at Community Law Partnership / No. 24 - Spring2015
Travellers Advice Team national telephone helpline for Gypsies and Travellers
0121 685 8677 Monday - Friday 9am - 5pm
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Power to the People
Everyone had been waiting with trepidation for the Government’s response to the Travellers and Planning Consultation. You can find examples of some of the wonderful consultation responses on our website at:-
After lobbying from Dr Angus Murdoch, a Planning Consultant who acts for Gypsies and Travellers, the Liberal Democrat MP, David Laws, studied all of the consultation responses and was very concerned about the points that were made in those responses. Accordingly the Liberal Democrats blocked the attempt of Mr Pickles, the Secretary of State for Communities and Local Government, to bring in changes to planning policies including the proposed change to the definition of “Gypsy” for the purposes of planning. This is excellent news. Well done to Angus, David Laws, Lord Avebury (who facilitated this process) and all of those who put in consultation responses. A report on this appeared in the Daily Telegraph and, interestingly, on the same page there was a report about thousands more homes being planned for the Green Belt. You will soon find a report on this on our website.
Use Your Vote
We wrote an article studying the party manifestos. You can find this at:
Lord Avebury
There is a very interesting interview with Lord Avebury on the Travellers Times website at:
The Importance of Campaigning
Over the 5 years of the Coalition Government, many people and organisations, including ourselves, have been campaigning against some of the disastrous policies, legal changes and proposals of the Government. Sometimes it may seem that this process is like spitting in sawdust but we should remember those occasions when the campaigning process has led to positive and successful results.
The No Mad Laws campaign briefed Parliamentarians during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill through Parliament. Following questions from Lord Avebury and Baroness Whitaker in the House of Lords, important aspects of the changes with regard to Gypsies and Travellers were clarified (and those clarifications have been quoted to the Legal Aid Agency by solicitors since then).
The Consultations Group (a group of Gypsy and Traveller Support Groups and others who keep an eye on relevant consultations and inquiries) have persistently submitted responses to consultations throughout the period of the Coalition Government. This group has had notable successes:-
Submissions with regard to the proposals in the Localism Act managed to avoid the complete abolition of retrospective planning applications.
Other submissions, also concerning the Localism Act, about the proposal to criminalise squatting in residential buildings, managed to persuade the Government to exclude from the definition the land around a building (which might sometimes be stopped on by Gypsies and Travellers especially when it is a derelict building).
Submissions by a large number of groups (not just the Consultation Group, of course) during the consultation on changes to Judicial Review and Legal Aid, managed to persuade the Government not just to limit Legal Aid payments to situations where permission was granted but to widen that out to situations where the case was settled prior to permission being dealt with at the discretion of the Legal Aid Agency.
Most dramatically, the consultation responses and the campaign around the Government’s proposals on the definition of Gypsy and Traveller for planning law purposes managed to block those proposals (see ‘Power to the People’).
All this underlines the importance of campaigning and responding to consultations. Well done to all those who have battled away over the last 5 years.
Operation Traveller vote
The Traveller Movement have set up this very important campaign. Here is a recent message about it from the Traveller Movement:-
To see Gypsies, Travellers and Roma who are voting and find out why they’re voting visit our We are community We are society campaign page:
If you or people you work with don’t know who to vote for we recommend this simple online quiz which will help you find the political party closest to your views:
Election factsheet
For more general information on voting and the election you can read the joint Traveller Movement and Electoral Commission factsheet in both English and Welsh at the links below:
Defences under the Equality Act 2010
The Supreme Court has overturned the decision of the Court of Appeal and thus concluded that disability discrimination defences to possession actions under the Equality Act 2010 do not have to face the same “seriously arguable” summary test as Article 8 defences to possession actions by local authorities. See Akerman-Livingstone v Aster Communities [2015] UKSC 15. There will soon be a full report on this case available on our website.
Legal Aid Statistics
The latest Legal Aid statistics were published by the Legal Aid Agency on 25th March 2015 and can be found at:-
Amongst other things they show that between April and June 2013 there were 1,171 legally aided Judicial Review cases but between October and December 2014 (after the Civil Legal Aid (Remuneration) Regulations were introduced) this had dropped to 856 (see our separate report on this matter). Of 280 exceptional case funding applications between October and December 2014 only 70 were granted. Of 7 Housing Law applications (Gypsy and Traveller accommodation matters come under the title of housing for legal aid purposes) only 1 was granted (and we believe this was one of our cases).
Updates from the Welsh Government
We copy below a message from John Davies of the Welsh Government providing updates on the situation there:-
“I’m just sending a few recent updates in relation to Gypsy and Traveller policy in Wales.
Undertaking Gypsy and Traveller Accommodation Assessments guidance
Hopefully you will all be aware that the Welsh Government commenced the duty upon Local Authorities to undertake new Gypsy and Traveller Accommodation Assessments (GTAAs) on 25 February. New guidance accompanied this duty, which can be found here:
All Local Authorities in Wales have until 26 February 2016 to complete and submit their new GTAA to the Welsh Ministers for scrutiny. The Welsh Government has written to all Local Authorities offering for me to meet with officials to discuss any doubts about what needs to be completed by then. If you would like to take up that offer, please let me know.
Could I please request each Local Authority to confirm the name and contact details of the officer who will be taking the lead on undertaking the GTAA?
To support the participation of Gypsies and Travellers, the Welsh Government is currently working with Travellers’ Times to develop a film urging community members to participate in GTAA interviews. We expect to be able to share this with Local Authorities in May 2015.
Caravan Count – January 2015 data release
The Welsh Government has published the latest Caravan Count statistics from the January 2015 count. This can be found here:
The Welsh Government is continuing to develop the new Caravan Count system which we intend to trial with willing Local Authorities in early Summer. Both systems should operate concurrently during the July 2015 and January 2016 counts.
Equality and Human Rights Commission legal briefing
The EHRC has recently sent [a] legal briefing to all Local Authority Chief Executives to emphasise the responsibilities of Councillors in relation to disparaging comments about Gypsy and Traveller sites.
The Welsh Government is currently exploring providing training for Councillors across Wales on their duties in relation to Gypsies and Travellers, with reference to the Equality Act 2010 and the Housing (Wales) Act 2014. I will share more details on this when they are available.
Managing Unauthorised Camping protocols
The Welsh Government published its Managing Unauthorised Camping guidance in December 2013 and we will be reviewing adoption of local protocols across Wales, as recommended in the guidance. I may be in contact over the coming weeks to ask about implementation in your area.
All-Wales Gypsy and Traveller Accommodation Forum
Just a quick apology for the delay in sharing the minutes from the latest Accommodation Forum but these should be with attendees shortly. We will also send the presentation used on the day.
Home Loss Payments for Gypsies and Travellers
In this case ( R(Mahoney & ors) v Secretary of State for Communities and Local Government ), the Claimant Irish Travellers, who have to move from their site to an alternative site due to the Crossrail Project, challenged their inability, under the Land Compensation 1973, to claim home loss payments (unlike the situation for house dwellers). Unfortunately they were unsuccessful in this challenge. We will soon have a full report on this up on our website.
Hate Speech
Marc Willers QC of Garden Court Chambers has done an excellent blog on this subject as it relates to Gypsies and Travellers. You can find it on the Garden Court website at:
No Mad Laws
The Ministry of Justice have now provided a totally unhelpful response to the Petition - And see the link to our website:
The Ministry of Justice managed to fail to mention the cases of R (Gudanaviciene and others) The Secretary of State for Justice, which found the exceptional funding guidance to be unlawful, and R(Ben Hoare Bell and Others) –v- The Lord Chancellor which found the Civil Legal Aid (Remuneration) Regulations, which relate to payment in legal aid cases concerning judicial review, to also be unlawful.
Though we have just chased up the other main political parties about the Petition, given that we are now in midst of the General Election Campaign, it may now be unlikely that they will respond to us. However, see ‘Use Your Vote’ above.
Town-Wide Injunction
Harlow Council in combination with Essex County Council have obtained an injunction against Gypsies and Travellers covering 454 parcels of land:
Though TAT were contacted by two of the Defendants prior to the Order being made, unfortunately they were not eligible for legal aid and did not instruct us further. TAT feel that such injunctions are highly challengeable and would be very interested in hearing from anyone affected by this injunction or any other such injunction. Please telephone us on our Advice Line on 0121 685 8677.
Judicial Review Reforms Unlawful but Government ignores the Courts
The effect of the Civil Legal Aid (Remuneration) Regulations 2013 was that solicitors and counsel on a legal aid funded judicial review would receive no payment for the period between issue and permission unless permission was granted. There is a discretion on the part of the Legal Aid Agency to pay those costs if a case ended before permission but that had to be applied for and was wholly a discretion. In the case of R(Ben Hoare Bell and Others) –v- The Lord Chancellor the High Court has decided that these regulations are unlawful - see our website at:
Despite this powerful judgment, the Government have simply re-introduced the regulations with slight adjustments (see the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015). There is a link to the regulations here:-
Once again a Legal Aid provider will only be paid by the Legal Aid Agency if either permission is granted or, if the matter settles before permission is granted without the other side agreeing to pay the costs, at the discretion of the Legal Aid Agency. The changes are that the Government have now stated that there will be payment in three other circumstances and these are circumstances that were given as examples by the Court in the Ben Hoare Bell case of why the regulations were unlawful - they were clearly not intended as the only instances when the regulations were unlawful. The three circumstances are:-
(c)the defendant withdraws the decision to which the application for Judicial Review relates and the withdrawal results in a court -
(i)refusing permission to bring judicial review proceedings, or
(ii)neither refusing nor giving permission;
(d)the court orders an oral hearing to consider-
(i)whether to give permission to bring judicial review proceedings;
(ii)whether to give permission to bring a relevant appeal, or
(iii)a relevant appeal, or
(d)the court orders a rolled-up hearing.
No doubt further challenges will now come forward in the face of this cynical move by the Government.
Green Belt Recovery Cases
Readers will recall that in the case of R(Moore & Coates) –v- Secretary of State for Communities and Local Government Mr Justice Gilbart had quashed the decisions of the Secretary of State, Mr Pickles, to recover these Green Belt Gypsy and Traveller planning appeals. Gilbart J found the process of recovery to be discriminatory and unlawful. It was estimated that some 100 other cases had been affected by this unlawful recovery process and Gilbart J, in his judgment, indicated that he hoped that the Government would review all these cases. In response to a question about the review of recovery decisions by Lord Avebury, on 26th March 2015, Lord Ahmad of Wimbledon, a Minister in the Department for Communities and Local Government stated as follows:-
This Government continues to attach great importance to safeguarding the Green Belt. It will address concerns about the harm caused when there is unauthorised development of land in advance of obtaining planning permission and there is no opportunity to appropriately limit or mitigate the harm that has already taken place. For these reasons, the Secretary of State for Communities and Local Government will introduce a new planning and recovery policy for the Green Belt early in the new Parliament to strengthen protection against unauthorised development. This new policy will apply to all development within the Green Belt. In the meantime he has also decided to de-recover those cases of appeals for traveller development in the Green Belt on which a substantive decision has not been reached. These will be remitted back to the Planning Inspectorate and, where appropriate, we will re-assess them in light of the new recovery policy.
Once again the Government seem happy to ride roughshod over court judgments.
It is important that those Gypsies and Travellers whose cases were recovered after the first Written Ministerial Statement was issued on 1 July 2013 and who have had refusals of permission from Mr Pickles where Mr Pickles has not followed the recommendation of the Planning Inspector, should continue with their challenge to the recovery process or, if they have not yet challenged that process, should seriously consider doing so.
Due to the ambiguity in the final reply from Lord Ahmad, those Gypsies and Travellers whose cases have been recovered but have not yet been decided should press for confirmation that the decision in their case will be taken by a Planning Inspector and not by the Secretary of State. We would encourage people who have queries about this or to whom this applies to contact us on our advice line on 0121 685 8677.
Standard letters have been sent to those Gypsies and Travellers who have not yet had final decisions informing them of the de-recovery of their cases.
There are conflicting interim court decisions on whether those who have had decisions where it is now too late to challenge the actual decision itself can still challenge the original decision to recover.
Watch this space!
Civil Legal Aid Cuts “failed to target help where needed”
The above quote is the conclusion of the cross party Parliamentary Justice Committee in their report Impact of Changes to Civil Legal Aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders’ Act 2012 published on 12 March 2015.
It should be remembered that the Committee consisted of five Conservative members, five Labour members, one Plaid Cymru and one Liberal Democrat member (the Chair, Sir Alan Beith).
In its summary the Committee reported the Ministry of Justice’s four objectives for the reforms to be to:
- Discourage unnecessary and adversarial litigation at public expense;
- Target legal aid to those who need it most;
- Make significant savings in the cost of the scheme;
- Deliver better overall value for money for the taxpayer.
The Committee’s overall conclusion was that “while it had made significant savings in the costs of the scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other 3 out of 4 of its stated objectives for the reforms”.
In terms of the operation of the Legal Aid Agency the Committee stated:
178. The reduction in the payment error rate which has been achieved by the Legal Aid Agency is highly commendable but we do not, realistically, think it would be imperilled by a policy decision not to investigate the origin of tiny sums of money. The Legal Aid Agency’s duty is to administer public money responsibly, not to waste its resources on irrelevant or de minimis inquiries. We are concerned at the various examples we have seen of the Legal Aid Agency failing to give sufficient weight to its vital role in ensuring access to justice.
Conclusions and Recommendations
It is worthwhile quoting extensively from these given the importance of the recommendations (though we do not quote from all recommendations here – mainly concentrating on those which are likely to affect Gypsies and Travellers most):