Fourth Report - Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Part 4): The criminalisation of unauthorised encampments

Václav Havel once said that the litmus test of a civil society is the way it treats its Gypsy, Roma and Traveller community. The Government can do better to protect that way of life and do more to tackle the discrimination that Gypsies, Roma and Travellers continue to face. While a small minority of the travelling community pose challenges for local authorities and law enforcement, the vast majority of Gypsies, Roma and Travellers are law-abiding exponents of a centuries-old way of life. The Government must take particular care to ensure that its actions do not exacerbate the discrimination that continues to be faced by the Gypsy, Roma and Traveller Community.

Whilst the Government must protect the rights of all concerned, they should not use the criminal law to address what is essentially a planning issue. Gypsy, Roma and Traveller communities often have little option available to them other than unauthorised encampments, because local authorities are failing to build a sufficient number of authorised sites.

If the Government nonetheless continues to pursue proposals to criminalise unauthorised encampments, the Government should reintroduce a statutory duty on local authorities to make adequate site provision for traveller communities. This would likely have a much greater effect on reducing the number of unauthorised encampments than the imposition of a new criminal offence.

Without amendment, the Bill is likely to be in breach of the right to respect for private and family life under Article 8 ECHR. To criminalise unauthorised encampments without providing sufficient authorised sites would be contrary to the Government’s obligation to facilitate the Gypsy, Roma and Traveller way of life. We therefore propose that Clause 61 should be removed from the Bill.

We recognise, however, that the Government is likely to retain this Clause. As such, at a minimum, we propose an amendment to the Bill which would only permit criminal sanctions on people living on an unauthorised encampment in circumstances where an adequate authorised site had been made available by the local authority. This is likely to be a more proportionate interference with Article 8 ECHR rights, as well as rights to health and education for the Gypsy, Roma and Traveller community.

The Government’s proposals, as they stand, are likely to be in contravention of the requirement under Article 14 ECHR that human rights and freedoms be secured without discrimination. Clauses 61 to 63 of the Bill have the potential to discriminate against Gypsy, Roma and Traveller people, putting at risk their right to practise their culture without being unfairly criminalised and are likely to be subject to legal challenge, if unaltered.

The wording of Part 4 of the Bill is too vague and offends the principle of legal certainty, which is vital when dealing with criminal law. No person should be 22 Legislative Scrutiny: Police , Crime, Sentencing and Courts Bill (Part 4) punished through laws that lack sufficient legal certainty (Article 7 ECHR) and, moreover, no person’s human rights should be interfered with by laws that lack sufficient legal certainty.

The new offence relates to what someone perceives a person may “intend” to do, or damage they are “likely” to cause, “if” they reside on land. The language of the new offence uses multiple terms that are open to wide and often subjective interpretation and as a consequence will allow for prejudice and discrimination to permeate this new offence. It is clear that any infringement of property rights can cause harm to the landowner. However, we must not criminalise people for doing no harm, particularly when those being targeted by the new offence are a historically persecuted minority group who continue to suffer discrimination and prejudice. We propose that Subsection (4)(b) of new Section 60C, as set out in Clause 61, be left out of the Bill.

The police appear to be uncertain as to how this proposed legislation will be enforced in practice. The Secretary of State is, however, expected to publish guidance for the Police concerning enforcement. This must be done before the Bill completes all stages in the House of Commons so it can be adequately scrutinised by Members of Parliament. The guidance must ensure that the exercise of these provisions is done in a manner that complies with ECHR rights.

The word “insulting” should be removed from the definition of “offensive conduct” within Subsection (8) of new Section 60C, as set out in Clause 61. Doing so would continue to catch threatening or abusive behaviour, but without risking an unjustified interference with the right to free speech under Article 10 ECHR. This would also ensure that members of the Gypsy, Roma and Traveller community would not be prosecuted for the language they use in heightened emotional situations, based on an interpretation of ‘insulting’ by other private citizens who may, in some circumstances, be influenced by conscious or unconscious prejudice against them.

There are far too many risks inherent in a system that effectively criminalises a civil law matter. This is all the more concerning given that some landowners could be motivated by overt, or unconscious, prejudice against Gypsy, Roma and Traveller people. This, combined with a lack of clarity in the language of the Bill, could lead to violations of the principle of no punishment without law (Article 7 ECHR), the right to private and family life (Article 8 ECHR) and freedom from discrimination in the enjoyment of these rights (Article 14 ECHR).

Clearly landowners have a right to ask people to leave their property. However, we propose an amendment to the Bill so that in order for this criminal offence to be committed, it would be due to a failure to comply with a request from a police officer asking unauthorised occupiers to leave private land.

New powers for the police to seize property, including vehicles, must never be used to make Gypsy, Roma and Traveller people homeless, particularly children and older people. We propose an amendment to the Bill which would ensure that the police could never seize a person’s caravan if that is their principal home and they would have nowhere else to live. (Paragraph 59) Legislative Scrutiny: Police , Crime, Sentencing and Courts Bill (Part 4) 23