Accommodating Gypsy Travellers - Rights, Obligations and Duties. (Ian Taggart LLB)

‘But the harsh reality is that Gypsies and Travellers face disadvantage and discrimination in almost all walks of life – including in key public service areas such as accommodation provision and planning, education, health, employment and criminal justice. Recent research shows that the public hostility to Gypsies and Travellers is unmatched by that shown towards any other community – even asylum seekers and refugees. Decades ago ‘No blacks, no Irish, no dogs’ signs in pubs and shops were commonplace – thankfully times have changed – however, sadly ‘No Travellers’ signs are still widespread.’ [1]

The legislation and case law referred in this Thesis is correct at 31 January 2005.

Gypsy Travellers represent one of the most socially excluded and discriminated against minority communities in the United Kingdom. As a result of this social exclusion the community has a lower life expectancy[2] and higher infant mortality rate[3] than the settled community and is denied many rights that the settled community takes for granted.

Invariably, Traveller accommodation sites are located on the periphery of settled communities with a lack of adequate site provision for the numbers of Travellers nationally. This avoidance by society of the community has led to discrimination and social exclusion.[4] Gypsy Travellers effectively live on the fringes of society and represent one of the most discriminated against minority groups. Legal study has been neglected throughout the United Kingdom and Europe, including Scotland, regarding the application and interpretation of legislation, which may assist in protecting this community. At the time of writing this thesis there is only one - and very recent - publication devoted to Gypsy and Traveller Law, which examines existing law in England and Wales.[5] There are no other legal publications devoted solely to Gypsy and Traveller law and rights at present.

The objective of this thesis is to provide a critique of the relevant law. The thesis also aims to identify rights, obligations and duties contained in current legislation to inform current and proposed policies designed to address mainly Gypsy Traveller accommodation issues. It is intended that this critique can be utilised, by its addition to current academic literature, to raise policy makers’ awareness of the status of the Gypsy Traveller community, particularly within current legislation, to address the discriminatory practices the community is subjected to. Additionally, by raised awareness of the community’s rights, obligations and duties, it should ensure that all current and proposed legislation can be interpreted in a way which will assist with and increase the social inclusion of the Gypsy Traveller community.

Whilst this thesis examines the application of rights, obligations and duties in Scotland, much of the relevant legislation is applicable to the rest of the United Kingdom, with Council of Europe and European Union legislation having a Europe wide application. Many of the identified rights, obligations and duties therefore have application outwith Scotland and the United Kingdom. The recognition and application of these rights, obligations and duties within Europe are also of importance given that in many EU States Gypsies are subjected to greater discrimination and social exclusion than in the United Kingdom.[6]

The first authenticated records indicate that Travellers have been present in the United Kingdom for approximately 600 years.[7] Shortly after their arrival Romanies were subjected to prejudice from the settled society that has continued towards all Travellers in varying degrees to the present day.[8]

In his publication ‘The Nature of Prejudice’ [9], Gordon Allport attempted to identify the different degrees of negative action shown towards groups that people dislike.

With like-minded friends, or occasionally with strangers, they may express their antagonism freely. But many people never go beyond this mild degree of antipathetic action.

2. Avoidance. If the prejudice is more intense, it leads the individual to avoid members of the disliked group, even perhaps at the cost of considerable inconvenience. In this case, the bearer of prejudice does not directly inflict harm upon the group he dislikes. He takes the burden of accommodation and withdrawal entirely upon himself.

distinctions of an active sort. He undertakes to exclude all members of the group in question from certain types of employment, from residential housing, political rights, educational or recreational opportunities, churches, hospitals or from some other social privileges. Segregation is an example of an institutionalised form of discrimination, enforced legally or by common custom.

may lead to acts of violence or semi violence. An unwanted Negro family may be forcibly ejected from a neighbourhood, or so severely threatened that it leaves in fear. Gravestones in Jewish cemeteries may be desecrated. The Northside’s Italian gang may lie in wait for the Southside’s Irish gang.

5. Extermination. Lynchings, pogroms, massacres, and the Hitlerian programme of genocide mark the ultimate degree of violent expression of prejudice.’ [10]

Whilst based on experiences following the holocaust and discrimination against the black community in the United States of America in the first half of the 20^th century, the ‘Allport Scale’ is still relevant today and a recognised resource in current diversity training in Scotland.[11] It is argued that members of the Gypsy Traveller community are subjected to all levels of the ‘Allport Scale’, even, it could be argued, the potential extermination in the sense of the total eradication of the community’s nomadic lifestyle in the form of policy making which attempts to end this lifestyle by lack of recognition of the Gypsy Traveller community’s culture and the provision of suitable accommodation. It is however recognised, by the author, that Allport was influenced by the holocaust during the Second World War when referring to extermination in the ‘Allport Scale’. Reference to extermination in this thesis does not seek to minimise the suffering and loss of life during the holocaust but to identify the ending of a culture i.e. nomadism within the Gypsy Traveller community.

1. Antilocution. It is frequently the case that individual members of society voice antagonism towards Gypsy Travellers either by word of mouth and often the case that the media engage in reporting which is anti-Traveller.[12]

2. Avoidance. Many members of society avoid contact with members of the Gypsy Traveller community because of their perceptions and stereotypes about the community. Additionally public policies towards the community frequently result in the location of authorised Gypsy Traveller accommodation sites being in isolated locations.[13]

3. Discrimination. Exclusion of the Gypsy Traveller community has and occasionally still does occur in public policies.[14]

4. Physical attack. Attacks on members of the community are not uncommon, varying in intensity from minor assault to murder.[15]

5. Extermination. Although not extermination as understood and interpreted by Allport following the holocaust during the Second World War, it is suggested there have been attempts to exterminate the culture of nomadism within the Gypsy Traveller community in recent public authority policies[16] producing a lack of available suitable accommodation for the community. This has forced many members of the community to abandon their nomadic lifestyle to live in settled housing. In many ways it can be interpreted as an attempt to end Gypsy Travellers’ nomadic lifestyle and substitute one of sedentarism.

The government and public authorities in their respective policies frequently use the term social inclusion. The Centre for Economic and Social Inclusion, an independent, non profit organisation dedicated to promoting social justice, social inclusion and tackling disadvantage, defines social inclusion as:

'….. the process by which efforts are made to ensure that everyone, regardless of their experiences and circumstances, can achieve their potential in life. To achieve inclusion income and employment are necessary but not sufficient. An inclusive society is also characterised by a striving for reduced inequality, a balance between individuals’ rights and duties and increased social cohesion'.[17]

With regard to the Gypsy Traveller community the government’s Social Exclusion Unit research provides an insight into the areas of law and legislation that can make a significant impact on the social inclusion of the community.

‘…..some people are significantly more at risk than others. Research has found that people with certain backgrounds and experiences are disproportionately likely to suffer social exclusion. The key risk factors include: low income; family conflict; being in care; school problems; being an ex-prisoner; being from an ethnic minority; living in a deprived neighbourhood in urban and rural areas; mental health problems, age and disability.’ [18]

By identifying rights, obligations and duties applicable to the Gypsy Traveller community, it is possible to argue convincingly and persuasively for the social inclusion of this and other nomadic communities and the protection of their respective nomadic lifestyles.

For the purposes of this thesis it is intended that, when referring to rights, obligations and duties relative to the Gypsy Traveller community, the author is referring to Rights as the legal claims Gypsy Travellers’ may make which are contained in statutes and treaties.

The term Obligations refers to other legal forms of responsibilities derived from international law, but originating mainly in the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) jurisprudence, and owed to Gypsy Travellers’ by public authorities.

The term Duties refers to statutory duties contained in domestic legislation and case law imposing duties on public authorities to give effect to Gypsy Travellers rights and obligations.

The British sociologist T.H. Marshall[19] was the principal theorist of the concept of ‘Social citizenship’.

‘Citizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status was endowed.’ [20]

The concept of Social citizenship is relevant and considered of importance by the author of this thesis, given the predicament of the Gypsy Traveller community in the United Kingdom at present. The concept of equality between those qualifying for citizenship including the rights and duties owed to them is very persuasive regarding the Gypsy Traveller community.

Marshall distinguishes three layers of rights and how they had evolved historically. The first layer comprises civil rights, i.e. rights concerning individual freedoms, which are associated with society such as freedom of speech. The second layer comprises political rights i.e. democratic rights such as participation in elections or membership of a body with political authority. The last layer of rights identified is that of social rights i.e. economic and welfare rights with the right to a minimum standard of welfare and income. This theory proposes that, by provision of these rights, in the case of civil rights society moderates the impact of force, violence and conflict in relations between people, political rights recognise an individuals capacity to participate in government of the whole community and governance of their own individual lives and social rights secure a minimum standard of economic well being. Marshall, in his work, identified the historical development of these rights with civil rights developing in the 18^th century, political rights in the 19^th century and social rights being a relatively new concept originating in the 20^th century. Marshall recognised that all these rights were not mutually exclusive with some rights capable of being regarded in more than one classification e.g. free speech can be interpreted as both a civil and political right. It is also relevant that civil/political rights have minimal costs where as social/economic rights have economic costs.[21]

When considering rights contained in legislation, commentators frequently make reference to positive and negative rights and obligations. This terminology creates the impression that, to ensure that a positive right or obligation is maintained and protected, there is a requirement to take some form of action or to do something and similarly, to maintain and protect a negative right or obligation, there is a requirement not to take some form of action or not to do something. When implementing policies towards the Gypsy Traveller community it is not uncommon to find the interpretation of any obligations for example, regarding Article 8 of the ECHR, the right to respect for private and family life, by authorities as a negative right with no obligation to take positive action regarding that right. This response to Article 8 rights, and unauthorised encampment by Gypsy Travellers in particular, is frequently adopted by public authorities, it is argued, ignoring their obligation and duty to provide suitable accommodation which could eliminate or greatly reduce occurrences of unauthorised encampment and indeed assist in facilitating the Gypsy Traveller way of life and culture. It is important to realise that negative rights have little or no financial cost or impact whilst positive rights do have a financial cost. It is suggested that the financial considerations of site provision have been and are a very real consideration in the implementation of positive rights.

Professor Henry Shue carried out a philosophical analysis, which argues against the traditional distinctions generally held between positive and negative rights based on the former imposing positive duties and the latter negative duties.[22]

He suggests that there are three types of duties attached to each basic right:

Basic rights therefore should, it is argued in this thesis, be examined with reference to duties attached to each right and it is argued each right contains all three types of duties to varying degrees.

As an example, in the context of Gypsy Traveller rights, we can examine the impact of Article 8 of the ECHR (the right to respect for private and family life), where a Gypsy Traveller family is encamped on an unauthorised encampment. How can that right be protected if there is no alternative lawful site available in a particular area?

It is argued that there may be a duty not to remove the family, that is a duty to avoid depriving. A duty to tolerate the unlawful encampment when no other legal sites are available, irrespective of the illegality of the encampment by Courts not granting an eviction order or other judicial remedy to remove the family, a duty to protect from deprivation. A duty to provide a legal site to ensure the family can continue their nomadic lifestyle, a duty to aid the deprived.

Whether a basic right is classified initially as either positive or negative it should be regarded as containing all three types of duties and even the most negative of rights may require some positive duties. As previously discussed, public authorities frequently adopt a stance of taking no action regarding unauthorised encampment issues, on the grounds that any action would interfere with the community’s Article 8 rights, ignoring any positive duty to facilitate this lifestyle. This perception that the community’s right to maintain its nomadic lifestyle is a negative right which never requires any positive action is wrong and, whilst this simplistic view appears to ensure this right, it ignores the rights and obligations to facilitate the Gypsy way of life, in compliance with domestic law, and results ultimately in the increased social exclusion of the Gypsy Traveller community.

The abovementioned theory has particular relevance and importance regarding Gypsy Traveller rights and obligations and is relevant in the interpretation of the legislation detailed in this thesis as rights and obligations will consist of a mixture of positive and negative duties, a fact often ignored. It is suggested that the theoretical examination provided above is therefore very persuasive when examining approaches to Gypsy Traveller rights and obligations.

The objective of this thesis is to identify rights, obligations and duties identified in legislation, particularly human rights legislation, and case law, which can overcome the social exclusion and discrimination Gypsy Travellers are subjected to, and reinforce the rights, obligations and duties relevant to and owed to this community particularly regarding accommodation issues.

Of particular importance is legislation that impacts on the areas of race relations, human rights, and domestic legislation relevant to accommodation issues. The following areas of law, that have particular relevance to these areas, are examined:

d) United Kingdom human rights legislation and its impact on Planning, Housing and Education.

e) Other areas of domestic law and its application to the community regarding Planning, Housing and Education legislation.

The thesis examines initially Race Relations legislation, to establish if the Gypsy Traveller community satisfy the relevant conditions classifying the community as a racial group, which impacts on the discrimination suffered by the community particularly regarding provision of services by public authorities. Thereafter European legislation and texts will be examined followed by their incorporation into domestic law via the Human Rights Act 1998. Thereafter the impact of this European legislation and domestic law on the Gypsy Traveller community will be examined, primarily to identify the rights, obligations and duties owed to the Gypsy Traveller community, with an emphasis on accommodation. This emphasis on accommodation has been taken as it is strongly argued that the provision of accommodation would reduce the frequency of unauthorised encampments and ensure fixed geographic locations of sites for the Gypsy Traveller community to maintain their nomadic lifestyle. It is argued this is preferable to the random location of unauthorised encampments currently encountered and ensures the consistent provision of essential services to the community, with all the benefits to the community that brings of health care, education etc. Additionally the conflict encountered with the settled community, as a result of unauthorised encampments, would be diminished, assisting greatly in the social inclusion of the Gypsy Traveller community.

The term Gypsy has varied connotations dependent on an individual’s particular perception or stereotyping. In this section it will be argued that Gypsy Travellers are indeed an ethnic minority and can therefore be classed as a racial group for the purposes of current race relations legislation. Recognition of the community as a racial group would provide a degree of protection from discriminatory practices particularly in relation to the provision of goods and services, including accommodation, recognised within the legislation. This recognition would assist greatly in progressing the social inclusion of the Gypsy Traveller community.

The Traveller community is a diverse community that is difficult to define accurately. There are no legal definitions in legislation applicable to Scotland, however definitions have appeared in English legislation including the following:

‘persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such.’ [24]

In the United Kingdom there are generally held to be five main groupings of Travellers:

a) Gypsy Travellers whose membership is dictated by birth and occasionally marriage. This minority ethnic group has strong cultural ties, extended families and clans and consists of sub-groups of English, Welsh, Irish and Scottish Travellers.

b) Gypsies (Roma) who originate from Europe and have obtained refugee status.

c) Show and Fairground Travellers sometimes referred to as occupational Travellers, who consider themselves a business community. Membership of this group can be by birth however it is possible for newcomers to become part of this group. Fairground Travellers consider themselves a commercial/business group rather than an ethnic group.

e) New Age Travellers who are a diverse grouping with varying beliefs and backgrounds who live a nomadic existence.

‘The Romanies or ‘Romany Chals’ of England and South Wales…. numbering over 50,000 – including house-dwelling families. They previously spoke a dialect of Romani but now speak a variety of English.’ [26]

‘Some 300 persons who are descendents of the Woods and other families who migrated from the South-west of England to Wales in the 17^th and 18^th centuries.’ [27]

‘…a nomadic group from Ireland…The first reliable report of their presence in England dates from 1850.’ [28]

‘…a nomadic group formed in Scotland in the period 1500-1800 from intermarriage and social integration between local nomadic craftsmen and immigrant Gypsies, from France and Spain in particular.’ [29]

There are Travellers who are members of more than one of the above sub-groups through intermarriage, which can further obscure and complicate any clear definition of each grouping.

f) Maintaining an entirely settled lifestyle but retaining the identity of Traveller.

Recent case law[30] in Wales, regarding planning legislation, has however held that to be classified as a Gypsy the applicants had to have a ‘nomadic habit of life’ and if not, they would lose their Gypsy status in planning legislation though they could be reclassified as Gypsies if they returned to a travelling or nomadic lifestyle.

‘Whether applicants for planning permission are of a "nomadic way of life" as a matter of planning law and policy is a functional test to be applied to their way of life at the time of the determination. Are they at that time following such a habit of life in the sense of a pattern and/or a rhythm of full-time or seasonal or other periodic travelling? The fact that they may have a permanent base from which they set out on, and to which they return from, their periodic travelling may not deprive them of nomadic status. And the fact that they are temporarily confined to their permanent base for personal reasons such as sickness and/or, possibly, in the interests of their children, may not do so either, depending on the reasons and the length of time, past and projected, of the abeyance of their travelling life. But if they have retired permanently from travelling for whatever reason, ill-health, age or simply because they no longer wish to follow that way of life, they no longer have a "nomadic habit of life". That is not to say they cannot recover it later, if their circumstances and intention change, ….’ [31]

Whilst having a ‘nomadic habit of life’ has been held to be relevant in planning legislation and planning case law, it is suggested that there is a great danger in interpretation of this definition in a wider sense. To suggest that a minority community loses its cultural identity by abandonment only of its travelling or nomadic lifestyle ignores the other central/core aspects of the community’s cultural identity. Such a philosophy reflects the notion of ‘extermination’ detailed in the ‘Allport scale’ by promoting the idea that adoption of a sedentary lifestyle removes their Gypsy Traveller status entirely. Such a notion ignores the other cultural issues defining the Gypsy Traveller community such as a shared history and, dependent on which Gypsy Traveller community is being examined, a unique language. Nomadism is only a part of a Gypsy Traveller’s ethnic and cultural identity and this identity does not disappear merely because they are residing in settled accommodation. Indeed there is evidence that Gypsy Travellers are still subjected to discrimination when in settled accommodation, with many still regarding themselves as Gypsy Travellers although settled.[32]

From this brief insight into the groupings and pattern of travelling it can be seen that there is a wide spectrum of Travellers and lifestyles, making it difficult to give a precise definition applicable to the Traveller community. In this thesis the term Gypsy Traveller has been adopted to encompass all Travellers from the community who satisfy or very probably will satisfy the requirements to be classed as an ethnic minority under current race relations legislation i.e. Gypsy Travellers and Gypsies (Roma) as detailed above. This terminology closely mirrors the recommendations of the Equal Opportunities Committee of the Scottish Parliament inquiry into Gypsy Travellers and public sector policies.[33]

Whilst this terminology excludes some nomadic groups such as New Age Travellers, it is suggested that any policies applicable to the Gypsy Traveller community could also impact on such nomadic groups positively. The increased recognition of nomadism as a legitimate lifestyle by the development of holistic non- discriminatory management techniques for the Gypsy Traveller community could hopefully impact positively on service provision for those other nomadic groups not protected by race relations legislation.

The first government anti-discrimination legislation was contained in the Race Relations Acts of 1965, 1968 and 1976.

Following the death of Stephen Lawrence in 1993 and the identified shortcomings in the police enquiry the then Home Secretary set up an enquiry into the circumstances surrounding the death and to identify lessons regarding the investigation of racially motivated crime. On publication of the final report[34] the Home Secretary issued this statement:

‘…I want this report to serve as a watershed in our attitudes to racism. I want it to act as a catalyst for permanent and irrevocable change, not just across our public services but across the whole of our society.

…we must create a society in which every individual, regardless of colour, creed or race has the same opportunities and respect as his or her neighbour.’ [35]

In Scotland, Henry McLeish, the Scottish Office Minister responsible at the time said:

Following on from the inquiry recommendations the Race Relations (Amendment) Act 2000 was enacted. The 2000 Act did not replace the Race Relations Act 1976, instead it strengthened and extended the scope of the 1976 Act, as indicated below.

d) The Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000

The amended 1976 Act outlaws direct and indirect discrimination and victimisation by individuals and, of particular relevance, by public authorities as defined in the 2000 Act.[37] Section 1 of the amended Act defines racial discrimination[38] and Section 3 of the amended Act provides a meaning of ‘racial grounds’ and ‘racial group’.[39]

The amended Act outlaws discrimination by public authorities in various functions, which have a direct effect on the Gypsy Traveller community including planning[40], housing, education etc.[41]

Following the requirements contained in Council Directive 2000/43/EC (the Race Directive), important legislation was enacted in the United Kingdom on 19 July 2003; the Race Relations Act 1976 (Amendment) Regulations 2003. This legislation incorporated the provisions contained in the Race Directive, amending several areas of the 1976 Act, the main areas being a new definition of indirect discrimination contained in Regulation 3 of the 2003 Regulations.[43]

The insertion of the words ‘provision, criterion or practice’ provides a broader scope for interpretation of indirect discrimination than the term ‘requirement or condition’ contained in the original legislation.[44] The inclusion of the amended wording is in accordance with the Race Directive and effectively broadens the effect of the legislation, particularly regarding ‘practices’. The amendment of the legislation in this way permits examination of the particular practices that could expose people to a risk of indirect discrimination. The new definition requires evidence only that the provision, criterion or practice ‘puts or would put people from a particular racial or ethnic group at a particular disadvantage’. It thereby allows policies or practices to be challenged at an early stage before they have had any, or little, impact.

Additionally, the 2003 Regulations apply only to race or ethnic origins or national origins excluding colour and nationality, and comply with the requirements of the Race Directive which only prohibits discrimination on these grounds, however section 1 of the un-amended 1976 Act will remain in force regarding indirect discrimination on colour and nationality grounds. The meaning of ‘racial grounds’ and ‘racial group’ remain unchanged by the 2003 Regulations.

Regulation 5 of the 2003 Regulations also makes harassment on grounds of race, ethnic or national origins a separate unlawful act.[45]

Given the diverse make up of the Gypsy Traveller community it is prudent to examine the implications of race, ethnicity and nationality in current legislation and how this legislation applies to the Gypsy Traveller community. At present, in Scotland, there is no case law recognising Gypsy Travellers as a racial group or ethnic minority.

Section 3 of the amended Act provides the meaning of ‘racial grounds’ and ‘racial group’. [46] Within each of these respective definitions in the legislation the grounds of ‘nationality or ethnic or national origins’ are the main areas of significance to the Gypsy Traveller community.

Recognition of Gypsy Travellers as a racial group would assist the community in obtaining protection from discrimination regarding access to the services specified in race relations legislation including:

d) Access to, and supply of goods and services that are available to the public, including housing and accommodation.

Recognition of Gypsy Travellers as a racial group would promote, and greatly assist in, the social inclusion of the Gypsy Traveller community ensuring easier access to these areas of activity and services. Of particular significance is the area of housing and accommodation and the potential to increase available suitable accommodation in the form of sites, ensuring the Gypsy Traveller way of life is facilitated or, at least protected.

As previously commented, there has been no case law, for the purposes of discrimination law, defining the ‘nationality or ethnic or national origins’ of the Gypsy Traveller community in Scotland. However there have been some developments in England that it is argued would be persuasive if considered in Scotland.

In the House of Lords case Mandla v Dowell-Lee[47] concerning whether the Race Relations Act 1976 applied to Sikhs, the requirements for a group to constitute an ethnic minority were set down in the judgement of Lord Fraser and consisted of what he considered essential and relevant conditions:

‘For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these:

(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;

(2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.

In addition to those two essential characteristics the following characteristics are, in my opinion, relevant:

(3) either a common geographical origin or descent from a small number of common ancestors;

(6) a common religion different from that of neighbouring groups or from the general community surrounding it;

(7) being a minority or being an oppressed or dominant group, for example a conquered people (say the inhabitants of England shortly after the Norman Conquest) and their conquerors might both be ethnic groups.’ [48]

In the case Commission for Racial Equality v Dutton [49], regarding a challenge to an allegedly discriminatory advertisement, outside licensed premises, that stated ‘No Travellers’, it was held by the Court of Appeal that Romany Gypsies constitute a racial group, although this was not the central question before the Court. In this case the term Gypsy was defined with reference to dictionary meanings and other references as follows:

‘A member of a wandering race (by themselves called Romany), of Hindu origin, which first appeared in England about the beginning of the 16^th c. and was then believed to have come from Egypt.’ [50]

Longman Dictionary of Contemporary English (1987) where a similar meaning to the above and the following meaning was given:

‘a person who habitually wanders or who has the habits of someone who does not stay for long in one place.’ [51]

‘I can anticipate here by noting that if the word “gipsy” is used in this second, colloquial sense it is not definitive of a racial group within the Act. To discriminate against such a group would not be on racial grounds, namely on the ground of ethnic origins. As the judge observed, there are many people who travel around the country in caravans, vans, converted buses, trailers, lorries and motor vehicles, leading a peripatetic or nomadic way of life. They include didicois, mumpers, peace people, new age travellers, hippies, tinkers, hawkers, self-styled “anarchists,” and others, as well as (Romany) gipsies (sic). They may all be loosely referred to as “gipsies,” but as a group they do not have the characteristics requisite of a racial group within the Act.’ [52]

The Court subsequently applied the Mandla conditions when considering whether Romany Gypsies were a racial group within the terms of the Race Relations Act 1976:

‘…On the evidence it is clear that such gipsies are a minority with a long shared history and a common geographical origin…. They have certain, albeit limited customs of their own, regarding cooking and the manner of washing. They have a distinctive, traditional style of dressing, with heavy jewellery worn by the woman, although this dress is not worn all the time. They also furnish their caravans in a distinctive manner. They have a language or dialect, known as “pogadi chib”, spoken by English gipsies (Romany chals) and Welsh gipsies (Kale) which consists of up to one – fifth of Romany words in place of English words. They do not have a common religion, nor a peculiar, common literature of their own, but they have a repertoire of folktales and music passed on from one generation to the

‘In my view,……, the evidence was still sufficient to establish that gipsies are an identifiable group of persons defined by reference to ethnic origins within the meaning of the Act.’ [54]

In the case O’Leary v Allied Domecq [55], regarding refusal of service to Irish Travellers in several licensed premises, it was held that Irish Travellers were also a racial group by reason of their ethnic origins.

In Boyce v British Airways [56], the question of discrimination was examined regarding the non-employment of Scottish workers. The complaint followed the rejection of a job application, which the complainer alleged was because he was Scots. The case was argued on the grounds that the Scots and English have different ‘ethnic origins’ under Section 3(1) of the Race Relations Act 1976. It was held they did not, due to the varied ethnic origins of the population of Scotland and the similarity of these varied ethnic origins to those present in England, it being held that this failed to satisfy Lord Fraser’s test contained in the case Mandla v Dowell-Lee [57], which the court interpreted had a ‘strong racial flavour’. It is argued later that this was an incorrect interpretation of Lord Fraser’s test, which includes several non - racial conditions.

In 2001, Immigration officers engaged in an operation at Prague Airport in the Czech Republic under the authority of the Race Relations (Immigration and Asylum) (No 2) Authorisation 2001. This legislation permitted these officers to subject persons from national or ethnic backgrounds specified in the legislation to more rigorous examination prior to entry to the United Kingdom. Roma were one of the groups specified in the legislation and subsequently subjected to discriminatory treatment. Following an appeal case[58], which found that no discriminatory procedures had been undertaken, a Judicial Review was held in the case Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants).[59] Following this Judicial Review the Court issued a declaration:

‘United Kingdom Immigration Officers operating under the authority of the Home Secretary at Prague Airport discriminated against Roma who were seeking to travel from that airport to the United Kingdom by treating them less favourably on racial grounds than they treated others who were seeking to travel from that airport to the United Kingdom, contrary to section 1(1)(a) of the Race Relations Act 1976.’ [60]

This Judicial Review is authority for Roma satisfying the requirements to be a racial group with reference to ethnic origins. Additionally, being a House of Lords case, the judgement is applicable to Scotland.

Given the diverse structure of the Gypsy Traveller community it is often difficult to define national origins in family groups when considering if the particular community is a racial group with reference to national origins. In some cases intermarriage has resulted in Irish Travellers becoming members of other Travelling communities and vice versa.

Whilst groups with origins distinctly outwith the United Kingdom may be easier to class by nationality, groups within the United Kingdom present difficulties. Case law is confusing regarding the application of national grounds to groups originating within the United Kingdom.

The appeal case Northern Joint Police Board v Power [61] concerned a claim that an applicant for a post with a Scottish Police Force had not been short-listed for the job as he was English. The case was argued on grounds of ‘national origins’. The Appeal Court confirmed that ‘national origins’ were relevant grounds to be examined in the case, as England and Scotland were separate nations, and the applicant, as an Englishman, fell within the definition of racial group on grounds of ‘national origins’. The Court reconfirmed that ‘ethnic origins’ were not and the case was referred back to the original industrial tribunal on this basis.[62] The Northern Joint Police Board v Power case it is therefore suggested is authority that discrimination between constituent national groups within the United Kingdom may constitute racial discrimination on grounds of ‘national origin’.[63]

It is strongly argued that the Gypsy Traveller community can be defined as a racial group as they do satisfy the essential conditions of Lord Fraser’s judgement in the Mandla case and several of the relevant conditions by virtue of their long shared history of approximately 600 years, distinct from the general community, in that travelling has been maintained throughout that period. Additionally the Gypsy Traveller community maintains its own unique cultural traditions and customs within family groups and ‘clans’.

It is also argued that the Gypsy Traveller community satisfy some of the relevant conditions in the Mandla case including, descent from a small number of common ancestors, common language and arguably a common literature peculiar to the group in that, as a result of poor literacy in the community, much of the community’s history and culture is handed down by word of mouth.[64]

Given the weight attached to the Mandla conditions in the Dutton case it is strongly argued that Gypsy Travellers satisfy these conditions.

It is also argued that the Boyce and Power cases placed an excessive emphasis on a racial requirement to define ethnicity, which is not supported by previous case law. In Mandla v Dowell-Lee, Lord Fraser cited with strongest approval a fragment from Richardson J.’s judgement in the New Zealand Court of Appeal case King-Ansell v Police:

‘a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them a historically determined social identity in their own eyes and in the eyes of those outside the group’. [65]

This extract de-emphasises the racial requirement that was stressed in the Boyce and Power cases suggesting that racial considerations should not necessarily be the prime consideration when examining ethnic origins and applying the conditions contained in the Mandla case. The King-Ansell case was commented on by Lord Fraser, in the Mandla case, who stated in his opinion, had the requirements contained in the King-Ansell case for a group to constitute an ethnic minority been available before the original Appeal Court hearing the Mandla case, it might have resulted in a different decision in the appeal case.[66]

Lord Fraser makes it quite clear in his judgement that he has adopted a wide interpretation of the term ethnicity and that racial requirements should not be the prime consideration:

‘A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purpose of the 1976 Act, a member….

…In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group….

…the word 'ethnic' in the 1976 Act should be construed relatively widely, in what was referred to by counsel for the appellants as a broad, cultural/historic sense.’ [67]

From the foregoing extract it is evident that the judgement has been misconstrued in later decisions, including the Boyce and Power cases, where each judgement placed an undue emphasis on a racial requirement to define ethnicity.

It is therefore argued that all Gypsy Travellers and Gypsies can be classified as a racial group in current race relations legislation, satisfying the conditions to be classified as such on ‘ethnic origin’ grounds. Additionally, it is argued that all Travellers may be classified as a racial group in current race relations legislation, satisfying the conditions to be classified as such on ‘nationality’ and ‘national origin’ grounds, depending on the particular circumstances. Importantly, by satisfying the requirements to be classified as a racial group in current legislation, the Traveller community should receive the full protection of the race relations legislation in the United Kingdom, preventing discrimination in the key areas of accommodation and education amongst other service provision areas protected by this legislation.

Whilst the above arguments attempt to secure the status of Gypsy Travellers within race relations legislation, as can be seen from the diverse nature of the community, it is extremely difficult to classify the community at a practical level when attempting to implement policies taking cognisance of race relations legislation. This is not unique to the Gypsy Traveller community but to all white ethnic minority communities in a predominately white society. The Gypsy Traveller community however generate the additional difficulty that, at present only Irish and Romany Gypsy Travellers of the community in England and Wales are classified as a racial group in race relations legislation causing public authorities greater difficulty defining which members of this nomadic community are classified as such.

Following the report by the Scottish Parliament Equal Opportunities Committee regarding public sector policies towards Gypsy Travellers[68] a number of recommendations were made that were designed to assist in the social inclusion of the community. One in particular has special relevance regarding the ethnic status of the community:

All legislation and policies should be framed on the understanding that Gypsy Travellers have distinct characteristics and should therefore be regarded as an ethnic group, until such time as a court decision is made on recognition as a racial group under the Race Relations Act 1976.

The Scottish Executive did not make it clear if or how they would implement any of the recommendations of the Inquiry.[69] In its original response to recommendation 2, the Scottish Executive provided only that –

‘The Scottish Executive is committed to equality of opportunity for all. Working within the broad definition of equal opportunities in the Scotland Act 1998 and as part of its mainstreaming equality approach, the Scottish Executive will look to build Travellers as a group in its own work.’ [70]

Many public authorities did however implement recommendation 2 in local policies, with varying degrees of success and, it is suggested, this uncertainty regarding the status of all the recommendations of the Inquiry and, in particular, the ethnic status of the Gypsy Traveller community, caused confusion for these public authorities when formulating and implementing their respective policies.[71] The author has been involved in several policy formulations and it is significant, and arguably attributable to this uncertainty and confusion that only now, three years after the Inquiry, are Scottish Executive, Association of Chief Police Officers and Local Authority policies on unauthorised encampment becoming finalised.

Recently an updated response to the Inquiry recommendations[72] has been issued which recognises Gypsy Travellers as an ethnic group and represents more certainty than that provided in the original response:

‘Working within the broad definition of equal opportunities in the Scotland Act 1998, and as part of its mainstreaming equality approach, the Scottish Executive recognises Gypsy Travellers as a distinct ethnic group…’ [73]

Whilst this new response is welcomed, it remains to be seen how it will affect policy making centrally and at local levels in Scotland. It is argued that, even now, a full understanding of the status of Gypsy Travellers is not fully perceived by policy makers with localised Housing and Homelessness Strategies in many cases ignoring their needs.[74]

Whilst it is possible to define Gypsy Travellers with reference to case law and legislation, there are extreme difficulties presented to policy makers and those dealing with Gypsy Travellers on a daily basis. How do you recognise a white ethnic minority in a predominately white populated country, particularly, as in the case of Scottish Travellers, when there are no language or very limited dialect differences? This difficulty in determining the status of the community at a practical level, it is suggested, creates a strong argument for express legislative recognition of Gypsy Travellers as a racial group. Such legislative recognition would assist in policy making and at a practical level by removing the uncertainty of the community’s status at present and create a greater awareness of the community as a racial group for those implementing policy. Additionally such legislative recognition would provide an additional means of developing Gypsy Traveller rights through case law, similar to that evidenced in the Republic of Ireland by the recognition of Irish Travellers as a racial group in the Equal Status Act 2000.[75]

Provision of legislative recognition in Scotland by the devolved institutions is impossible at present as the Scotland Act 1998 specifies that Equal Opportunities legislation is a reserved matter making it outwith the competency of the Scottish Parliament and Scottish Executive to create or amend such legislation. Details of the Equal Opportunities reservation are contained in the Scotland Act 1998, Schedule 5.[76] It should however be noted that there are exceptions applicable to the devolved organs within Schedule 5.[77] Whilst falling short of legislative intervention, the exception does provide for the Scottish Parliament to frame all legislation originating there and the Scottish Executive to frame policies taking cognisance of the ethnic status of Gypsy Travellers at present. It is suggested this provides the potential to include Gypsy Travellers in policies in tandem with all equality provisions, effectively providing some protection to the Gypsy Traveller community from discrimination. All current policies take cognisance of equality legislation and, it is argued, it would not be impossible to frame wording to include taking cognisance of the equality of Gypsy Travellers as a community within all policies. This provision would promote equal opportunities, particularly in the area of race relations, which is very relevant in the promotion of Gypsy Traveller rights.

The advantages of legislative recognition can be seen by examining Northern Ireland and Republic of Ireland legislation relative to race relations law. The Race Relations (Northern Ireland) Order 1997 mirrors the provisions of the original Race Relations Act 1976, which does not apply to Northern Ireland, recognising Irish Travellers as a ‘racial group’.[78] This legislation makes it unlawful to discriminate on grounds identical to those contained within the Race Relations Act 1976.

Similarly, in the Republic of Ireland, the Equal Status Act 2000 was introduced to promote equality and to prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities. The Equal Status Act 2000 specifically includes Travellers and provides a definition of the Traveller community.[79]

As can be seen the Race Relations (Northern Ireland) Order 1997 and the Equal Status Act 2000 provide similar definitions of the Traveller community which contain many of the conditions specified in the judgement contained in the case Mandla v Dowell-Lee regarding qualification as an ethnic group.

It is suggested, given the issues impacting on the Gypsy Traveller community, and the fact that these issues are replicated in England and Wales there is a strong argument for legislative recognition, throughout the United Kingdom, of Gypsy Travellers as a racial group. Such legislative recognition would assist in the eradication of discriminatory practices towards the Gypsy Traveller community. As an example of the potential this recognition would achieve, in 2001 the Equality Tribunal in the Republic of Ireland dealt with 24 complaints of discrimination against Irish Travellers[80], rising in 2003 to 83 complaints.[81] In comparison the Commission for Racial Equality in Scotland received a grand total of 87 complaints of discrimination in 2001[82] from all racial groups in Scotland.

Legislative recognition would additionally assist in the development of national policies particularly regarding accommodation, ensuring non-discriminatory policies in this area. It is also argued, from a practical perspective, that such recognition and potential policy developments would lead ultimately to a degree of certainty within the Gypsy Traveller community, as regards their treatment throughout the United Kingdom and Ireland. They thus may come to enjoy consistent acceptable standards of treatment wherever their nomadic lifestyle takes them.

The European Convention on Human Rights (ECHR), its associated Protocols, the European Social Charters and the texts produced from various other institutions within Europe provide the opportunity to identify rights, obligations and duties applicable to the Gypsy Traveller community in the United Kingdom, particularly following the incorporation of the Convention into United Kingdom law by the Human Rights Act 1998.

This part of the thesis will examine these rights, obligations and duties with particular reference to ECHR rights, and the specific issues of accommodation and education. These issues are of particular relevance in Scotland at present, given the policy making efforts by the Scottish Executive and associated public bodies, regarding Gypsy Traveller issues. Scotland, by the identification and recognition of these rights, obligations and duties, has the opportunity to make a clear statement regarding Gypsy Traveller rights, which could place Scotland at the forefront of human rights issues and policy making in Europe with regard to the Gypsy Traveller community. Whether it will take this opportunity remains to be seen.

At present there have been few cases regarding Gypsy Traveller rights examined in the European courts regarding United Kingdom issues. The majority of cases examined relate to potential breaches of rights contained in the ECHR regarding accommodation and planning law applicable to England and Wales.

Human rights law continues to develop within Europe since the ECHR was enacted. The Council of Europe has continued to produce and develop human rights legislation and texts that have particular or potential relevance regarding Gypsy Travellers’ rights and obligations, which will be examined in this part of this thesis.

The ECHR established the European Court of Human Rights (ECtHR) to ensure observance of the ECHR by all high contracting parties.[83] The ECtHR has jurisdiction to adjudicate on Inter – State[84] and individual applications[85] regarding violation of ECHR rights. Individual applications can be heard from individual persons, non - governmental organisations or groups of individuals claiming to be the victim of a violation of an ECHR right by a High Contracting Party.

ECtHR case law has examined individual rights of Gypsy Travellers and indicated some areas where these rights may be interpreted as a right applicable to the Gypsy Traveller community as a whole, such as the recognition that a mobile home is part of Gypsies’ ethnic identity.[86] Additionally there are developing positive obligations towards Gypsy Travellers evident in the jurisprudence of the ECtHR, making it possible to identify further individual rights and positive obligations contained within domestic legislation, which may be applicable to the Gypsy Traveller community as a whole.

The Council of Europe has produced significant legislation and texts impacting on human rights issues several of which have particular reference to Gypsy Traveller issues.

a) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).[87]

b) Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No.11.[88]

c) Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.[89]

g) Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe.[93]

h) Recommendation 1557 (2002) of the Parliamentary Assembly – The legal situation of Roma in Europe.[94]

i) The European Commission against Racism and Intolerance – Recommendation No.3.[95]

c) Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No.11[96]

The Convention for the Protection of Human Rights and Fundamental Freedoms is commonly referred to as the European Convention on Human Rights (ECHR) and will be referred to as such hereafter. The rights enshrined in the ECHR are equally applicable to all residents of the United Kingdom however there are several Convention articles that are particularly relevant to the Gypsy Traveller community and have been examined both in European and domestic courts.

The Convention Articles with most relevance to Gypsy Travellers are Article 8[97], the right to respect for private and family life and Article 14[98], the prohibition of discrimination. Article 14 however has no independent existence as it relates only to ‘The enjoyment of the rights and freedoms set forth in this Convention’ and can only be invoked with one of the Convention’s other provisions.[99]

Prior to the incorporation of the ECHR into domestic law by enactment of the Human Rights Act 1998, although applicable to residents of the United Kingdom by petition to the European Court of Human Rights (ECtHR), individuals could not rely on these rights in domestic courts. At most, courts could refer to the rights in instances of ambiguity in municipal law.[100] Individuals therefore had a last resort to the ECtHR to establish violation of a Convention right.

The term incorporation is widely used regarding the effect of the Human Rights Act 1998 on the introduction of the ECHR into domestic law. However, whilst domestic courts and other public authorities now have a statutory duty, when interpreting primary and subordinate legislation originating in Westminster, to read and give effect to ECHR rights[101], where a court cannot interpret primary and subordinate legislation enacted by Parliament in a way that is compatible with the ECHR, a higher court may issue a declaration of incompatibility regarding ECHR rights.[102] The court must still however give primacy to the particular statute being considered in the case. A domestic Court or Tribunal when determining a question, which has arisen in connection with a Convention right, must take into account the jurisprudence of the ECtHR, Opinion or Decision of the Commission and evidence of applicable judgement, decision, declaration or opinion of a domestic Court or Tribunal.[103]

ECHR rights by contrast limit the legislative power of the Scottish Parliament and Scottish legislation, inconsistent with ECHR rights, would be unconstitutional and unlawful.[104]

Incorporation of the ECHR into domestic law is examined further in Chapter 6 of this thesis.

The jurisprudence of the European Court of Human Rights (ECtHR) is not binding on Courts or public authorities in the United Kingdom. Rather the jurisprudence should be ‘taken into account’ or ‘given effect’ by Courts or public authorities. This is recognition that the jurisprudence of the ECtHR represents a minimum standard and States should have a certain amount of freedom to implement this jurisprudence.

The doctrine of ‘margin of appreciation’ was developed and has been applied in the jurisprudence of the ECtHR; the doctrine only applies to the ECtHR and not to domestic courts. The doctrine was created to allow national judicial bodies a degree of flexibility; and permit the ECtHR to give weight to local political and cultural traditions and take into account geographical, cultural, philosophical, historical and intellectual differences between States local institutions and the ECtHR. Traditionally the ECtHR has granted/permitted States a wide margin of appreciation on environmental cases, which are particularly relevant regarding considerations on Gypsy Traveller accommodation.

There have been few challenges in the ECtHR relating to domestic judgements regarding breaches of Convention rights relevant to the Gypsy Traveller community. The majority of those that have occurred relate to English case law dealing with planning legislation and unauthorised encampment on land owned by Gypsy Travellers[105], with one case relating to eviction from an authorised Gypsy Traveller site.[106]

In the case of Buckley v United Kingdom [107] the ECtHR considered the first application it had received regarding violation of the ECHR regarding individual Gypsies’ rights. The case related to a retrospective planning application by a Gypsy, owner of land who had parked caravans there without the necessary planning permission for a period of seven years prior to the court examining the case. Additionally there was a lack of available suitable alternative accommodation. The court was asked to consider if violations had occurred regarding Articles 8 and 14 of the Convention.

The land concerned was immediately adjacent to other small Gypsy encampments and an industrial building, all of which prevented the unauthorised site from being viewed outwith the encampment. In evidence provided to the Court from the Planning Inspector concerned, the unauthorised encampment referred to was maintained in better condition than an official Gypsy site nearby. Unfortunately the encampment encroached on a small piece of green belt land at the rear of the site. Retrospective planning permission had been denied resulting in the case.

1. Unanimously, that Article 8 of the Convention was applicable to the case.

2. By 6 votes to 3 there had been no violation of Article 8 of the Convention.

3. By 8 votes to 1 there had been no violation of Article 14 of the Convention taken together with Article 8.

The government had disputed that Article 8 applied to the case, contending that only a ‘home’ legally established could attract the protection of Article 8. The Court however disagreed.[108]

‘… The Court is satisfied that the applicant bought the land to establish her residence there. She has lived there almost continuously since 1988 - save for an absence of two weeks, for family reasons, in 1993 … - and it has not been suggested that she has established, or intends to establish, another residence elsewhere. The case therefore concerns the applicant's right to respect for her "home".’ [109]

This decision by the Court was of importance recognising a caravan or mobile home as a ‘home’, even if it is illegally sited, rather than the traditional view proposed by the government.[110]

The ECtHR subsequently restated in the Buckley case the philosophy adopted by the Court, particularly regarding domestic legislative frameworks, and the ‘margin of appreciation’ provided to States. The judgement referred to this principle as follows:

‘As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the "necessity" for an interference, as regards both the legislative framework and the particular measure of implementation…. Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention.

The scope of this margin of appreciation is not identical in each case but will vary according to the context…. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.’ [111]

Whilst recognising the need for a ‘margin of appreciation’ the Court also recognises the need to examine each case on its own merits. It is unfortunate, given the circumstances of this particular case; the Court did not appear to examine this case on its own merits. It is difficult to conclude that the interference with the applicant’s rights was proportionate and necessary given, it is argued, that the wrong balance was being made by the court between interference with Article 8 rights and the powers available in domestic planning legislation. This is particularly relevant given the circumstances the applicant found herself in and the measures undertaken to minimise the impact of her residence i.e. the lack of available alternative accommodation; the successful attempt to improve and screen the site and the medical issues affecting the applicant’s family.

‘… the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interest under Article 8 (art. 8), and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. … the Court is satisfied that the reasons relied on by the responsible planning authorities were relevant and sufficient, for the purposes of Article 8 (art. 8), to justify the resultant interference with the exercise by the applicant of her right to respect for her home. In particular, the means employed to achieve the legitimate aims pursued cannot be regarded as disproportionate. In sum, the Court does not find that in the present case the national authorities exceeded their margin of appreciation.’ [112]

It is suggested that the Court should not have permitted the State such a wide ‘margin of appreciation’ given the particular circumstances of this case. Additionally it is suggested that the initial public authority’s response to the applicant was neither ‘necessary’ or ‘proportionate’ given that the public authority had not addressed the issue of Gypsy Traveller accommodation locally over the period of the unlawful occupation of the land. Failure to provide such accommodation, it is argued, negates the claim that the public authority’s actions were ‘necessary’ and ‘proportionate’.

‘… Gypsies following a traditional lifestyle required special consideration in planning matters and considered that this had been recognised by the Government. In the specific circumstances of the applicant's case, however, a proper balance had not been

The submission by the Commission correctly identifies a possible need for ‘special consideration in planning matters’ to be taken regarding Gypsy Travellers. This was not apparently considered by the Court, which appears to have accepted, without sufficient scrutiny, that the domestic Courts had acted proportionately and fairly. Additionally the Commission correctly identified the very limited impact of the development on the environment.

Comments in the dissenting judgements are of particular interest, indicating how case law may develop regarding Gypsy Traveller rights, particularly in the area of planning law:

‘In the present case the national authorities did not properly assess whether the aim pursued was proportionate to the applicant’s right to respect for her home and to the seriousness of the infringement of that right. At no stage during the domestic proceedings was the problem before the authorities considered in terms of a right of the applicant protected by the Convention, for the Government denied throughout that a right to respect for the home was an issue and therefore that there had been any interference with that right.’

Judge Repik’s comments identify the lack of consideration given by the original court to proportionality and the interference with the applicant’s rights. This is a common issue regarding the technical interpretation of planning legislation in a manner that effectively excludes the relevance of rights by domestic courts in the United Kingdom. It is evident particularly in domestic planning cases and will be examined more fully later.[115]

‘Living in a caravan and travelling are vital parts of Gypsies’ cultural heritage and traditional lifestyle. This fact is important to my mind in deciding whether the correct balance has been struck between the rights of a Gypsy family and the general interest of the community… … It has been stated before the court that the applicant as a Gypsy has the same rights and duties as all the other members of the community. I think that this is an oversimplification of the question of minority rights. It may not be enough to prevent discrimination so that members of minority groups receive equal treatment under the law. In order to receive equality in fact, different treatment may be necessary to preserve their special cultural heritage.’

Judge Lohmus’ judgement is of particular relevance regarding the reference to it possibly being necessary to provide ‘different treatment’ in order that Gypsies are treated equally. Later case law has reinforced this opinion regarding provision of ‘different treatment’ : see Thlimmenos v. Greece.[116]

The other dissenting judgement in the Buckley case, Judge Pettiti’s, was the only judgement that concluded there had been violations of both Articles 8 and 14. In his judgement regarding a violation of Article 8 he stated:

‘The Strasbourg institutions’ difficulty in identifying this type of problem is that the deliberate superimposition and accumulation of administrative rules (each of which would be acceptable taken singly) result, in its being totally impossible for a Gypsy family to make suitable arrangements for its accommodation, social life and the integration of its children at school and, secondly, in different government departments combining measures relating to town planning, nature conversation, the viability of access roads, planning permission requirements, road safety and public health that, in the instant case, mean the Buckley family are caught in a “vicious circle”.’

The British Government denied that their policy was discriminatory. Yet a number of legal provisions expressly refer to Gypsies in order to restrict their rights by means of administrative rules. However, the only acceptable discrimination under Article 14 (art. 14) is positive discrimination, which implies that in order to achieve equality of rights through equality of opportunity it is necessary in certain cases to grant additional rights to the deprived members of the population …

…If the Buckley case were transposed to a family of ecologists or adherents of a religion instead of Gypsies, the harassment to which Mrs Buckley was subjected would not have occurred; even supposing that it had, domestic remedies or an application under the European Convention on Human Rights would have allowed such an interference with family life to be brought to an end, which was not so under the domestic law in the case of Gypsy families.

Judge Pettiti correctly identifies the discriminatory nature, with relevance to Gypsies in particular, of administrative rules regarding planning legislation and the need to consider applying ‘different treatment’ when interpreting such administrative legislation and rules, particularly when applying them to a community such as Gypsies.

Judge Pettiti in summary also stated that, in the Buckley case, an opportunity had been lost by the ECtHR to provide a critique of national law and practice regarding Gypsy and Traveller law in the United Kingdom that could have been transposed in the rest of Europe.

It is also arguable that the United Kingdom not only lost the opportunity to produce this critique but also an opportunity to be at the forefront of human rights law in Europe.

It is suggested the case was wrongly decided, and that there were violations of both Articles 8 and 14 for the following reasons:

1) The Court should have, but did not, examine fully whether the actions of the State were ‘proportionate’ and ‘necessary’, by permitting the State such a wide ‘margin of appreciation’ regarding planning regulation. The case revolved around the balance between the applicant’s rights contained in Article 8 and the impact the location of their home had on a greenbelt site in contravention of planning legislation. The applicant‘s home was immediately adjacent to similar Gypsy accommodation that had permanent planning permission, shielded from view, adjacent to a commercial development and unobtrusive. It is implausible/unrealistic, given these facts, to argue that the actions of the State were ‘proportionate’ and ‘necessary’ when balanced with the interference with the applicant’s Article 8 rights.

2) Whilst the Court makes reference to the State’s policies enabling Gypsies to cater for their own needs, there is also a need for ‘different treatment’ regarding some disadvantaged communities, (See the later case of Thlimmenos v. Greece [117] ). There was a lack of suitable alternative accommodation at the time the applicant established her home, in breach of planning legislation. It is of interest to note that domestic case law has now progressed and considers taking cognisance of available accommodation as a factor in deciding whether a Gypsy Traveller home unlawfully sited should be removed. In the case Chelmsford Borough Council v. the First Secretary of State, Draper [118], which concerned an unauthorised encampment on land owned by Gypsy Travellers, comment is made regarding the importance of available Gypsy Traveller accommodation being a very special consideration, regarding the decision making process, in cases of breaches of planning legislation by Gypsy Travellers.

3) Given the particular circumstances of the Buckley case, it is argued that the applicant should have been given appropriate ‘different treatment’ regarding the planning issues surrounding the unauthorised site.

The Buckley case is a landmark case representing the first Gypsy case submitted to or decided by the ECtHR, examining rights applicable to that community. It is unfortunate that the case was unsuccessful; however, the dissenting judgements indicate the developments, which have occurred and are occurring regarding recognition of Gypsy Traveller rights, particularly regarding the rights contained in Articles 8 and 14 of the ECHR. These developments will be examined later in this thesis.

Whilst it is strongly argued that the case was wrongly decided there is a positive recognition contained within the judgement. The recognition that the case concerned the applicants ‘home’, though illegally sited, and that there had been an interference with the applicant’s Article 8 rights are important, even if it did not alter the courts consideration of a violation of Article 8 of the ECHR.

The ECtHR subsequently examined the need for differential treatment in Thlimmenos v. Greece[119] regarding people in significantly different circumstances. The case did not examine Gypsy rights but was concerned with the examination of Articles 9 and 14 of the Convention regarding the refusal of the State to permit a person access to a profession as they had refused military service on religious grounds. The Court held, in this case, there had been a breach of these Articles regarding the non-appointment of the person, who had been convicted of a previous felony. The judgement states:

‘The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.’ [120]

The judgement made it clear that when the State enacted the particular legislation in this case, which subsequently breached the applicant’s rights, its failure to introduce appropriate exceptions to that legislation resulted in a violation of Article 14.[121]

The Thlimmenos judgement is an important case regarding minority rights. The Court is effectively creating a positive obligation on the State to provide ‘different treatment’, when necessary, to give full effect to the right contained in Article 14 of the ECHR. The term ‘different treatment’, with regard to Gypsy Traveller rights should be, at a minimum, a duty not to remove the applicants from their land, where no appropriate alternative accommodation is available. It is strongly argued however that the term ‘different treatment’ should be interpreted as forming part of the positive obligation on the United Kingdom to provide suitable and appropriate accommodation for Gypsy Travellers.

Further cases have been considered by the ECtHR and a combined judgement was given regarding Chapman v United Kingdom [122], Coster v United Kingdom [123], Beard v United Kingdom [124], Lee v United Kingdom [125] and Jane Smith v United Kingdom. [126] The applicants had variously either purchased their own land and located caravans there or located their caravans on land breaching planning regulations.

The court was variously asked to consider if violations had occurred regarding Article 8, Article 1 of Protocol No.1 (right to peaceful enjoyment of possessions), Article 6 (access to court), Article 14 and Article 2 of Protocol No.1 (right to education).[127]

The discussion here will examine the Chapman case in particular as the circumstances of the other cases are similar in nature, if not identical, with the exception of the Coster, Lee and Jane Smith cases where a violation of Article 2 of Protocol No.1 was also examined. The cases examining that violation will be examined further in the section of this thesis examining Protocol No.1.

The applicant in the Chapman case had purchased land in a conservation area to site her mobile home on in 1985, as there were no official Gypsy sites in that particular area of Hertfordshire at that time. She attempted to gain planning permission for this development unsuccessfully, and was subjected to several court cases regarding the unlawful development.

Between 1985 and the 1990 the applicant and her family remained on the site, only leaving following a court case. In 1992 they returned to the site and made an unsuccessful planning application to erect a bungalow, subsequently being subject to an enforcement order, which resulted in this case.

The applicant and her husband also suffered from various medical ailments including heart, arthritic and depressive conditions and additionally her elderly father, who suffered from senile dementia, took up residence with the family during the occupancy of the site. The Commission subsequently referred the case to the ECtHR, where the Court held:

1. By 10 votes to 7 there had been no violation of Article 8 of the Convention.

2. Unanimously that there had been no violation of Article1 of Protocol No. 1.

3. Unanimously that there has been no violation of Article6 of the Convention.

The judgement in this case went further than the Buckley judgement regarding the applicant’s home:

‘The court considers that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle.…

…Measures affecting the applicant’s stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition.’ [128]

The judgement recognised the applicant’s caravan was her home; however it also went much further recognising that it was more than a home but also part of the applicant’s ethnic identity and nomadic lifestyle.

The Court also recognised that the actions of the Planning Authority constituted an interference with Article 8.[129]

The Court found however, by a majority of 10 votes to 7, there had been no violation of Article 8. In the course of its considerations the Court was asked, by the applicant, to take into account the then recent treaty, the Framework Convention for the Protection of National Minorities, in reducing the ‘margin of appreciation’ accorded to States in light of the recognition of the problems of vulnerable groups, such as Gypsies. The Framework Convention provides, for States that are Parties to the Framework Convention, the opportunity to provide ‘different treatment’ to promote equality between national minorities and the majority. It is suggested that, had the Court done so, it would have narrowed the ‘margin of appreciation’ provided to States regarding planning law and consequently progressed Gypsy Travellers’ rights.

‘…The framework convention, for example, sets out general principles and goals but the signatory States were unable to agree on means of implementation. This reinforces the Court's view that the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental protection, and the interests of a minority with possibly conflicting requirements renders the Court's role a strictly supervisory one.’ [130]

It is suggested the Court was wrong in this statement. The Court effectively missed an early opportunity to reinforce the impact the Framework Convention could have had on rights, particularly Gypsy Traveller rights, in the United Kingdom and elsewhere.[131]

The Court did not examine fully the legislation’s impact on Gypsies’ rights in these particular circumstances and as such, it is argued, failed in its function to examine and identify the violation and interference with these rights as a result of enforcement of the planning legislation. Of particular note is the apparent acceptance by the Court that, despite a lack of suitable local accommodation, it was acceptable for the applicant to seek accommodation some distance away.[132]

The Court also comments on the humanitarian considerations made domestically:

‘… humanitarian considerations which might have supported another outcome at national level cannot be used as the basis for a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every Gypsy family has available for its use accommodation appropriate to its needs. Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim

It is of interest that the content of this paragraph effectively discounts the provision of suitable accommodation to Gypsy Travellers by governments and, it is suggested, contradicts the provisions contained within Article 4 of the Framework Convention regarding maintenance of ‘social’ and ‘cultural life’[134]. It is strongly argued the Court was incorrect in this statement, contradicting the content of the Framework Convention. Provision of adequate and suitable accommodation clearly falls within the ‘social’ and ‘cultural life’ of the Gypsy Traveller community as detailed in Article 4(2) of the Framework Convention.

When considering the facts relative to a violation of Article 8, the Court makes reference to the impact of ‘different treatment’ in those particular circumstances regarding Article 14:

‘… to accord to a Gypsy who has unlawfully stationed a caravan site at a particular place different treatment from that accorded to non-Gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under Article 14 of the Convention.’ [135]

Despite this reference to ‘different treatment’ the Court did recognise that there was a need for special consideration of Gypsies’ needs regarding the regulatory planning framework and the decision making process of individual cases:

‘… As intimated in Buckley, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases …. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life…’ [136]

The Court importantly recognises the need for special consideration of Gypsies in planning regulation and crucially identifies a positive obligation, on contracting States to the ECHR, created by Article 8 to facilitate the Gypsy way of life.[137]

It is suggested that the refusal to accept that the community was one which should receive ‘different treatment’, was an error by the Court, given the particular circumstances of the applicant. It is further suggested these circumstances placed the applicant in a similar position to the applicant in the Thlimmenos case[138], in that she was a member of a national minority in a significantly different position to other members of society with no alternative accommodation available. It was therefore impossible for the applicant to maintain her nomadic Gypsy way of life.

The Court considered there had been no violation of the applicants Article 14 rights.[139]

The Thlimmenos case concerns the refusal to permit access to the profession of chartered accountant to a person who had previously been convicted for refusal to undertake military service on religious grounds. Whilst not dealing with Gypsy Travellers the case is authority regarding the recognition that persons, whose situations are significantly different, may have their Convention rights violated when the State fails to treat them differently without reasonable and objective justification. Gypsy Travellers, it is strongly argued, fall into this situation, as a nomadic community with inadequate official sites to facilitate this nomadism.[140]

The Court, in the Chapman case, considered there had not been a violation of Article 14 based on the evidence presented regarding their examination of an Article 8 violation.

Given the content of the judgement and the aforementioned suggested errors it is not surprising that there was such a strong joint dissenting opinion:

‘There is an emerging consensus amongst the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle …, not only for the purpose of safeguarding the interests of the minorities themselves but also in order to preserve a cultural diversity of value to the whole community. This consensus includes a recognition that the protection of the rights of minorities, such as Gypsies, requires not only that Contracting States refrain from policies or practices which discriminate against them but also that, where necessary, they should take positive steps to improve their situation through, for example, legislation or specific programmes. We cannot therefore agree with the majority's assertion that the consensus is not sufficiently concrete or with their conclusion that the complexity of the competing interests renders the Court's role a strictly supervisory one.’ [141]

‘… we cannot agree with the view expressed by the majority that to accord protection under Article 8 to a Gypsy in unlawful residence in a caravan on her land would raise problems under Article 14 where planning laws continued to prevent individuals from setting up houses on their land in the same area…. This approach ignores the fact, earlier acknowledged by the majority, that in this case the applicant's lifestyle as a Gypsy widens the scope to Article 8, which would not necessarily be the case for a person who lives in conventional housing, the supply of which is subject to fewer constraints. The situations would not be likely to be analogous. On the contrary, discrimination may arise where States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos v.Greece, no. 34369/97, § 44, ECHR 2000-IV).’ [142]

‘Our view that Article 8 of the Convention imposes a positive obligation on the authorities to ensure that Gypsies have a practical and effective opportunity to enjoy their right to respect for their home, and their private and family life, in accordance with their traditional lifestyle, is not a startling innovation.’ [143]

This strong dissenting judgement is understandable, given the suggested errors in the majority judgement. It again reiterates the opinion in Thlimmenos v. Greece [144] regarding the State’s positive obligation to provide ‘different treatment’, in respect to an applicant in a significantly different situation, which is a preferable position. In the Chapman case it is argued that the applicants’ qualified as a community that should have received ‘different treatment’. It is therefore strongly argued that ‘different treatment’ should have formed, at a minimum, a duty not to remove the applicants from their land in this case, reinforcing the applicants’ Article 8 rights, rather than interfering with or violating these rights.[145]

Despite the decision, the Chapman case was however positive in that it recognised that Article 8 created a positive obligation[146] on contracting States to the ECHR to facilitate the Gypsy way of life and widened the interpretation of ‘home’ recognising it was part of a Gypsy’s ethnic identity. Additionally the case recognised that the Gypsy community was a minority community in a vulnerable position and that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases.

However, it is submitted that the case was wrongly decided for the following reasons:

1) It ignores the discriminatory effect of planning legislation and policies, when applied to a minority community such as Gypsy Travellers. Examination of the dissenting judgement of Judge Pettiti in the Buckley case[147] highlights these difficulties, which were not examined in this case due to the Court’s assumption of a merely supervisory role.

2) The opinion regarding a violation of Article 14 appears to contradict the aims of the Framework Convention for the Protection of National Minorities[148], particularly regarding the special needs of minorities, despite the judgement accepting that the applicant’s ‘home’ is part of her ethnic identity.

her in a similar position to the applicant in the Thlimmenos case. There is a strong argument that the provision of ‘different treatment’ would have been appropriate in the applicant’s case and indeed appropriate to the Gypsy Traveller community as a whole in planning regulation.

4) It is strongly argued that the developing positive obligation on authorities to provide ‘different treatment’ to Gypsy Travellers reinforces the rights contained in Articles 8 and 14 of the ECHR. The nomadic lifestyle led by the Gypsy Traveller community and lack of available sites, it is argued, places Gypsy Travellers in a significantly different situation within society. The form of this ‘different treatment’ should, at a minimum, form part of a duty not to interfere with Article 8 rights, in particular where there is insufficient accommodation, as in this case. It is strongly argued however that this ‘different treatment’ should form part of the positive obligation on the State to provide accommodation for Gypsy Travellers.

5) The dismissal by the Court, of the importance of the humanitarian issues relevant to the case when balanced against the planning regulation requirements, is not proportionate and these issues should not have been so readily dismissed given the fact there were no alternative available local sites for the applicant.

6) The ECtHR does not appear to have examined the issue of ‘proportionality’ and ‘necessity’ fully, particularly regarding the balance between the States ‘margin of appreciation’, Article 8 rights, the Framework Convention for the Protection of National Minorities and domestic planning legislation.

7) It is strongly argued that the wide ‘margin of appreciation’ on planning matters provided to the State in this case would have been considerably narrowed had the Court taken into consideration the lack of alternative available sites and the provisions of the Framework Convention for the Protection of National Minorities in its considerations. This narrowing of the ‘margin of appreciation’, it is argued, would have resulted in a better decision by the Court.[149]

8) Whilst States have a wide ‘margin of appreciation’ in environmental protection it is strongly argued that it was impossible for the applicant to comply with the law, in the circumstances of this case, and legitimately maintain her Gypsy way of life due to the lack of available local sites.

The Chapman case is held up as a benchmark ruling regarding Gypsy rights and the scope of the ECtHR supervision of measures in areas such as environmental protection, where States are permitted a wide ‘margin of appreciation’. In particular the ECtHR insists that compliance with the particular laws in force are an important factor in its decision making process. However, despite the recognition of this wide ‘margin of appreciation’, the Chapman Court recognised that it may have a role to play where there had been a manifest error of appreciation:

‘…so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation”, although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities….’ [150]

Of interest also is the subsequent case of Varey v United Kingdom. [151] The case had similar circumstances to the Buckley and Chapman cases in that the applicant had purchased land and sited caravans on the land without planning permission. The crucial difference in the Varey case was that Planning Inspector had initially made no objection to the applicant locating caravans on the particular land. The European Commission of Human Rights referred the case to the European Court of Human Rights where there was an opinion that there had been a breach of Article 8 by a majority of 26 votes to 1. The United Kingdom Government subsequently settled the case prior to it being heard in the ECtHR. The issues nonetheless remain relevant.

In this case the applicant’s family had a history of residing in the locality. The site where the applicant’s caravans were located had been used as a traditional stopping area by Gypsy Travellers in the past, being licensed as such by the local authority, although not at the time of the applicant’s use. There was a lack of suitable Gypsy Traveller sites available in the area and the family suffered health problems requiring medical treatment. Of importance, and distinguishing it from the previous cases, the Local Planning Inspectors raised no objections to the development of the land as a Gypsy Traveller site despite it being a designated green belt area. It is suggested, had the case been heard in the ECtHR, the Court would have decided, in this case, there had been a violation of Articles 8 and 14 of the ECHR. Examination of the facts reveal there was no objection from the Planning Inspector to the development, the site had previously been a licensed site and there was a lack of provision of accommodation for Gypsies in the locality. The applicant subsequently left the site resorting to unauthorised encampment elsewhere. It is very strongly argued that these facts prove a violation of Article 8 and it is very probable that the actions in violating that Article were also a violation of Article 14.

Although not concerning planning legislation, the case of Connors v. The United Kingdom[152] is of interest and represents progress in Gypsy Traveller law. The case relates to the eviction of a Gypsy Traveller family from an official Traveller site in England and examined the ‘margin of appreciation’ available to national authorities. The case differs from the Buckley[153] and Chapman[154] cases in that the occupation of the site was lawful.

The Court stated that the ‘margin of appreciation’ should be left to the national authorities that are better placed to evaluate local needs and conditions. However, the Court also stated that the ‘margin of appreciation’ will vary depending on the nature of the rights being considered and the importance to the individual concerned.[155]

The applicant in the case had been refused permission by the High Court for judicial review regarding the summary possession of the pitches his family occupied. The family were subsequently evicted and then lived a nomadic lifestyle for a period of time being continually moved from unauthorised encampments.

‘The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8…’ [156]

The Court recognised that Gypsies were a minority with different needs and lifestyles, which should receive special consideration within regulatory frameworks. It also recognised that these special considerations extended to reaching decisions in particular cases concerning Gypsies.[157]

The Court distinguished the Connors case from the Chapman case regarding the width of the States ‘margin of appreciation’:

‘The present case may also be distinguished from the Chapman case (cited above), in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law…… and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site …’ [158]

The Court in the ‘Connors’ case recognised that the State should rightly retain a ‘margin of appreciation’ but set out detailed considerations, which should be undertaken regarding variation of the width of the States ‘margin of appreciation’.

2. The importance of the Convention right being considered for the individual.

5. It will be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights such as Article 8 rights.

The Court examined the policy and management of Traveller sites adopted by national authorities. In particular security of tenure provisions and summary eviction, adopted as ‘policy’ by the particular authority in this case, as a ‘management tool’ on official sites.

The Court held there had been a violation of the applicants Article 8 rights.[159]

Whilst the circumstances of the case differ from the previous planning cases it does represent recognition of the developing rights and obligations towards the Gypsy Traveller community regarding the facilitation of their lifestyle. The examination of the State’s ‘margin of appreciation’ is to be welcomed and, whilst the case differs from the Buckley and Chapman cases in that the occupation was lawful, the examination in greater depth of the State’s ‘margin of appreciation’ is a positive development especially given the cursory examination given in the previous planning cases. It is strongly argued that, had the considerations regarding the States ‘margin of appreciation’ detailed in the Connors case, been applied to the Buckley and Chapman cases, these cases would have been decided differently.

Examination of all these judgements illustrates the developing opinion within Europe and recognition of the potential interference with and breaches of human rights law that Gypsy Travellers are subjected to when maintaining their nomadic lifestyle.

There are very strong arguments that the Buckley, and particularly the Chapman cases were wrongly decided regarding violations of Article 8 ECHR, for the reasons detailed previously. However, although the cases failed to identify breaches of any rights they both expanded and progressed the interpretation by the Court of the understanding of ‘home’ relative to Gypsy Travellers. In the Buckley case there is recognition that Convention rights apply even where caravans are sited illegally and indeed that they are recognised as a ‘home’ with regard to Article 8. The Chapman case further extends the understanding of the term ‘home’ in that caravans are recognised as part of a Gypsy’s ethnic identity and nomadic lifestyle and that there is a positive obligation to facilitate the Gypsy Traveller lifestyle. This should generate a duty, on local authorities, to provide appropriate and suitable accommodation for Gypsy Travellers to facilitate the Gypsy Traveller community’s nomadic lifestyle. There is similarly recognition in the Buckley, Chapman and Varey cases that there is a need for governments to respect their positive obligations towards the Gypsy Traveller community, to facilitate this lifestyle.

The Connors case represents a further positive development in the recognition of the positive obligations owed to the Gypsy Traveller community to facilitate their lifestyle. The considerations set out in this case by the Court, regarding the States’ ‘margin of appreciation’, is applicable to all cases where the States ‘margin of appreciation’ is being considered. Adoption of this philosophy regarding the States ‘margin of appreciation’ will assist the Court to move away from the strictly supervisory role undertaken in the Chapman case, regarding environmental issues.

There is a strong argument for the use of ‘different treatment’, as illustrated in the Thlimmenos case, for States to ensure rights and duties are recognised for ethnic minorities and national minority communities whose situations are significantly different. The use of ‘different treatment’ can create and reinforce the duties owed to the Gypsy Traveller community, both positive and negative, and can similarly also reinforce and strengthen obligations owed to the community. It is argued that the Gypsy Traveller community qualify for recognition as a community in a significantly different situation given their nomadic lifestyle, discrimination, adult and infant mortality rates and general poverty suffered by the community.[160] The particular areas of accommodation considered, where an impact could occur relate to duties regarding management of accommodation, both unauthorised encampments and official sites, planning and provision of services. Arguably of most importance is the impact this ‘different treatment’ can have on the Sates positive obligation to facilitate the nomadic Gypsy way of life. It is strongly argued this reinforces the positive obligation on the State to provide suitable accommodation.

Despite the negative judgement in the Chapman case it is an important case that is increasingly referred to in domestic case law regarding planning legislation.[161]

Given the unique nature of the Gypsy Traveller community it is also argued that there may be grounds for consideration of individual actions in the ECtHR by non-governmental organisation or groups of individuals claiming to be the victim of a violation of a Convention right, particularly regarding Article 8 rights relative to accommodation in particular areas with insufficient suitable accommodation.

The Human Rights Act 1998 refers to the victim as an individual, which will prevent non-governmental organisation or groups of individuals progressing actions regarding violation of Convention rights in domestic Courts. [162]

Examination of the ECHR reveals however that the concept of ‘victim’ is wider though the victim must be directly subjected to the violation of a Convention right.[163]

Examination of ECtHR case law indicates the Court is prepared to adopt a wide interpretation of ‘victim’.[164] In the case Open Door and Dublin Well Woman v. Ireland [165] concerning a non-profit making organisation located in the Republic of Ireland, which counselled pregnant women and gave advice regarding abortion, it was argued that the applicants were not ‘victims’ of an infringement of their Convention rights as they had not been involved in the proceedings in the Irish Court and they could not identify any named pregnant women. The Court held they were victims as they were affected by a Supreme Court injunction and their Article 10 rights had been violated.[166]

It is argued that there may be the potential for action by a representative non- governmental organisation in the ECtHR regarding Gypsy Traveller rights, particularly regarding interference with Article 8 rights relative to accommodation. Such actions would, it is suggested, provide a vehicle to progress Gypsy Traveller rights. At present in the United Kingdom the Gypsy Traveller community are a dispersed community with limited joined up communication or dialogue. Representation from an appropriate non- governmental organisation would assist in developing recognition of the community’s rights through ECtHR jurisprudence.

Gypsy Travellers have attempted to progress such an action on one occasion unsuccessfully.[167] Such actions, in the future, may present opportunities to challenge legislation and policies regarding the Gypsy Traveller community, particularly regarding planning legislation and general accommodation issues.

d) Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No.11[168]

Following the introduction of the ECHR, Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms was enacted to introduce further new fundamental rights that were not contained within the original Convention as no agreement could be reached upon these particular fundamental rights during drafting. These new rights were the right to peaceful enjoyment of property, the right to education and the right to free elections by secret ballot.

The main rights contained within this Protocol that affect Gypsy Travellers are Article 1, the protection of property and Article 2, the right to education.[169]

Little case law is available regarding this Protocol and Gypsy Travellers rights. However, there is scope for challenge, particularly regarding locating caravans on land owned by Gypsy Travellers.

With respect to Article 1[170] of the Protocol there are effectively three distinct strands to the Article, the entitlement to peaceful enjoyment of possessions, deprivation of possessions and control of possessions by the State.

In the case Marckx v. Belgium [171], which relates to inheritance law in Belgium, the Court stated:

‘By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property.’ [172]

It is however arguable whether the right to peaceful enjoyment of possessions does create a guaranteed right of property. Effectively the Article only creates the right to peaceful enjoyment of possessions when used in accordance with the law as, if used otherwise, it can lead to control or deprivation of the possessions by the State.[173] This presents difficulty when examining this right, relative to breaches of planning legislation by Gypsy Travellers who own land, is in the majority of cases they are not using their property ‘in accordance with the law’.

In the case of Sporrong and Löennroth v Sweden, [174] regarding planning legislation in Sweden, the Court gave guidance on the interpretation of Article 1 of the Protocol:

‘…that Article (P1-1) comprises three distinct rules. The first rule, which is of a general nature, enunciates the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.

The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.’ [175]

The Court also commented on the balance between the demands and general interest of the community and the fundamental rights of the individual, the ‘fair balance’ test.[176]

In the case James and others v the United Kingdom [177] further clarification was

‘Not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim “in the public interest”, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised… This latter requirement was expressed in other terms in the Sporrong and Löennroth judgement by the notion of the “fair balance” that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights…’ [178]

As can be seen in the afore-mentioned case law the ECtHR has attempted to clarify the interpretation of Article 1. The Court will examine the following:

1) Was there a deprivation of possessions as specified in the second sentence of Article 1?

2) If there was a deprivation of possessions, was it in the public interest?

3) If there was a deprivation of possessions, was it in accordance with the conditions of law or general principles of international law?

4) If there was a deprivation of possessions, was it done by the State in accordance with the second paragraph of Article 1, to enforce such laws as deemed necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties?

5) If there has been no deprivation of possessions or control of the use of the property, the first sentence of Article 1 will be examined to establish whether there has been interference in the peaceful enjoyment of the property by the State.

6) The Court will apply a ‘fair balance test’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, in determining the level of permissible interference with peaceful enjoyment of possessions.

Article 1 of Protocol No.1 was examined in the combined case of Chapman v United Kingdom [179], regarding locating caravans on the applicant’s land in breach of planning legislation. The applicant argued that a fair balance had not been struck between her interests and those of the general community and she had therefore been denied the peaceful enjoyment of her property. She submitted that the fact that she took up residence on her land without prior permission was irrelevant and that the findings of the planning inspectors concerning the impact of her caravans on visual amenity were not so significant if taken in the context of the policy framework governing their decisions. The Government submitted that a fair balance had been struck between the individual and general interests, in particular having regard to the fact that the applicant occupied her land in contravention of planning law and of the findings of the Planning Inspectors.

The Court held that there was no violation of Article 1 of Protocol No. 1 as interference with the applicant’s property had been proportionate.[180]

Given the provisions of the Framework Convention for the Protection of National Minorities, presented by the applicant but effectively ignored by the Court, the lack of available sites in the locality and the unique nomadic situation of the Gypsy Traveller community, it is argued that the wide ‘margin of appreciation’ given to the State in this case was wrong. It is also strongly argued that if the Court had considered the Framework Convention provisions when carrying out its ‘fair balance test’ in the case, consideration of the fundamental rights of the applicant would have resulted in a different conclusion to the case in favour of the applicant. Combined with the statements contained in the Sporrong and Löennroth v Sweden and James and others v the United Kingdom case it is difficult to accept that the Court, in the Chapman case, gave sufficient consideration as to whether the action of the domestic Court was in the public interest and proportionate and necessary when considering the rights of all parties. It is arguable given the circumstances of the applicant and the reasons detailed above that there was a breach of the applicant’s rights under Article 1 of this Protocol.

The existing case law does not preclude further challenges regarding contraventions of Article 1 in the future, regarding peaceful enjoyment of land purchased by Gypsy Travellers to site caravans on and relevant planning legislation, particularly challenges on ‘public interest’, ‘margin of appreciation’ [181], ‘proportionality’ and ‘necessity’ grounds.

Access to educational services has been raised in some cases relating to planning legislation and subsequent cases. Article 2 of Protocol No.1[182] creates the right to education. Article 2 is formulated negatively, commencing ‘No person shall be denied the right to education’. The Protocol therefore does not create an obligation on contracting States to provide educational establishments only to permit access to educational services. At the time of ratifying Protocol No.1, the United Kingdom created a reservation to the second sentence of Article 2 of the Protocol. This reservation effectively means that the United Kingdom accepts the Article only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.[183]

In the leading case Belgian Linguistics Case (No. 2) (1968) [184] it was clarified by the Court that Article 2 creates a right:

"… In spite of its negative formulation, this provision uses the term "right" and speaks of a "right to education". Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of "rights and freedoms". There is therefore no doubt that Article 2 (P1-2) does enshrine a right….” [185]

The case similarly clarified that Article 2 created a right of access to educational establishments[186] and that States were not required to provide educational establishments.[187]

“… the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Whilst access to education is readily available for settled Gypsy Travellers provision can be problematical for nomadic Gypsy Travellers, particularly continuity of education and where exclusions occur in schools.

A challenge was made regarding Article 2 in the Coster [188], Lee [189] and Jane Smith[190] cases, which were part of the combined judgement in the Chapman case, however the Court found no breaches of Article 2 had occurred. In these cases the applicants argued that, by not being permitted to occupy their own land, their respective children or grandchildren were either denied or did not have the prospect of accessing education. The government submitted that there was no right under the above provision for their children or grand children to be educated at any particular school and that in any case there was no evidence that the enforcement measures had had the effect of preventing the applicant’s children from going to school.

In all these cases the children were still attending local schools, with the applicants arguing that this would end should they be required to move from the land where they had sited their homes. The State successfully argued that there was no right to attend a particular school, only to education and no evidence was apparent that the children would not receive an education. The Court rightly held the applicants had not substantiated their complaints.

The existing case law however does not preclude further challenges regarding contraventions of Article 2 in the future, particularly regarding the higher exclusion rate of Gypsy Traveller children from schools compared with settled children.[191]

Recognition that all Gypsy Travellers are an ethnic minority or a community in a ‘significantly different situation’, which they clearly are given their nomadic lifestyle and culture, may result in challenges regarding Article 2, particularly on ‘religious and philosophical convictions’ grounds in the future. In the case of Campbell and Cosans v. the United Kingdom, [192] the Court gave an explanation of the term ‘philosophical convictions’ as follows:

‘In its ordinary meaning the word "convictions", …. is more akin to the term "beliefs" (in the French text: "convictions") appearing in Article 9(art. 9) - which guarantees freedom of thought, conscience and religion - and denotes views that attain a certain level of cogency, seriousness, cohesion and importance….

…. Having regard to the Convention as a whole, including Article 17(art. 17), the expression "philosophical convictions" in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a "democratic society" …. …and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, ….’ [193]

Given this interpretation of ‘philosophical convictions’ it is suggested that there may be challenges regarding the right to education by Gypsy Travellers on these grounds. The United Kingdom has an obligation to facilitate the Gypsy way of life, which is nomadic. Education of Gypsy Traveller children in the United Kingdom can be problematical and, given the nomadic nature of the community, these children inevitably receive interrupted learning with attendance records falling markedly below those of settled children.[194] The Standards in Scotland's Schools etc. Act 2000 details the rights of and duties to children in Scotland regarding education.[195] Given the interrupted learning issues affecting Gypsy Traveller children and the statutory duties on public authorities to provide educational services it is argued that there is a need to examine methods of providing distance learning, home tutoring and easy access to local schools for these children to comply with the provisions of Article 2 of Protocol No.1. It is therefore agued that there is a positive duty on local authorities to provide educational services to Gypsy Traveller children and that this duty is reinforced by the positive obligation on the State to facilitate the Gypsy way of life.

In any future cases it is also suggested that Courts should examine the provisions contained in the Framework Convention for the Protection of National Minorities regarding social and cultural life, with particular reference to Gypsy Travellers.[196]

Where the Court examines an interference with, or finds a violation of Protocol No.1, breaches of Article 14 may also be relevant. Although Article 14 cannot be applied unless taken together with another Article of the Convention, it is not necessary that the other right is violated. Article 14 can therefore be examined with any other Articles of the ECHR, as it is sufficient that a violation of Article 14 is possible in conjunction with these other Articles.[197]

e) Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms[198]

The Framework Convention for the Protection of National Minorities is unique in that it is the first multilateral instrument, legally binding member states, devoted to the protection of national minorities.[200] The United Kingdom has ratified the Framework Convention, which came into force in the United Kingdom on 1 May 1998. It should however be noted that not all member States have ratified the Framework Convention; notably Belgium, France, Greece, and Turkey have yet to ratify.

The Framework Convention contains mostly programmatic type provisions setting out objectives, which the various States undertake to pursue. There are five sections in the Framework Convention:

3) Section III, provisions concerning the interpretation and application of the Framework Convention.

4) Section IV, provisions on monitoring of the implementation of the Framework Convention.

The Framework Convention contains a number of specific principles, which may result in the future, in recommendations impacting positively on rights affecting the Gypsy Traveller community.[201] Reference is made throughout the Framework Convention to ‘national minorities’ but it deliberately does not define this term, recognising the difficulties in satisfying this definition in all member states.[202]

Prior to drafting the Framework Convention, the Council of Europe Parliamentary Assembly attempted to provide a definition of a ‘national minority’ in Recommendation 1201 (1993) - On an additional protocol on the rights of minorities to the European Convention on Human Rights:

For the purposes of this Convention, the expression ‘‘national minority'' refers to a group of persons in a state who:

c) display distinctive ethnic, cultural, religious or linguistic characteristics;

d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state;

e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.

The proposed additional protocol, referred to in Recommendation 1201 (1993), has not been adopted however Recommendation 1201 (1993) has developed into an accepted Council of Europe instrument in the context of enlargement of the Organisation.[203] It was subsequently commented, in a Committee of Ministers reply to Parliamentary Assembly Recommendation 1492 (2001), which recalled Recommendation 1201 (1993), that the general protection contained in Protocol 12 would extend to ‘national minorities’ when that Protocol was ratified.[204] Protocol 12 has however not been ratified to date by a large majority of member States of the Council of Europe.

Parliamentary Assembly Recommendation 1623 (2003), Rights of national minorities, subsequently recalled Recommendation 1492 (2001), and also made recommendations impacting on the Framework Convention. Of particular note is reference to the protection of Roma minorities envisaged in the Framework Convention:

.vi. the states parties to pay particular attention to the possibility for the most vulnerable Roma minorities to fully benefit from the protection envisaged in the framework convention.[205]

Recommendation 1623 (2003) also recommended developments in the application of the Framework Convention, Protocol 12 and European Institutions including the ECtHR and Parliamentary Assembly:

i. draft an additional protocol to the framework convention conferring on the European Court of Human Rights the power to give advisory opinions on its interpretation of the framework convention;…

iii. enhance efforts aimed at the speedy ratification of Protocol No. 12 to the European Convention on Human Rights;…

vii. revise the rules governing the monitoring procedure of the framework convention so that the advisory committee may visit any state party under consideration if it deems it necessary;…

ix. encourage the advisory committee to consider thematic issues and to comment on them, so as to assist states and minorities in developing good practices;…[206]

It is also of note that Recommendation 1623 (2003) makes no reference to ‘national minorities’ or the definition referred to in Recommendation 1201 (1993).

The United Kingdom has however ratified the Framework Convention on the understanding that its principles and the definition of ‘national minorities’ should apply to what are referred to as “racial groups” under the Race Relations Act 1976.[207]

The terminology contained within the Framework Convention creates some difficulty in interpreting definite obligations. Throughout the Framework Convention the terminology such as ‘guarantee’, ‘respect’, etc appear creating vagueness or ‘softening’ of obligations. Irrespective of the terminology used its intention cannot be ignored and, it can be strongly argued, there are definite obligations contained within the Framework Convention. The Preamble to the Framework Convention states:

‘Having regard to the commitments concerning the protection of national minorities in United Nations conventions and declarations and …… Being resolved to define the principles to be respected and the obligations which flow from them, in order to ensure, in the member States and such other States as may become Parties to the present instrument, the effective protection of national minorities and of the rights and freedoms of persons belonging to those minorities, within the rule of law,…’ [208]

The United Kingdom, it is argued, should interpret the Framework Convention having regard to the ICCPR, which it has ratified and is bound by. Having ratified the ICCPR, the United Kingdom is bound by Article 27 of the ICCPR[209], the scope of which is contained in the United Nations Human Rights Committee General Comment No.23 (1994).[210] This General Comment clearly states that there is a positive obligation on States who are party to the ICCPR to protect the rights contained in Article 27:

‘Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.’ [211]

’Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population….’ [212]

’With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.’ [213]

Despite the United Kingdom not ratifying the Optional Protocol to the ICCPR, regarding individual application, it is argued the framing of General Comment No.23 (1994) may create the possibility to progress joint rights in the United Kingdom via the Framework Convention.

Section II of the Framework Convention sets out more specific principles on a wide range of issues regarding national minorities including equality before law, promotion of full and effective equality in all areas of economic, social, political and cultural life, promotion of cultural identity, mutual understanding and respect between cultures, freedom of peaceful assembly, association, expression, and thought, conscience and religion.[214]

Article 3[215] of the Framework Convention provides scope for the development and identification of rights, however primarily identifies individual rights applicable to members of national minorities however does recognise that these individual rights can be exercised jointly with members of national minorities.[216] Reference to joint rights, in the Framework Convention, does not extend to the notion of collective rights, rather these rights can be exercised by a group bound together as a community as opposed to the notion of a ‘national minority’:

‘…the rights and freedoms flowing from the principles of the framework Convention may be exercised individually or in community with others. It thus recognises the possibility of joint exercise of those rights and freedoms, which is distinct from the notion of collective rights . The term "others" shall be understood in the widest possible sense and shall include persons belonging to the same national minority, to another national minority, or to the majority.’ [217]

This notion of a ‘national minority’ in the Framework Convention is indicative of the difficulty member States of the Council of Europe have in defining national minorities, and which may have raised difficulties to some States ratifying the Framework Convention. The joint exercise of rights, as opposed to the exercise of collective rights, contained within the Framework Convention does however present the opportunity to adopt a more holistic approach to national minority rights, enabling exercise of these rights by the whole community as opposed to the exclusive notion of collective rights, which are only exercised by members of a particular minority. The Framework Convention interpretation of the exercise of joint rights, in community with others, can therefore assist in the exercise of minority rights through multiple forms of empathic social action.[218]

Of particular importance are the provisions contained within Article 4 (2) of the Framework Convention regarding promotion of cultural life and equality.[219]

The Council of Europe has adopted a monitoring process for the Framework Convention by the Committee of Ministers, assisted by an Advisory Committee. Parties to the Framework Convention are required to file a report containing full information on legislative and other measures taken to give effect to the principles of the Framework Convention, within one year of the Convention’s entry into force in the particular party’s State. Further reports will have to be made on a periodical basis (every five years) and whenever the Committee of Ministers so requests.

The initial State Report of the United Kingdom was submitted to the Advisory Committee on 26 July 1999, and is the only State report regarding the United Kingdom to date. The Advisory Committee subsequently issued an Opinion on this report.

Several sections of the Opinion on the initial State Report are of particular importance to the Gypsy Traveller community. These include recognition of the term ‘national minority’:

14. The Advisory Committee strongly welcomes the inclusive approach of the United Kingdom in its interpretation of the term "national minority". The Advisory Committee notes that the term "national minority" is not a legally defined term within the United Kingdom, but that the State Report is based on the broad "conventional" definition of "racial group" as set out in the Race Relations Act (1976). Under this Act "racial group" is defined as "a group of persons defined by colour, race, nationality (including citizenship) or ethnic or national origin". This includes the ethnic minority communities. The Courts have furthermore interpreted the term and found it to include the Scots, Irish and Welsh by virtue of their national origin. On a case-by-case basis the Courts have also included Roma / Gypsies as well as Irish Travellers ….[220]

29. The Advisory Committee notes with concern that many of the Roma/Gypsies and Irish Travellers face considerable socio-economic difficulties in comparison to both the majority and other national minorities, in particular in the fields of education, health, employment and housing, including the availability of stopping sites (examined further under Article 5). This situation is recognised by the United Kingdom Government.

The Opinion raises other concerns regarding accommodation[221], media and education issues relating to the Gypsy Traveller community.

The Advisory Committee report was issued subsequent to the Chapman judgement and, it is contended, the report reinforces the need for a narrower interpretation of the States’ ‘margin of appreciation’ regarding planning procedures and legislation regarding the Gypsy Traveller communities in the United Kingdom. It is also arguable that, had the report been issued prior to the Chapman judgement being made, it would have informed the Court further, perhaps resulting in it finding there had been a violation of Article 8 of the ECHR.

Following the Opinion, the United Kingdom responded with ‘Comments of the Government of the United Kingdom on the Opinion of the Advisory Committee on the Report on the Implementation of the Framework Convention for the Protection of National Minorities in the United Kingdom’.[222] In this the response The United Kingdom reiterates its position on the term ‘national minority’:

III. RESPONSE TO THE “MAIN FINDINGS AND COMMENTS” OF THE ADVISORY COMMITTEE’S OPINION REPORT (Paragraphs 105 – 129)

Paragraph 106: The Advisory Committee finds that it would be possible to consider the inclusion of persons belonging to other groups in the application of the Framework Convention on an article-by-article basis and considers that the United Kingdom should examine this issue in consultation with those concerned.

The term “national minority” is not a legally recognised term within the United Kingdom. The UK Government therefore ratified the Framework Convention on the understanding that its principles should apply to what are referred to as “racial groups” under the Race Relations Act, i.e. “a group of persons defined by colour, race, nationality (including citizenship) or ethnic or national origins”. We welcome the Advisory Committee’s commendation of this wide interpretation of the Framework Convention.[223]

By this interpretation of national minority Roma and Irish Travellers are recognised as racial groups in current domestic case law, however it has been argued previously that all Gypsy Travellers qualify as a racial group and therefore should be recognised as national minorities.[224]

The United Kingdom response at paragraph 112 commented on the Advisory Committee Opinion[225] regarding the lack of sites and stopping places, detailing the provisions and policies in place to improve this situation. In this paragraph it commented on unauthorised encampment as follows:

‘Finally, the Government considers that the laws in force for dealing with unauthorised encampments are necessary and proportionate to the problems which may be caused by or associated with such

The United Kingdom Government’s response recognises the ‘national minority’ issue and details provisions being made to address the accommodation issues however, there is still, even at the time of writing this thesis, a lack of available accommodation for Gypsy Travellers.[227] This, accompanied with the opinion of the United Kingdom Government, that current legislation is proportionate and necessary to deal with unauthorised encampments, may result in further social exclusion of the community or make it impossible to continue a nomadic lifestyle.

It is also of note that the United Kingdom Government’s response makes no reference to the lack of available accommodation, the effect of this lack on inhibiting nomadism and the impact this has on the development of Gypsy Traveller culture.

The Framework Convention for the Protection of National Minorities represents substantial progress in the rights of national minorities within the member states who have ratified the Convention. The United Kingdom has done so and has partially addressed the content of the Framework Convention in domestic legislation and policies. There does however appear to be a lack of appreciation of Gypsy Traveller culture in domestic policy making which is reflected in the United Kingdom Government’s response to the Advisory Committee Opinion.

To date there is little case law referring to the Framework Convention however the few United Kingdom ECtHR cases regarding Gypsies are the main area in which it has been referred to, and examined briefly by the Court.

The applicant in the combined case Chapman v. United Kingdom [228] made submissions regarding the Framework Convention, arguing it narrowed the States ‘margin of appreciation’ .[229] The Court disagreed with this submission and permitted the State a wide ‘margin of appreciation’.[230]

It is argued that had the Court in the Chapman case taken cognisance, in full, of the Framework Convention it would have adopted a far narrower view of the States ‘margin of appreciation’ and not adopted a ‘strictly supervisory role’ commented on in its judgement regarding environmental protection issues. In doing so it is arguable that the outcome of the case would have been in favour of the applicant regarding a violation of Article 8 of the ECHR. It should however be commented that the lack of enforcement measures does restrict the impact of the Framework Convention and weakens its effect. The Framework Convention still has its strengths one of which lies in the ‘programme-type’ provisions regarding minority rights and the Advisory Committee opinions on how States, who have ratified the treaty, are applying these provisions. Whilst application of the provisions may take some time, none the less they do ultimately progress minority rights.

Arguably one of the most important effects of the Framework Convention is in the accession process of new member States to the EU / EC. Currently several East European States, including Bulgaria and Romania, await entry to the EU/ EC who have poor minority rights records, particularly regarding Roma minorities in their respective States.

The European Parliament has issued several briefing notes regarding accession of new States and has stated:

Many of the applicant countries have minority populations, whose satisfactory integration into society is a condition for democratic stability. The Framework Convention for the Protection of National Minorities…safeguards the individual rights of persons belonging to minority groups….[231]

Perhaps this may prove to be the true strength of the Framework Convention in the future, creating a foundation for minority rights in new member States to the EU / EC.

The Framework Convention highlights a number of issues regarding Gypsy Travellers and other national minorities’ rights and obligations in the United Kingdom.

1) The terminology within the Framework Convention creates some difficulty in interpreting obligations towards minorities. The terminology creates vagueness and a potential ‘softening’ of obligations. Irrespective of this terminology it cannot be ignored and it can be argued there are developing obligations contained within the Framework Convention.

2) The Preamble to the Framework Convention states that regard will be given by States party to the Framework Convention regarding UN Conventions and declarations, concerning the protection of national minorities. The United Kingdom has ratified the ICCPR and is therefore bound by Articles 26 and 27 of the ICCPR regarding minority rights, with Article 27 being reinforced by the contents of United Nations Human Rights Committee General Comment No.23 (1994). This reinforces application of the rights contained within the Framework Convention in the United Kingdom.

3) The references to ‘national minorities’ in the legislation and acknowledgement by the United Kingdom that this refers to those minorities defined as a ‘racial group’ within the Race Relations Act 1976 is positive and immediately recognises Irish Travellers and Roma as national minorities following domestic case law. It has been argued previously that all Gypsy Travellers qualify as a ‘racial group’ and therefore ‘national minorities’.

4) The Framework Convention, whilst recognising individual rights of ‘national minorities’, also recognises the development of joint rights for those ‘national minorities’, in that it recognises the potential for joint exercise of those rights. This presents the opportunity to adopt a more holistic approach to national minority rights, enabling exercise of these rights with the whole community. The Framework Convention interpretation of the exercise of joint rights in community with others can therefore assist in the exercise of minority rights through multiple forms of empathic social action.

5) It can be strongly argued that the Framework Convention should narrow the Courts interpretation of the States ‘margin of appreciation’ regarding its interpretation of planning legislation and policies being applied to Gypsy Travellers. This is particularly relevant in light of the Courts recognition that nomadism is part of Gypsies’ ethnic and cultural identity.

The Framework Convention represents a developing treaty that has the potential to progress Gypsy Traveller rights in the United Kingdom in the future. Whilst the implementation of the recommendations contained in Recommendation 1623 (2003) are uncertain at present, the proposal to progress an additional protocol to the Framework Convention conferring powers on the ECtHR to give advisory opinions on its interpretation of the framework convention represents a positive development in the Framework Convention and ECtHR jurisprudence, if successful.

The European Social Charter (ESC) is designed to ensure that State parties to the Charter guarantee fundamental social and economic rights. The United Kingdom is a signatory to, and has ratified the ESC, which entered into force on 26 February 1965. The ESC contains provisions designed to ensure that State parties to the Charter respect the obligations they have undertaken by means of a supervisory system of national reports.

The Preamble to the ESC prohibits discrimination in the implementation of the rights it protects:

‘Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin;’ [233]

The ESC guarantees nineteen fundamental social and economic rights, and stipulates that any State wishing to become a Party must undertake to be bound by at least ten Articles (out of nineteen) or forty five numbered paragraphs of Part II of the ESC.[234] Of the seven Articles regarded as particularly significant each Party must accept at least five.[235] These particularly significant Articles include the rights, to work[236], organise[237], bargain collectively[238], social security[239], social and medical assistance[240], of the family to social, legal and economic protection[241], of migrant workers and their families to protection and assistance.[242]

The main right contained within the seven particularly significant Articles affecting Gypsy Traveller rights is Article 16, the right to the social, legal and economic protection of the family.[243]

The obligation to promote the provision of ‘family housing’ is of particular importance regarding the housing needs unique to Gypsy Travellers.

The United Kingdom, in a Declaration[244] dated 21 August 1989, has agreed to be bound by Article 16 of ESC.

The ESC however has no direct enforcement mechanism regarding States’ compliance with their respective obligations undertaken under the ESC. The supervision mechanism consists of national reports[245] submitted every two years for examination by a Committee of Experts.[246] The conclusions of the Committee of Experts, national report and conclusions of the Sub-committee of the Governmental Social Committee, are subsequently reported to the Committee of Ministers who may make recommendations to individual States who are Party to the ESC.[247]

The ESC therefore has no direct application in the United Kingdom rather domestic legislation is altered in accordance with the recommendations of the Committee of Ministers. It is regrettable that the enforcement mechanism is so apparently weak for non-compliance with the ESC, which has resulted in continual non-compliance by States regarding some recommendations.

On 1 July 1998, Additional Protocol to the European Social Charter Providing for a System of Collective Complaints[248], entered into force. The United Kingdom is not a signatory to this Protocol however the content of the Protocol is potentially important regarding Gypsy Traveller rights. The Protocol is designed to improve the effective enforcement of rights contained within the ESC by allowing specified social partners and International Non Governmental Organisations (INGO’s) to submit collective complaints regarding unsatisfactory application of ESC rights.

The Contracting Parties to this Protocol recognise the right of the following organisations to submit complaints alleging unsatisfactory application of the Charter:

…. b. other international non-governmental organisations which have consultative status with the Council of Europe and have been put on a list established for this purpose by the Governmental Committee;…

The Governmental Committee of the Council of Europe has considered that the European Roma Rights Centre (ECCR) is an INGO which is entitled to submit collective complaints.[249]

If the United Kingdom were to become a Party to this Protocol it would assist greatly in the development of Gypsy Travellers rights contained within the ESC, by enabling INGO’s such as the European Roma Rights Center to pursue collective complaints regarding Gypsy Traveller rights.

The European Committee of Social Rights Committee of Independent Experts has examined one complaint[250] involving Roma rights regarding breaches of Article 16 and the non-discrimination provisions within the preamble of the ESC:

‘The ERRC alleges that Greece discriminates against Roma in the field of housing with the result that the Roma population is segregated in housing matters, often forcibly evicted and lives in substandard conditions contrary to Article 16 read in conjunction with the non-discrimination clause of the Preamble to the Charter.’ [251]

Following examination by the European Committee of Social Rights, committee of independent experts, the complaint was found admissible and, at the time of writing this thesis, the public hearing examining the complaint had not commenced.

The ESC therefore has relevance to Gypsy Traveller rights and the potential to impact on the accommodation needs of this community. Article 16 creates an undertaking on the United Kingdom regarding the promotion of ‘the economic, legal and social protection of family life by such means as … provision of family housing,…’. Which is reinforced by the provision of non-discrimination in social rights contained in the Preamble to the ESC.

These rights could be additionally reinforced if the United Kingdom became a Party to the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, as discussed above.

The European Social Charter (Revised) (ESC(R)) entered into force on 1 July 1999, however the United Kingdom has not signed or ratified the revised Charter and is therefore not a Party to this legislation.

The ESC(R) takes account of developments in labour law and social policies, which have occurred since the ESC entered into force. Additionally the ESC(R) includes a system of collective complaints, similar to that detailed in the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, within the ESC.

Similarly to the European Social Charter, the ESC(R) has no enforcement mechanism regarding Party States. The supervision mechanism is similar to that contained within the ESC[253] detailed in the last section. Similarly to the ESC the Committee of Ministers may make recommendations to individual States who are Party to the ESC(R).

The main Articles in the ESC(R) which are significant to Gypsy Traveller rights are the rights to protection from poverty or social exclusion, housing and the reinforcement of non-discrimination regarding rights contained within the ESC(R).

The protection from poverty and social exclusion provided in Article 30[254] defines the term ‘poverty’ in this context as ‘…persons who find themselves in various situations ranging from severe poverty, which may have been perpetuated for several generations, to temporary situations entailing a risk of poverty.’.[255]

The term ‘social exclusion’ in this context is defined as ‘…persons who find themselves in a position of extreme poverty through an accumulation of disadvantages, who suffer from degrading situations or events or from exclusion…’.[256]

It is argued, given the available evidence,[257] that the majority of the Gypsy Traveller community qualify as persons in severe poverty and subject to social exclusion. Article 30 offers Gypsy Travellers the possibility, as a community where the majority live in poverty and suffer social exclusion, access to housing, education and cultural rights.

Article 31[258] creates the potential for Gypsy Travellers to obtain adequate housing:

‘…this provision obliges Parties to take measures in so far as possible aiming to progressively eliminate homelessness, to promote access to housing of an adequate standard and to make the price of housing accessible to those without adequate resources. By housing of an "adequate standard" is meant housing which is of an acceptable standard with regard to health requirements.’.[259]

It is argued therefore that the Gypsy Traveller community have a right to appropriate housing, education and culture as detailed in Articles 30 and 31 of the ESC(R).

The ESC(R) also reinforces the non-discrimination provisions contained in the Preamble to the ESC.[260]

It is strongly argued that the provisions contained within the ESC(R) create obligations and duties on Party States to provide housing, education and cultural opportunities for the Gypsy Traveller community, which are reinforced by the non-discrimination provisions contained in Part V, Article E.

The ESC(R) additionally also provides the opportunity to progress collective complaints, as detailed in the foregoing section, enabling International Non-Governmental Organisations to progress complaints regarding Party States non-compliance with their respective undertakings under the ESC(R).[261] The ability to progress collective complaints regarding Gypsy Travellers’ rights represents an opportunity to make considerable progress in the development of those rights contained within the ESC and ESC(R).

The recognition of the European Roma Rights Centre as an INGO entitled to submit collective complaints has resulted in such a complaint regarding Gypsy Traveller rights contained in the ESC(R), in Party States.[262]

The State supervisory mechanism, contained within the ESC(R), should potentially ensure that domestic legislation and policies should ultimately comply with the respective Party Sates undertakings contained within the ESC(R). It is however regrettable that the enforcement mechanism is apparently weak for non-compliance with the ESC(R), which has resulted in continual non-compliance by States regarding some recommendations.

In conclusion, the ESC(R) represents progress in the rights contained within the ESC and it is regrettable that the United Kingdom is not a Party to the revised Charter. It is argued that if the United Kingdom become a party to the ESC(R) it would ensure the development and progress of Gypsy Traveller rights regarding social exclusion, housing and non-discrimination contained within the ESC(R), in the United Kingdom. The ability to progress collective complaints regarding rights contained within the ESC(R) represents the opportunity for minority communities, such as the Gypsy Traveller community, with low literacy skills and educational attainment the opportunity to have their rights progressed by INGO’s such as the ERRC.

The Council of Europe Parliamentary Assembly is one of the two statutory organs of the Council of Europe, which is composed of a Committee of Ministers and an Assembly representing the political forces in its member states. The statutory aim of the Council of Europe is to achieve greater unity among its members through common action, agreements and debates. The conditions for membership are a pluralistic democracy, the rule of law and respect for human rights. The United Kingdom is a member state of the Council of Europe and represented on the Parliamentary Assembly.

Parliamentary Assembly Recommendations contain proposals addressed to the Committee of Ministers, the implementation of which are beyond the competence of the Assembly however within the competence of governments.

In February 1993, the Parliamentary Assembly adopted Recommendation 1203 (1993)[263] on Gypsies in Europe, which is not directly enforceable in member states. This Recommendation is important, making several observations and recommendations regarding Gypsies. In its general observations it states:

1. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today.

human rights and their rights as a minority is essential to improve their situation.

8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights.

The Council of Europe recognise, in Recommendation 1203 (1993), the vulnerability of Gypsies and Travellers and the need for special consideration regarding their status throughout Europe.

In April 2002, the Parliamentary Assembly adopted Recommendation 1557 (2002)[264] on the legal situation of Roma in Europe. This Recommendation has similar application to member States as Recommendation 1203 (1993) and similarly is an important text making several observations and recommendations regarding Gypsies.[265]

The Parliamentary Assembly recognises, in Recommendation1557 (2002), that Roma are still subject to discrimination and are a marginalized community.[266] Additionally it states that Roma are also recognised as:

‘…a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society.’ [267]

The Parliamentary Assembly, in Recommendation1557 (2002), recognises that the Council of Europe has an important role to play in improving the legal status and living conditions of Roma and makes many recommendations for action by member States.

i. to recognise Romany individuals as members of an ethnic or national minority group;…

v. to sign, ratify and fully implement the Framework Convention for the Protection of National Minorities …

c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. …

d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing:…

f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels:

i. to enact and enforce comprehensive anti-discriminatory legislation in the member states with regard to Roma;

ii. to ratify Protocol No. 12 to the European Convention on Human Rights, if they have not already done so, as a matter of priority;…

iv. to enact and enforce comprehensive anti-discrimination legislation in the member states, in harmony with European Council Directive 2000/43/EC “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin”, as the benchmark guidelines on anti-discrimination law in all European states;…

ix. to ensure that the full scope of the rights envisaged in the European Convention on Human Rights, as well as the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol, are applied to Roma without discrimination.

The Council of Europe recognised, in Recommendation 1557 (2002), the continuing vulnerability of Gypsies and Travellers and the lack of progress since Recommendation 1203 (1993).

The European Commission against Racism and Intolerance (ECRI) was set up following a decision of the 1^st Summit of Heads of State and Government of the member States of the Council of Europe, held in Vienna in October 1993, and strengthened by a decision of the 2^nd Summit held in Strasbourg in October 1997.

The task of the ECRI is to combat racism, xenophobia, anti-semitism and intolerance at the level of greater Europe and from the perspective of the protection of human rights.

The Council of Europe Committee of Ministers Resolution[269] specifies the role to be adopted by the ECRI:

ECRI shall be a body of the Council of Europe entrusted with the task of combating racism, racial discrimination, xenophobia, antisemitism and intolerance in greater Europe from the perspective of the protection of human rights, in the light of the European Convention on Human Rights, its additional protocols and related case-law. It shall pursue the following objectives:

- to review member states' legislation, policies and other measures to combat racism, xenophobia, antisemitism and intolerance, and their effectiveness;

- to study international legal instruments applicable in the matter with a view to their reinforcement where appropriate.

ECRI, General Policy Recommendation No. 3[270], is titled ‘Combating racism and intolerance against Roma/Gypsies’.

This text makes several recommendations to address racism and discrimination towards Roma and Gypsies:

‘…to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of employment, housing and education;…’

‘… to render illegal any discrimination on the part of public authorities in the exercise of their duties;…’

‘…to take the appropriate measures to ensure that justice is fully and promptly done in cases concerning violations of the fundamental rights of Roma/Gypsies;…’

Recommendation No. 3 represents a text, which can be considered by Courts in deciding ‘proportionality’ and ‘necessity’ issues when considering judgements.

As in most other European countries, Roma / Gypsies and Travellers in the United Kingdom suffer from discrimination and disadvantage in vital areas such as education, employment and housing. As concerns education, ECRI urges the authorities to ensure that public funds targeted to improve educational levels of ethnic minorities make adequate provision for Roma / Gypsy and Traveller children as well… ECRI also expresses concern at reports of forced evictions of Roma / Gypsy families from illegal sites. ECRI understands that the British authorities are taking steps to remedy this situation. To the extent that such evictions reflect a shortage of legal camps, ECRI urges the British authorities to ensure that local authorities make adequate provision of campsites throughout the country.[272]

Whilst the Parliamentary Assembly and ECRI cannot enforce their recommendations, individual States can take cognisance of the content. It is therefore suggested that the content of Recommendation 1203 (1993), Recommendation 1557 (2002) and Recommendation No. 3 should all inform decision making in domestic Courts and are texts that the ECtHR should take cognisance of regarding ‘proportionality’ and the States ‘margin of appreciation’, when considering their respective judgements in relevant cases regarding Gypsy Traveller rights. These Recommendations publicise and raise awareness of the issues impacting on the Gypsy Traveller community stressing and reinforcing the need for respect of their rights and the need for a guarantee of equality.

Following the creation of the European Community, there was an initial reluctance by the European Court of Justice (ECJ) to develop human rights as a general principle of European Community law.[273] However gradually fundamental human rights have become accepted as a concept within European Community jurisprudence. Further initiatives within the European Community / European Union have centred on two methods, accession to the ECHR or development of a European Constitution. Both methods have generated debate on human rights however have not been fully implemented, due to a lack of legal basis for accession of the ECHR and a lack of consensus between States regarding a European Constitution.[274]

The concept of fundamental human rights was developed by the ECJ in the Internationale Handelsgesellschaft [275] case, which clarified the significance of Member States’ constitutions regarding fundamental human rights and declared that these rights should be ensured within the Community.[276]

The ECJ indicated the significance of the constitutions of Member States and the influence of international Treaties in establishing fundamental human rights in Community law in the case Nold v Commission [277]:

‘Fundamental rights are an integral part of the general principles of law the observance of which the Court ensures. In safeguarding these rights the Court is bound to draw inspiration from the constitutional traditions common to the member States and cannot uphold measures which are incompatible with the fundamental rights established and guaranteed by the constitutions of these States. Similarly, international Treaties for the protection of human rights, on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.’ [278]

Subsequently in the case Johnston v Chief Constable of the RUC [279] the ECJ took the ECHR into consideration in its judgement.[280]

The Court further stated in the case Friedrich Kremzow v Republik Österreich,[281] that the ECHR had special significance for the Court when considering Community law:

‘… fundamental rights form an integral part of the general principles of Community law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The Convention has special significance in that respect. As the Court has also held, it follows that measures are not acceptable in the Community which are incompatible with observance of the human rights thus recognized and guaranteed ….’ [282]

These principles have been restated in Article 6 of the Treaty on European Union.

The Court has also taken account of international Treaties including the International Covenant on Civil and Political Rights (ICCPR) when considering fundamental rights and Community law. In the case of Grant v South-West Trains

‘The Covenant is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law ….’ [284]

It is therefore the case that human rights law is an indirect source of European

Community law with the ECHR and individual States’ constitutions ‘informing’ and ‘guiding’ the ECJ regarding EC law. The Court is not however bound by these

provisions. The European Council recognised a need to increase the awareness and visibility of fundamental rights to EU citizens and in June 1999 the European Council decided there was a need to establish the Charter of Fundamental Rights of the European Union. This text sets out the whole range of rights of European citizens.[285]

Following the decision to establish the Charter of Fundamental Rights of the European Union, the E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) was created by the European Commission and introduced in September 2002, in response to a recommendation in the European Parliament's report on the state of fundamental rights in the European Union (2000).[286] Its objective is to ensure a high degree of expertise in relation to each of the Member States and the European Union as a whole regarding fundamental rights. The network consists of one expert per Member State and is headed by a coordinator.

European Union and its Member States, assessing the application of each of the rights set out in the European Union's Charter of Fundamental Rights.

2. To provide the Commission with specific information and opinions on fundamental rights issues, when requested.

3. To assist the Commission and the Parliament in developing European Union policy on fundamental rights.

The E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF), is effectively a monitoring mechanism regarding fundamental rights in the EU.

The following EU / EC Treaties and texts are considered in this thesis as those which have impacted or can potentially impact on human rights issues relative to the European Union:

The Treaty on European Union (TEU) is one of several instruments that have revised the Treaties forming the European Community. It has further defined the role and responsibilities of EU institutions and bodies involved in decision-making processes along with the legislative, executive and juridical procedures, which characterise Community law and its implementation.

In 1997, the Treaty of Amsterdam[291] amended the Treaty on European Union, the Treaties establishing the European Communities and certain related acts. The Treaty was designed to create the political and institutional conditions to enable the European Union to meet the challenges of the future such as the rapid evolution of the international situation, the globalisation of the economy and its impact on jobs, the fight against terrorism, international crime and drug trafficking, ecological problems and threats to public health. The Treaty clarified that the European Union was founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms.

The Treaty of Amsterdam, amongst other provisions, amended Article 6 (ex Article F) of the TEU[292] to reaffirm the principle of respect for human rights and fundamental freedoms and made provision for more effective action to combat not only discrimination based on nationality but also discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

This article clearly states the European Union will respect fundamental rights, as guaranteed by the ECHR.

The TEU does also make reference to racism and xenophobia in Article 29.[293]

Whilst the TEU makes reference to fundamental human rights, the ECHR and the prevention of racism and xenophobia these references do not bind the ECJ, which remains ‘informed’ and ‘guided’ by member States constitutions and international treaties.

Whilst there is no case law regarding Gypsy Traveller rights in the ECJ, perhaps the area where these institutions can have an influence on these rights is in the accession of new member States to the EU. This is of particular reference to central and eastern European States currently applying for membership. Of importance regarding the accession of new member States to the EU are the conclusions regarding accession of Central and Eastern European States to the Community, contained in the Presidency Conclusions of the Copenhagen European Council in 1993[294]:

‘…Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, ….’ [295]

In a European Parliamentary question on the implementation of human rights strategies in accession countries and possible weak implementation an example was asked of the steps being undertaken regarding the social inclusion of Roma in Slovakia.[296]

‘…The question of social exclusion of the Roma has always been an issue of specific priority for the Commission. In this context, the acceding States are already preparing for their full participation in the Open Method of Co-ordination on issues of social inclusion as of the date of accession, through the elaboration of Joint Inclusion Memoranda (JIMs).’ [297]

Indicative of the philosophy adopted by the EU towards Roma rights is the answer provided to a parliamentary question on ‘The Question of the Roma’.[298] Where the Commission stated:

Whilst the EU may examine Roma rights relative to accession of new States there are some staggering breaches of Roma human rights taking place in some east European accession States, including States which have now become members of the EU. There is, for example, evidence of improper practices regarding the sterilisation of Roma women in the Slovak Republic without proper consent,[300] which occurred prior to the accession of this State to the EU.

An example of such improper practices is also contained in the Bulgarian case of Nachova and Others v. Bulgaria[301], the ECtHR held there had been violations of Article 2 and Article 14, regarding the killing of two Roma in Bulgaria, an accession State awaiting membership to the EU.

Whilst the EU may attempt to ensure that new member States adhere to human rights strategies, these examples, it is argued, question the true effectiveness of human rights strategies in some prospective new member States, particularly towards Gypsy Travellers. Whilst no case law has developed in the ECJ regarding Gypsy Traveller rights, the TEU recognises the importance of these fundamental rights in the EU. This recognition should hopefully ensure the development of Gypsy Traveller rights in the future.

The founding Treaties of the European Community originally contained no specific provisions on fundamental rights.

The Treaty of Amsterdam[303] however restated the principle of non-discrimination creating a new provision to the Treaty establishing the European Community (TEC), Article 13(1).[304] This amendment was not capable of being directly effective in the United Kingdom, but provided a legal base for action to combat discrimination on the grounds of racial or ethnic origin, which is wider than previous Community measures in this area. Council Directive 2000/43/EC (the Race Directive) was subsequently issued to implement the principle of equal treatment between persons irrespective of racial or ethnic origin and was implemented in the United Kingdom in July 2003. This Directive gives effect in United Kingdom law to the provisions of Article 13 of the Treaty Establishing the European Community.

The E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) stated:

‘…Since the Treaty of Amsterdam, the European Union has the power to take measures to combat discrimination based on ethnic origin. The time has come to use this power to address the special needs of the Roma….’ [305]

The enactment of Article 13 of the TEC represents an attempt to progress protection from discrimination within the European Union. It is regrettable however that it was not directly enforceable and member States have not acted swiftly to enact appropriate domestic legislation.

Council Directive 2000/43/EC provides for a minimum standard of protection from discrimination in all member states of the European Union. Following the Directive coming into force in the United Kingdom the Race Relations Act 1976 (Amendment) Regulations 2003 were enacted on 19 July 2003 to comply with the requirements of Article 13.[306]

The scope of the Directive is stated in Article 3(1).[307] One of the important developments introduced by the Directive is the shift in the burden of proof

The E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) stated:

‘… Policies should be created and implemented to address the worrying problem of racial segregation in the field of housing in some EU member States. EU institutions should play a leading role in ensuring full and equal access to adequate housing and quality education to all Roma factually residing on EU territory….

… These initiatives go beyond what is currently prescribed by Directive 2000/43/EC. They are nevertheless crucial, if we want to put an end to the entrenched discrimination – a social apartheid, in fact – of which Roma are victims in Europe today.’ [309]

The effect of the shift in the burden of proof represents progress in Race Relations jurisprudence. Prior to the Directive, under the Race Relations Act 1976, a complainer had to establish that he or she had been subjected to discrimination or harassment on the grounds of race, ethnic or national origins, the ‘relevant grounds’ contained in the legislation. Previously, a tribunal or court could only draw inferences when a respondent failed to answer a complaint or to provide a defence. The change in the burden of proof means that the complainer has only to establish, in a case of discrimination or harassment, facts which infer that he or she has been treated less favourably than another person was or would be treated on the grounds of race, ethnic or national origins, the ‘relevant grounds’. The onus is then on the respondent to prove they did not commit the act and, if there is a case to answer, and the respondent has not provided a defence or fails to respond, the tribunal or court will find against the respondent.

Proving race discrimination is difficult as cases are generally complicated and issues of discrimination rarely explicit. Prior to the change in the burden of proof it was difficult for applicants to provide direct evidence however in the cases King v Great Britain - China Centre[310] and Zafar v Glasgow City Council [311] it was held that, in some circumstances, a tribunal may infer from the facts that there had been discrimination where an employer failed to provide a satisfactory explanation of those facts. The change in the burden of proof effectively creates a statutory requirement that a tribunal will draw that inference of discrimination in these circumstances.

The full impact of the shift in the burden of proof remains to be evaluated as case law has not developed significantly at the time of writing this thesis. Given theguidelines provided in the King and Zafar cases, which have given tribunals the option to draw this inference prior to the Directive, it is unlikely that the change in the burden of proof will have a dramatic impact on discrimination cases. It is however a welcome development and it is anticipated that this measure will assist inthe progression of anti- discrimination issues in the United Kingdom, including those relative to Gypsy Travellers.[312]

In June 1999 the European Council decided that there was a need to establish a Charter of Fundamental Rights of the European Union (The Charter) in order to make their overriding importance and relevance more visible to the Union’s citizens.

‘Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.’ [314]

In June 2003, the Convention on the Future of Europe effectively agreed final drafts of the proposed Treaty Establishing a Constitution for Europe (TECE).[315] Part II of the draft Constitution contains the Charter, which sets out in a single text the whole range of civil, political, economic and social rights of European citizens and all persons resident in the European Union.

These rights are based on the corresponding fundamental rights and freedoms recognised by the European Convention on Human Rights, the constitutional traditions of the European Union Member States, the Council of Europe’s Social Charter, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties. There is however no direct remedy available from the Courts regarding interference with or breach of rights specified in the Charter of Fundamental Rights of the European Union. The Charter is designed rather as a means of making fundamental rights more visible to European Union citizens and, where a right is interfered with or a breach occurs, recourse can be made to Courts on the grounds of the particular legislation where the right is identified. Whilst the lack of enforcement mechanisms contained within the Charter may weaken its effectiveness, it remains a very significant text that embraces not only the rights contained in the ECHR but also economic and social rights contained in the Council of Europe’s Social Charters. [316]

The provisions of the Charter are equally applicable to European citizens and to all persons resident in the European Union. The E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) stated:

‘ No minority is more under threat today in Europe than the Roma people. The exclusion which they suffer extends to all rights contained in the Charter of Fundamental Rights of the European Union…’ [317]

There are several Articles, which however have particular relevance to Gypsy Travellers in the United Kingdom.

Respect for private and family life[318] within Article 7 of the Charter are detailed in Article 8 of the ECHR, which protects individuals from arbitrary interference by public authorities in the private sphere. The ECtHR examined these rights, relative to the Gypsy Traveller community, in the cases of Buckley v. United Kingdom, Chapman v. United Kingdom and Connors v. United Kingdom.[319]

The right to property is contained within Article 17 of the Charter[320] and reflects the provisions contained within Article 1 of Protocol No.1 to the ECHR. These rights, relative to the Gypsy Traveller community, were similarly examined in the combined case Chapman v. United Kingdom.[321]

Article 21 of the Charter[322], protects rights regarding non-discrimination. This Article reflects the provisions contained in Article 14, prohibition of discrimination, of the ECHR; and Article 1, of Protocol No.12 to the ECHR. These rights are similarly referred to in Parliamentary Assembly Recommendations 1203 (1993) and 1557 (2002) and Recommendation No. 3 of the European Commission against Racism and Intolerance.

Within the area of Community law, Article 29 of the TEU provides legislative recourse to prevent and combat racism and xenophobia. Similarly Article 13 of the Treaty of Amsterdam amended the TEC, provides legislative provisions within the Community to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Although Article 13 was not directly enforceable within the United Kingdom the provisions of Council Directive 2000/43/EC (the Race Directive) introduced this legislation to the United Kingdom resulting in the enactment of domestic legislation in the form of the Race Relations Act 1976 (Amendment) Regulations 2003.

Provisions within the Charter regarding cultural, religious and linguistic diversity are contained in Article 22[323] and reflect some of the provisions contained within the Framework Convention for the Protection of National Minorities.[324] This Article also reflects the provisions contained in Article 6 of the Treaty on European Union (See above).

Some relevant case law has developed with relevance to Gypsy Traveller rights and the provisions contained in Article 22 of the Charter. The combined case Chapman v United Kingdom [325] relates examining Gypsy Traveller rights relative to Articles 8 and 14 of the ECHR. The case also examined cultural diversity relative to the Gypsy Traveller community, though in the Chapman case the Framework Convention was not taken into account by the Court.

Despite the general references to protection of rights in the Charter there are however no express references to minority rights as detailed in the Framework Convention for the Protection of National Minorities. This has been interpreted as a weakness in the Charter and was commented on by the Parliamentary Assembly of the Council of Europe:

‘The Assembly also regrets that the draft charter makes no express reference to the rights of persons belonging to ethnic, religious or linguistic minorities, or indeed to the right to local and regional self-government – rights which are protected by Council of Europe instruments such as the Framework Convention for the Protection of National Minorities and the European Charter of Local Self-Government.’ [326]

Also of note are comments made regarding the need for Institutions of the European Union to be bound by the ECHR if the draft Charter is to reach its aim in protecting fundamental rights:

‘The Assembly is convinced that the aim of the draft charter, which is to enhance and make more visible the protection of fundamental rights in European Union member states, can only be reached if institutions and bodies of the European Union are bound not only by the draft charter, but also by the European Convention on Human Rights. In a democratic society, a system of checks and balances is essential….’ [327]

The Charter, at present, is included within the Treaty establishing a Constitution for Europe (TECE) and sets out existing rights enshrined in European legislation.

The debate regarding the TECE continues with varying views being held by States, from the TECE actually becoming a binding constitution to it being no more than a protocol.[328]

At present the United Kingdom government is resistant to making the Charter legally binding in the United Kingdom. In evidence to a Parliamentary European Scrutiny Committee, the Rt. Hon. Peter Hain MP stated:

‘ … We could not have agreed and still could not agree to giving the Charter full legal status and incorporation into the Treaties unless that problem of legal uncertainty and the role of the Member States was resolved. So in the working group, where Baroness Scotland represented the Government, we fought very hard and began, I think, to win the battle for ensuring that the Charter could not be legally enforceable through our domestic courts. So the working group unanimously came up with a proposition which was, essentially, British ideas to strengthen the horizontal articles in the Charter that, effectively, in simple terms, stopped it reaching down into our domestic courts and changing our domestic law…’.[329]

The horizontal Articles of the Charter referred to are contained in Articles 51 to 53.[330]

The House of Lords Select Committee on the European Union also examined the horizontal Articles within the Charter,[331] raising similar concerns regarding the potential for the Charter to extend the competency of the European Union or Community.[332]

The Charter represents a positive development in human rights law within the EU. It is unclear at the time of writing this thesis what the final status of the Charter will be. Without direct enforcement powers, it will be limited in its application, other than as a document to publicise rights available within the EU.

There is a developing obligation on member States of the EU to respect human rights within the Community. EU case law has developed slowly regarding human rights and there is a need for directly enforceable legislation to protect and ensure human rights are respected and developed by EU Institutions. By making the rights contained in the Charter enforceable, it would assist in the development of social and economic rights, which are of particular relevance to the Gypsy Travellers’ community, particularly regarding accommodation and housing rights and obligations, and fundamental human rights. At present the level of non-compliance by contracting parties with the terms of the European Social Charter’s is high with most EU Member States in breach of a number of core provisions.[333] This record of non-compliance identifies the significance the EU Charter would have, if it were to be directly enforceable. The superior enforcement mechanisms of EU law, compared with that of the European Social Charter’s, would assist in ensuring that States adhere to their respective obligations to respect social and economic rights.[334]

An enforceable Charter also enables the incorporation of ECHR rights into European Union law.[335] This, it is argued, is the most important consequence of an enforceable Charter; ensuring human rights are developed and adhered to in EU law, which would assist in the protection and development of Gypsy Traveller rights further within the EU.

Whilst not an EU or Council of Europe Institution, the Organization for Security and Co-operation in Europe (OSCE) is the largest regional security organization in the world with 55 participating States from Europe, Central Asia and North America. The Organisation is a primary instrument in early warning, conflict prevention, crisis management and post-conflict rehabilitation in its area. All members have equal standing in the Organisation, which amongst other areas regarding security, is concerned with the protection of human rights and national minorities. This organisation has produced several texts, regarding Roma and Sinti[336] issues, the latest of which presents an action plan to progress these issues.[337]

In October 2000, the Human Rights Act 1998 (the Act) was brought into force throughout the United Kingdom, having been in force in Scotland since May 1999.[338] This Act was designed to give further effect to the rights and freedoms guaranteed under the ECHR and wherever possible ensure these rights become part of the existing domestic legal system.

Section 3 [339] of the Act creates a general statutory requirement that all legislation, whether past or present, be read and given effect in a way which is compatible with the ECHR. Section 3 is effectively the prime mechanism by which Convention rights are given effect in domestic law. Compatibility with the ECHR is now secured by reading legislation in a way which gives effect to Convention rights instead of using interpretive presumption, as occurred prior to the Act.

Details of the requirements placed on any Court or Tribunal regarding the interpretation of Convention rights are contained in section 2[340] of the Act.

Similarly, requirements regarding the interpretation of legislation can be found in section 3 of the Act.

Requirements placed on the acts of relevant public authorities are contained in section 6[341] of the Act, creating an obligation for them not to act in a way that is incompatible with Convention rights.

Where a higher court[342] finds it cannot construe legislation in a way that is compatible with a Convention right it can make a declaration of incompatibility under section 4(2)[343] of the Act, resulting in the particular legislation being referred back to the Executive to consider and rectify defects or areas of non-compatibility in the legislation.

ECHR, a higher court may issue a declaration of incompatibility regarding ECHR rights.[344] The court must still however give primacy to the particular statute being considered in the particular case. A domestic Court or Tribunal when determining a question, which has arisen in connection with a Convention right, must take into account the jurisprudence of the ECtHR, Opinion or Decision of the Commission and evidence of applicable judgement, decision, declaration or opinion of a domestic Court or Tribunal.[345] This method of interpretation by domestic courts recognises that the jurisprudence of the ECtHR represents a minimum standard and States should have a certain amount of freedom to implement this jurisprudence. The doctrine of ‘margin of appreciation’ is applied by the ECtHR; to allow national/State institutions a degree of flexibility; and permit the ECtHR to give weight to local political and cultural traditions and take into account geographical, cultural, philosophical, historical and intellectual differences between the judges of the ECtHR and local institutions.[346]

The main effect intended by the Act is to extend and give further effect to Convention rights in all domestic cases where Convention rights are in question.

There are however restrictive provisions contained within the Act in Section 7(1) and (3),[347] where it states proceedings can only be brought by a person who is or would be a victim of the violation. This effectively forbids/prevents any collective action by a group or organisation in domestic courts but not joint action by separate individual persons, each of whom is a victim.[348]

In Scotland the application of the Human Rights Act 1998 has also had an impact on the legislative powers of the Scottish Parliament regarding its legislation and the powers of the Scottish Executive regarding its subordinate legislation, since the enactment of the Scotland Act 1998. Unlike Westminster legislation, the provisions of the Scotland Act 1998 create a situation in which a court, considering primary[349] or subordinate[350] legislation, finds it to be incompatible with the ECHR, must effectively declare the legislation ‘not law’ in the particular case and circumstances being considered. This widens the power of the Courts greatly in comparison with English Courts where the legislation remains law until amending legislation is enacted. The implications for legislation originating in the Scottish Parliament and subordinate legislation originating in the Scottish Executive are wide reaching, with the possibility of Courts declaring Scottish Parliament legislation ‘not law’ as detailed in sections 29(1) of the Scotland Act 1998.

It is therefore the case that, the Scotland Act 1998 creates a duty on the Scottish Executive not to create (subordinate) legislation that is incompatible with Convention rights. It also creates a duty on the Scottish Executive not to create policies that are incompatible with Convention rights and imposes corresponding duties on the Scottish Parliament.

To date there have been few challenges to Acts of the Scottish Parliament and none have been successful:

· The lawfulness of detention was examined in the case Anderson v Scottish Ministers,[351] regarding the detention of persons considered necessary to protect the public from serious harm. It was argued that the Mental Health Public Safety and Appeals (Scotland) Act 1999, was inconsistent with Article 5 of the ECHR. The Privy Council declared that the legislation was compatible holding that the right to liberty enshrined in Article 5 is not absolute. Exceptions arise where social policy comes into play and a fair balance has to be struck between the interests of the community in protecting the lives and health of members of the public and the individual rights of restricted patients.

· The issue of retrospective penalties for criminal offences was examined in the case Flynn & Ors v. Her Majesty's Advocate (Scotland)[352]regarding the imposition of heavier penalties on prisoners following the enactment of the Convention Rights (Compliance) (Scotland) Act 2001. It was held by the Privy Council that the legislation was compatible with Article 7 of the ECHR. However, the case was referred to the High Court for reconsideration of the punishment part of the sentence.

· Attempts were made to widen the interpretation of Article 8 rights regarding private life, to include participation in fox hunting, in the case Adams & Ors.[353] This case also questioned the compatibility of the Protection of Wild Mammals (Scotland) Act 2002, which was held to be compatible with the ECHR. A petition for judicial review of the legislation was found to be incompetent by the Court.

There have been few challenges to Scottish Executive subordinate legislation or policies:

· The one successful challenge to date relates to ‘slopping out’ in Scottish prisons. In the case Napier v The Scottish Ministers [354] the compatibility of this policy with Article 3 of the ECHR was challenged successfully at the first instance.

Whilst the Scotland Act 1998 applies to devolved legislation the Act contains a number of reserved matters that are outwith the competency of the Scottish Parliament and Scottish Executive. These are detailed in Schedule 5 of the Act and include Equal Opportunities, encompassing all four discrimination Acts. These reserved matters are subject to the process applicable to Westminster legislation.

Since the enactment of the Human Rights Act 1998, case law concerning Convention rights relative to Gypsy Travellers has continued solely in English and Welsh cases. The majority of these cases similarly relate to unauthorised encampment, housing and breaches of planning legislation. Despite these cases being only persuasive in Scots law, they do provide a reference point on the development of the law in England and Wales regarding Gypsy Travellers rights relative to policy development on Gypsy Traveller issues. This is important in Scotland as, only now is the Scottish Executive embarking on new management policies regarding the Gypsy Traveller community[355]. Examination of the developing case law in England and Wales can therefore inform and ensure Scotland implements policies that progress Gypsy Traveller rights, avoiding the breaches of these rights that have occurred there.

Accommodation provision for Gypsy Travellers has been a major issue nationally with a large shortfall in available suitable accommodation or sites. Provision of suitable accommodation it is strongly argued, is a major factor in ensuring Gypsy Traveller rights and to minimise the tensions and friction between the Gypsy Traveller and settled communities. In 1994, legislation was enacted to reform the Caravan Sites Act 1968, which had placed a duty on local authorities to provide accommodation for Gypsy Travellers. The Criminal Justice and Public Order Act 1994 (CJPOA) effectively criminalised the Gypsy Traveller way of life, removing any requirements on local authorities to provide suitable sites for Gypsy Travellers. The removal of this requirement, given the lack of available sites, inevitably led to a rise in unauthorised encampments, which could result in criminal sanctions following the enactment of the CJPOA.

Perhaps the true nature of the purpose of the legislation can be gleaned from the title of a news release issued at the time of the consultation paper regarding the legislation, which also accompanied the consultation paper:

‘New proposals to curb illegal camping by gypsies and travellers’.[356]

“We believe that if the duty to provide accommodation is removed and new criminal laws are introduced for unlawful camping, there is a danger that it would be impossible for gypsies and others to pursue a nomadic existence within the law. This raises important considerations under international agreements as to the rights of nomadic persons – a matter which is not addressed in the consultation paper. In the case of G & E v. Norway [358] concerning Lapps, the European Commission expressed the opinion that: ‘Under Article 8, a minority group is, in principle, entitled to claim the right to respect for the particular lifestyle it may lead as being private life, family life, or home.’. Article 8 must be read in conjunction with article 14, which forbids discrimination in the enjoyment of the Convention rights and freedom by, inter alia, minorities.

“There is therefore an important question of whether the present proposals strike at the very core of the distinctive lifestyle of nomadic persons to such an extent that they are incompatible with the protections afforded by the European Convention. Moreover, we question whether proposals which single out a group of persons for special criminal sanctions is not in contravention of the Committee of Ministers’ Recommendation [359] ‘In their law and practice regarding the movement and residence of persons, states should refrain from any measures which would lead to discrimination against nomads for reasons of their nomadic lifestyle’ ”.

It is observed in the following discussion of the relevant case law that many, if not all, of the issues raised and criticised by JUSTICE have occurred.

The CJPOA created several powers and offences relating to local authorities that are applicable only in England and Wales including sections 77 and 78, the power of local authorities to direct or remove unauthorised campers and their vehicles from land (See Appendix 3). The main powers applicable to local Police Forces throughout the United Kingdom are contained in sections 61 and 62 of the CJPOA, the power to remove trespassers and seize their vehicles from land (See Appendix 3).

Given the removal of the statutory duty on local authorities, contained in the Caravan Sites Act 1968, to provide accommodation for Gypsy Travellers, the powers contained within the CJPOA resulted in several court cases regarding unauthorised encampment. Almost in tandem however, a management policy regarding unauthorised encampment[360] was issued by the Department of Environment. This policy considerably ‘softened’ the effect of the provisions contained in the CJPOA detailing a toleration policy towards Gypsies on unauthorised encampments.

Prior to the enactment of the Human Rights Act 1998, unsuccessful challenges were made in the ECtHR on ECHR grounds regarding violation of Articles 8 and 14.[361]

Domestic case law did however develop regarding unauthorised encampment. In the cases R. v. Lincolnshire CC Ex p. Atkinson [362] and R. v. Wealden DC Ex p. Wales [363] judicial review occurred of the particular local authorities’ use of the powers contained in section 77 of the CJPOA (applicable only in England and Wales) regarding unauthorised encampments. The Court held that prior to using these powers ‘considerations of common humanity’ should be undertaken prior to enforcement. In the Wealden case it was stated:

"The die is cast by the giving and service of a removal direction. Not only does this criminalize anybody who, knowing of it, fails to go or, having gone, returns to the site; it has and is intended to have the effect of making people leave rather than face criminal prosecution under section 77 (3) or eviction following a removal order under section 78. The evidence is, as one would have expected, that in many cases the giving and service of a removal direction causes the illegally encamped travellers to go. Even if this is the effect on a minority of them, there is even a possibility that among them will be some of the most vulnerable - those who are in need of medical or social services or have sick or disturbed children and who, for that very reason, cannot risk the trauma of forcible eviction. This is why in my judgment Mr Watkinson is correct in his submission that it is at the initial stage of deciding whether or not to give a removal direction, and to whom to give it, that it is necessary for the local authority to consider the relationship of its proposed action to the various statutory and humanitarian considerations which will be called into play, and to make both provision and decision accordingly." [364]

In the case of R. v. Brighton and Hove BC Ex p. Marmont, [365] regarding the removal of an unauthorised encampment, the Court stated the importance of humanitarian considerations when considering removal of such encampments:

‘…that these are considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security.’ [366]

Domestic courts continued to examine cases of unauthorised encampment and, following the enactment of the Human Rights Act 1998, alleged breaches of the ECHR rights relative to unauthorised encampment were also examined in these courts.

In the appeal case Clarke v. Secretary of State for the Environment Transport and the Regions, [367] some interesting and important developments can be examined regarding Gypsy Traveller rights. The case related to the establishment of mobile homes in an area of land owned by Gypsy Travellers that was not part of a designated Green Belt area but considered a special landscape area. Planning Inspectors had raised objections to the development and the case related to an appeal under section 288 of the Town and Country Planning Act 1990. The Gypsy Traveller's case was that the Planning Inspector, in breach of Articles 8 and 14, took into account, in his planning decision, a previous offer by the local Council to the Gypsy Traveller and his family of conventional housing accommodation. The judgement stated in conclusion that there could be, and potentially was in this case, a breach of Article 8 and 14:

‘… in my judgment, in certain appropriate circumstances it can amount to a breach of Articles 8 and 14 to weigh in the balance and hold against a Gypsy applying for planning permission, or indeed resisting eviction from Council or private land, that he or she has refused conventional housing accommodation as being contrary to his or her culture. Such circumstances, in my judgment, are and should be, limited, just as they are if, for example, it is to be alleged similarly to be impermissible, in relevant circumstances, to hold it against or penalise a religious or strictly observant Christian, Jew or Muslim because he or she will not, and thus cannot, work on certain days, or to hold it against, or penalise, a strictly observant Buddhist, Muslim, Jew or Sikh because he eats or will not eat certain foods, or will or will not wear certain clothing. It is not, and cannot be, a formality to establish this, and the onus is upon the person such as a Gypsy who seeks to establish it.’ [368]

The judgement made comment on the provision of conventional housing to a Gypsy as an alternative to the unauthorised encampment as follows:

‘...if such be established then, in my judgment, bricks and mortar, if offered, are unsuitable, just as would be the offer of a rat infested barn. It would be contrary to Articles 8 and 14 to expect such a person to accept conventional housing and to hold it against him or her that he has not accepted it, or is not prepared to accept it, even as a last resort factor.’ [369]

The case is important in recognising the potential aversion to conventional accommodation Gypsy Travellers may have, and the recognition that a caravan is part of the community’s ethnic or cultural identity. The appeal was quashed and the case returned for a formal hearing to consider the points raised above.

The case of South Buckinghamshire D.C. v. Porter [370] concerned an appeal case regarding the grant of an injunction under section 187B of the Town and Country Planning Act 1990. The facts of the case related to Gypsies living in mobile homes on land in breach of planning controls. At the initial case granting the injunction the judge relied on a narrow interpretation of the legislation and granted an injunction ignoring any Convention rights applicable to the occupants. The appeal case examined the circumstances surrounding the granting of the original injunction and considered that the narrow interpretation contained within previous case law,[371] which predated the Human Rights Act 1998, could not now be considered consistent with the court’s duty under section 6(1) of the Human Rights Act 1998.

‘Relevant too will be the local authority’s decision under s. 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.’ [372]

‘However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court’s duty under s.6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gypsy’s private life and home and the retention of his ethnic identity – are at

The South Bucks case is authority for the proposition that, within the planning process, the court is not entitled to substitute its own independent view of the planning merits of the case but must consider a number of other factors[374] to assess the ‘necessity’ and ‘proportionality’ of granting injunctive relief, including:

vi) Whether conventional enforcement measures have failed over a prolonged period of time to remedy the breach.

x) The previous planning history of the site including how recent the history may be.

xi) The extent to which considerations of hardship and availability of alternative sites were taken into account and the strength of the conclusions reached on land use and environmental issues.

xii) Whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

The Porter case is important in establishing that far more careful consideration should be given before measures are taken against Gypsy Travellers regarding unauthorised encampments. By doing so the ‘proportionality’ and ‘necessity’ of the particular action will be reinforced ensuring compliance with the rights contained within the ECHR. This judgement was appealed to the House of Lords in the consolidated appeal case South Bucks District Council (Appellants) v. Porter and another (FC) (Respondents)[375] in which the original court judgement was upheld.

South Bucks District Council did however appeal against the decision to the Court of Appeal in the case South Buckinghamshire District Council v. Secretary of State for Transport, Local Government and the Regions [376] on the grounds that the Planning Inspector had failed to conduct a clear analysis of the main issue of the case or take account of the unlawfulness of the occupation of the site. South Bucks District Council were successful in this appeal and the Court quashed the planning permission previously granted. Porter appealed again regarding this decision in the case South Bucks District Council and another (Respondents) v. Porter (FC) Appellant [377] when the Court dismissed the decision of the previous appeal and restored the planning permission.

In the case Fuller & Others v. CC of Dorset Police, [378] relating to an unauthorised encampment of New Age Travellers, the court examined the compatibility of section 61 of the CJPOA (See Appendix 3), with Articles 3, 6, and 8 of the ECHR and Article 1 of the First Protocol. The circumstances of the case related to an unauthorised encampment of New Age Travellers, where some criminal activity had occurred, who had been served with notice to leave the land by local police and the local authority simultaneously. Additionally the encampment did not vacate the site at a previously agreed date with public authorities. The court subsequently held there had been no violation of the appellants’ Convention rights considering the circumstances of this particular case. However, the court examined the relationship between Article 8 and section 61.

In his judgement Justice Burnton made reference to the 2001 South Bucks case:

‘As the recent judgment of the Court of Appeal in South Bucks D C v Porter [2001] EWCA Civ 1549 shows, a measure that prevents a Gypsy, and equally a Traveller, from residing in his vehicle on identified land may infringe Article 8 rights. But it will not necessarily do so. Interference with Article 8 rights may be justified on the grounds referred to in Article 8.2. Interference with an Article 8 right by a public authority must satisfy the tests of necessity and proportionality.’ [379]

‘Three factors weaken the case of the Claimants for the protection of their Article 8 rights: the temporary nature of their encampment, the illegality of its establishment and continuation, and the period of toleration that was to expire at the end of August 2001, as they had known for some considerable time before 31 August. In these circumstances, I would hold that the eviction of the Travellers was justified under Article 8.2.’ [380]

Contained within the judgement are the following comments regarding welfare and

‘The same applies to the position of local authorities seeking possession of their land from Gypsies and Travellers. In my judgment, a local authority must consider the Convention rights of trespassers living on their land and their human needs generally when deciding whether or not to enforce its right to possession of that land.’ [381]

When originally decided, the Fuller case was initially incorrectly considered by some[382] as authority for the proposition that section 61 of the CJPOA, whenever used at unauthorised encampments by Gypsy Travellers, is compatible with Article 8 of the ECHR. The correct interpretation of the Fuller case is that the landowner must give a notice to quit before the police use their powers under section 61 of the CJPOA. However, given the circumstances of this particular encampment, which is detailed below, the Court’s decision appears correct and the eviction was properly deemed justified under Article 8.2. It is however of particular interest that there was an unauthorised encampment of traditional Gypsy Travellers a short distance away where no enforcement action was taken regarding the encampment as the police were satisfied there had not been the same criminal activity there. The incident referred to in the case[383] relates to police officers being prevented from leaving the encampment by the occupiers on that date. It is suggested that the degree of criminality within the encampment resulted in the fulfilment of the criteria in Article 8.2 and it would be incorrect to consider this case as a general authority that section 61 of the CJPOA is compatible with Article 8 of the ECHR at all unauthorised encampments of Gypsy Travellers.

It is argued therefore that the developing case law in England and Wales identifies the following obligations and duties towards Gypsy Travellers regarding unauthorised encampments:

1. There is an obligation on those undertaking eviction procedures to undertake welfare and needs assessments on ‘common humanity grounds’ regarding Gypsy Travellers prior to an eviction as detailed in the R. v. Lincolnshire CC Ex p. Atkinson [384], R. v. Wealden DC Ex p. Wales [385] and R. v. Brighton and Hove BC Ex p. Marmont [386] cases.

2. There is a duty on Courts examining applications considering injunctions or interdicts regarding planning legislation, and it is strongly argued in other applications, to consider the relevant factors detailed in the case South Buckinghamshire D.C. v. Porter [387] prior to granting an injunction or interdict.

3. There is a developing obligation on local authorities to provide suitable accommodation, where Gypsy Travellers can show they have an aversion to traditional accommodation, as detailed in the case Clarke v. Secretary of State for the Environment Transport and the Regions.[388]

The case law developing in England and Wales regarding management of Gypsy Traveller unauthorised encampment indicates areas of law and policy making which are now recognised as good practice there and inform management policies towards this community. Scotland is in the early stages of formulating policies in these areas and should take cognisance of these cases; not to do so would invariably result in similar case law having to develop in Scotland. Such a delay in developing policy would continue to hinder the development of Gypsy Traveller rights.

Whilst these aforementioned cases are not binding in Scotland they are persuasive and give very strong guidance regarding management and policy making of Gypsy Traveller issues in Scotland.

Given the number of occurrences of unauthorised encampments nationally there is a need to provide suitable accommodation for Gypsy Travellers. The Housing (Scotland) Act 1987 as amended by the Housing (Scotland) Act 2001 and the Homelessness etc (Scotland) Act 2003, are the main legislative provisions for homelessness in Scotland. The Housing (Scotland) Act 2001 states:

Whilst all local authorities have implemented such strategies very few have included Gypsy Traveller accommodation within these strategies[389].

Legislative provisions for homeless persons are contained within the Housing (Scotland) Act 1987 (as amended by section 3, Housing (Scotland) Act 2001).

Where a person is homeless there is a duty on local authorities to provide accommodation contained in section 31 of the Act:

(2) Where they are satisfied that he has a priority need and are not satisfied that he became homeless intentionally, they shall, unless they notify another local authority in accordance with section 33 (referral of application on ground of local connection) secure that permanent accommodation becomes available for his occupation….

Local authorities therefore have a duty to assess persons applying to the local authority as homeless persons. This duty requires the local authority to carry out investigations in the following order:

Provisions regarding whether a person is homeless or threatened with homelessness are contained in section 24 of the 1987 Act:

24- (1) A person is homeless if he has no accommodation in the United Kingdom or elsewhere….

(b) it is probable that occupation of it will lead to violence from some other person residing in it or threats of violence from some other person residing in it and likely to carry out the threats, or

(c) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and reside in it; or…

Section 24(3)(c) above is of particular relevance to Gypsy Travellers with caravans being a moveable structure.

The provisions regarding priority need are contained within section 25 of the Act:

(a) a pregnant woman or a person with whom a pregnant woman resides or might reasonably be expected to reside;

(b) a person with whom dependent children reside or might reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age, mental illness or handicap, physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or any other disaster….

With reference to becoming homeless intentionally the provisions of section 26 of the Act state:

(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy….

Provisions regarding local connection are contained in section 27 of the 1987 Act:

(1) Any reference in this Part to a person having a local connection with a district is a reference to his having a connection with that district--

The Scottish Executive, Code of Guidance on Homelessness. Guidance on legislation, policies and practices to prevent and resolve homelessness [390] provides the following guidance regarding Gypsy Travellers who are recognised as being entitled to accommodation when homeless:

‘… while some travelling families want to settle in houses, conventional housing will not meet the needs of those who want to live in a caravan in order to maintain their traditional way of life. Travellers who move into a house for lack of any alternative may find it difficult to settle, and for them the most satisfactory solution is a place on a local authority pitch for travellers. Where a pitch is not available on a local authority site, and the local authority cannot suggest a temporary site, the local authority may wish to consult private interests to see if a site can be found.’ [391]

Just as there is a lack of other case law in Scotland regarding the Gypsy Traveller community, there is no case law regarding housing legislation.

There is however some case law in England and Wales. The case R.(ex. p. Price) v. Carmarthenshire County Council, [392] concerned the grant of an eviction order against a Traveller family located on an unauthorised site. Following the grant of the eviction order an application was made for a judicial review. The applicant’s aversion to conventional housing, similar to that considered in the Clarke case[393] was examined, regarding the allocation of accommodation under the Housing Act 1996. The Court concluded that the decision to evict could not stand as the public authority had failed to give respect to the applicant’s Article 8 rights in the manner required by the ECHR to enable the public authority to act proportionately.

The judgement commented on the respect expected from the local authority when considering the applicants Article 8 rights:

‘In order to meet the requirement to accord respect something more than "taking account" of an applicant's gypsy culture is required. As the court in Chapman stated, respect includes the positive obligation to act so as to facilitate the gypsy way of life, without being under a duty to guarantee it to an applicant in any particular case.’ [394]

As can be seen from this legislation, the application of these requirements is considered in each individual case. With regard to Gypsy Travellers’ and homelessness it is impossible to be prescriptive regarding the community, and any general duty on local authorities to provide accommodation. However, it is suggested that in areas where there is insufficient site provision, and removal from an unauthorised encampment is being considered or undertaken, there is a duty on the particular local authority to provide suitable accommodation. Additionally, where the circumstances detailed in the Clarke case[395] exist i.e. where there is an aversion to conventional accommodation, it is argued that this duty is reinforced.

The situation of nomadic Gypsy Travellers sourcing suitable accommodation sites remains problematic despite the provisions contained within housing legislation. Few if any local authorities have considered the use of private sites for Gypsy Travellers in the absence of sufficient local authority sites.

It is strongly argued that there is a duty on local authorities to provide suitable and appropriate accommodation for Gypsy Travellers, who should be included in all Homelessness Strategies. Additionally, where there are no available official sites and the particular Gypsy Travellers have an aversion to settled accommodation, appropriate accommodation should be provided either in the form of private site accommodation or, in the long term, official sites.

Having examined and provided a critique of the various areas of law where Gypsy Traveller rights can be identified, the conclusions to this thesis will examine the development of rights, obligations and duties owed to the Gypsy Traveller community and potential developments in these areas.

The one obvious overarching area, from which most other rights, duties and obligations applicable to the Gypsy Traveller community can be linked, and from which the majority of litigation has stemmed, is that of accommodation. It is strongly argued that if sufficient appropriate accommodation was available for the Gypsy Traveller community, all other needs of the community can be linked to this accommodation. Provision of sites would ensure a consistent geographic location of accommodation sites, which Gypsy Travellers could utilise rather than the diverse, inconsistent and uncertain geographic locations of unauthorised encampments, which by their nature are not utilised for extended periods of time. Despite the nomadic existence of the community, if there was a degree of geographic certainty in the community’s accommodation location, it would assist greatly in the appropriate provision of services centred on these geographic locations, assisting and ensuring that the rights, obligations and duties owed to the Gypsy Traveller community can be and are addressed. Provision of accommodation would therefore also additionally assist greatly in the social inclusion of the Gypsy Traveller community.

At present there is no recognition of Gypsy Travellers as a racial group in race relations case law in Scotland that will offer the community protection from racial discrimination.

Lord Fraser, in his judgement in the case Mandla v Dowell-Lee [396], details the essential and relevant conditions he considers necessary to qualify as an ethnic group and are widely considered as the definitive method of establishing a minority communities ethnic status. As a House of Lords decision on interpretation of a United Kingdom wide Act it is binding case law in Scotland. Given the essential and relevant conditions detailed in this case it is argued that all Gypsy Travellers satisfy the essential conditions and many of the relevant conditions to be classified as an ethnic group.

The cases of Commission for Racial Equality v Dutton [397], O’Leary v Allied Domecq [398]and Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)[399], held respectively that Romany Gypsies, Irish Travellers and Roma are racial and ethnic groups. The Dutton and Allied Domecq cases are persuasive in Scots law and it is suggested would be relevant in any future Scots case law regarding Romany Gypsies and Irish Travellers. The Prague Airport case is however applicable to Scotland being a House of Lords case and authority that Roma are a racial group throughout the United Kingdom.

Taking the case Northern Joint Police Board v Power [400] as authority that it is relevant to consider discrimination between national groups within the United Kingdom, in relevant cases there may be grounds for action regarding discrimination of Gypsy Travellers on grounds of ‘national origin’ within the Gypsy Traveller community.

The recommendations made by the Scottish Parliament Equal Opportunities Committee Inquiry into Gypsy Travellers and Public Sector policies were not implemented fully by the Scottish Executive[401] in their original response. The updated response[402] to Recommendation 2 does however acknowledge that Gypsy Travellers are recognised by the Scottish Executive as an ethnic group.

Whilst it would be advantageous to provide legislative recognition of the Gypsy Traveller community as a racial group, similar to the provisions contained in the Race Relations (Northern Ireland) Order 1997, provision of legislative recognition in Scotland does present some difficulty due to the provisions of the Scotland Act 1998 regarding Equal Opportunities legislation being designated as a reserved matter. However, the provision contained in Schedule 5 of the Scotland Act 1998 does, whilst falling short of permitting legislative intervention, provides the opportunity for the Scottish Parliament and Scottish Executive to comply with Recommendation 2 of the Scottish Parliament Equal Opportunities Committee Inquiry into Gypsy Travellers and Public Sector policies, to frame all legislation and policies to take cognisance of the status of Gypsy Travellers and their ethnic status at present.

However, even if the Gypsy Traveller community is recognised as a racial group within race relations legislation, implementation of policies towards the Gypsy Traveller community will still be confusing, as there is still a great difficulty in defining a white ethnic minority in a predominantly white society at a local and operational level. There is therefore a strong argument that legislative recognition of the Gypsy Traveller community’s status as a racial group, throughout the United Kingdom, would be a preferable solution, similar to the provisions contained in the Race Relations (Northern Ireland) Order 1997 and the Equal Status Act 2000, in Northern Ireland and the Republic of Ireland respectively. This recognition of the community not only in Scotland, but also throughout the United Kingdom, would clearly identify the community as one protected by Race Relations legislation. This recognition would assist greatly in avoiding the confusion presently encountered regarding the Gypsy Traveller community’s status, ensuring that policy makers in public authorities avoid racial discrimination as a result of ignorance of the whole community’s status. National legislation, originating in Westminster, would overcome the issues surrounding reserved matters specified in the Scotland Act 1998.

Despite the reserved status of Equal Opportunities legislation in Scotland, the recommendation of the Equal Opportunities Committee Inquiry[403] of the Scottish Parliament that all legislation and policies should be framed recognising that Gypsy Travellers are an ethnic group, provides the opportunity for policies to be progressed in Scotland, framed in this way, despite such legislation being a reserved matter in the Scotland Act 1998.

It is argued that the whole Gypsy Traveller community satisfy the requirements to be defined as a racial group at present and should receive protection from discrimination in the areas defined by the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000.

The protection offered by the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000, regarding accommodation and planning issues, will assist greatly in ensuring the elimination of discrimination in these areas, assisting in the provision of suitable accommodation.

The main ECHR rights applicable to the Gypsy Traveller community are Articles 8 and 14, with the rights contained in Articles 1 and 2 of Protocol No.1 of the ECHR regarding education and property also of importance. Although there has been no successful European case law regarding planning cases, following the introduction of the Human Rights Act 1998, these Convention rights are being examined in domestic case law particularly regarding planning and housing cases. These Convention rights should be a consideration of all public authorities dealing with Gypsy Traveller policies and issues.

Case law has developed within the ECtHR, with the Buckley [404] case authority for the fact that an encampment even if unlawful does not affect the fact that the mobile home or caravan is a Gypsy Travellers ‘home’ and, when removing or evicting an unauthorised encampment there is an interference with Article 8 rights.

The Chapman [405] case is authority that Article 8 creates a positive obligation, on contracting States, to facilitate the Gypsy way of life and widened the interpretation of ‘home’ recognising it was part of a Gypsy’s ethnic identity. Additionally the case recognised that the Gypsy community is a minority community in a vulnerable position and that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and when reaching decisions in particular cases. Despite the differing circumstances presented in the case Connors v. The United Kingdom [406], in that the occupation of the site was lawful, this case represents a positive development in the examination of the States’ ‘margin of appreciation’. It identifies that the States’ ‘margin of appreciation’ varies according to the nature of the Convention right being considered and that it will be narrower where the aims being pursued are crucial to an individual’s enjoyment of the key right. The examination of the States ‘margin of appreciation’ in depth and available procedural safeguards for the applicant, in this case, is a positive development given the cursory examination of these areas in previous planning cases examined by the court.

It is argued that the judgement contained in the Thlimmenos [407] case is also of particular importance regarding Gypsy Travellers rights and obligations. The Gypsy Traveller community are a community in ‘significantly different circumstances’ to the majority of residents in the United Kingdom.

It is therefore suggested that the Gypsy Traveller community is a national minority community that should receive ‘different treatment’ regarding the application of Convention rights, particularly with regard to accommodation issues.

It is also suggested that Article 1 of Protocol No.1 of the ECHR creating the right to peaceful enjoyment of property reinforces the rights contained within Article 8 relative to the Gypsy Traveller community. Particularly with reference to the proportionality and balance required when depriving a person of his property.[408]

The Framework Convention for the Protection of National Minorities represents an opportunity to develop Gypsy Traveller rights, particularly, if all Gypsy Travellers are recognised as a racial group in the United Kingdom. Despite the weakness of enforcement within this Convention, the monitoring process does provide an opportunity to identify gaps in provision of a means for national minorities to maintain their respective lifestyle and cultural identity. Accommodation for Gypsy Travellers in the United Kingdom has been identified as an issue in the most recently published monitoring process that remains to be addressed.

Similarly, despite the lack of an enforcement mechanism the content of the Parliamentary Assembly Recommendations No. 1203(1993)[409], 1557(2002)[410] and ECRI Recommendation (No.3)[411], highlight the human rights issues applicable to the Gypsy Traveller community nationally. Of particular note is the reference in the ECRI’s Second Report on the United Kingdom, criticising eviction processes within the United Kingdom regarding unauthorised encampments by Gypsy Travellers.

It is therefore argued that there is a positive obligation on the United Kingdom to facilitate the Gypsy Traveller way of life.

It is also recognised that a caravan or mobile home is part of a Gypsy Travellers ethnic identity, irrespective of the lawful location of such accommodation.[412]

It is also argued that there is a developing positive obligation on the State to provide ‘different treatment’ to the Gypsy Traveller community originating in the Thlimmenos case [413] that reinforces other identified rights, obligations and duties towards this community.

Recognition of these obligations, it is argued, creates a duty on States to provide suitable sites for Gypsy Travellers to locate their ‘homes’.

It is also strongly argued there may be grounds for joint action in domestic courts or a group action in the ECtHR by Gypsy Travellers regarding the provision of suitable accommodation on Article 8 grounds in areas where there is insufficient suitable accommodation.

An important Convention right applicable to the Gypsy Traveller community is the right to education contained within Article 2 of Protocol No.1 of the ECHR. The right relates to access to education but importantly the education accessed should conform to the ‘philosophical convictions’ of the particular parents of the children concerned. It is suggested that this right creates an obligation to recognise the particular ‘philosophical convictions’ of the Gypsy Traveller community in education, that will assist with, and ensure, the continuity of Gypsy Traveller culture.

In tandem with the provisions of Article 2 of Protocol No.1 of the ECHR, the Standards in Scotland's Schools etc. Act 2000 details the rights of and duties owed to children in Scotland by local authorities regarding education. It is therefore agued that this legislation reinforces the right to education contained in Article 2 widening this right to encompass children’s rights.

There is therefore a positive duty on local authorities to provide educational services to Gypsy Traveller children, reinforced by the positive obligation on the State to facilitate the Gypsy way of life.

Protocol No.12, if ratified by the United Kingdom, would represent a substantial move forward regarding Gypsy Traveller rights particularly regarding discrimination relative to public authority functions. There is a very strong argument for the United Kingdom to ratify Protocol No.12, and it is suggested the arguments against are weak. To do so would reinforce the United Kingdom’s commitment to human rights and to tackling discrimination in particular.

Adoption of Protocol No.12 would effectively introduce substitute legislation for Article 26 of the International Covenant on Civil and Political Rights into domestic law and would substantially increase the development of and protection available for Gypsy Travellers’ rights, particularly regarding public authority functions.

The European Social Charter contains provisions regarding the right to family housing, which the United Kingdom has undertaken, as part of the process of becoming a party to the ESC, as an obligation. It is suggested that when the supervisory process regarding the ESC is undertaken there is the opportunity for recommendations to be made regarding the provision of Gypsy Traveller accommodation, which may result in domestic legislation being enacted.

It is therefore suggested there is an obligation on the United Kingdom to provide family accommodation for the Gypsy Traveller community to give effect to the guarantees contained within the European Social Charter.

The provisions contained within the European Social Charter (Revised), represent the opportunity to progress Gypsy Traveller rights, including collective rights contained within the revised Charter and in particular in the areas of housing, education and cultural opportunities. There is therefore a strong argument for the United Kingdom to become a Party to the ESC(R), not only to progress Gypsy Traveller rights but the social and economic rights contained within the revised Charter in general. The opportunity to progress of collective rights available in the ESC(R) presents an opportunity to develop and progress Gypsy Traveller rights overcoming the educational and literacy issues surrounding the community.

The EU has developed some human rights jurisprudence applicable to EU law despite the initial reluctance of the Community to do so. With regard to Gypsy Travellers however there is no ECJ case law regarding this Community.

Whilst the acceptance that a State’s international treaty obligations, constitutions and the ECHR are all sources of fundamental human rights law, these sources of law only inform and guide the European Court of Justice. The ECJ has however recognised that the ECHR has special significance. Similarly the ECJ has recognised the International Covenant on Civil and Political Rights is significant when considering fundamental rights and Community law.

The Treaty of Amsterdam created Article 13 in the TEC, restating the principle of non-discrimination that represents a positive attempt to address discrimination, including that based on racial or ethnic origin. Article 13 however was not directly effective and Council Directive 2000/43/EC was issued to implement Article 13 in member States. Council Directive 2000/43/EC resulted in the Race Relations Act 1976 (Amendment) Regulations 2003 being enacted in the United Kingdom.

The scope of Council Directive 2000/43/EC includes non-discrimination in the areas of education and the supply of goods and services, including housing amongst other areas. It also altered the burden of proof required in discrimination cases easing access to tribunals on these grounds.

Article 13 in tandem with Council Directive 2000/43/EC has resulted in the Race Relations Act 1976 (Amendment) Regulations 2003 being enacted in the United Kingdom. This Act represents an opportunity to progress Gypsy Traveller rights in the area of race relations and assist in the prevention of discrimination towards Gypsy Travellers in the provision of housing, education etc.

At the time of writing this thesis the current status of the Charter of Fundamental Rights of the European Union or Treaty Establishing a Constitution for Europe was unclear. The rights contained within the Charter are enshrined in existing legislation and the Charter itself does not, at present, provide direct remedies. Rather it identifies and raises awareness to fundamental rights and, where these rights are the subject of European Union law, recourse can be made to Courts on those grounds.

With respect to Gypsy Travellers and other national minorities it can be interpreted as a weakness in the Charter that no reference has been made to minority rights which, if included, would have increased its effectiveness.

The proposed European Constitution may represent a considerable step forward in the promotion of human rights within the European Union, which may also promote the rights and issues affecting the Gypsy Traveller community.

The OSCE Permanent Council, Decision No. 566 identifies several areas for action which have particular relevance regarding Gypsy Traveller rights in the United Kingdom i.e. discrimination in housing and accommodation, education etc.

It is suggested that the content of Permanent Council, Decision No. 566 is a factor that the ECtHR and domestic courts should take cognisance of when considering its judgement in relevant cases regarding Gypsy Traveller rights, particularly when considering ‘proportionality’ and the States ‘margin of appreciation’.

The Human Rights Act 1998 represents a positive development in the incorporation of ECHR rights to the United Kingdom. Whilst the term incorporation is frequently used it should be noted that this term is misleading. Legislation enacted by the United Kingdom Parliament, if subjected to a statement of incompatibility, will thereafter be referred back to the Executive for consideration. There is not an immediate incorporation of ECHR rights. In comparison, legislation originating in the Scottish Parliament or Scottish Executive, that is not regarding a reserved matter, must comply with the ECHR with the potential for incompatibility being addressed in Court. Non- compliance effectively means that the particular legislation and circumstances it is being enforced is ‘not law’. It is suggested that the process relating to Scottish legislation does ensure the immediate incorporation of ECHR rights.

It is therefore the case that the Human Rights Act 1998 creates an obligation on public authorities not to act in a way that is incompatible with Convention rights. It also requires all legislation to be read and given effect in a way that is compatible with Convention rights. It is similarly the case that, the Scotland Act 1998 creates an obligation on the Scottish Parliament and Scottish Executive not to create subordinate legislation or to create policies that are incompatible with Convention rights.

By examining the progress of case law relative to Gypsy Travellers, although exclusively occurring in England and Wales, it is possible to see the development of rights relative to the ECHR. This case law would be persuasive in Scotland however it is strongly argued that any policy-making, judicial considerations or judgements in Scotland should be strongly influenced by these cases and indeed adhere to them.

It is clear from case law there is now an obligation to carry out welfare checks on those occupying unauthorised encampments, using the notion of considerations of ‘common humanity’,[414] prior to removal or eviction, as commented in the cases R. v. Lincolnshire CC Ex p. Atkinson [415] and R. v. Wealden DC Ex p. Wales.[416]

Despite the Buckley [417] and combined Chapman [418]cases being unsuccessful in the ECtHR, they are frequently referred to in the judgements contained in developing case law, as illustrated in the case South Buckinghamshire D.C. v. Porter [419] and it is argued can be considered as authority, regarding the considerations which should be made regarding planning permission relative to unauthorised encampment.

The case of Clarke v. Secretary of State for the Environment Transport and the

Regions [420] is of particular importance in the recognition of Gypsy Traveller rights regarding accommodation. It was recognised that provision of conventional accommodation to a Gypsy Traveller may violate Article 8 and 14 rights contained within the ECHR, where the Gypsy Traveller has an aversion for traditional housing. This does not however necessarily mean that Gypsy Travellers will not be removed or evicted but that it should be a consideration when considering ‘proportionality’ and ‘necessity’ considerations.

The case South Buckinghamshire D.C. v. Porter is also authority that, in England and Wales, the court must consider hardship, welfare considerations and balance them against the particular planning merits of a case bearing in mind ‘proportionality’ and ‘necessity’. This case effectively ended the practice of planning injunctions being ‘rubber stamped’ by courts and it is strongly argued would be very persuasive in Scotland regarding the granting of interdicts.

The Housing (Scotland) Act 1987 (as amended by the Housing (Scotland) Act 2001 and the Homelessness etc (Scotland) Act 2003) offers potential solutions to the difficulty encountered by Gypsy Travellers regarding sites. Particularly regarding homelessness strategies. The case R.(ex. p. Price) v. Carmarthenshire County Council [421] , which was similar to the Clarke case [422], however relative to housing legislation, identifies the obligation to give respect to Gypsy Travellers’ Article 8 rights, when considering eviction and provision of suitable accommodation, to ensure the action being taken is proportionate.

It is now argued that it is the case that Gypsy Travellers should not be routinely removed or evicted from unauthorised encampments without consideration being made regarding their welfare and potential violation of Convention rights.

The incorporation of the ECHR, by the Human Rights Act 1998, has led to the close scrutiny of ECHR rights particularly regarding planning issues and removal / eviction proceedings in England and Wales, providing considerably increased protection for Gypsy Travellers rights in particular cases. Importantly there is the recognition that the provision of traditional housing for Gypsy Travellers as a homelessness strategy may be inappropriate in the absence of suitable sites for caravans and that the aversion that a Gypsy Traveller may have to traditional housing should be a consideration in the decision making process.[423]

It is therefore argued there is an obligation for ‘common humanity’ considerations to be undertaken where eviction / removal of an unauthorised encampment is being undertaken, and for this action to be ‘proportionate’ and ‘necessary’.

It is also suggested that there is a developing recognition, in the United Kingdom, that some Gypsy Travellers may have an aversion to traditional housing and that this, accompanied by the recognition that nomadism is part of their ethnic identity, creates a duty to provide appropriate accommodation sites for such Gypsy Travellers.

The duties contained within domestic housing and homelessness legislation reinforce the duty to provide appropriate and suitable accommodation sites.

It is therefore argued that the aforementioned conclusions identify the following rights, obligations and duties applicable to the Gypsy Traveller community.

The following rights represent those of particular relevance and importance to the Gypsy Traveller community, and from which obligations and duties emerge.

i) Article 8 of the ECHR - the Right to respect for private and family life.

iii) Article 1 of Protocol No. 1 of the ECHR – Protection of property.

i) The obligation to facilitate the Gypsy Traveller way of life stems primarily from Article 8 of the ECHR and the Chapman[424] case, however to a lesser degree from all of the other abovementioned rights. The obligation is also reinforced by reference to Articles 6(ex Article F) and 29 of the TEU, Article 13 of the TEC, the Framework Convention for the Protection of National Minorities and the Charter of Fundamental Rights of the European Union.

ii) The obligation to provide ‘different treatment’ to the Gypsy Traveller community, recognising the community as one in significantly different circumstances has its origins in the Thlimmenos [425] case. This obligation is also reinforced by reference to Articles 6(ex Article F) and 29 of the TEU, Article 13 of the TEC, The Framework Convention for the Protection of National Minorities and The Charter of Fundamental Rights of the European Union.

iii) The obligation to recognise the ‘philosophical convictions’ of the parents of Gypsy Traveller children in education is contained within Article 2 of Protocol No. 1 of the ECHR. This obligation is reinforced with reference to The Framework Convention for the Protection of National Minorities and The Charter of Fundamental Rights of the European Union.

iv) The obligation to provide accommodation for the Gypsy Traveller community is contained within Article 16 of the European Social Charter and is reinforced by Article 8 of the ECHR and domestic Housing and Homelessness legislation.

To give effect to the abovementioned rights and obligations, it is argued that the following duties, contained in domestic legislation and case law and, applicable to the United Kingdom as a State and public authorities within the United Kingdom, are necessary to ensure these rights and obligations are fulfilled.

ii) There is a duty to include Gypsy Travellers’ in local homelessness strategies contained within the Housing (Scotland) Act 1987 as amended by the Housing (Scotland) Act 2001 and the Homelessness etc (Scotland) Act 2003). This duty is also reinforced by Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000.

iii) There is a duty on local authorities to provide accommodation for persons who are homeless contained in the Housing (Scotland) Act 1987 as amended by the Housing (Scotland) Act 2001 and the Homelessness etc (Scotland) Act 2003).

iv) There is an emerging recognition that there may be a duty to provide accommodation that is suitable and relevant to the Gypsy Traveller community i.e. mobile home sites, reinforced by the recognition that a mobile home is part of a Gypsy Travellers ethnic identity. See the cases Clarke v. Secretary of State for the Environment Transport and the Regions and Chapman v. the United Kingdom.[426]

v) In certain circumstances, where there is no available suitable accommodation, there may be a duty not to evict or remove Gypsy Travellers using civil eviction or the statutory powers contained in the Criminal Justice and Public Order Act 1994. See the case Clarke v. Secretary of State for the Environment Transport and the Regions.[427]

vi) There is a duty to carry out welfare checks on those occupying unauthorised encampments, using the notion of considerations of ‘common humanity’, prior to removal or eviction, as commented in the cases R. v. Lincolnshire CC Ex p. Atkinson [428] and R. v. Wealden DC Ex p. Wales.[429]

The identification of rights, obligations and duties above, it is argued, clearly show that there are claim rights available to Gypsy Travellers within domestic courts and corresponding obligations and duties on the United Kingdom, as a State, and on appropriate public authorities to facilitate the Gypsy way of life.

Provision of suitable accommodation for the Gypsy Traveller community would ensure the continued facilitation of the community’s nomadic way of life and assist greatly in their social inclusion. By provision of suitable accommodation, social engagement of the Gypsy Traveller community should be possible. Additionally enabling the provision of services that are unavailable, given the current lack of appropriate accommodation, assisting in addressing the health[430] and education issues that impact on the Gypsy Traveller community.

Despite case law regarding the Gypsy Traveller community originating solely in England and Wales, it is of importance in Scotland. The Scottish Executive and public authorities are currently formulating and implementing policies directed at the Gypsy Traveller community. These policies should be informed by existing case law to ensure they are aware of and adopt the positive developments seen in England and Wales. By doing so these developing policies will ensure compliance with human rights legislation and commence from an informed starting point.

[1] Gypsies and Travellers – A Strategy. Commission for Racial Equality.

http://www.cre.gov.uk/downloads/docs/GandT_strat.doc

[2] See Parry, G. et al, The Health Status of Gypsies and Travellers in England – Summary of a

report to the Department of Health 2004 (University of Sheffield, 2004).

[3] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol. 2. (Scottish Parliament, Edinburgh. 2001), 163-166.

[4] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol. 2. (Scottish Parliament, Edinburgh. 2001), 131-162.

[5] Johnson, C. and Willers, M. Gypsy and Traveller Law (LAG Education and Service Trust Ltd.

(2004).

[6] See OSCE High Commissioners on National Minorities, Report on the situation of Roma and Sinti

in the OSCE Area. (OSCE, The Hague, 2000).

h ttp://www.osce.org/documents/hcnm/2000/03/241_en.pdf

[7] Kenrick, D. and Clark, C., Moving On: The Gypsies and Travellers of Britain. (University of

Hertfordshire Press, 1995), 24 – 25.

[8] Kenrick, D. and Clark, C., Moving On: The Gypsies and Travellers of Britain. (University of

Hertfordshire Press, 1995), 69 – 83.

[9] Allport, G. W., The Nature of Prejudice. (Perseus Books, Cambridge, Massachusetts, 1979).

[10] Ibid p.14 -15.

[11] Association of Chief Police Officers in Scotland, Scottish Police Diversity Awareness Training.

(ACPOS, Scottish Police College 2001), Module 3.

[12] See Evening Express, Aberdeen. 9 November 2004, ‘If we left behind a mess like that…’. A

media article regarding an unauthorised encampment in a local authority area which has no

available official sites. No services were provided to the particular encampment contrary to

the particular authorities guidelines and Scottish Executive guidelines.
http://www.thisisaberdeen.co.uk/displayNode.jsp?nodeId=148331
&command=displayContent&sourceNode=148314&contentPK=11276371
&moduleName=InternalSearch&keyword=garlogie&formname=sidebarsearch

[13] The current official Traveller Site in Aberdeen is located at Clinterty, Kinellar, located at an

isolated rural location approximately 10 miles from Aberdeen with no public transport links or

facilities.

[14] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector Policies Vol.1 and 2. (Scottish Parliament, Edinburgh. 2001). See

Aberdeenshire Council, Aberdeenshire Local Housing Strategy 2004 – 2009. (Aberdeenshire

Council 2004), where there is no meaningful reference to Gypsy Traveller accommodation needs.

[15] The Guardian, 10 June 2003, regarding the report of the murder of Johnny Delaney, a 15 year old

Gypsy Traveller boy, because he was a Gypsy Traveller.

http://www.guardian.co.uk/crime/article/0,2763,974413,00.html

[16] See Aberdeenshire Council, Aberdeenshire Local Housing Strategy 2004 – 2009. (Aberdeenshire

Council 2004), where there is no meaningful reference to Gypsy Traveller accommodation needs.

[17] Centre for Social and Economic Research 2002. http://www.cesi.org.uk/

[18] The Office of the Deputy Prime Minister. Preventing Social Exclusion – Report by the Social

Exclusion Unit. (ODPM 2001). para. 1.6.

[19] See Marshall, T. H., ‘Citizenship and Social Class.’ Class, Citizenship and Social Development

(New York 1964).

[20] Ibid p.84, 92.

[21] Whilst Marshall’s theory is still influential it has been criticised. See Dahrendorf, R., The Modern

Social Conflict: Essay on the Politics of Liberty. (University of California Press. 1992) and

Giddens, A., A Contemporary Critique of Historical Materialism. (Palgrave Macmillan. 1995).

[22] Shue, H., Basic Rights – Subsistence, Affluence and U.S. Foreign Policy. (Princeton University

Press, Princeton, New Jersey. 2^nd Edition 1996).

[23] Ibid p.52.

[24] The Caravan Sites and Control of Development Act 1960, s. 24, as amended by The Criminal

Justice and Public Order Act 1994 s. 80.

[25] The Caravan Sites Act 1968 s. 16, as amended by The Criminal Justice and Public Order Act 1994

s. 80.

[26] Kenrick and Bakewell. On the Verge: The Gypsies of England. (University of Hertfordshire Press,

1990). 7

[27] Ibid 7.

[28] Ibid 7.

[29] Ibid 8.

[30] Wrexham C. B. v The National Assembly of Wales and Berry (2003) EWCA Civ 835. Para. 57.

[31] Ibid Para 57(2).

[32] No case law can be cited regarding this discrimination however, there are several cases in

preparation at the time of writing.

[33] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector Policies Vol.1 and 2. (Scottish Parliament, Edinburgh 2001).

[34] McPherson, Sir W. The Stephen Lawrence Inquiry Report. (The Stationery Office Books 1999).

[35] HC Deb 326,c 393.

[36] The Scotsman Newspaper, 25 February 1999.

[37] Sections 1and 2 of the Act.

[38] 1. Racial Discrimination

(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a) on racial grounds he treats that other less favourably than he treats or would treat other

persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –

(i) which is such that the proportion of persons of the same racial group as that

other who can comply with it is considerably smaller than the proportion of

persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race,

nationality or ethnic or national origins of the person to whom it is applied;

and

(iii) which is to the detriment of that other because he cannot comply with it.

(2) It is hereby declared that, for the purposes of this Act, segregating a person from other

persons on racial grounds is treating him less favourably than they are treated.

[39] 3. Meaning of ‘racial grounds’ ‘racial group’, etc

(1) In this Act, unless the context otherwise requires –

‘racial grounds’ means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

‘racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group

into which he falls…

[40] Section 19A of the Act.

[41] Section 19B of the Act.

[42] Statutory Instrument 2003 No. 1626.

[43] In section 1 of the 1976 Act (racial discrimination), after subsection (1), insert-

‘(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –

(a) which puts or would put persons of the same race or ethnic or national origins as that

other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim….’

[44] See cases Perera v. Civil service Commission (No.2) (1983) ICR 428 and Meer v. Tower Hamlets

London Borough Council (1988) IRLR 399 for examples of restrictive interpretation of the phrase

‘requirement or condition’.

[45] After section 3 of the 1976 Act insert –

‘Harassment’

3A. – (1) A person subjects another to harassment in any circumstances relevant for the purposes

of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national

origins, he engages in unwanted conduct which has the purpose or effect of –

(a) violating that other persons dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive

environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection 1 only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.’.

[46] See footnote 33.

[47] (1983) 1 All ER 1062.

[48] Ibid 1067 a - d.

[49] (1989) 2 WLR 17.

[50] Ibid p. 22 Para H.

[51] Ibid p. 23 Para B-C.

[52] Ibid p. 23 Para C-D.

[53] Ibid p. 27 Para F -H.

[54] Ibid p. 29 Para C.

[55] Case No. CL 950275-79 29(Unreported).

[56] Unreported. EAT 385/97.

[57] (1983) 1 All ER 1067 a - d.

[58] ERRC and Immigration Officer at Prague Airport v. The Secretary of State for the Home

Department and the UN High Commissioner for Refugees [2003] EWCA Civ 666.

[59] [2004] UKHL 55.

[60] Ibid Para. 104.

[61] (1997) IRLR 610.

[62] Ibid Para. 4.

[63] For discussion see Miller, K., What it is to be Scots! 1998 Juridical Review, 67-71.

[64] Examples include traditions such as burning the caravan of someone who has died, hierarchy of

family groups and the interaction between members of the opposite sex within the community.

See also Kenrick, D. and Clark, C. Moving On – The Gypsies and Travellers of Britain.

(University of Hertfordshire Press,1995), for further discussion.

[65] (1979) 2 NZLR 531.

[66] (1983) 1 All ER 1062. 1067 c – f.

[67] (1983) 1 All ER 1062. 1067 g – i.

[68] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol.1 and 2. (Scottish Parliament, Edinburgh 2001).

[69] Scottish Executive Response to the Equal Opportunities Committee Report 2001- Inquiry Into

Gypsy Travellers And Public Sector Policies. (Scottish Executive, Edinburgh. 2001).

http://www.scotland.gov.uk/library3/government/gtoctober-00.asp

[70] Scottish Executive Response to the Equal Opportunities Committee Report 2001- Inquiry Into

Gypsy Travellers And Public Sector Policies. (Scottish Executive, Edinburgh. 2001).

Recommendation 2 response. http://www.scotland.gov.uk/library3/government/gtoctober-00.asp

[71] This was very apparent in the preparation of the Association of Chief Police Officers guidelines

on unauthorised encampment by Gypsy Travellers, which the author was involved in developing.

[72] Delivering for Scotland's Gypsies/Travellers - AN UPDATED RESPONSE TO THE EQUAL

OPPORTUNITIES COMMITTEE INQUIRY INTO GYPSY TRAVELLERS AND PUBLIC

SERVICES 2001(Scottish Executive, Edinburgh 2004).

http://www.scotland.gov.uk/library5/justice/dfsgt-00.asp

[73] Ibid Recommendation 2 response.

[74] See Aberdeenshire Local Housing Strategy 2004 – 2009. (Aberdeenshire Council 2004) and

Aberdeenshire Council Homelessness Strategy 2003 – 2006. (Aberdeenshire Council 2003),

each of which contain minimal reference to Gypsy Travellers, despite severe unauthorised

encampment problems due to lack of official sites in this Council’s area. Neither document

contains any meaningful reference to the Gypsy Traveller community.

[75] See The Equality Tribunal decisions. Example DEC-S2001-006 for development of rights

regarding provision of services. http://www.equalitytribunal.ie/

[76] Schedule 5, Part II, The Scotland Act 1998.

L2. Equal opportunities Equal opportunities, including the subject-matter of-

(a) the Equal Pay Act 1970,

(b) the Sex Discrimination Act 1975,

(c) the Race Relations Act 1976, and

(d) the Disability Discrimination Act 1995….

[77] Schedule 5, Part II, The Scotland Act 1998.

The encouragement (other than by prohibition or regulation) of equal opportunities, and in

particular of the observance of the equal opportunity requirements.

Imposing duties on-

(a) any office-holder in the Scottish Administration, or any Scottish public authority with mixed

functions or no reserved functions, to make arrangements with a view to securing that the

functions of the office-holder or authority are carried out with due regard to the need to meet

the equal opportunity requirements, or

(b) any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.

"Equal opportunities" means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.

"Equal opportunity requirements" means the requirements of the law for the time being relating to equal opportunities.

"Scottish functions" means functions which are exercisable in or as regards Scotland and which do not relate to reserved matters.

[78]Article 5: ……… ‘racial grounds’ means any of the following grounds, colour, race, nationality or

national origins;

‘racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic

or national origins, and references to a person’s racial group refer to any racial group into which

he falls.

(2) In this Order ‘racial grounds’ -

(a) includes the grounds of belonging to the Irish Traveller community, that is to say the

community of people commonly so called who are identified (both themselves and by others)

as people with a shared history, culture and traditions including, historically, a nomadic way of

life on the island of Ireland;……

[79] Section 2. (1) ‘Traveller community’ means the community of people who are commonly called

Travellers and who are identified (both by themselves and others) as people with a shared

history, culture and traditions including, historically, a nomadic way of life on the island of

Ireland.

[80] The Equality Tribunal in the Republic of Ireland, Equal Status Decisions 2001.

http://www.equalitytribunal.ie/php/database_previous_cases.php?year=2001&content=status

[81] The Equality Tribunal in the Republic of Ireland, Equal Status Decisions 2003.

http://www.equalitytribunal.ie/php/database_previous_cases.php?year=2003&content=status

[82] CRE Submission to the House of Commons Scottish Affairs Committee - Evidence Session on the

work of the CRE in Scotland. (2001). http://www.cre.gov.uk/pdfs/sasc.pdf

[83] ETS No. 005, Article 19.

[84] Article 33 – Inter-State cases

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the

Convention and the protocols thereto by another High Contracting Party.

[85] Article 34 – Individual applications

The Court may receive applications from any person, non-governmental organisation or group of

individuals claiming to be the victim of a violation by one of the High Contracting Parties of the

rights set forth in the Convention or the protocols thereto. The High Contracting Parties

undertake not to hinder in any way the effective exercise of this right.

[86] See case Chapman v United Kingdom, Application No. 27238/95.

[87] ETS No. 005. http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[88] ETS No. 009. http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[89] ETS No. 177. http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[90] ETS No. 157. http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm

[91] ETS No. 35. http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[92] ETS No. 163. http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[93]http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2Fadopt edText%2Fta93%2FEREC1203.htm

[94]http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2
FAdoptedText%2Fta02%2FEREC1557.htm

[95] CRI (98) 29 rev.

[96] ETS No. 005 http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[97] See Appendix 1.

[98] See Appendix 1.

[99] Belgian Linguistics Case (no. 2.) (1968) 1 EHRR 252 Para 9. - ‘… it is true that this guarantee

has no independent existence in the sense that under the terms of Article 14 (art. 14) it relates

solely to "rights and freedoms set forth in the Convention",…’

[100] See case Derbyshire County Council v Times Newspapers Ltd (1992) QB 770, illustrating the

proactive interpretation of case law in England and Wales with reference to ECHR rights, a

considerable time prior to the 1998 Act. This is compared with the approach of Scottish

Courts where Courts were resistant to this interpretation until the case T, Petitioner 1997 SLT

724 at 733-4.

[101] Human Rights Act 1998. S.3.

[102] Ibid S.4.

[103] Human Rights Act 1998. S.2.

[104] See the Scotland Act 1998. Section 29(2). See The Hon Lord Clarke, ‘Human Rights, Devolution

and Public Law’ in Human Rights and Scots Law. (Hart Publishing, 2002), C. Himsworth,

‘Rights Versus Devolution’ in Sceptical Essays on Human Rights, Edited by T. Campbell, K.D.

Ewing and A. Tomkins. (Oxford University Press. 2001), for further discussion.

[105] See cases Buckley v. UK, Application No. 20348/92, (1997) 23 E.H.R.R., Chapman v. UK,

Application No. 27238/95 and Varey v. UK, Application No. 26662/95.

[106] Case of Connors v. The United Kingdom, Application No. 66746/01.

[107] Application No. 20348/92, (1997) 23 E.H.R.R.

[108] Application No. 20348/92, (1997) 23 E.H.R.R. Para. 53.

[109] Ibid Para. 54.

[110] It is of interest in the domestic case Hipperson and Others v. Newbury District E.R.O., (1985) 1

QB 1060, which concerned electoral registration of persons resident in unlawfully sited

accommodation that it was held that, electoral registration was not affected by the fact the

residence was illegal or unlawful.

[111] Application No. 20348/92, (1997) 23 E.H.R.R. Para. 74.

[112] Ibid Para. 84.

[113] Ibid Para. 88.

[114] Ibid Para 71.

[115] See Hambleton District Council v. Bird (1995) 3 PLR 8.

[116] Application no. 34369/97. See below.

[117] Application No. 34369/97.

[118] (2003) EWHC 2978 (Admin). Ibid Para. 66.

[119] Application no. 34369/97.

[120] Ibid Para. 44.

[121] Ibid Para. 48.

[122] Application No. 27238/95.

[123] Application No. 24876/94.

[124] Application No. 24882/94.

[125] Application No. 25289/94.

[126] Application No. 25154/94.

[127] See Appendix 1.

[128] Application No. 27238/95.Para. 73.

[129] Ibid Para. 78.

[130] Ibid Para. 94.

[131] See Recommendation 1623 (2003), Para. 12, which now recommends that a Protocol is drafted

giving the ECtHR the power to give advisory opinions on its interpretation of the Framework

Convention.

[132] Ibid Para 111.

[133] Ibid Para 115.

[134] Article 4 (2):

The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all

areas of economic, social, political and cultural life, full and effective equality between persons

belonging to a national minority and those belonging to the majority. In this respect, they shall

take due account of the specific conditions of the persons belonging to national minorities.

[135] Ibid Para 95.

[136] Ibid Para 96.

[137] For discussion on positive obligations under the ECHR see, Merrills, J.G., The Development of

International Law by the European Court of Human Rights. (Manchester, MUP, 1993), Starmer,

K., European Human Rights Law. (London, Legal Action Group, 1999) and Mowbray, A., The

Development of Positive Obligations under the European Convention on Human Rights by the

European Court of Human Rights. (Hart Publishing, Oxford and Portland, Oregon, 2004).

[138] Application No.34369/97.

[139] Application No. 27238/95. Para 129.

[140] Planning applications in England and Wales are indicative of the need for different treatment of

Gypsy Travellers in planning matters. In 1991, the last year in which records of application rates

for planning in England and Wales were kept, it was ascertained that 90% of applications by

Gypsies were denied in contrast with 80% of all planning applications being granted during the

same period. These statistics however should be viewed with the understanding that, by their

nature Gypsy planning applications are contentious in that they invariably refer to establishing

sites for caravans in areas where restrictions exist from local Planning authorities. See House of

Lords Hansard, 7 June 1994, cols. 1132 and 1198.

[141] Ibid Para 3.

[142] Ibid Para 8.

[143] Paragraph 9.

[144] Application no. 34369/97.

[145] The Court examined the submissions of the applicant regarding Article 6 of the Convention and

in particular her access to Court regarding appeal on planning grounds. The Court held

unanimously that recourse to the High Court, despite the inability of that Court to review the

facts of the case, satisfied Article 6 and there had been no violation of this Article.

[146] See Starmer, K., European Human Rights Law. (London, Legal Action Group, 1999), and

Mowbray, A., The Development of Positive Obligations under the European Convention on

Human Rights by the European Court of Human Rights. (Hart Publishing, Oxford and Portland,

Oregon, 2004), for further discussion on positive obligations relative to the ECHR.

[147]‘The Strasbourg institutions’ difficulty in identifying this type of problem is that the deliberate

superimposition and accumulation of administrative rules (each of which would be acceptable

taken singly) result, in its being totally impossible for a Gypsy family to make suitable

arrangements for its accommodation, social life and the integration of its children at school….’

[148] See later examination of the Framework Convention for the Protection of National Minorities.

[149] See Ovey, C. The Margin of Appreciation and Article 8 of the Convention. 19 Human Rights

Law Journal (1998) 10 – 12, for further discussion on the margin of appreciation.

[150] Application No. 27238/95. Para. 92.

[151] Application No. 26662/95.

[152] Application No. 66746/01.

[153] Application No. 20348/92, (1997) 23 E.H.R.R.

[154] Application No. 27238/95.

[155] Application No. 66746/01. Para 82.

[156] Ibid Para. 83.

[157] Ibid Para. 84.

[158] Ibid Para. 86.

[159] Ibid Para. 95.

[160] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol. 2. (Scottish Parliament, Edinburgh 2001). 129 and

137.

[161] South Buckinghamshire D.C. v. Secretary of State for Transport, Local Government and the

Regions (2003) EWCA Civ 687. Para. 26.

[162] The Human Rights Act 1998. Section 7.

Section 7. - (1) A person who claims that a public authority has acted (or proposes to act) in a

way which is made unlawful by section 6(1) may-

bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely

on the Convention right or rights concerned in any legal proceedings, but only if he is (or would

be) a victim of the unlawful act….

[163] Article 34 – Individual applications

The Court may receive applications from any person, non-governmental organisation or group of

individuals claiming to be the victim of a violation by one of the High Contracting Parties of the

rights set forth in the Convention or the protocols thereto. The High Contracting Parties

undertake not to hinder in any way the effective exercise of this right.

[164] See Case Plattform “Arzte fur das Leben” v. Austria A.139 (1988), (1991) 13 EHRR 204.

[165] Case 64/1991/316/387-388.

[166] Ibid Para. 43.

[167] See case Gypsy Council and Others v UK, Application 66336/01, regarding prohibition of a

Horse Fair in Kent. An alternative site was identified by the authorities and a small parade

permitted as alternatives to the main fair at the originally proposed location. The application was

found inadmissible.

[168] ETS No. 009 http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[169] See Appendix 1.

[170] Article 1 – Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall

be deprived of his possessions except in the public interest and subject to the conditions provided

for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such

laws as it deems necessary to control the use of property in accordance with the general interest

or to secure the payment of taxes or other contributions or penalties.

[171] (1979) 2 EHRR 330.

[172] Ibid Para. 63.

[173] See Human Rights and Scots Law. (Hart Publishing, 2002). Ch. 13 The Protection of

Property Rights by Gretton, G. for further discussion.

[174] (1982) 5 EHRR 35.

[175] Paragraph 61.

[176] Paragraph 69.

[177] (1986) 8 EHRR 123.

[178] Paragraph 50.

[179] Application No. 27238/95.

[180] Ibid Para. 120.

[181] See Winisdoerffer, Y. Margin of Appreciation and Article 1 of Protocol No.1. Human Rights

Law Journal [Vol. 19, No.1. 1998], for further discussion.

[182] Article 2 – Right to education

No person shall be denied the right to education. In the exercise of any functions which it

assumes in relation to education and to teaching, the State shall respect the right of parents to

ensure such education and teaching in conformity with their own religious and philosophical

convictions.

[183]http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=009&CM=8&DF=18/12/04&CL=ENG&VL=1

[184] 1 EHRR 252.

[185] Ibid Para. 3.

[186] Paragraph 7.

[187] Paragraph 19.

[188] Application no. 24876/94.

[189] Application no. 25289/94.

[190] Application no. 25154/94.

[191] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol. 2. (Scottish Parliament, Edinburgh 2001). p.61-67.

[192] Application No.7743/76.

[193] Ibid Para. 36.

[194] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol. 2. (Scottish Parliament, Edinburgh 2001). p.69.

[195] Section 1 - Right of Child to School Education

It shall be the right of every child of school age to be provided with school education by, or by

virtue of arrangements made, or entered into, by, an education authority.

Section 2 - Duty of education authority in providing school education

(1) Where school education is provided to a child or young person by, or by virtue of

arrangements made, or entered into, by, an education authority it shall be the duty of the

authority to secure that the education is directed to the development of the personality, talents

and mental and physical abilities of the child or young person to their fullest potential.

(2) In carrying out their duty under this section, an education authority shall have due regard, so

far as is reasonably practicable, to the views (if there is a wish to express them) of the child or

young person in decisions that significantly affect that child or young person, taking account of

the child or young person's age and maturity.

[196] See Framework Convention for the Protection of National Minorities, Article 4(2).

[197] Application No. 4464/70. Case of National Union of Belgian Police v. Belgium. Para. 44.

[198] ETS No. 177. http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

[199] ETS No. 157. http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm

[200] Council of Europe – Explanatory Report to the Framework Convention for the Protection of

National Minorities. Para. 10.

[201] See Part II of to the Framework Convention for the Protection of National Minorities, for

details.

[202] Council of Europe – Explanatory Report to the Framework Convention for the Protection of

National Minorities. Para. 12.

[203] See Thornberry, P. and Estebanez, M.A.M. Minority Rights in Europe – A Review of the

work and Standards of the Council of Europe. Ch.8. Council of Europe Publishing (2004) for

further discussion.

[204] Rights of national minorities – Recommendation 1492 (2001) – Doc. 9492.

[205] Recommendation 1623 (2003), Para 11.

[206] Recommendation 1623 (2003), Para. 12.

[207] Comments of the Government of the United Kingdom on the Opinion of the Advisory Committee

on the Report on the Implementation of the Framework Convention for the Protection of

National Minorities in the United Kingdom. para.106, and see Chapter 2 of this thesis.

[208] Framework Convention for the Protection of National Minorities, Preamble.

[209] See p. 104 above.

[210] CCPR/C/21/Rev.1/Add.5, General Comment No. 23. (General Comments).

[211] Ibid Para. 6.1.

[212] Ibid Para. 6.2.

[213] Ibid Para. 7.

[214] See Appendix 1.

[215] Article 3

(1) Every person belonging to a national minority shall have the right freely to choose to be

treated or not to be treated as such and no disadvantage shall result from this choice or from

the exercise of the rights which are connected to that choice.

(2) Persons belonging to national minorities may exercise the rights and enjoy the freedoms

flowing from the principles enshrined in the present framework Convention individually as

well as in community with others.

[216] Council of Europe – Explanatory Report to the Framework Convention for the Protection of

National Minorities. Paras. 33-37.

[217] Ibid Para. 37.

[218] See article in the Press and Journal newspaper on 16 December 2004, where a couple received permission to site their horse drawn caravan on their own land despite planning objections from the local authority. They were assisted in the process by elected members of the settled community to do so
. http://www.thisisnorthscotland.co.uk/displayNode.jsp?nodeId=149235&command=displayContent&sourceNode=149218&
contentPK=11502954&moduleName=InternalSearch&keyword=urquhart&formname=sidebarsearch

[219] Article 4

(2) The Parties undertake to adopt, where necessary, adequate measures in order to promote, in

all areas of economic, social, political and cultural life, full and effective equality between

persons belonging to a national minority and those belonging to the majority. In this respect,

they shall take due account of the specific conditions of the persons belonging to national

minorities.

[220] Advisory Committee on the Framework Convention for the Protection of National Minorities –

Opinion on the United Kingdom, adopted on 30 November 2001. CM(2002)2. Para.14.

https://wcm.coe.int/ViewDoc.jsp?id=250631&Lang=en

[221] Ibid Paras. 40 and 42.

[222] http://www.humanrights.coe.int/minorities/Eng/FrameworkConvention/AdvisoryCommittee/

Opinions/UK.Comments.htm

[223] Comments of the Government of the United Kingdom on the Opinion of the Advisory Committee

on the Report on the Implementation of the Framework Convention for the Protection of

National Minorities in the United Kingdom. para.106.

[224] See Chapter 2.

[225] Advisory Committee on the Framework Convention for the Protection of National Minorities –

Opinion on the United Kingdom, adopted on 30 November 2001.

[226] Ibid para. 112.

[227] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol.1 and 2. (Scottish Parliament, Edinburgh 2001).

[228] Application No. 27238/95.

[229] Ibid Para. 83.

[230] Ibid Paras. 93 to 94.

[231] PE 167.582. European Parliament Briefing No. 20. Democracy and respect for Human Rights

and the enlargement process of the European Union. P.10.

[232] ETS No. 035.

[233] Ibid p.2.

[234] Ibid Article 20 (1)(c).

[235] Ibid Article 20 (1)(b).

[236] Ibid Article 1.

[237] Ibid Article 5.

[238] Ibid Article 6.

[239] Ibid Article 12.

[240] Ibid Article 13.

[241] Ibid Article 16.

[242] Ibid Article 19.

[243] Article 16 – The right of the family to social, legal and economic protection

With a view to ensuring the necessary conditions for the full development of the family, which is

a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal

and social protection of family life by such means as social and family benefits, fiscal

arrangements, provision of family housing, benefits for the newly married, and other appropriate

means.

[244]http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=035&CM=8&DF=09/08/04&CL=ENG&VL=1

[245] ETS No. 035. Articles 21-24.

[246] Ibid Article 25.

[247] Ibid Articles 27-29.

[248] ETS No.158.

[249]http://www.coe.int/T/E/Human_Rights/Esc/5_Collective_complaints/Organisations_entitled/List_of_NGOs.asp#TopOfPage

[250] Complaint No. 15/2003 - The European Roma Rights Centre v. Greece.

[251] Ibid Para. 1.

[252] ETS No. 163.

[253] See Ibid Part III, Articles A and B and Part IV, Articles C and D for details.

[254] Article 30 – The right to protection against poverty and social exclusion

With a view to ensuring the effective exercise of the right to protection against poverty and social

exclusion, the Parties undertake:
a) to take measures within the framework of an overall and co-ordinated approach to

promote the effective access of persons who live or risk living in a situation of social

exclusion or poverty, as well as their families, to, in particular, employment, housing,

training, education, culture and social and medical assistance;

b) to review these measures with a view to their adaptation if necessary.

[255] ETS No.163 Explanatory Report. Para. 114.

http://conventions.coe.int/Treaty/en/Reports/Html/163.htm

[256] Ibid. Para. 114. http://conventions.coe.int/Treaty/en/Reports/Html/163.htm

[257] See The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into

Gypsy Travellers and Public Sector policies Vol.1 and 2. (Scottish Parliament, Edinburgh 2001).

[258] Article 31 – The right to housing

With a view to ensuring the effective exercise of the right to housing, the Parties undertake to

take measures designed:

1. to promote access to housing of an adequate standard;

2. to prevent and reduce homelessness with a view to its gradual elimination;

3. to make the price of housing accessible to those without adequate resources.

[259] ETS No.163 Explanatory Report. Para. 118.

http://conventions.coe.int/Treaty/en/Reports/Html/163.htm

[260] Part V

Article E – Non-discrimination

The enjoyment of the rights set forth in this Charter shall be secured without discrimination on

any ground such as race, colour, sex, language, religion, political or other opinion, national

extraction or social origin, health, association with a national minority, birth or other status.

[261] Ibid Article D.

[262] See Complaint No. 27/2004 - European Roma Rights Centre v. Italy, regarding a collective

complaint regarding the right to Housing and Non Discrimination contained in the revised

European Social Charter.

[263]http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2Fadopt edText%2Fta93%2FEREC1203.htm

[264]http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2
FAdoptedText%2Fta02%2FEREC1557.htm

[265] Recommendation 1557 (2002), Footnote 2. Whilst the Recommendation refers to Roma it

defines the term Roma to include ‘Gypsies’, ‘Sinti’ and ‘Travellers’.

[266] Recommendation 1557 (2002) - on the legal situation of Roma in Europe. Para. 3.

[267] Ibid Para.4.

[268] All Ibid Para. 15.

[269] Res (2002)8. Appendix.

[270] CRI (98) 29 rev.

[271] CRI (2001) 6.

[272] Ibid Para. 40.

[273] Case 1/58 Stork v High Authority (1959) 17 at p.26.

[274] See Williams, A. EU Human Rights Policies – A Study in Irony. (Oxford University Press,

2004), and Weatherill, S. and Beaumont, P. EU Law. (Penguin Books, (3 ed.) (1999), for further

discussion.

[275] Case 11/70 (1970) 1125.

[276] Ibid Para. 2.

[277] Case 4/73 (1974) 491.

[278] Ibid Para. 2.

[279] Case 222/84 (1986) ECR 1651.

[280] Ibid. Summary Para. 1.

[281] Case 299/95 (1997) ECR 2629.

[282] Ibid Para. 14.

[283] Case C-249/96 (1998) ECR 00621.

[284] Ibid Para. 44.

[285] See p.137 for further discussion.

[286] European Parliament resolution on the situation as regards fundamental rights in the European

Union (2000) (2000/2231(INI).

[287] OJ C325, 24 December 2002. http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.000501.html

[288] http://uk.srd.yahoo.com/S=11111254:WS1/R=1/K=directive+2000%2f43/*-http://europa.eu.int/eur-lex/pri/en/oj/dat/2000/l_180/l_18020000719en00220026.pdf

[289] 2000/C 364/01.

[290] OJ C325, 24 December 2002. http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.000501.html

[291] http://europa.eu.int/eur-lex/en/search/treaties_other.html

[292] Article6

1. The Union is founded on the principles of liberty, democracy, respect for human rights and

fundamental freedoms, and the rule of law, principles which are common to the Member

States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for

the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4November

1950 and as they result from the constitutional traditions common to the Member States, as

general principles of Community law.

3. The Union shall respect the national identities of its Member States.

4. The Union shall provide itself with the means necessary to attain its objectives and carry

through its policies.

[293] Article 29

‘Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia….’

[294] http://www.google.co.uk/search?q=cache:Afum-EgeQWYJ:www.europarl.eu.int/enlargement_new/europeancouncil/pdf/cop_en.pdf+Copenhagen+European+Council+1993&hl=en&ie=UTF-8

[295] Ibid Para.7 (iii)

[296] Written Question E-1788/03.

[297] Answer to Written Question E-1788/03.

[298] Written Question E-2815/99.

[299] Answer to Written Question E-2815/99. Para. 5.

[300] Council of Europe, Commissioner for Human Rights. CommDH(2003)12.

[301] Application No. 43577/98.

[302] http://uk.srd.yahoo.com/S=11111254:WS1/R=1/K=directive+2000%2f43/*-http://europa.eu.int/eur-lex/pri/en/oj/dat/2000/l_180/l_18020000719en00220026.pdf

[303] http://europa.eu.int/eur-lex/en/search/treaties_other.html

[304] Article 13(1) (ex Article 6a)

(1) Without prejudice to the other provisions of this Treaty and within the limits of the powers

conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

[305] E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) – Report on the

situation of Fundamental Rights in the European Union and its Member States in 2002 - p.179.

[306] See Ch.2 for details.

[307] Within the limits of the powers conferred upon the Community, this Directive shall apply to all

persons, as regards both the public and private sectors, including public bodies, in relation to:

(a) conditions for access to employment, to self-employment and to occupation, including

selection criteria and recruitment conditions, whatever the branch of activity and at all

levels of the professional hierarchy, including promotion;

(b) access to all types and to all levels of vocational guidance, vocational training,

advanced vocational training and retraining, including practical work experience;

(c) employment and working conditions, including dismissals and pay;

(d) membership of and involvement in an organisation of workers or employers, or any

organisation whose members carry on a particular profession, including the benefits

provided for by such organisations;

(e) social protection, including social security and health care;

(f) social advantages;

(g) education;

(h) access to and supply of goods and services which are available to the public, including

housing.

[308] Member States shall take such measures as are necessary, in accordance with their national

judicial systems, to ensure that, when persons who consider themselves wronged because the

principle of equal treatment has not been applied to them establish, before a court or other

competent authority, facts from which it may be presumed that there has been direct or indirect

discrimination, it shall be for the respondent to prove that there has been no breach of the

principle of equal treatment.

1. Paragraph 1 shall not prevent Member States from introducing rules of evidence which

are more favourable to plaintiffs.

2. Paragraph 1 shall not apply to criminal procedures.

3. Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with Article 7(2).

4. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

[309] E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) – Report on the

situation of Fundamental Rights in the European Union and its Member States in 2002 - p.179.

[310] (1991) IRLR 513.

[311] (1998) IRLR 2001.

[312] See Ross, J., The Burden of Proving Discrimination. International Journal of Discrimination and

the Law, 2000, Vol. 4, 95 – 117, for further discussion.

[313] 2000/C 364/01.

[314] Charter of Fundamental Rights of the European Union (2000/C 364/01) Preamble.

[315] Official Journal C 169. http://europa.eu.int/eur-lex/en/treaties/dat/constit.html

[316] See McColgan, A. The EU Charter of Fundamental Rights. Editorial EHRLR 2004, for further

discussion.

[317] E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF) – Report on the

situation of Fundamental Rights in the European Union and its Member States in 2002 - p.176.

[318] Article 7 – Respect for Private and Family Life

Everyone has the right to respect for his or her private and family life, home and

communications.

[319] Applications No. 20348/92, (1997) 23 E.H.R.R., 66746/01and 27238/95, all discussed in Chapter

[320] Article 17 – Right to Property

(1) Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired

possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

(2) Intellectual property shall be protected.

[321] Application No. 27238/95, discussed in Chapter 3.

[322] Article 21 – Non- Discrimination

(1) Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

(2) Within the scope of the application of the Treaty establishing the European Community and of the treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

[323] Article 22 – Cultural, religious and linguistic diversity

The Union shall respect cultural, religious and linguistic diversity.

[324] ETS No. 157.

[325] Applications Nos. 27238/95 and 20348/92, (1997) 23 E.H.R.R. Discussed in Chapter 3.

[326] Resolution1228 (2000). Para. 6.

[327] Ibid Para. 7.

[328] See Douglas-Scott, S. The Charter of Fundamental Rights as a Constitutional Document.

EHRLR 2004, for further discussion.

[329] http://www.publications.parliament.uk/pa/cm200203/cmselect/cmeuleg/103-i/2112003.htm

Para.27.

[330] Article 51 – Scope

1. The provisions of this Charter are addressed by the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.

2. The Charter does not establish any new power or task for the Community or the Union, or modify powers or tasks defined by the Treaties.

Article 52 – Scope of guaranteed rights

1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights or freedoms of others.

2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Article 53 – Level of protection

1. Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are a party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

[331] http://www.publications.parliament.uk/pa/ld200203/ldselect/ldeucom/48/4801.htm

[332] Ibid Paras. 91, 92, 95 and 96.

[333] For UK non compliance see: http://www.coe.int/T/E/Human_Rights/Esc/4_Reporting_procedure/4_Survey_by_country/United%20
Kingdom_Factsheet_2004.asp#TopOfPage

[334] See Chapter 3 for discussion on the European Social Charters.

[335] Charter of Fundamental Rights of the European Union:

Article 52 (3): Scope of guaranteed rights

In so far as this Charter contains rights which correspond to rights guaranteed by the Convention

for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those

rights shall be the same as those laid down by the said Convention. This provision shall not

prevent Union law providing more extensive protection.

[336] Sinti is a sub group of Roma inhabiting German -speaking countries.

[337] See Appendix 2 for further details of the OSCE and OSCE, Permanent Council, Decision No.

566.

[338] See the Scotland Act 1998 – Section 29 (2)(d).

[339] Section 3. Interpretation of Legislation

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read

and given effect in a way which is compatible with the Convention rights.

(2) This Section-

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible

primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible

primary legislation if (disregarding any possibility of revocation) primary legislation

prevents removal of the incompatibility.

[340] Section 2. Interpretation of Convention rights

(1) A court or tribunal determining a question which has arisen in connection with a Convention

right must take into account any-

(a) judgement, decision, declaration or advisory opinion of the European Court of Human

Rights,

(b) opinion of the Commission given in a report adopted under Article 31 of the

Convention,

(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention,

(d) decision of the Committee of Ministers taken under Article 46 of the Convention,

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant

to the proceedings in which that question has arisen….

[341] Section 6. Acts of public authorities

(1) It is unlawful for an authority to act in a way which is incompatible with a Convention right.

[342] Section 4. Declaration of incompatibility

(5) In this section "court" means-

(a) the House of Lords;

(b) the Judicial Committee of the Privy Council;

(b) the Courts-Martial Appeal Court;

(c) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;

(e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.

[343] Section 4. Declaration of incompatibility

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may

make a declaration of that incompatibility.

[344] Ibid S.4.

[345] Human Rights Act 1998. S.2.

[346] See Chapter 3 for further discussion on the jurisprudence of the ECtHR and the ‘margin of

appreciation’.

[347] Section 7. Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is

made unlawful by section 6(1) may-

(a) bring proceedings against the authority under this Act in the appropriate court or

tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he

is (or would be) a victim of the unlawful act….

(3) If the proceedings are brought on an application for judicial review, the applicant is to be

taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a

victim of that act….

[348] Ibid Section 7(7).

[349] Section 29: Legislative Competence

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the

legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply-

(a) it would form part of the law of a country or territory other than Scotland, or confer or

remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) it is in breach of the restrictions in Schedule 4,

(d) it is incompatible with any of the Convention rights or with Community law,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal

prosecution and investigation of deaths in Scotland….

[350] Section 57. Community law and Convention rights

(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to

do any other act, so far as the legislation or act is incompatible with any of the Convention

rights or with Community law….

[351] 2002 SC (PC) 63.

[352] [2004] UKPC D1 (18 March 2004).

[353] [2002] ScotCS 344 (31 July 2002).

[354] 2004 SLT 555.

[355] See Guidelines for Managing Unauthorised Camping by Gypsies / Travellers, Scottish Executive

(2004).

[356] DOE, 18 August 1992.

[357] The British section of the International Commission of Jurists.

[358] 99278/81.

[359] No. R 1983.

[360] Department of Environment Circular 18/94, Gypsy Sites Policy and Unauthorised Camping.

[361] See cases Buckley v. UK Application No. 20348/92, (1997) 23 E.H.R.R. and Chapman v. UK

Application No. 27238/95. Discussed in Chapter 3.

[362] (QBD) (1996) 8 Admin. L. R. 529.

[363] (1996) 160 JP 582.

[364] Ibid page 587.

[365] 1998 EWHC Admin 3 (12 January 1998).

[366] Ibid Para. 6.

[367] (2001) EWHC Admin 800 (9th October, 2001).

[368] Ibid Para. 30.

[369] Ibid Para. 34.

[370] (2001) EWCA Civ 1549 (12th October, 2001).

[371] Hambleton District Council v. Bird (1995) 3 PLR 8.

[372] Para. 39.

[373] Para. 41

[374] See Para. 38.

[375] (2003) UKHL 26 (22 May 2003).

[376] (2003) EWHC Civ 687.

[377] (2004) UKHL 33.

[378] (2001) EWHC Admin 1057 (12^th December, 2001).

[379] Para. 59.

[380] Para. 78.

[381] Para. 67.

[382] See Norfolk Constabulary – Eastern Area Guidance to Supervisors – Unauthorised Traveller

Encampments. Page 1 – ‘… Section 61 CJPO Act 1994 was compatible with rights

conferred by the European Convention on human Rights.’(2002).

[383] (2001) EWHC Admin 1057. Para. 11

[384] (QBD) (1996) 8 Admin. L. R. 529.

[385] (1996) 160 JP 582.

[386] 1998 EWHC Admin 3 (12 January 1998).

[387] (2001) EWCA Civ 1549 (12th October, 2001).

[388] (2001) EWHC Admin 800 (9th October, 2001).

[389] See The Moray Council – Local Housing Strategy 2004 – 2009, (Moray Council 2004) where

there is reference to the needs of Gypsy Travellers, compared with the Aberdeenshire Local

Housing Strategy 2004 – 2009. (Aberdeenshire Council 2004) and Aberdeenshire Council

Homelessness Strategy 2003 – 2006. (Aberdeenshire Council 2003), where there are no

meaningful references at all despite the issues impacting on that local authority regarding

unauthorised encampment by Gypsy Travellers.

[390] Code of Guidance on Homelessness. Guidance on legislation, policies and practices to prevent

and resolve homelessness. Scottish Executive, 2004.

http://www.scotland.gov.uk/library5/housing/cogh-00.asp

[391] Ibid. Ch.5. Para. 182.

[392] High Court QBD (Admin Ct) Case No. CO/3331/02.

[393] (2001) EWHC Admin 800 (9th October, 2001).

[394] Ibid Para. 19.

[395] (2001) EWHC Admin 800 (9th October, 2001).

[396] (1983) 1 All ER 1067 a - d.

[397] (1989) 2 WLR 17.

[398] Case No. CL 950275-79 29(Unreported).

[399] [2004] UKHL 55.

[400] (1997) IRLR 610.

[401] Scottish Executive Response to the Equal Opportunities Committee Report 2001- Inquiry Into

Gypsy Travellers And Public Sector Policies. (Scottish Executive, Edinburgh. 2001).

http://www.scotland.gov.uk/library3/government/gtoctober-00.asp

[402] Delivering for Scotland's Gypsies/Travellers - AN UPDATED RESPONSE TO THE EQUAL

OPPORTUNITIES COMMITTEE INQUIRY INTO GYPSY TRAVELLERS AND PUBLIC

SERVICES 2001. (Scottish Executive, Edinburgh. June 2004).

http://www.scotland.gov.uk/library5/justice/dfsgt-00.asp

[403] The Scottish Parliament Equal Opportunities Committee. 1^st Report 2001 – Inquiry into Gypsy

Travellers and Public Sector policies Vol.1 and 2. (Scottish Parliament, Edinburgh. 2001). –

Recommendation 2.

[404] Application No. 20348/92.

[405] Application No. 27238/95.

[406] Application No. 66746/01.

[407] Application no. 34369/97.

[408] See Case James and others v the United Kingdom (1986) 8 EHRR 123.

[409] http://assembly.coe.int/Main.asp?link=http%3A%2F%2
Fassembly.coe.int%2FDocuments%2Fadopt edText%2Fta93%2FEREC1203.htm

[410]http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2FAdoptedText%2
Fta02%2FEREC1557.htm

[411] CRI (98) 29 rev.

[412] See Case Chapman v. United Kingdom, Application No. 27238/95.

[413] Application no. 34369/97.

[414] See case R. v. Wealden DC Ex p. Wales, p. 587.

[415] (QBD) (1996) 8 Admin. L. R. 529.

[416] (1996) 160 JP 582.

[417] Application No. 20348/92, (1997) 23 E.H.R.R.

[418] Application No. 27238/95.

[419] (2001) EWCA Civ 1549 (12th October, 2001).

[420] (2001) EWHC Admin 800 (9th October, 2001).

[421] High Court QBD (Admin Ct) Case No. CO/3331/02.

[422] (2001) EWHC Admin 800 (9th October, 2001).

[423] See Clarke v. Secretary of State for the Environment Transport and the Regions. (2001) EWHC

Admin 800 (9th October, 2001), and R.(ex. p. Price) v. Carmarthenshire County Council. High

Court QBD (Admin Ct) Case No. CO/3331/02.

[424] Application No. 27238/95.

[425] Application no. 34369/97.

[426] Application No. 27238/95.

[427] (2001) EWHC Admin 800 (9th October, 2001).

[428] (QBD) (1996) 8 Admin. L. R. 529.

[429] (1996) 160 JP 582.

[430] See Parry, G. et all. The Health Status of Gypsies and Travellers in England – Summary of a

report to the Department of Health 2004 (University of Sheffield 2004). at 5 – ‘For Gypsy

Travellers, living in a house is associated with long term illness, poorer health state and anxiety.

Those who rarely travel have the poorest health.’