommodation caused by the scrapping of circular 1/2006, Travellers who want to provide their own accommodation now have greater difficulty than ever identifying plots of land on which they would have the remotest chance of getting planning permission. They invariably find that there is an immediate hullabaloo from settled residents in the neighbourhood, whatever the planning merits of the site, because Gypsies and Travellers are the only communities against whom open racist prejudice can still be voiced without challenge.
This is the context in which Travellers are to be deprived of legal aid in cases that involve eviction from unauthorised sites and from rented sites; other issues concerning rented sites; High Court and county court planning cases such as injunctions, planning appeals or stop notices; and, finally, homelessness cases.
In paragraph 28 of Schedule 1, loss of home is kept within the scope of legal aid, and “home” includes a caravan that is the individual's only or main residence. However, the words left out by the first four amendments in this group, and by Amendment 87, would address the exclusion of a caravan that is occupied by a trespasser. This would mean, for example, that a Traveller who trespasses on a local authority site, having been moved on from the roadside to a vacant pitch, would be unable to contest an order for possession and would thus be at immediate risk of losing their home. In such a case recently, solicitors managed to fend off an order and the case is going to trial.
A great deal of media attention has been given recently to local authority housing that has been left unoccupied for months, or even years in some cases. If the same is happening on local authority Traveller sites, where the shortage is even more desperate, it is surely desirable that the courts should be able to look into the matter. There is a difference between caravan dwellers and housing trespassers because there are houses in which a homeless person can be accommodated, but there are no sites on which a person dispossessed from a caravan site can find alternative accommodation. There are just no alternative sites available.
At the July 2011 count of Traveller sites, there were 4,000 caravans on unauthorised sites in England, of which just over 2,000 were on land not owned by the occupiers and therefore vulnerable to possession orders. When these provisions come into force, almost certainly there will be some landowners who seize the opportunity of kicking the Travellers off, in many cases without even having to turn up in court, and if they do, coming up against an unaided defendant. Since there is nowhere that they can lawfully take their caravans, the evicted Travellers will end up on a different unauthorised site to await yet another eviction. This churning of people living on unauthorised sites will have further harmful repercussions for the lives of the families concerned and, primarily, for the health and education of their children.
That will be the effect of removing access to legal aid from people forced to live on unauthorised sites because of the failure of successive Governments over the 50 years of my political lifetime to ensure that Gypsy and Traveller caravan dwellers have places to live. Do your Lordships want to deprive these communities of the right to defend themselves against the threat of repeated eviction? I certainly hope not.
Turning to Amendment 77, it is ironic that after the success of the campaign over many years to extend the Mobile Homes Act 1983 to local authority sites, the Government have proposed that all the provisions of that Act, other than the ones concerning possession actions, should be taken out of scope. The Community Law Partnership, to which I pay tribute for the excellent work that it does on behalf of Travellers and for its help in drafting and briefing on these amendments, has lodged an application for judicial review on behalf of a Traveller challenging the failure of the equality impact assessment to address the impact of this proposal on Gypsies and Travellers. For many of them who live on rented sites, there will be no legal advice on breaches of covenant, quiet enjoyment, succession, re-siting of the mobile home, rent increases or repairs. Few of them will have the ability to deal with such cases on their own because of the widespread educational disadvantage that affects these communities and the consequent low levels of literacy and numeracy that they suffer. All we are asking for is for initial advice, since cases other than possession under the Mobile Homes Act in England are dealt with in a residential property tribunal, where legal aid is not normally available anyway.
Finally, Amendment 79 restores the right to legal aid in the large number of planning cases that appear not to be covered by paragraph 28(1)( because of the use of the term “eviction”. This could make it difficult, if not impossible, to maintain that for the purpose of claiming legal aid, the loss of home resulting from the dismissal of a challenge under Sections 288 or 289 of the Town and Country Planning Act or the granting of an injunction under Section 187B of that Act may be considered equivalent to an eviction because in any of those cases the occupier forfeits his home in the end, even if there is a delay before he actually has to leave the site. The Community Law Partnership asked the Ministry of Justice for clarification of this point, and in its reply the department stated that, “legal aid will remain available to defend an application for an injunction to evict a person from a site under Section 187B of the Town and Country Planning Act or for a planning appeal that might result in the individual being legally required to leave their home”.
That appears to cover the whole of Amendment 79, but it needs to be spelled out in the Bill.
Annexe B of the Government’s response to the consultation on reform of legal aid contains a list of the key issues raised. One of these was that:
“Funding should be provided for planning appeals and eviction cases involving Gypsies and Travellers because this group was one of the most vulnerable in society”.
Immediately following these key issues, in paragraphs 75 to 82, the Government deal with the other issues raised but totally ignore the needs of the Travellers — the usual experience of these communities and the agencies that try to help them. In this case, however, it is not only the Travellers themselves who will suffer if these amendments are not accepted; the greater levels of harassment and evictions of Travellers on unauthorised sites that will inevitably follow the withdrawal of legal aid in planning cases, coupled with the abandonment of a strategy for securing that an adequate number of planning permissions are awarded to meet the needs identified by the Government themselves in their twice-yearly count, means that there will be more unauthorised sites than ever, with the attendant health, education and social problems.
Making life more difficult for Gypsies and Travellers is not the way to turn them into good citizens who generate fewer burdens on public services. I beg to move.
Baroness Whitaker: My Lords, the noble Lord, Lord Avebury, has set out very clearly and powerfully the way this group of amendments would work. I will briefly give noble Lords a couple of examples to flesh out what they mean in real cases.
For instance, there are two Gypsies on different plots, both facing injunctions to make them leave their own land because they have not yet obtained planning permission — notoriously low down on most local authorities’ to-do lists. With legal aid, lawyers managed to hold off the injunctions on the basis that there were reasonable prospects of success in their planning appeals. One of them has now obtained permanent planning permission and the other has obtained temporary permission for three years—of importance when there are school-age children in the family. The point is that these two would have been homeless without legally aided assistance, but these cases would not qualify for legal aid.
I should just add that the other Minister’s amendments to the previous group of housing clauses, offered in the witching hour last Wednesday, are welcome, but they are not nearly bewitching enough. They do not materially alter the unfair situation that Gypsies and Travellers will find themselves in if the Bill becomes law.
I also cite the case of a family on a private caravan site, protected by the Mobile Homes Act 1983—unless this Bill becomes law — but facing harassment by their landlord. The harassment was clearly intended to force them to leave the site. Their legal aid lawyer obtained an injunction to stop the harassment. One of the victims said, “Without a solicitor acting for us, they would have got us out by now”—again, they would have been homeless. As the noble Lord, Lord Avebury, said, Gypsies and Travellers are often illiterate and harassment can be very complex in legal terms.
Gypsies and Travellers are often illiterate because that is what happens when you are moved on all the time as a child. Is it any wonder that our Gypsy and Traveller children have the lowest attainment rates in school, are more likely to die in infancy and have mothers who are more likely to die in childbirth? These are the consequences of constant eviction and moving on. The reason for even more moving on will still be the lack of legal sites, but added to an overwhelmingly unmet need — if the Bill becomes law—for legal advice and assistance in establishing such entitlement as exists.
Of course, the costs of unnecessary evictions are huge, but the most important disbenefit, if some form of these amendments is not accepted, will be to the ordinary human rights accepted for all other citizens not to be made homeless. As it stands, this Bill discriminates against a defined minority-ethnic group—whatever previous government letters to me have said—and I hope the noble and learned Lord can provide a more positive attitude.
The Earl of Listowel: My Lords, I, too, support Amendment 79, to which my name is added, and I declare my interest as a landowner. I am most grateful to the noble Baroness, Lady Whitaker, and my noble friend Lord Avebury, for drawing my attention to these amendments.
All children need a degree of stability in their lives if they are to do well. Instability for Traveller children arising from repeated displacements—the “churning” to which my noble friend referred—impacts particularly adversely on their educational outcomes. Displacement risks undermining the education of Traveller children, excluding them from society and contributing to a cycle of generational failure. I would encourage the Minister to accept this amendment as a means of improving educational outcomes for Traveller children and of promoting their inclusion in society.
I should like to pray in aid two documents; namely, My Dream Site, which includes research with Traveller children and is published by the Children’s Society, and a 2003 Ofsted report, Provision and Support for Traveller Pupils. The Ofsted report states:
“The average attendance rate for Traveller pupils is around 75%. This figure is well below the national average and is the worst attendance profile of any minority ethnic group … The 1996 Ofsted report The education of Travelling children estimated that at least 10,000 Traveller pupils of secondary age were not registered at school. This survey indicates no decrease in these numbers and estimates that the figure could now be closer to 12,000. Despite examples of success by some services, the picture at the secondary phase remains a matter of very serious concern. Not enough Traveller pupils attend or stay on at secondary school … The vast majority of Traveller pupils linger on the periphery of the education system. The situation has persisted for too long and the alarm bells rung in earlier reports have yet to be heeded”.
That 2003 report highlights our failure to educate secondary-school-age Traveller children in particular.
The Children’s Society report indicates the connection between stability and school success for Traveller children. It states:
“More than any other amenity school raised a range of emotions.
‘It’s good for your education but it’s hard to get in because you’re travellers and that, so you get a lot of hassle at school.’ Johnny aged 12 years.
Other children’s experiences at school were similar, as they had also experienced bullying because of their Traveller status.
‘The only reason a lot of people do it is because they don’t understand. I tell the teachers but they don’t do anything.’ Daisy aged 12 years.
There was a marked difference in attitude towards school from the children who had been settled on a site for a stable period of time. These children had an opportunity to settle into a school routine and knew what was expected from them in a school setting. The opportunity to build up a relationship with staff and with other children seemed to make attending school a far easier experience. They appeared to have less of a problem with being bullied because of living a nomadic lifestyle. Some of the children no longer identified themselves as travellers but saw themselves more as settlers. These children had been able to attend one school and had lived in one place for most of their lives”.
To conclude, all children need a degree of stability. The education of Traveller children is likely to be significantly impaired by continued upheavals, which can lead to their exclusion from society and failure for successive generations of Traveller children. I support this amendment because it may contribute to improved stability for Traveller children and I look forward to the Minister’s response.
Lord Howarth of Newport: My Lords, the treatment of Gypsies and Travellers by states and other public agencies in the West over the last 100 years and longer has been in large measure a major disgrace. The worst instances have certainly not occurred in this country, but, as the noble Lord, Lord Avebury, put it to us, there remains a remarkable degree of prejudice against Gypsies and Travellers still, unfortunately, extensively licensed by public opinion.
I was struck, in the two constituencies I had the privilege to represent in the House of Commons, by how very difficult it was, in the face of public opinion, for local planning authorities to construct a policy framework in their areas which would ensure that Gypsies and Travellers had places where they were entitled to live. While I would not argue for especially favourable treatment for Gypsies and Travellers any more than I would for any other group, it is particularly incumbent on us, as we scrutinise all legislation, to be sure that it does not involve anything that may be discriminatory against them. So I simply ask the Minister and his colleagues to look carefully and sympathetically at the amendments in this group, which have been moved and spoken to so well by the noble Lord, Lord Avebury, my noble friend Lady Whitaker and the noble Earl, Lord Listowel.
Lord Alton of Liverpool: My Lords, I, too, want to add my voice briefly in support of the amendments moved by the noble Lord, Lord Avebury. Perhaps it would have been surprising if anyone other than the noble Lord had moved these amendments. I was at school when the noble Lord, as Eric Lubbock, Member for Orpington in the House of Commons, moved his Gypsies and caravan sites legislation in, I think, 1967. Many of us admired the courageous way in which he has continued over the following years to raise the plight of Travellers and Gypsies in the discrimination and racism that other noble Lords have referred to in the debate.
As a young city councillor in the 1970s, I served in Liverpool on the committee which was charged with the duty of creating a caravan sites Act. The noble Lord, Lord Storey, who is in his place, will recall the controversy that that aroused at the time. But we fulfilled our statutory duties and took on the prejudice that inevitably was raised. The not-in-my-back-yard syndrome is one with which we are all familiar. Indeed, it has to be said that the presence of Travellers or Gypsies in a community can raise a number of issues, not the least of which are questions of educational provision. In the 1970s, that provision was made, and I agree with what my noble friend Lord Listowel said about the importance of providing stability of education for the children of Travellers as they progress through life.
A few months ago we saw what happens when there is an unregulated approach to these matters. At Dale Farm there was a terrible culmination in violence that involved the use of Tasers. We saw the police having to be pitted against members of the Traveller community as they were evicted from their homes. That is not a sight that most of us want to see repeated on a regular basis. But I fear that unless amendments of this sort are incorporated, and if we deny people access to justice, which was the point made by the noble Lord in his speech, all these other things will follow. They will be the corollary. If we do not provide opportunities for resolution on planning disputes and access to amenities, as well as on questions of discrimination and the others that have been raised during this brief debate, we will see more incidents like Dale Farm. For that reason, I hope that when the noble and learned Lord comes to reply, he will tell us just how many unauthorised sites there are in the country, what is the estimated shortfall of places — that will give us a barometer of how many disputes will have to be resolved in the years to come—and the cost to the public purse through legal aid of cases which have been brought before the courts over the past decade? Without knowing what the sums of money involved are, surely it would be irresponsible of us to dismiss lightly the amendments to maintain the status quo which the noble Lord, Lord Avebury, has put before us today.
I end by returning to his point about the importance of ensuring that people have access to justice. That runs all the way through the proceedings of this Bill in your Lordships’ House, and it will continue to be the question. You cannot get justice on the cheap, and groups like these should not be left on the margins, unable to access the courts.
Baroness Turner of Camden: My Lords, I support the case that has been made so well by the noble Lord, Lord Avebury, and my noble friend Lady Whitaker. It is well known that the Gypsy and Traveller communities are among the most vulnerable and disadvantaged communities in England and Wales in terms of health, education and discrimination.
It is almost universally accepted that these disadvantages and problems would be addressed if there was adequate site provision. Of course, that does not really happen, because it looks to me as though local authorities fail to follow government guidance on encampments, to take into account human rights considerations and to follow a proper and reasonable process in relation to sites for Travellers.
If Gypsies and Travellers get involved in county court and High Court planning cases without the assistance of legal aid, they will eventually end up homeless. That is surely to be avoided and a distinct worsening of the situation. It is something that we should not be prepared to countenance. I therefore hope that the Government will give due consideration to the excellent case which has been made by my noble friends with a view to accepting it. These people deserve our support and consideration.
Lord Elystan-Morgan: My Lords, I find myself in total agreement with everything that has been said so far by all noble Lords who have spoken to this amendment. The arguments have been put fully, lucidly and with great force, and certainly do not need to me to underline them. However, I would say two things. Many years ago, I felt that there was an equitable balance between the interests of Travellers and those of the community at large, a balance which had been brought about by the legislation for which the noble Lord, Lord Avebury, fought so valiantly over the years. It was necessary under that legislation for local authorities to provide certain basic facilities for Travellers. That balance was maintained by a flagship judgement by the late Mr Justice Peter Pain, a most humane and pioneering judge, who said to a county council in Wales: “You are seeking injunction to remove these Travellers from a lay-by whose freehold is vested in your good selves. On the other hand, you have, I think in a cavalier way, done nothing at all to implement the obligations which were placed upon you to provide for Travellers. An injunction is an equitable remedy. I exercise my judicial discretion not to grant it until I am convinced that you, too, will carry out your statutory obligation”.
Unfortunately, the law has now been changed and that balance no longer remains, which makes this group of amendments all the more relevant.
The other thing that I would say, as one who exercised a family jurisdiction for some years, is how obvious it was to me that insecurity ate like acid into the lives of children of Traveller families, particularly in the context of education.
Baroness Lister of Burtersett: My Lords, I support the amendments. I was a member of the National Equality Panel, and one of the most shocking of our findings was the degree of educational disadvantage among Gypsy and Traveller communities. Reading the very helpful briefing that we have had from Community Law Partnership reminded me of the importance of this. A number of noble Lords have made the point about educational disadvantage and children’s need for education and security. Of course, access to justice is that much more important for a community which suffers high levels of illiteracy and educational disadvantage. As Community Law Partnership points out, we are talking about some very complex areas of law. I therefore hope that the Minister will look sympathetically on the amendments, which would protect one of the most vulnerable minority-ethnic groups in this country.
Lord Pannick: When the Minister comes to reply, will he clarify how these provisions will operate? Notwithstanding the provisions that are being debated today, is it the case that Gypsies and Travellers will remain entitled to seek legal aid to challenge acts or omissions of public authorities under paragraph 17 of the judicial review, and remain entitled to challenge under paragraph 20, which relates to convention rights, in the same way as other litigants? Is it the case that the provisions we are debating will not prevent Gypsies and Travellers claiming legal aid if they have proper grounds for contending that they are not trespassers? I would be grateful if the Minister would clarify those matters, because they have a considerable bearing on the fairness of the provisions that are under challenge through these amendments.
Lord Bach: My Lords, the Committee owes a debt of gratitude to the noble Lord, Lord Avebury, and my noble friend Lady Whitaker for bringing forward these amendments for debate in Committee today.
Most of the cuts to social welfare legal aid appear at best naive and at worst socially and economically disastrous. However, the cuts with which these amendments deal—subject, of course, to the answers to the questions that the noble Lord, Lord Pannick, has just asked the Minister—unfortunately, appear maliciously, deliberately and uniquely to target a group which, as the Committee has heard, is one of the most marginalised in our country. It is ironic — more than ironic, it is distressing — that in a society where popular and governmental discrimination against groups of people is, thankfully, becoming rarer and rarer, the tolerance and acceptance which we think is the mark of a civilised society does not seem to apply to this group of people.
Gypsy and Traveller communities do not come in for an easy time, whether it is from the press, which seems to delight in portraying them as villains or an irredeemably alien culture, or from politicians, who have not done enough to help these communities preserve their way of life and certainly have not done enough to ensure sufficiency in the provision of housing.
Every victory for this community — as, for example, the acceptance in April last year that local authority sites should be subject to the Mobile Homes Act 1983 — has been very hard won. Legal aid has played a significant part in these victories and in establishing these rights and ensuring that they are rightfully and lawfully exerted.
Although the Government have claimed that the exemptions they have put in place are to deal with squatters—a subject to which we shall no doubt return in Part 3 — everyone knows that at least a quarter of the Gypsy and Traveller population who live in caravans do not live on authorised sites. The noble Lord, Lord Avebury, referred to that in opening his amendment. Many believe that this population, due to an acute crisis in the availability of sites, has little option but to trespass.
If the Government’s intention is specifically to disfranchise a protected group which is already, as I have argued, much maligned, I suspect that it will end up causing much more trouble than it is worth, and that Gypsy and Traveller communities will continue to express their culture.
The Bill fails to give these communities a basic ability to stand up to oppressive behaviour by public authorities—and we have seen that kind of behaviour, I am afraid and, frankly, it is unacceptable to mortgage the future of these communities for the purposes of the Bill. Legal aid has played an important part in gaining whatever benefits these communities have, and it would be a tragedy if they were taken away.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, we have had an important debate. As the noble Lord, Lord Alton, said, it is no surprise that the amendment was moved by my noble friend Lord Avebury, whose record over the best part of half a century in standing up for the rights of Gypsies and Travelling people is well recorded. As I understand it, he continues to be the secretary of the All-Party Parliamentary Group for Gypsy Roma Travellers. I understand that the noble Baroness, Lady Whitaker, is vice-chairman of that group. We have heard important views on wider issues, not exclusively on legal aid. The noble Earl, Lord Listowel, raised the important educational issues relating to Gypsies and Travelling people.
I will focus on the amendments and the impact on legal aid. Amendments 73, 74, 75 and 76 go together as a package. They would ensure that legal aid remains available in relation to possession and eviction matters for persons who are clearly trespassers on the property or land where they reside. As has been pointed out, the Bill currently excludes such persons from receiving legal aid under paragraph 28.
While we are generally retaining legal aid where a person is at immediate risk of losing their home, the Government do not consider it appropriate for the taxpayer to provide funding for individuals to try to resist removal where they unarguably entered and have remained on the property or site as a trespasser. On a point raised by the noble Lord, Lord Pannick, paragraph 28 states:
“if there are no grounds on which it can be argued … that the individual is occupying the vehicle or structure otherwise than as a trespasser, and … that the individual’s occupation of the vehicle or structure began otherwise than as a trespasser”.
I hope the noble Lord will be reassured that Gypsies and Travellers will have access to legal aid under paragraph 28 in relation to loss of home if there are any grounds to argue that they are not trespassers. That is certainly the intention. It is quite clear that that is what will be delivered.
I emphasise again that legal aid will remain available for eviction and possession cases where there are any grounds to argue that the client has not entered and remained as a trespasser. On the other point, we are also retaining legal aid for most judicial review cases as set in out the Bill, and also—as the noble Lord asked—with regard to breach of convention rights by public authorities. I can confirm that Gypsies and Travellers will continue to have access to legal aid in terms of that particular paragraph of the schedule, along with others.
My noble friend also referred in his amendment to the Mobile Homes Act cases. Amendment 77 seeks to bring into scope legally aided advice for all matters arising from the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. As I have explained, we have generally retained legal aid where the individual is at immediate risk of homelessness. This includes possession and eviction from a mobile home site. However, the consequence of the amendment would be to extend legal aid to cover all matters under the Mobile Homes Act 1983. It would make legal aid available for what we regard as lower priority matters where legal aid is not in our view justified, for example disputes about the sale or inheritance of mobile homes.
The point made by the noble Baroness, Lady Whitaker, was on the more important issue of harassment. I hope I can reassure her that legal aid is available for harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997 and, by extension, under paragraph 32 of Part 1 of the schedule.
Baroness Whitaker: I am grateful to the Minister for that point, but perhaps I may refer back to his remarks about judicial review, in response to the noble Lord, Lord Pannick. I am still not exactly clear what happens when it is not quite an eviction but a matter that would lead to an eviction. For instance, would judicial review be available to defend a county court possession action or a failure by a local authority to follow or have regard to relevant government guidance? It is those cases that lead to eviction but are not exactly eviction actions—and indeed the Gypsy is a trespasser on the prima facie case but, after judicial review, might be found not to be a trespasser.
Lord Wallace of Tankerness: My Lords, I will double-check on that. I would in no way wish to mislead, but on judicial review paragraph 17 indicates that,
“civil legal services are to be provided in respect of an enactment, decision, act or omission”.
It is certainly my understanding that that is the case, but I shall conclude my speech and double-check that. That paragraph of Schedule 1 will apply and entitle Gypsies and Travellers in the same way as it entitles others. I am as certain as I can be that that is the case, but the noble Baroness gave some very specific examples. Perhaps the best thing for me to do would be to set out in writing to her, and circulate it to those who have taken part in our debate, precisely the position in regard to the very specific cases that she raised in her intervention. I hope that she will accept that. There is certainly a general power or provision to bring within scope judicial review cases, and I believe that that addresses the point, but I want to be absolutely certain with regard to the specific issues that she raised. Obviously, other Members of the Committee who have contributed to the debate will be copied into that letter.
Amendment 79 relates to this and brings in issues of planning. I hope that I can reassure the Committee, and my noble friend in particular, that it is unnecessary. Planning matters that concern eviction from home will remain in scope under paragraph 28 of Part 1 of Schedule 1. Accordingly, legal aid will, for example, remain available to defend an application for an injunction to evict a person from a site under Section 187B of the Town and Country Planning Act 1990 or for a planning appeal under Sections 288 and 289 that might result in the individual being legally required to leave their home, including the land where the home is located.
The noble Lord, Lord Alton of Liverpool, and my noble friend in moving his amendment raised the Dale Farm-type situations. To look at the legal issue that arises in relation to the amendment, we are retaining legal aid for eviction cases, including eviction from a mobile home or a caravan site. Legal aid will remain available for eviction from an unauthorised development, subject to the means and merits tests, as apply in other cases. It is important to distinguish those cases from situations where people have set up unauthorised encampments. So there is a difference between an unauthorised development and an unauthorised encampment on a site that they neither own nor have permission to enter. In these circumstances, they would be outwith the scope, as I have indicated; but if the issue is one of an unauthorised development on property that they own and have a legitimate right to be there, legal aid would be available.
Amendments 87 and 88 refer to “trespass to land” in Part 2 of Schedule 1. Amendment 88 concerns cases where the client is trespassing on land, including land surrounding a building, but is not trespassing in the building itself. I recall in a debate that we had last week under an amendment moved by my noble friend Lord Carlile of Berriew that we sought to reiterate that the reference in this part of Schedule 1, specifically to “trespass to land”, is not intended to generally exclude matters falling within Part 1 of Schedule 1 that involve trespass to land but to generally prevent funding for the tort of trespass to land. I indicated during last week’s Committee debate that we are giving active consideration to the exclusions in Part 2 of Schedule 1 generally to ensure that the drafting fully delivers on that particular intention. Clearly, we will look at the particular issue raised in regard to the specifics of trespass to land in this context when looking at whether the Bill as drafted delivers what is intended.
Part 2 of Schedule 1 generally excludes funding for tort claims, because they are primarily concerned with money and alternative funding arrangements can be made available through conditional fee agreements. However, tort claims for trespass to land are not excluded under the Bill where they concern allegations of the abuse of position or power or a significant breach of human rights by a public authority.
The debate has ranged more widely, and I am sure that if the House has not debated the wider issues in recent times, they merit a debate sooner rather than later. The Government understand the issues here and consulted on their new draft planning policy for Traveller sites over last summer. The Department for Communities and Local Government is considering all the consultation responses and intends to publish the new policy as soon as possible.
Let me just put on the record that the Government are taking measures to ensure fair and effective provision of authorised sites for Travellers more generally, which seemed to be one of the issues being raised, including providing £60 million in England over the current spending period to help local authorities and other registered providers to build new Traveller sites in consultation with local communities. Councils will also be given incentives to deliver new housing, including Traveller sites, through the new homes bonus scheme.
For the reasons given, and with some of the reassurances that I have given on the scope being not quite as narrow as has perhaps been thought, I hope that my noble friend will agree to withdraw his amendment. As I have indicated, I will certainly respond.
Lord Alton of Liverpool: Before the noble and learned Lord completes his remarks, I asked him a couple of specific questions. I realise that he may not have the answers to them now, but they would help us to keep this issue in context, especially when we get to Report. He has just given some information about the amount of money that the Government are going to spend, and that is welcome. However, could he in due course tell us more about the numbers of unauthorised sites and how many such cases using legal aid there have been—perhaps over the past decade, and certainly in the course of the past year—and what that has cost the public purse?
Lord Wallace of Tankerness: I apologise to the noble Lord for omitting to address that. When writing I cannot be certain either that the information is available in the form that he wishes or how easy it might be to extract what the specific nature of some of those cases were, but to the extent that we are able to provide the relevant information I will certainly do so at the same time as I respond to the noble Baroness, Lady Whitaker.
Lord Avebury: My Lords, first, I must express deep gratitude to all those noble Lords who spoke in favour of this amendment: the noble Earl, Lord Listowel, the noble Lords, Lord Howarth and Lord Alton, the noble Baroness, Lady Turner, the noble Lord, Lord Elystan-Morgan, the noble Baroness, Lady Lister, the noble Lord, Lord Pannick, and, finally, the noble Lord, Lord Bach. There was not a single contrary voice in the whole debate and your Lordships have demonstrated the concern which arises from these amendments and from the situation of Gypsies and Travellers in general.
In answer to the noble Lord, Lord Alton, there are in fact 2,000 caravans on unauthorised sites, which are therefore legally homeless at the moment. As the noble Lord, Lord Bach, said, the problem is that they have no option but to trespass.
The answer that my noble and learned friend the Minister gave to the first of these amendments, the ones which deal with legal aid for persons liable to eviction, was not satisfactory because that was the whole point of the amendments. It is all very well to say that they will have access to legal aid under paragraph 28 if they are not trespassers, but all of those 2,000 caravans, except those which are on sites owned by the Gypsies and Travellers themselves, are in fact trespassers and have no
option.
When people are thrown off a site such as Dale Farm — there is another one at the moment in Meriden, where the local authority is similarly kicking people off a site that they own and have developed themselves—they will have no alternative but to camp on the roadside or to try to sandwich themselves into an authorised site where there happens to be a little space left on one of the pitches, only to find that the local authority there takes steps to secure their removal immediately.
I am grateful to my noble and learned friend for his remarks on the challenges to an injunction under Section 187B or an order under Sections 288 and 289, but I asked him whether it was not preferable to have these spelt out in the Bill, and I hope that between now and the next stage the Government might consider the wording necessary to do so. I believe that it would be possible to quote my noble and learned friend’s remarks in a court of law if there were any doubt about the matter, but it is always best to have things spelt out in statute if you can.
The debate has raised issues that go far wider. In concluding his remarks, my noble and learned friend spoke about the £60 million that was allocated by the Department for Communities and Local Government for the construction of new sites.
Unfortunately, very little progress seems likely to be made on that front; in none of the cases where grants have been made has there been either an application for planning permission or steps to identify the land.
I rang around some of the local authorities and housing associations that had received money under that heading. They all told me that they were at an extremely preliminary stage and that when they get around to identifying particular pieces of land, they will come across the problem that so many of your Lordships have spelt out today: there will be immediate opposition from local residents that will make it very difficult for them to proceed. In spite of the fact that this money is available, your Lordships should not imagine that it will lead to any immediate progress on the provision of those sites—nor, if by some miracle they were completed overnight, would they solve the problem. Speaking from memory, I think there are 600-odd pitches in the allocations but altogether there are 2,000 caravans on unauthorised sites, so they would cope with only 30 per cent of the need that exists.
In these circumstances, it is vital that Gypsies and Travellers have access to legal aid for all the purposes dealt with in this amendment. I hope that before we get to the next stage my noble and learned friend and others in the Government will consider what we have said today and think about restoring the right to legal aid, particularly in the amendments that are dealt with early on in this group. As far as we have got, though, I am grateful to my noble and learned friend, and I am sure that we will have further advice from the Community Law Partnership when we come to the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Comment from the Community Law Partnership:
Many congratulations from all members of the NML Campaign to Lord Avebury and Baroness Whitaker and the other peers who spoke in support of the amendments. It was a truly inspiring debate (until Lord Wallace stood up!).
What about what Lord Wallace said?
Planning cases:
There has been a significant shift in the Government’s position.
To remind readers, Lord Wallace stated:
Planning matters that concern eviction from home will remain in scope under paragraph 28 of Part 1 of Schedule 1. Accordingly, legal aid will, for example, remain available to defend an application for an injunction to evict a person from a site under Section 187B of the Town and Country Planning Act 1990 or for a planning appeal under Sections 288 and 289 that might result in the individual being legally required to leave their home, including the land where the home is located.
As Lord Avebury said it would be best if this position was made clear in the Bill itself.
Unauthorised encampment eviction cases:
Analysing Lord Wallace’s response here, the Government are stating that judicial review of an eviction action would be in scope but defence of a county court possession action (subject to him getting back to Baroness Whitaker on this point) would be outside scope. As far as the motivation for this can be worked out it seems to be that these Gypsies and Travellers are naughty trespassers even though several peers pointed out that they have no alternative if there are insufficient sites – are they mean to vanish into thin air? Or more likely are they meant to abandon their way of life in desperation by going into housing.
It is instructive to look at a practical example. Let us take local authority A who are seeking to evict B from their land because B is there without authority. B is very ill and says that A has not carried out any welfare enquiries in breach of the relevant government guidance. Additionally B has an ongoing homeless application to A by which B seeks a pitch. If A takes action under section 77 of the Criminal Justice and Public Order Act 1994, B will have a potential judicial review challenge which will be within scope for legal aid. If A takes county court possession action, B’s response (according to House of Lords authority) would be to defend that action in the county court. However such action, according to Lord Wallace, will be out of scope for legal aid. So even though the same defence or challenge would be put forward in both cases, the local authority’s choice of procedure would decide whether B could obtain legal aid or not.
We think that deserves a very large exclamation mark
!
Bigger?
!
That’s more like it!
Mobile Homes Act (MHA) 1983 cases:
The Government are clearly determined to exclude non-possession MHA cases from scope so the battle will go on here. However we will be mulling over what was said about harassment cases. What immediately occurs on this point is that, if Protection from Harassment Act 1997 cases are in scope, why not also breach of covenant for quiet enjoyment cases under the MHA (and in this context it is noted that, after representations at the consultation stage, unlawful eviction from housing cases were brought back into scope)?
Keep up the lobbying. Now is a good time to get back to your MP as the Bill passes through the Lords.
Also more lobbying coming up in advance of the Report Stage in the Lords.
Let us know if any queries and keep up the good work!
We are happy for folks to use and quote any or all of this and put it up on websites etc
Community Law Partnership
24th January 2012
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