3 DEFINITIONS
51. The definition of a Gypsy or Traveller is far
from clear-cut. The legal definition of a Gypsy was first set
out in the 1968 Caravan Sites Act. This definition, drawn from
the case of Mills v Cooper (1967), stated that the term "Gypsy"
meant "persons of nomadic habit of life, whatever their race
or origin, but does not include members of an organised group
of travelling showpeople or persons engaged in travelling circuses
travelling together as such".[29]
This definition was adopted for planning purposes in 1977 under
circular 28/77 which said that Gypsy status was a "material
consideration" in planning cases.[30]
Circular 1/94 also used this definition, which was seen as a way
of defining Gypsies without reference to their ethnicity, but
focussing on their way of life.
52. However in the case of R v South Hams District
Council, ex parte Gibbs at the Court of Appeal in May 1994, Lord
Justice Neil found the 1968 Act definition unsatisfactory, and
defined Gypsies as; "Persons who wander or travel for the
purpose of making or seeking their livelihood (not persons who
move from place to place without any connection between their
movements and their means of livelihood)".[31]
It is this definition which is currently used by Government. It
focuses on habitual lifestyle rather than ethnicity and includes
both "born" Gypsies and Travellers and "elective"
Travellers such as New (Age) Travellers.[32]
Lord Neil's judgement that nomadism within the Gypsy and Traveller
community had an economic purpose. Gypsies and Travellers moved
between settled communities providing a service, traditionally
for example repairing crockery or cooking vessels, and more recently
tree-cutting or paving.
53. The ability of Gypsies and Travellers to maintain
a mobile lifestyle, key to their definition in law, has become
increasingly difficult. The previous chapter explained how planning
legislation has reduced the number of places where Gypsies and
Travellers can legally stop. It is estimated that 90% of traditional
stopping places have been blocked off in the last twenty years.[33]
Work patterns have also changed. Many Gypsies and Travellers undertake
work which does not require them to adopt a nomadic lifestyle.
54. Access to services and education have also affected
Gypsy and Traveller patterns of travelling as Hughie Smith, President
of the Gypsy Council (Romani Kris) told us:
"It has to be said that the pattern of life
for Gypsies is totally changing. Nowadays people want a base from
which they can go to work and from which they can travel. […].
When we talk about "nomadic" - if we were forever travelling
we would not be able to get a living. It is very important, from
a community that used to have an 80 per cent illiteracy rate,
simply because of the caravan sites which were built by local
authorities and private initiatives it has allowed our children
to have a better education through the state school system. As
far as I am concerned, and every day I see this happening where
our children go through the gate to school and come back and teatime,
that is what we need. We need an education for our children. The
only way we can do that is if we can stay in one area. The pattern
of life for the Gypsy people is changing. That does not mean to
say we give up our nomadic lifestyle, because at certain times
of the year we would travel anyway."[34]
55. On our visit to sites in Hampshire, we spoke
to residents on local authority permanent residential sites. Most
viewed their site as a permanent home and had no intention of
travelling again. Some said they would travel for a number of
weeks during the summer, but would retain their place on the site
and return to it for the rest of the year. Most Gypsy and Traveller
sites have little turnover of residents. On 86% of sites Gypsies
and Travellers have lived on site for three years or more:[35]
"While there are exceptions, the general
picture built up of residential Gypsy/Traveller sites is that
they are stable, with long-term residents who travel little during
the course of a year. It may be that, for many residents, the
attractions of a site lie in the possibilities of living within
a culturally distinct community among friends and family. This
is not necessarily the same as meeting the needs of a nomadic
or semi-nomadic population. For many residential site residents,
nomadism appears to be a spiritual and cultural state of mind
rather than a day-to-day reality."[36]
Gypsies and Travellers argue that their concept of
travelling is different to that understood by members of the settled
community. A quote from a Traveller in Dr Colm Power's report
on England's Irish Travellers demonstrates this:
"When Travellers speak of Travelling, we
mean something different from what country people [sedentary people]
usually understand by it […]. For Travellers, the physical
fact of moving is just one aspect of a nomadic mind-set that permeates
every aspect of our lives. Nomadism entails a way of looking at
the world, a different way of perceiving things, a different attitude
to accommodation, to work, to life in general."[37]
But under the definitions currently used by the Government
it has been suggested that by remaining static for such long periods,
these people cease to be Gypsies and Travellers.
56. Dr Robert Home, a chartered town planner, highlights
this issue arguing that ethnic Gypsies could lose their legal
status if they cease to travel; and that individuals who have
adopted a nomadic way of life but have no ethnic connection might
be legally defined as Gypsies.[38]
He explains:
"Official insistence on 'nomadism' as a
prerequisite for 'gypsy' status has blurred the understanding
of 'Gypsies' as an ethnic group, creating a hierarchy of 'deserving'
and 'undeserving' nomads, Romany Gypsies being perceived as a
'respectable' minority."[39]
The issue of nomadism has been considered in a number
of court cases, Dr Home believes that "judicial interpretation
has imposed increasing restrictions upon the definition making
it more difficult to get planning permission […]."[40]
In Greenwich v Powell (1988), the House of Lords ruled that a
person of only seasonal nomadic habit and settled for part of
the year remains within the definition of a Gypsy. In Basildon
District Council v Secretary of State and Others (2004), it was
decided that although Gypsy status may be retained if a
Gypsy ceased a nomadic lifestyle for reasons of ill health, it
would not necessarily be the case that Gypsy Status would be
retained.[41] This finding
has caused concern among the Gypsy and Traveller community:
"We have bad case law that defines Gypsy
people as those that have to move from place to place to work.
We all know where this leaves the disabled and the ill. Too old
or ill to be a Gypsy so therefore you cannot be classed as a Gypsy
therefore no site."[42]
- The case of R v South Hams
ex parte Gibbs (1993) also added the qualification of an employment
test, redefining Gypsies as; "persons who wander or travel
for the purpose of making or seeking their livelihood (not persons
who move from place to place without any connection between their
movements and their means of livelihood)."[43]
Intention to settle permanently has become a key issue in case
law with several cases considering whether a nomadic way of life
was in abeyance or whether there was intention to resume it.
57. The Commission for Racial Equality suggest that
the intention behind the reference to nomadism in the current
definition was an attempt "to define and protect this way
of life".[44] However,
Sarah Spencer, Deputy Chair of the Commission for Racial Equality
argues that it no longer does and should 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 […]."
In addition she would like the definition to be broadened
to enable people to be nomadic but also enable them to live in
a mobile home or a caravan and stay in one place:
"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."[45]
58. The Centre for Urban and Regional Studies at
the University of Birmingham, emphasise the need for a national
debate on the definition of a Gypsy in their report on "The
Provision and Condition of Local Authority Gypsy/Traveller Sites
in England":
"While we are all aware of considerable
resistance from traditional Gypsy/Traveller groups to the inclusion
of new Travellers within a revised definition, we believe that
national policy must explicitly recognise their existence alongside
the traditional groups. This does not mean that different cultural
needs should be ignored or that all 'Travellers' should always
be lumped together indiscriminately."[46]
In oral evidence to the Committee Pat Niner adds
that the purpose of a definition is important - she emphasises
the need to consider the consequences or policies that will result
from a particular definition. She agrees with Sarah Spencer that
there is a need to consider those who conduct a nomadic lifestyle,
as well as those who are not active Travellers, but "who
are still Travellers in the mind" who "still need accommodation
which is culturally acceptable to them in that sense".[47]
59. Officials from ODPM highlighted Pat Niner's comments
when giving evidence, they suggest that:
"There is a difference between having a
definition that leads specifically to a site's outcome so far
as the planning legislation is concerned and the sort of definition
that you might want for a housing needs survey to accommodate
the wider needs of Gypsies and Travellers. The planning definition
would necessarily be related to the land use, whereas a housing
needs assessment might be related to the wider needs of Gypsies
and Travellers, considering those who are already living in bricks
and mortar, for example."[48]
As part of the review of Circular 1/94, ODPM are
considering the issue of definitions John Stambollouian, Head
of Planning Directorate Division told us:
"We do recognise the greater propensity
for Gypsies to want to stay in one place in order to access services
and maybe travelling for part of the year and the fact that there
are fewer seasonable opportunities for work. We realise that the
definition does need revisiting and we are proposing to do that.
In terms of planning what we would want to secure is that link
to land use."[49]
60. ODPM Officials recognised that multiple definitions
applied for different purposes could lead to a situation where
some people were Gypsies/Travellers under one definition but not
another. They were not confident that the definition proposed
by the Commission for Racial Equality would be workable:
"[…] we are considering the definition
but obviously, as has already been stated, for planning purposes
there needs to be a very clear link to land use because Gypsies
and Travellers are having their needs met outside of the ordinary
system of gaining planning consent. […] "The CRE definition
also includes anybody who might want to travel so it is a very,
very wide definition. If you were to link that definition to the
provision of a duty it would substantially increase the financial
exposure or the duty upon local authorities to provide. The CRE
definition would also allow for Gypsies and Travellers who may
have been settled for generations in bricks and mortar to seek
to have their needs met."[50]
61. Many believe a review of the definition of a
Gypsy/Traveller is long overdue. Dr Home believes that current
policies and legislation are not just outdated but contradictory,
he argues:
"It creates a real 'Catch 22' situation.
Pitches on council sites are reducing in number, yet it is very
difficult to get permissions for private sites because of opposition
from local planning authorities. Government policy recognises
that Gypsies need somewhere to live, but in practice, if they
intend long-stay 'settled' accommodation on land which they own,
they risk forfeiting their 'gypsy' status and (presumably) being
forced back on the road, to a way of life which is increasingly
difficult to lead and criminalised. As the case law grows, usually
to the disbenefit of the Gypsies, they find their way of life
entrammelled in a bureaucratic and legalistic net worthy of Kafka.
Local authorities are increasingly willing to contest Gypsy status
at planning appeals and subsequently by legal challenge, while
judges impose further tests upon the statutory definition."[51]
Phillip Plato, a Chartered Planning Surveyor is similarly
dissatisfied with the current situation. He believes the system
is open to abuse from people who have no right to be classed as
a Gypsy or Traveller:
"Many planning applications or appeals I
have researched or been involved with, seem to involve people
claiming Traveller status with the same name or remarkably similar
claims of hardship involving their personal health circumstances,
yet in totally different areas. I have also had experience of
a claimant using an adopted name at an appeal inquiry. I make
comment on this out of concern that the needs of those with genuine
Gypsy background may be prejudiced by others of more questionable
status. I have noted that there is rarely any desire to press
applicants for corroboration of their Travelling status or association
with the locality by means of testimony or verification for fear
of being accused of discrimination. This is unhelpful in assessing
needs for Gypsy provision and provides opportunities for abuse
of the system."[52]
62. However, Charles Smith, Chair of the Gypsy Council
for Education, Culture, Welfare and Civil Rights believes that
arguing over definitions is a distraction. He believes that everybody
should have the option to live in a form of accommodation which
is acceptable to them, and that anybody who wishes to live in
a caravan should be able to:
"The Gypsy and Traveller people cannot buy
their freedom or rights by denying others their freedom. It is
therefore important that others who wish to live in caravans,
whether they are Gypsy families or not should be able to do so.
Caravan sites are cheaper to build than houses, they are less
damaging to the environment and they respond better to the fast
movement of today. It is becoming usual to move job and house
every 3 to 5 years. The population is becoming more mobile and
the use of land is becoming of concern. Increased risk of flooding
is exacerbated by building of roads and houses, the concrete and
impermeable surfaces prevent rain from soaking into the ground;
more goes down drains and into the rivers. We do not want ghettos
and reservations; we want to be able to live in harmony with other
people. Our old people do not want to have to move into a house
when they are ailing; they need their family even more so at this
time of their lives. Where there is housing there should be the
possibility of a caravan site. If it is for ANYONE then it will
encourage good relations and improve standards for everyone. […]
The Gypsy Council believes that the right to a reasonable choice
of any type of accommodation, and the right to stable and secure
family residence within cultural tradition are human rights that
all people, regardless of ethnicity, should enjoy."[53]
63. Many Gypsies and Travellers now live increasingly
sedentary lifestyles. The current definitions imply that those
within the community who do not adopt a nomadic lifestyle are
not actually Gypsies and Travellers. Any new definition should
comprise both the alternatives of ethnic origin or similar, and
nomadic lifestyle. However, we advise the Government to exercise
caution in considering applying different definitions for different
policies. There is already a lot of confusion surrounding definitions
of Gypsies and Travellers and we would not want to see a situation
where multiple definitions add to the confusion. In addition we
are concerned that the issue of defining Gypsies and Travellers
may be over-emphasised. The Equality of Opportunity Committee
at the National Assembly for Wales recently argued that Gypsies
and Travellers should have the right to self-identify. We agree
with this approach, but believe that self-identification must
be supported by evidence. This may enable all parties to move
forward and address the problems associated with accommodation
provision.
29 Caravan Sites Act 1968, Section 16 Back
30
Ev 1 [ODPM] Back
31
Ev 1 [ODPM] Back
32
Ev 1 [ODPM] Back
33
Assembly for Wales Equality of Opportunity Committee, Review of
Service Provision for Gypsies and Travellers, May 2003, p 4.6 Back
34
Q 128 and 130 [Hughie Smith, President, the Gypsy Council (Romani
Kris)] Back
35
Centre for Urban and Regional Studies at the University of Birmingham,,
The Provision and Condition of Local Authority Gypsy/Traveller
Sites in England, 2002 , pg 28 Back
36
Centre for Urban and Regional Studies at the University of Birmingham,,
The Provision and Condition of Local Authority Gypsy/Traveller
Sites in England, 2002 , pg 29 Back
37
Dr Colm Power, Room to Roam, England's Irish Travellers, June
2004, p2.2 Back
38
Ev 86 [Dr Robert Home] Back
39
Ev 86 [Dr Robert Home] Back
40
Ev 90 [Dr Robert Home] Back
41
GTS B/P03 [WS Planning], p10.56 Back
42
HC 93-III, Ev 96 [Derbyshire Gypsy Liaison Group] Back
43
Centre for Urban and Regional Studies at the University of Birmingham,
The Provision and Condition of Local Authority Gypsy/Traveller
Sites in England, 2002 , pg 7 Back
44
Q 144 [Sarah Spencer, Deputy Chair, Commission for Racial Equality] Back
45
Q 145 [Sarah Spencer, Deputy Chair, Commission for Racial Equality] Back
46
Centre for Urban and Regional Studies at the University of Birmingham,
The Provision and Condition of Local Authority Gypsy/Traveller
Sites in England, 2002 , pg 48 Back
47
Q 165 [Pat Niner, Senior Lecturer in the Centre for Urban and
Regional Studies at the University of Birmingham and have Gypsy
and Traveller researcher] Back
48
Q 337 [Dawn Eastmead, Head of Housing Management Division, Office
of the Deputy Prime Minister] Back
49
Q 337 [John Stambollouian, Head of Planning Directorate Division,
Office of the Deputy Prime Minister] Back
50
Q 339-340 [Dawn Eastmead, Head of Housing Management Division,
Office of the Deputy Prime Minister] Back
51
Ev 91 [Dr Robert Home] Back
52
HC 93-III, Ev 86 [Phillip Plato] Back
53
HC 93-III, Ev 91-92 [The Gypsy Council for Education, Welfare,
Culture and Civil Rights] Back
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