The Travellers’ Champion
Lord Eric Avebury, who passed away on 14 February 2016, caused a political sensation when, as Eric Lubbock, he took the rock-solid Tory seat of Orpington for the Liberals at the 1959 General Election. Thereafter he became known as ‘Orpington Man’. He held the seat until 1970. A year later he succeeded to the Avebury baronetcy and took a seat in the Lords. He remained in the Lords until his death.
Eric, as he always preferred to be called, fought for a bewildering number of issues and campaigns over the years but he campaigned for the rights of Gypsies and Travellers throughout his political life. Historically, Orpington (especially the area of the Crays) had a large Gypsy and Traveller population, with many in housing, and this is where he first came across the prejudice and discrimination faced by these communities. In 1968 he introduced the Caravan Sites Bill as a private members’ bill. The government of Harold Wilson supported the Bill and it became an Act. Famously the Act contained a duty on local authorities to facilitate the provision of Gypsy and Traveller sites (the duty was repealed by the Tories in the Criminal Justice and Public Order Act 1994). Unfortunately, many councils failed to comply with their duty to provide sites. Nevertheless, it is fair to say that without this duty, the vast majority of the 350 local authority sites that exist in England and Wales today would never have been built.
Eric has continued to fight for Gypsies and Travellers ever since. We will pick out just one example here as representing the fantastic and vital work he did in this field. The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill was introduced to Parliament in 2012. Its provisions with regard to legal aid were clearly going to have very detrimental consequences on Gypsies and Travellers. In conjunction with the Labour peer, Baroness Whitaker, Eric rallied many peers to oppose the relevant provisions of the Bill leading to some of the finest parliamentary debates on Gypsy and Traveller issues that have ever been seen. Here is an example of one of many contributions from Eric in the House of Lords debate on the LASPO Bill on March 12th 2012.
As the Minister is aware, we are still deeply concerned about the Bill's impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action-for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994-then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.
If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.
Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council's decision to seek possession in the High Court on the basis of the local authority's failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?
We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady's brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these conditions. They have been fortunate in having remained on this site for the past four months without being noticed but, at any moment, the local authority could seek possession and they would be removed from the site and would be unable to continue to obtain medical advice and treatment, which clearly they desperately need.
Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.
I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided-wrongly, in my opinion-to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe's High Commissioner for Human Rights.
We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment…
In response to this contribution from Eric, the government spokesman, Lord Wallace of Tankerness, conceded that judicial review challenges would still be available to Gypsies and Travellers on unauthorised encampments. These and many other important concessions have been vital to lawyers and advisers acting for Gypsies and Travellers on a variety of matters since the LASPO Bill became an Act.
The authors worked with Eric on many issues and we would adopt a description given to him in the Times obituary (February 16 2016): “courteous, candid, resourceful and resilient”. We think it is fair to describe Eric as possibly the greatest campaigner for Gypsies and Travellers in the past 50 years and there is no doubt that his Caravan Sites Act made the most significant positive impact for Gypsies and Travellers of any piece of legislation during that period of time. If only more of his fellow politicians were so enlightened.
Eric was a great man. We will all miss him.