Criminalising trespass will hurt Travellers most – but government proposals fail on their own terms

Under new government proposals, police in the UK will be allowed to seize homes and arrest Travellers who refuse to move from unauthorised camps. A new law which effectively criminalises intentional trespass and imposes sentences of up to three months and fines of up to £2,500 will disproportionately affect Travellers, who are recognised as an ethnic group under the Race Relations Act.

Police will direct Travellers to leave sites on which they have no permission to stay, even when there are no alternative stopping places for them. The number of caravans that’s deemed to constitute an unauthorised encampment has been reduced in the new proposal from six to two.

The government justified the legal change in a 2019 consultation paper, which described the need to respect the “feelings” of the local settled community, business owners and landowners. This explanation would seem to ignore the feelings of people who don’t conform to this very narrow definition of the British public. So why is the government changing the law? And why now?

The European Court of Human Rights has long recognised the right to live in a caravan home as a fundamental component of British Gypsy identity. This is protected by the right to a home life under Article 8 of the human rights convention – effective in UK courts under the Human Rights Act 1998. Nevertheless, many Travellers have found it impossible to continue their way of life in the UK due to the absence of authorised stopping places.

The Criminal Justice and Public Order Act 1994 removed the statutory duty on local authorities to provide stopping places for Gypsies. At the time, I reviewed responses to the consultation paper and found that farmers, the police and landowners were overwhelmingly opposed to abolishing the duty. Why? Because they worried it would actually create rather than reduce trespass.

An obvious solution to unauthorised encampments would be a return to this statutory duty. Not only would it be cheaper, as there’d be less enforcement involved and fewer legal challenges, but it would help make damage to public land and antisocial behaviour, such as dumping rubbish and damaging fences, less likely. Much of this currently happens because of deliberate obstacles placed in the way of access points to land and the absence of public amenities on these unauthorised sites. Most importantly, it would protect the rights of Travellers and enable families to access public services.

The government is currently leading a public consultation on unauthorised encampments. A freedom of information request by the campaign group Friends, Families and Travellers revealed that 84% of police respondents didn’t support criminalising these encampments and 94% called for providing sites as the solution. This echoes the reasoning of Sir Stephen Sedley, then a high court justice, in a legal challenge to planning provisions in 1995.

Another explanation for unauthorised encampments is the difficulties that Travellers face in obtaining planning permission on their own land. In one case heard by the European Court of Human Rights, it was reported that 90% of applications made by Gypsies in the UK were refused, compared to an average of 20% for other planning applications. The most recent official count found 2,049 caravans on land owned by Travellers that had not obtained planning permission.

A hostile environment

It’s difficult to understand why criminalising families and confiscating their homes should be a priority, especially during a pandemic. The official count of Gypsy caravans in January 2020 found a mere 3% of Gypsy and Traveller caravans in England were in unauthorised encampments. Rather than being a growing concern, this marked a decline of 20% from the previous count in January 2019.

Powers already exist under sections 61-62E of the Criminal Justice and Public Order Act 1994 to allow officers to direct those in an unauthorised encampment to leave land if their encampment consists of six or more vehicles or the landowner has asked them to move and they’ve caused damage or been abusive. The police can also direct an encampment of at least one caravan to move where the local authority can provide a pitch elsewhere.

In legal cases brought by Travellers contesting evictions and planning rules, such as Chapman and Connors, the European Court of Human Rights observed that the vulnerability of this community meant that special consideration should be given to their needs. Since the decisions of this court must be taken into account by British courts under section 2 of the Human Rights Act 1998, it’s very likely that criminalising trespass will lead to future legal challenges.

These proposals will almost certainly conflict with the human rights of Travellers – but they’re also likely to be unworkable for those given the job of enforcing them. While heaping more misery on some of the UK’s most vulnerable communities, criminalising trespass will also exacerbate conflict with settled residents. As Justice Sedley noted, respecting Travellers’ way of life is about respecting our common humanity.

Helen O'Nions does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.