A recent decision of the UK Court of Appeal examines the right to a nomadic lifestyle of the Gypsy and Traveller community, and provides helpful guidance on the circumstances in which interference within that right may be proportionate and therefore lawful. It also elucidates on the importance of legal representation of the Gypsy and Traveller community and comments on the potential scope of the public sector and equality duty. All these matters are of direct relevance and interest to the work of MLRC with the Traveller community.
The dispute being settled by the Court of Appeal in this case was whether or not the local authority, in this case the Borough of Bromley, could lawfully prohibit entry, occupation or encampment to any person on public spaces throughout the Borough with the exception of cemeteries and highways. A quia timet injunction was sought here in order to prevent such entry, occupation or encampment. Such an injunction has broad application to ‘persons unknown’ though it was widely accepted that it was squarely aimed at the Traveller and gypsy community within the area.
Particular facts were relevant to the judge’s conclusions. The prohibition was sought in the absence of any concerns about anti-social behaviour or criminality. It was sought in circumstances where no provision was made for transit sites within the Borough; it was also sought in the absence of any proper equality impact or welfare assessments on the Traveller community in the Borough, which were relevant to proper consideration of the public sector and equality duty. The long length of the proposed injunction, of five years, was a further factor.
The judgment here upheld the decision of the UK High Court which was not to grant the injunction as sought. In doing so, the judge provided helpful guidance on how local authorities might manage what was described as the ‘inescapable tension’ between the Article 8 rights to private and family life of the Gypsy and Traveller community and the common law of trespass.
The judgment restates the enshrined freedom of Gypsies and Travellers not to stay in one place but to move from one place to another. It also recognises the vulnerability and protected status of the community. In attempts to move such communities on, local authorities must evidence availability of other suitable and secure housing, and must properly engage and consult on the needs of the community. Such proper consultation will ensure the local authority has complied with the equitable doctrine of ‘clean hands’ when it comes to the court seeking a remedy.
In essence, restrictions on the nomadic movement and encampments of the Gypsy and Traveller community may be lawful only where decisions interfering with those rights are proportionate; this means that they should constitute the minimum interference necessary, be clearly justifiable and present as a last resort when all efforts to resolve all interests have been attempted.