By Marc Willers QC, Garden Court Chambers and Chris Johnson, Travellers Advice Team at Community Law Partnership.
On 5 November 2019 the Home Office announced a consultation Strengthening police powers to tackle unauthorised encampments . This consultation follows an earlier consultation issued by the Ministry of Housing, Communities and Local Government (MHCLG) in April 2018 on the effectiveness of enforcement against unauthorised developments and encampments (see the MHCLG report in February 2019 following the consultation).
The Home Office consultation proposes that unauthorised encampments be addressed by the criminalisation of trespass or the strengthening of the police powers of eviction.
The timing of the Home Office’s consultation just before the election is no coincidence. It is, in our view, no more than predictable dog whistle electioneering by the Conservative government.
It contrasts with the government’s announcement in June 2019 that the MHCLG would lead development of a cross-government strategy to improve outcomes for Gypsy, Roma and Traveller communities. In our view it is totally unacceptable that the Home Office should torpedo such a strategic approach with this consultation paper.
Nomadism is at the heart of the traditions and culture of Gypsies and Travellers. The first written record of Romani Gypsies in Britain dates from 1502 and nomadism has certainly been part of British life for at least 500 years.
When combined with the spread of wide injunctions that are being obtained by local authorities up and down the country, which prevent Gypsies and Travellers from camping on public land , these proposals amount to one of the most serious assaults on that nomadic tradition in half a millenium. Unlike the rifles and the cavalry employed by the US government during the 19th century “Indian Wars”, this government is employing legislation to try and destroy that tradition.
This is despite the fact that the Home Office seems to accept in the consultation document that there are already draconian powers of eviction:
Parliament has already given local authorities and the police significant powers and duties designed to help them manage the impact of unauthorised encampments on local communities, including local authority and police powers in the Criminal Justice and Public Order Act 1994 (p7).
Organisations that advise and assist Gypsies and Travellers will rightly argue that the obvious answer to unauthorised developments and encampments is the provision of public and private pitches, transit sites and emergency stopping places, facilitated perhaps by a policy of ‘negotiated stopping’. 
Gypsies and Travellers have some of the worst outcomes nationally in terms of health and education – see, for example, Alternatives to Criminalization, University of Sheffield June 2018  - and, in our view, the Home Office’s proposals will only serve to exacerbate the health and education inequalities that they experience.
The Criminalisation of Trespass
The Home Office justifies its proposal to criminalise trespass by reference to legislation in the Republic of Ireland:
The Irish Government has criminalised trespass in certain circumstances, in conjunction with a statutory requirement for local authorities to provide traveller sites. In response to concerns about trespassers occupying public spaces and private land, the Irish Republic introduced the Housing (Miscellaneous Provisions) Act 2002 (the Act). The Act made it an offence for any person to enter and occupy land without the owner's permission - or bring any "object" on to the land - if this is likely to "substantially damage" the land or interfere with it. The offence contained in Section 24 of the Act has the effect of criminalising trespassers who occupy land without consent. The legislation does not amount to a ban on all unauthorised encampments. It criminalises encampments that ‘substantially’ damage the land or prevent use of the land by the owner or other lawful users. The Act gives the Irish police discretion to direct trespassers to leave land if it is suspected that this offence is being committed. Failure to comply with a direction is also punishable by a fine and/or a one-month prison sentence. It is for the police to consider which approach to adopt depending on the individual circumstances of the case and the encampment (p9).
In our view the consultation paper’s representation of the law in Ireland is somewhat misleading. The Home Office states that ‘The Irish Government has criminalised trespass in certain circumstances, in conjunction with a statutory requirement for local authorities to provide traveller sites.’ That sentence suggests that the use of powers to stop trespass are linked to the provision of sites. However, that is not the case. While there is a statutory obligation on local authorities in the Republic of Ireland to develop Traveller accommodation programmes pursuant to the Housing Act 1998, there is no correlation between the development of those programmes and the use of the criminal trespass powers.
The fact that a local authority has or has not made sufficient alternative accommodation available is not a ‘defence’ to any direction or prosecution under the Public Order Act 1994. This is a criminal provision which can be used by An Gardaí Siochana (the Police Force) which has no statutory obligation to provide sites, or to consider if alternative accommodation is available. So to imply that there is a balance or correlation between the function of the local authority as a housing authority and the use of criminal trespass law in Ireland is completely incorrect.
We note that the Home Office states that ‘The legislation does not amount to a ban on all unauthorised encampments. It criminalises encampments that ‘substantially’ damage the land or prevent use of the land by the owner or other lawful users’. In fact, this statement is also incorrect: the Irish legislation, in effect, bans all unauthorised encampments (the only specific exception relates to roadside encampments on minor roads for the purposes of the Roads Act). 
The reference to the term ‘substantially damage the land’ is disingenuous as there are in fact five grounds on which the offence is committed. It is not just committed in a case where substantial damage is caused. A person commits the offence where: they bring or place on any land any object; where the entry or occupation or the bringing onto or placing on the land of such object is likely to: (i) substantially damage the land; (ii) substantially and prejudicially affect any amenity in respect of the land; (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity; (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe; or (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land. Any one or all of the above constitute the offence. Indeed it is quite difficult to imagine how Gypsies or Travellers in the Republic of Ireland who have no alternative but to stop on an unauthorised encampment could avoid committing this offence.
So, insofar as the consultation presents the Irish legislation as a potential template for changes to the legislation in England and Wales, it is essential that consultees (who clearly cannot be expected to be experts on the situation in the Republic of Ireland) are given a correct and sufficient explanation of the legal position in the Republic so that they can properly assess it as a template. This has clearly not been achieved in this consultation paper; indeed, the consultation is misleading. Consultees may be willing to endorse the adoption of criminal trespass laws which are modelled upon Irish legislation without understanding its true nature and scope and the impact it would have upon Gypsies and Travellers.
Strengthening Police Powers
The consultation paper states:
We would welcome views on whether to amend section 62A of the Criminal Justice and Public Order Act 1994 to permit the police to direct trespassers to suitable authorised sites located in neighbouring local authority areas. Extending this power would make it more likely that the police could act where there is a shortage of site capacity in one particular area. However, we believe that such changes may need to be subject to conditions around:
Agreements being in place between local authorities. Local authorities have advised us that the use of such a power without agreements in place would deter them from creating more authorised sites. This would be counterproductive.
A maximum distance that trespassers should be directed across. In some rural areas, a site in a neighbouring local authority area could be several hours drive away. It could be considered unreasonable to relocate someone that far (p12).
We would welcome views on whether to amend sections 61 and 62A to increase the period of time in which trespassers directed from land would be unable to return from three months to twelve months. This would provide greater protection to land targeted by the same group of trespassers on a regular basis (p13).
We would welcome views on whether to amend section 61 of the Criminal Justice and Public Order Act 1994 to lower the number of vehicles needing to be involved in an unauthorised encampment from six to two, before police powers can be exercised. This will increase the opportunity for police intervention where smaller encampments are present (p14).
We would welcome views on whether to amend section 61 of the Criminal Justice and Public Order Act 1994 to enable the police to remove trespassers from land that forms part of the highway. The police are currently restricted in dealing with these encampments unless there is a suitable pitch in the same local authority area. This could make it easier for the police to tackle problematic encampments (p14).
We believe giving the police powers to seize property, including vehicles, could enable the police to remove unauthorised encampments more quickly and act as deterrent to setting up an unauthorised encampment. We would welcome views on whether to grant police powers to seize property from trespassers and in what circumstances they should have these powers (p15).
The idea that the police powers under CJPOA 1994 ss61, 62 and 62A could be strengthened beggars belief! At present, the police can give Gypsies and Travellers extremely short timescales to leave an encampment (e.g. half an hour or an hour typically). If they refuse to do so then the Gypsies and Travellers can be arrested and their caravans (i.e. their homes) can be impounded.
Importantly, the National Police Chiefs’ Council and Association of Police and Crime Commissioners have said that criminalisation of Travellers is not the answer and have called for a ‘significant increase’ in the number of permanent and temporary sites across the country . Quite apart from the lack of any necessity for stronger enforcement powers, we consider that the proposal that the police be given the power to direct Gypsies and Travellers to another local authority may disrupt schooling and healthcare.
Equally as important, we consider that this proposal would discourage local authorities from making site provision; they could simply rely on their neighbouring local authorities to do so.
The consultation paper refers to the seizure of ‘property from trespassers’ without making it clear to consultees that it would include the seizure of caravans in which Gypsies and Travellers live!
When the existing police powers were first discussed in Parliament during the passage of the Criminal Justice and Public Order Bill in 1994, the government stated that the powers were intended for situations of ‘mass trespass’. That is a far cry from the proposal in the consultation paper that the powers can be used where there are two or more vehicles; it would mean that the powers could be used against almost all encampments, however small and innocuous they might be.
In summary, we believe that although these proposals stop short of the formal criminalisation of trespass they would have much the same effect if adopted.
Provision of sites
The April 2018 MHCLG consultation paper did at least include one question which addressed site provision. By way of contrast the Home Office consultation paper makes no mention at all of site provision. In our view the failure to address such an important matter is a fatal flaw in the consultation paper. It is obvious that the provision of pitches, both permanent and transit, and the use of emergency stopping places and ‘negotiated stopping’ are credible solutions to the perceived ‘problem’ of unauthorised encampments.
Equality Impact Assessment
The Impact Assessment at the end of the Home Office consultation paper states:
We recognise that the proposals outlined in this document could have an adverse impact on some members of this minority group. Indeed, in response to the original consultation, some traveller groups, human rights groups and legal organisations told us that criminalising trespass would be a disproportionate response that would impact on their way of life. However, we also recognise the distress that local communities and businesses face as a result of unauthorised encampments. While we recognise that not all unauthorised encampments cause disruption and impact communities, there is evidence that shows where this is the case, the financial costs falling to landowners to evict and to clear sites along with the impact to the community can be significant. The Home Office will seek views on all proposals and any mitigating actions to limit any disproportionate impact on the Travelling community, as well as any indirect impacts on other protected characteristics, such as disability. The Public Sector Equality Duty is an ongoing duty that will be kept under review as we develop the policy (p21).
Our views can be put shortly: these proposals are completely disproportionate and unjustifiable.
The Home Office’s proposals amount to criminalisation of the traditional way of life of Gypsies and Travellers. As George Monbiot has said in a recent article in the Guardian :
A week before Patel launched her consultation, the Wiener Holocaust Library in London opened its exhibition on the Porajmos: the genocide of Roma and Sinti people carried out by the Nazis. It shows how ancient prejudices were mobilised to destroy entire peoples. I’m not saying that this is how the situation will unfold in this country, but the exhibition shows us the worst that can happen when the state sanctions the demonisation of an outgroup. First they came for the Travellers …
In our view, a decision to criminalise trespass or strengthen the enforcement powers would be susceptible to challenge in the Courts on grounds that:
- Gypsies and Travellers without a lawful site would be subject to continual eviction and under the constant threat of prosecution if they chose to pursue their traditional way of life;
- it would breach the rights of Gypsies and Travellers protected by Article 8 of the European Convention on Human Rights to respect for their traditional way of life and the positive obligation on the government to facilitate that way of life ;
- it would breach the government’s public sector equality duty under Equality Act 2010 s149 (given that the provisions would disproportionately impact Romani Gypsies and Irish Travellers who are recognised as ethnic groups).
We ask how could such a significant increase in enforcement powers be proportionate and reasonable when there are insufficient pitches and stopping places? When hundreds of Gypsies and Travellers have to resort to unauthorised encampments through no fault of their own, how can it be proportionate and reasonable to criminalise them overnight?
We call on the next government to withdraw these offensive proposals and to concentrate instead on ensuring that the shortage of permanent and transit site provision is addressed.
 See section 19A-H at http://revisedacts.lawreform.ie/eli/1994/act/2/revised/en/pdf?annotations=true
 https://www.travellerstimes.org.uk/news/2018/06/police-chiefs-back-calls-creation-dozens-more-gypsy-and-traveller-sites. See also the recent report from Friends, Families and Travellers: https://www.gypsy-traveller.org/news/police-call-for-more-traveller-sites-not-the-criminalisation-of-gypsy-and-traveller-families/
 Housing (Wales) Act 204 s103.
 As an aside, any criminalisation of trespass or strengthening of police powers will also affect Wales and we assume that the Welsh Government and organisations in Wales will want to respond to the consultation.
 See Chapman v UK (2001) 33 EHRR 399 at para 96.