USING A SLEDGEHAMMER TO CRACK A NUT

With the fast approaching  High Court challenge against the increasing use of ‘wide injunctions’ banning Travellers from stopping on vast swathes of public land happening on May 15th, Marc Willers QC and Tessa Buchanan of Garden Court Chambers and Chris Johnson of Community Law Partnership solicitors discuss the misuse of these draconian powers:

In recent months, there has been a marked increase in the number of local authorities seeking so-called ‘wide injunctions’. In one such case, London Borough of Bromley v Persons Unknown, the claimant authority is seeking an injunction against Traveller encampments covering 171 pieces of public land. London Gypsies and Travellers (LGT) have been granted permission to intervene in this case. LGT are represented pro bono by the authors of this piece. The final hearing of the case is to take place in the High Court in London on May 15th. For more information on the case, see https://www.travellerstimes.org.uk/news/2019/02/court-challenge-bromley-anti-traveller-camp-injunction-set-new-date

1. What are these wide injunctions / how do they work? 

Wide injunctions are orders which prevent certain activities taking place on certain pieces of land. They are ‘wide’ because they cover multiple pieces of land in the ownership of the applicant local authority and also because they are not made only against specific individuals, as most court orders are, but against ‘persons unknown’, which potentially includes the whole world. The activities which are the focus of such injunctions include not only obviously anti-social behaviour such as fly-tipping but also non-criminal behaviour such as camping in caravans.

2. Why are councils using them?

Councils are justifying applications for wide injunctions on the basis of anti-social behaviour which they find difficult to control. They argue that if an injunction is in place then it will act as a deterrent because, if a person breaches the injunction, that could result in him or her being committed to prison for contempt.

However, opponents of such measures argue that if councils wanted to deter the perpetrators then they could identify them more specifically and limit the injunctions they seek to anti-social behaviour.

3. How do the injunctions affect the rights of Gypsies and Travellers?

We need briefly to explain the background and context:

Romani Gypsies and Irish Travellers are recognised ethnic minorities under the Equality Act 2010.

Living in caravans is an integral part of the traditional way of life of both Romani Gypsies and Irish Travellers.

Gypsies and Travellers have been camping on common land in the UK for centuries. However, in the 1960s legislation was passed which prevented them from doing so. Instead, councils were required to provide sites for them. It is widely acknowledged, though, that too few sites were built and little was done by successive governments to force councils to comply with their obligations. The result is that there is now an acute shortage of sites. 

Without sites, many Gypsies and Travellers are forced to live a wholly nomadic existence dwelling on the roadside and on other unauthorised sites. Such families are moved on regularly without the opportunity to get their children into school or to access proper healthcare. They suffer the worst health outcomes and their children have the lowest levels of educational achievements of any minority group.

As public bodies, local councils have a duty to take account of considerations of common humanity and to undertake welfare enquiries before deciding whether or not to evict Gypsies and Travellers who are camping on their land. 

They have a variety of enforcement measures they can use but they must act humanely and consider whether an encampment can be allowed to remain. It may be appropriate to do so where an encampment is in an unobtrusive location, causing no disruption, and can be managed, for example, with the provision of portaloos and rubbish collection. Many councils manage such encampments in this way, knowing full well that the families have nowhere else to go and need a place to stay - perhaps to visit relatives, go to hospital, or attend a funeral in the area, or just as a port in a storm and as respite from the continual cycle of eviction.

Wide injunctions against ‘persons unknown’ will prevent innocent Gypsy and Traveller families with nowhere else to go from being able to camp on council land at all, at a time when there is an acute shortage of sites because the very same councils have failed to make adequate provision. Opponents of such injunctions argue that it is grossly unfair and inequitable to penalise and demonise all Gypsies and Travellers for the anti-social behaviour of a few. It fails to respect the Gypsy and Traveller way of life and undermines the obligation on councils to facilitate the Gypsy/Traveller way of life.

These injunctions are being sought by councils in London and all over the country and it is feared that if they are granted then Gypsies and Travellers will have nowhere to go - they will be driven into the sea!

4. What is happening at the upcoming hearing and what could the outcome of that be?

At the hearing, we will explain the context in which the injunction is being sought and its effect on innocent Gypsy and Traveller families. We will ask the Court to limit the reach of the injunction, so that it only covers named individuals or those that can be readily identified and does not cover everyone. We will also ask the Court to give guidance on the principles to be applied by other courts when such injunctions are contemplated so as to ensure that the rights of Gypsies and Travellers are sufficiently protected and their traditional way of life is accorded due respect. 

By Marc Willers QC and Tessa Buchanan of Garden Court Chambers and Chris Johnson of Community Law Partnership solicitors

(Main photo High Court of Justice, The Strand, London © sjiong - https://www.flickr.com/photos/sjiong/109817932/)