The Government are carrying out a consultation on the Human Rights Act and propose to repeal it. CLP and Ruston Planning have submitted an urgent response.
The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers Advice Team (TAT) – a ground-breaking nationwide 24 hour advice service for Gypsies and Travellers. TAT have taken some of the leading cases in this area of the law including three cases in the House of Lords, one in the Supreme Court and one in the European Court of Human Rights. Ruston Planning is a planning consultancy that specialises in running planning appeals for Gypsies and Travellers.
The Human Rights Act 1998 and Gypsies and Travellers
Research reports show the discrimination and disadvantage experienced by the Gypsy and Traveller community in England and in the UK in general (see, for example, Experts by Experience from Anglia Ruskin University and the Joseph Rowntree Foundation and Civil Society Monitoring on the Implementation of the National Roma Integration Strategies from the Decade of Roma Inclusion Secretariat Foundation – both published in October 2014).
As a consequence, Gypsies and Travellers often have to rely on HRA 1998 in order to challenge the decisions of public authorities.
Given the numbers of Gypsies and Travellers still having to resort to unauthorised encampments and unauthorised developments in the UK due to the failure of both central government and local authorities to ensure adequate site provision and stopping places, Article 8 ( right to respect for private and family life and home) and Article 14 ( discrimination) have proved absolutely vital in defending Gypsies and Travellers from unlawful evictions, unjustified injunction action and other forms of punitive court action.
To give just one example see the Court of Appeal judgment in London Borough of Bromley v Persons Unknown, London Gypsies and Travellers and others  EWCA Civ 12: http://www.communitylawpartnership.co.uk/news/the-enshrined-right-to-travel-the-bromley-case
Independent Human Rights Act Review (IHRAR)
One might ask what is the point in carrying out a review of the HRA1998 if that review is ignored. In the House of Commons justice select committee, Sir Peter Gross QC was asked by Bob Neill MP whether he characterised the government’s consultation paper, Human Rights Act Reform: a Modern Bill of Rights, as a response to his report. ‘No,’ he replied. ‘We knew that the current Lord Chancellor intended to go wider than our report. He was very courteous and fair in telling us that. What we didn’t know was that it wasn’t going to be what I would call a “response of document”. The best way I can put it is, if you compare this document to the response to the Faulks IRAL review [Independent Review of Administrative Law], you could put Faulks down and put the response next to it, and you could run the one into the other. You can’t with this. In short form, you can’t put ours down here, put the government’s consultation down there, and say the two work together.’
So the starting point is that the government’s own experts have been ignored.
The ability of Gypsies and Travellers to respond to the consultation
The Government’s own consultation guidelines state that “consultations should take account of the groups being consulted”. We are unaware of any effort to consult with the Gypsy and Traveller community many of whom are illiterate or have poor literacy. In previous consultations oral sessions have been held in order to allow the community to make their voices heard.
The central premise – should the HRA 1998 be replaced with a bill of rights?
At no point does the consultation ask this question. The answer from our perspective is emphatically no.
In Chapman v UK (2001) 33 EHRR 18, The European Court of Human Rights stated ( at para 96):
‘Nonetheless, although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment, it may have an incidence on the manner in which such laws are to be implemented. 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.’
This positive obligation and its application in cases ( see the Bromley case) has proved fundamental in protecting the rights of Gypsies and Travellers. Repeal of the HRA will remove this fundamental protection and, in our estimation, would be disastrous for the Gypsy and Traveller way of life.
Community Law Partnership
8th March 2022