Examination of Witnesses (Questions 142
- 159)
TUESDAY 29 JUNE 2004
MS SARAH
SPENCER AND
MS SASHA
BARTON
Q142 Chairman: Can I welcome you
to the second session of the Committee's inquiry into Gypsy and
Traveller sites and ask you to identify yourselves for the record
please.
Ms Spencer: I am Sarah Spencer,
Deputy Chair of the Commission for Racial Equality.
Ms Barton: Sasha Barton, Senior
Policy Officer for Gypsies and Travellers.
Q143 Chairman: Do you want to say
anything by way of introduction or are you happy for us to go
straight to questions?
Ms Spencer: We are happy for you
to go straight into questions but perhaps at the end if there
is something we have not said then we might have an opportunity
to add something.
Chairman: Thank you very much. Christine
Russell?
Q144 Christine Russell: In your submission
you express concern over the current definition of a Gypsy which
is based on the principle of a "nomadic habit of life".
You suggest "a definition is needed which incorporates both
a nomadic and ethnic dimension", so how would you define
this ethnic dimension?
Ms Spencer: That is a very important
question and we are glad that we have an opportunity to expand
on it. There are two problems for us with the definition. One
is that "Gypsy" as a term does not encompass all of
those who have a nomadic way of life. It cannot be taken to include
Travellers, for instance Irish Travellers, so in the legislation
we would like to see references to "Gypsies and Travellers".
Also, although the terminology "nomadic way of life"
was originally put in the legislation in order to try to define
and protect this way of life, it no longer does, so it needs to
be updated to reflect the fact that there are many people for
whom a nomadic way of life, in a sense, is a state of mind and
is part of their cultural background but who no longer either
want or perhaps are not able to travel, who want to live in a
mobile home or a caravan but want to stay in one place, and so
the current definition is too narrow. We need a definition that
both enables people to be nomadic if that is what they want to
be but also enables them to live in a mobile home or a caravan
and stay in one place. The impact of the current definition is
that it is excluding, in a sense, protection for those who do
from their ethnic background have a nomadic state of mind but
who do not want to or are not able to travel.
Q145 Christine Russell: But you have
not within the organisation looked at coming up with a definition
of ethic dimension?
Ms Spencer: What we would like
to suggest is that the law should refer to "Gypsies and Travellers"
and define Travellers as "persons that are members of ethnic
groups for whom living in caravans is an integral part of their
traditional way of life, such as Irish Travellers, and persons
of nomadic habit of life whatever their race or origin."
The effect of that would be to encompass those whom the courts
have defined as Gypsies and Travellers under the Race Relations
Act but would also encompass those who are of a nomadic way of
life but whom the courts have not yet defined as having the protection
of the Act, for instance, Scottish Travellers, for whom we are
at the moment considering taking a case to clarify that they have
that ethnic status but do not yet have it.
Q146 Christine Russell: That is a
very all-encompassing definition. Surely, it could apply equally
to a person who is moving around from a relative's sofa to a relative's
sofa?
Ms Spencer: We think we would
exclude a situation like that by saying "an integral part
of their traditional way of life" and so it does not cover
someone who does not have that as their cultural background who
decides that he wants to start moving at a particular point in
his life. So we have tried in our submission to get a balance
to reflect people who may no longer have it as part of their actual
way of life but it is part of their traditional way of life, without
making it so broad that it encompasses anybody who might want
to move.
Q147 Christine Russell: You also
suggest in your evidence that ethnic data could be collected as
part of the bi-annual Gypsy counts "as a means of enabling
and encouraging councils to better comply with their race equality
duty, provide better services to Gypsies and Travellers, and to
remove any excuse for inaction." How do you think local authorities
could gain the co-operation and the confidence of Gypsy and Traveller
families in order to obtain that data?
Ms Spencer: I think you are absolutely
right to identify the fact that a lack of confidence in the communities
would be a barrier to collecting the data. The communities would
need to know what the purpose of collecting the data was and feel
confident that it was being collected in order to help alleviate
their situation. The way to do that would be, first of all, to
consult with them and explain the purpose of it and to talk to
them about how it might be done and, secondly to involve Gypsies
and Travellers and those who work with them in whom Gypsies and
Travellers have confidence (like the Traveller Education Service)
in the exercise of collecting the data. You are right that if
there were a sudden decision to collect data and no preparation
made, then people would be wary and it would be difficult to collect
it. There would be enormous advantage in collecting it, in being
able to identify unmet need and inequality of access, and we would
like to point out that local authorities and all public bodies
now have a duty under the Race Relations Act to promote race equality
and to promote race relations. One of the specific duties that
they have is to assess the impact of their current policies and
any proposed policies on particular sections of ethnic minorities
and you cannot do that unless you do collect the data to enable
you to do it.
Q148 Christine Russell: But you obviously
depend on the co-operation of local authorities. Have you had
any conversations or dialogues, with the LGA for instance or individual
local authorities, about their willingness to actually go out
and collect this data because, as you have just told us, one of
the purposes of doing it is to be able to identify the unmet need
and local authorities will say, "We are hard pressed, we
do not have the resources to meet the unmet need." Have you
had any discussions?
Ms Spencer: The first answer before
I bring in my colleague is that you are right that there is a
reluctance in some quarters to collecting data, and for that reason
we think that there needs to be a responsibility on the local
authorities. I think they need to be required to do a needs assessment.
In the same way that they do a housing needs assessment for other
members of society, we need an accommodation needs assessment
to be required of them so that they do it. On the other point,
Sasha?
Ms Barton: We recently consulted
on our draft Gypsies and Travellers Strategy and on the issue
of collecting ethnic data in the context of the Race Relations
Act (separate from the Biannual Caravan Count) concerns about
how to collect data on Gypsies and Travellers were raised. Some
authorities were confident that it could be done and were taking
steps to engage with Gypsies and Travellers. What became very
clear was that it was necessary to engage with, for example, Traveller
Education Services in the area and with others who had the trust
of Gypsies and Travellers, so it was not just a case of going
to Gypsies and Travellers and demanding that information. It [how
to accurately collect data on Gypsies and Travellers] is obviously
an issue that is going to arise with the housing survey [Survey
of English Housing] which ODPM has recently announced. Gypsies
and Travellers will now be included. This is something that we
welcome as it will provide an ethnic picture of Gypsies and Travellers
living in housing, just as there will be, we hope on sites, but
the same issue will need to be addressed in this context.
Q149 Chris Mole: The Committee were
told in evidence last week that local authorities were not really
allocating sufficient land for Gypsies and Travellers to develop
as sites. Do you have any views about why this might be and does
the CRE have any plans to tackle the problem?
Ms Spencer: I think the lack of
sites is due to a combination of reasons. First of all, there
are pressures on local authorities not to provide sites, pressure
from public resistance to sites and the other usual pressures,
for instance the lack of resources. That is coupled with the fact
that they actually do not have a statutory duty to do so, and
we think that the answer to this, first of all, has to lie in
legislation with a statutory duty to assess the need, a duty to
provide and facilitate sites, and from our point of view at the
Commission for Racial Equality reminding local authorities of
their duties under the Race Relations Act to promote race equality
and good race relations. What we are finding in our work in promoting
that duty is that while many authorities have picked it up in
a general way in relation to ethnic minorities as a whole, they
are not yet embedding the particular needs and rights of Gypsies
and Travellers into the way in which they are doing it, so that
for instance in designing their planning policies or their homelessness
strategies and their housing policies they should be mainstreaming
the needs of Gypsies and Travellers into their thinking so that
as they take things forward they are ensuring that they meet their
needs. In fact, we are not confident that this will happen unless
there is a statutory duty to assess need and to provide and facilitate
sites, and indeed that there are sufficient resources there to
actually do so.
Q150 Chris Mole: I think you are
pointing towards what you refer to in your submission as suspected
discrimination in the planning system. Do you think there is any
conflict between planning law and race relations raw in the context
of local authority members sitting in quasi judicial decision-making
on planning applications? Secondly, do you think there is anything
specifically that local authorities could do to overcome NIMBY
or racist tendencies which may emerge when considering planning
applications for Gypsy or Traveller sites?
Ms Spencer: We certainly get many
complaints of alleged discrimination and complaints that local
authorities are not fulfilling their public duty. In the absence
of cases it is difficult to say exactly what is happening. The
issue is very complex and there have not been recent cases to
clarify whether it is discrimination, and for that reason the
Commission for Racial Equality within the past month announced
its intention to launch a scrutiny exercise to look in more detail
at what is actually happening at the local level so that we would
be able to answer your question about legal compliance when we
have done this. What do we think should be done about hostile
public attitudes? First and foremost, to remove the cause of the
problem which is the absence of sufficient good sites so that
there is not a reliance on unauthorised encampments, which must
be the most significant cause of public concern and hostility,
and suggests that the provision of sufficient and good sites has
to be the first step to resolving the community relations issue.
Secondly, by having a legal requirement to provide sites it ensures
that local authorities will not bow to inappropriate public pressure,
but there is also a role, as in any difficult community or race
relations situation, in the provision of information to the public
in order to defuse misconceptions about the community. There is
role for bridge-building and bringing people together to build
understanding between communities and to have great care in handling
press coverage so that we do everything that we can to avoid inflammatory
media coverage of situations which can make it worse. We need
the involvement of local communities in building bridges with
Gypsies and Travellers and also dialogue with the local press
to try to avoid inflaming a tense situation. The fundamental thing
is to remove the cause of the problem.
Q151 Chris Mole: You are making a
rational case for the various plans—regional spatial strategies
and local development frameworks—to include plans for Gypsy
and Traveller sites. You seem to go one step further and say that
a regional spatial strategy should only be approved where it reflects
adequate Gypsy and Traveller site numbers. Given that we have
just had a discussion about the accuracy of the count, how do
you think local authorities and regional bodies should quantify
the need for those sites?
Ms Spencer: First of all, the
reason we have suggested that as the enforcement mechanism is
perhaps because of the difficulties of enforcing the old 1968
Caravan Sites Act. If we are going to have a statutory duty we
perhaps need a more modern method making sure that local authorities
fulfil the duty and the fact that they would not be able to secure
approval for their plans unless they had provided adequate sites
seems to us one intelligent way of doing this.
Q152 Chairman: But the CRE has not
actually objected to anyone's plan, have they, as a result of
the failure to put provision in for Travellers?
Ms Spencer: We have not in the
past dealt with it in that way, no.
Q153 Chairman: When you say in the
past, are you thinking of doing it in the future?
Ms Spencer: We are trying to resolve
this by securing a planning and housing system that meets needs
with a way of dealing with its strategically rather than through
individual enforcement action, which is always a last resort but
can nevertheless be what one has to fall back on if there is no
other method of securing compliance. We would be more likely to
do it using our own race relations legislation under the failure
to comply with the duty to promote equality and good race relations,
I think.
Q154 Mr Betts: You comment that unauthorised
encampments have a hugely negative impact on community relations.
I think that is something everybody would probably agree with.
How do you resolve the issue? How should local authorities appropriately
tackle unauthorised sites?
Ms Barton: The key point that
we would want to make is the need for better provision of residential
and transit sites to greatly reduce the number of unauthorised
encampments and that is the only lasting solution out of what
is otherwise a vicious circle of unauthorised encampments, evictions,
leading to go further unauthorised encampments. There are obviously
other options which are advised by ODPM's guidance in terms of
tolerating sites where they are not creating any particular difficulty
but the main link that we would very much support is a clear link
between powers to evict and the provision of sites. We believe
that authorities' right to evict should be linked to their responsibility
to provide sites.
Q155 Mr Betts: So you are saying
that if there is no site in an area, an authority has got a duty
to provide sites and if they have not done so then they should
not have the power to evict from an unauthorised site?
Ms Barton: I am saying that there
needs to be a link between the two.
Q156 Mr Betts: Can you be more specific
about the sort of link?
Ms Barton: Yes, the Anti-Social
Behaviour Act introduced into the Criminal Justice and Public
Order Act new powers of eviction, meaning that where suitable
sites are available police can evict encampments where they are
considerably smaller than they would have been previously and
move them on to those sites. That is a link that we support but
in the absence of those sites being provided—demonstrated
by the fact that those powers have not been used yet at all since
they were introduced—it is very clear that in order for
that system to work the provision has to take place alongside
if not before the powers of eviction can be used in order for
the system to be workable.
Q157 Mr Betts: You are saying that
if there are no suitable sites provided then there should not
be a power of eviction?
Ms Barton: Their powers should
be curtailed by failure to provide sites.
Q158 Mr Betts: Curtailed means they
should not have them.
Ms Spencer: No, we are saying
that it should be a material consideration in whether they are
able to use the powers. Clearly if the site were completely unsuitable,
for instance if the encampment is on a school playing field, even
if there is no alternative provision then the eviction powers
should still apply but in other circumstances they should not.
We are not giving you a precise formulation but we are suggesting
that it should be a consideration whether they can use the powers
and as to whether the eviction can take place. In a sense it is
about rights and responsibilities. They have a responsibility
to provide sites and the greater extent to which they have exercised
the responsibility for providing or facilitating sites the greater
should be their powers to evict people who are not using those
sites.
Ms Barton: If I could just add,
one of the points that we make in the Republic of Ireland which
has come out very clearly through their experience is that one
of the problems in getting the Traveller accommodation programme
working is that while Travellers are waiting to move on to sites
which are being provided by the authorities at the same time they
are being evicted so the failure to link those powers of eviction
to the provision is not meeting the need that the accommodation
programme is intended to.
Q159 Mr Betts: Could I just take
you on to the Price v Carmathenshire County Council case
which you highlighted and you said in dealing with a homeless
application the local authority has to investigate the degree
of cultural aversion to convention housing. Does that mean therefore
the local authority in a particular case like that would either
have to provide a site specifically for that individual or indeed
they might even have to provide a caravan for that individual?
Ms Barton: The case law as it
stands does not go that far and Price ends where it talks
about the degree of cultural aversion. What we are saying is that,
firstly, authorities should investigate in a way that does not
seem to be the case at present, that they should consult with
Gypsies and Travellers and take steps to find out whether or not
a site, which in some cases may be appropriate in the short-term,
would indeed be appropriate or whether in fact that would be entirely
unsuitable. What we would say is that in the short-term in a case
where a bricks and mortar offer of accommodation would be entirely
inappropriate—and psychologists' evidence and other evidence
has been used to establish cultural aversion, (it is not merely
based on the opinion of the authority or the Gypsy or Traveller)—the
authority would then be obliged to provide suitable accommodation
which may be providing land, it may be providing a site.
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