Legal Aid, Sentencing and Punishment of Offenders Bill

WRITTEN SUBMISSIONS AND PROPOSED AMENDMENTS FROM GARDEN COURT CHAMBERS

GYPSY & TRAVELLER TEAM

Summary

(A) The Legal Aid Bill will have a severely restrictive effect on the provision of legal services for arguably the most disadvantaged ethnic minority community in Britain : Gypsies & Travellers. It further removes legal services in the case of loss of home from occupants of bricks and mortar accommodation in circumstances where, we are convinced, this is not intentional. We consider that the Bill, as currently drafted, is unlawful under both Human Rights and Equality Legislation. We propose amendments which would avoid this. The general background is at paragraphs 8-18 and the amendments at paragraphs 19-44.

Who we are?

(B) Garden Court Chambers Gypsy & Traveller team consists of barristers who have specialised in legal aid work on behalf of the Gypsy and Traveller community for many years. Members of the team are recognised for their outstanding commitment to, and expertise in, this, and other, areas of law, in particular Housing Law and Discrimination. Team members have been awarded Legal Aid Lawyer of the Year:

· Marc Willers, Barrister of the Year Award 2011

· Jan Luba QC, Barrister of the Year Award 2007

· David Watkinson, Barrister of the Year Award 2005

(C) We have been involved in many of the leading cases in this area of law over many years, among them:

South Bucks DC v Porter (No. 1) [2003] UKHL 26; [2003] 2 AC 558

Harrow LBC v Qazi [2003] UKHL 43; [2004] 1 AC 983

Connors v United Kingdom (2004) 40 EHRR 189

Codona v Mid-Bedfordshire [2004] EWCA Civ 925; [2005] H.L.R. 1

South Bucks DC v Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953

Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465

McCann v United Kingdom (2008) 47 EHRR 913

Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367

Kay v United Kingdom , 21 st September 2010

Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441

London Borough of Hounslow v Powell and Others [2011] UKSC 8; [2011] 2

WLR 287

Our concerns

1. If brought into force as it stands now this Bill will have severely restrictive effects on the provision of advice and representation to Gypsies and Travellers in connection with one of the most basic of all human rights, the right to accommodation. It would also have serious unintended consequences in other areas of housing law. For reasons of time and space we are unable to comment on its effects in other areas of law.

Definition of terms

ECHR = European Convention on Human Rights

The basic structure of the Bill

2. Clause 7 of the Bill defines legal services.

3. Clause 8(1)(a) of the Bill states that civil legal services will only be available in those areas specified in Schedule 1, Part 1 of the Bill.

4. Clause 9 provides for exceptional cases in which civil legal services can be provided, even if not specified in Schedule 1, Part 1 of the Bill. These relate to inquests and to cases in which a failure to provide such services would breach an individual’s rights under either the ECHR or EU Legislation.

5. Clause 10 allows for an individual’s entitlement to civil legal services to be regulated by both a financial means test and other criteria, including an assessment of the cost: benefit ratio, the individual’s prospects of success and the nature and seriousness of the alleged breach of the individual’s rights.

6. Schedule 1, Part 1 of the Bill lists those services which remain in the scope of public funding (all forms of advice, assistance and representation). Individual paragraphs within Schedule 1, Part 1 relate to distinct areas of law in respect of which civil legal services will be available:

a. Paragraph 17 deals with claims for judicial review, which is defined to include cases which, though not brought in the Administrative Court, are nevertheless required to be decided on the same principles;

b. Paragraph 20 deals with claims for breaches of an individual’s rights under the ECHR and Human Rights Act 1998;

c. Paragraph 27 deals with "loss of home".

d. Paragraph 37 deals with claims brought under the Equality Act 2010, e.g. race, disability, sex discrimination claims etc.

It will be appreciated there will be cases in which civil legal services may be provided under more than one of these headings in respect of any one case because the points arising can properly be categorised in more than one way.

7. Schedule 1, Part 2 modifies and amends the apparent provision of civil legal services provided for in Schedule 1, Part 1. Its practical effect is to make very substantial inroads into the services apparently provided in Part 1. In our submission, it has an enormous and discriminatory effect on the Gypsy & Traveller community as well as other serious but unintended consequences.

The Gypsy & Traveller cases: background

8. The main types of Gypsy and Traveller cases that come under the housing umbrella are:

· evictions from unauthorised encampments;

· evictions from rented sites;

· other issues relating to rented sites (e.g. disputes over licensing conditions);

· High Court planning cases (injunctions, statutory challenges to decisions made by planning inspectors regarding planning and enforcement notice appeals, challenges to stop notices and direct action etc); and

· homelessness cases.

9. Some 25% of the Gypsy and Traveller population who live in caravans in England and Wales live either on unauthorised encampments (i.e. as trespassers on land owned by someone else) or on unauthorised developments (where they own the land but have developed it in breach of planning control). Both categories are statutorily homeless because, in either case, they have nowhere they can legally station their caravans. This must be compared with the proportion of the settled population who are statutorily homeless, a mere 0.1%. For people caught in this situation there is no realistic alternative to continued trespass or the breach of planning control. As local authorities almost never provide pitch accommodation for the homeless the only alternatives for these people are council or privately run Gypsy & Traveller sites. There is, nationally, a gross shortage of such sites and almost inevitably there are substantial waiting lists: the waiting time for such a site in Essex a few years ago was 50 years.

10. For people caught in this situation the problems are formidable, including a battery of legal measures designed to facilitate their swift and immediate eviction. They are caught in a cycle of repeated, forced eviction which effectively prevents them from accessing basic facilities such as healthcare and education. Studies have shown not only that Gypsies & Travellers have the worse health outcomes of any ethnic group in the UK but that this fact is clearly linked to the lack of stable and reliable accommodation from which they can access such services. It is against this background that the needs of this community for legal advice and assistance must be seen and the scope of the impact of the current proposals upon them measured: experienced and specialist solicitors working in this area estimate that at least 75% of their ‘accommodation cases’ for Gypsy and Traveller clients would no longer be within scope if the current proposals are passed unamended.

11. Under the Government Bill all unauthorised encampment eviction cases will go out of scope because all such cases are cases of trespass to land and thus within the current exception in Schedule 1, Part 2, paragraph 5. Again, it is essential to remember that the people who are trespassing probably have no choice about doing so: in the absence of authorised provision a Gypsy and Traveller family evicted from one site has no choice but to stop (and trespass) somewhere else and to hope that their trespass will be "tolerated" for a time before they are evicted again. In the event of a medical emergency or the need to attend a funeral etc. their only recourse may be to legal advice and assistance to prevent them from being evicted before the immediate crisis has passed. Members of our own team have worked with families who have been evicted, on average, 3 times a week over many months and whose children have had trouble accessing basic education because, when they come back from school they return to find that their home and family have gone (having been forcibly evicted at the behest of a public authority).

12. The lack of lawful stopping places which is at the root of the problem has a long history. With the passage of the Caravan Sites and Control of Development Act 1960, when the commons were closed to Gypsies and Travellers and there was an increasing loss of traditional stopping places, local authorities were given a power to supply sites for the use of Gypsies and Travellers. However, between 1960 and 1970 only 12 local authorities made use of that power (see Clark and Greenfields, Here to Stay, University of Hertfordshire Press, 2006 p. 72). Between 1970 (when a duty upon local authorities to provide sites was brought into force with the Caravan Sites Act 1968) and 1994 (when that duty was repealed), some 350 sites were built in England. While this level of provision was still completely inadequate, it should be recognised that those sites would not have been built without that duty being in place. Between 1994 and 2006, the Government placed the emphasis on the private provision of sites by Gypsies and Travellers themselves (see Department of the Environment Circular 01/94). This was a policy failure. The provision of sites virtually ground to a halt and it became much more difficult to obtain planning permission (see Friends, Families and Travellers Report Confined, Constrained and Condemned (1996)). Since February 2006, when ODPM Circular 01/2006 was published, there has been a slow but sure increase in the provision of sites (see research by Dr Jo Richardson and Ros Lishman of the De Montfort University for Lord Avebury Impact of Circular 01/2006: Supply of New Gypsy/Traveller Sites 29 March 2007). On 13th April 2011 the Coalition Government published Planning for traveller sites, the draft guidance that is designed to replace ODPM Circular 01/2006. This draft guidance relates to England only. The consultation deadline on this guidance has just been extended to 3rd August 2011. A large number of Gypsy and Traveller support groups are opposed to this guidance because they feel it will loosen the control over local authorities and simply lead to a stagnation, once again, in the provision of sites, as happened when matters were last left to local authorities in 1994 – 2006.

13. What is clear is that a series of failures, both by central and local governments, has led to a position where there is an inadequate provision of sites. Gypsies and Travellers who remain on unauthorised encampments and unauthorised developments do so through no fault of their own: there is simply no other option.

14. As already noted the lack of legal and stable accommodation has had, and continues to have, an enormous impact on the Gypsy and Traveller community. A recent report produced by the Travellers Aid Trust following on from a Panel Review which took evidence from some of the leading experts in this area, A Big or Divided Society?, referred to the disadvantage and prejudice experienced by Gypsies and Travellers in this country. With regard to education, the report stated:-

Travellers of Irish Heritage and Gypsy and Roma pupils are nearly three times more likely than White British pupils to be identified as having special educational needs. Fewer than 10% of Gypsy/Roma/Traveller pupils are among the top 50% of achievers at Key Stage 4.

15. With regard to health, the report stated:-

It was in response to the research findings on their health status … that the Department of Health targeted health improvement of Gypsies, Roma and Travellers in a policy initiative aimed at reducing health inequalities, the Pacesetters Programme. The results showed striking inequalities in the health of Gypsies and Travellers, even when compared with people from other ethnic minorities or from socio-economically deprived white UK groups and demonstrated the long-term health impact associated with a history of persecution, social pathologisation and social exclusion of Gypsies and Travellers. Poor accommodation and a lack of sites are often major variables that impact on the health of Gypsies and Travellers (page 54).

16. These problems are just as acute for Gypsies & Travellers living on unauthorised developments – effectively residing on land in breach of planning control – and their need for legal advice and representation is thus equally acute. Planning enforcement actions are, in effect, for this community a method of eviction every bit as real as the obtaining of a possession order. If an Injunction is granted or a Stop Notice comes into effect or direct action under the Town and Country Planning Act 1990 section 178 is taken, the Gypsy or Traveller concerned will have to leave the land. As in the case of unauthorised encampments, specialist knowledge is required and it is wholly unrealistic to think that individuals from within the Gypsy and Traveller community can sensibly represent themselves.

Gypsies & Travellers: the need for representation

17. The gross shortage of available accommodation and severe disadvantage associated with this makes the need for proper and appropriate representation in cases involving the housing and accommodation needs of Gypsies and Travellers clear. In addition, it must be remembered that this is a specialist area and is certainly not one in which the Gypsy and Traveller community can be expected to represent themselves. Many of the rules of law which allow for their eviction are specific to this area of the law, e.g. Criminal Justice and Public Order Act 1994 section 61, sections 62 (A) to (E), and section 77. There is specific Government guidance that needs to be taken into account including, in England, Department of the Environment Circular 18/94, ODPM Guidance on Managing Unauthorised Camping [2004] and ODPM Home Office Guide to Effective Use of Enforcement Powers – Part 1: Unauthorised Encampments [2006]. There is a wealth of important and subject specific caselaw, e.g. R v Lincolnshire County Council Ex Parte Atkinson [1997] JPL 65; R (Casey and Others) v Crawley Borough Council [2006] EWHC 301 Admin.

18. Gypsy and Traveller cases raise their own unique issues in homelessness cases, both in terms of the suitability of the accommodation offered, e.g. Codona v Mid-Bedfordshire [2004] EWCA Civ 925; [2005] H.L.R. 1, and in terms of the duties and obligations upon the local authority, e.g. Lee v Rhondda Cynon Taf CBC [2008] EWCA Civ 1013. Evictions from an unauthorised encampment may amount to a breach of Article 8 of the ECHR (see Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 and London Borough of Hounslow v Powell and Others [2011] UKSC 8, [2011] 2 WLR 287).

The proposed amendments

[Note: where an amendment is proposed, any addition to the Bill in its current form is shown highlighted in red and underlined. Where any deletion from the Bill in its current form is proposed it is shown in red and struck through.]

Clause 8(2): amending the scheme approved by Parliament by order

19. We suggest the amendment of Clause 8(2) as follows:

"(2) The Lord Chancellor may by order modify Schedule 1 by adding or omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule)."

We are concerned that the Lord Chancellor is to be given the power to effectively make further wholesale cuts to the legal aid scheme without further recourse to Parliament – this being the effect of the Bill as currently drafted. However, if it is considered appropriate to entrust the Lord Chancellor with the authority to substantially amend the scheme now being put before Parliament by order, we submit that the power conferred should be amended to allow him/her to enlarge the scheme as well as to cut it. Indeed, we suggest that it would be desirable for the Lord Chancellor to have the power to add to the list of services for which funding could be provided by order (thus allowing a rapid response on the part of Government in, the currently highly likely, event that the exclusion of certain services is declared unlawful either by the UK courts or by the European Court of Human Rights in Strasbourg) while it may not be appropriate for him/her to have the power to reduce the scheme in the same way.

Clause 9(3)(a): Exceptional Cases

20. We suggest the amendment of Clause 9(3)(a) as follows:

"(3) For the purposes of subsection (2), an exceptional case determination is a determination-

(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be reasonably likely to be a breach of-

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) the individual’s rights to the provision of legal services under European Union law, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach."

As currently drafted the provision of civil legal services would be provided if the Director has (a) determined that the individual in question qualifies for such services under the financial means test and other criteria to be laid down pursuant to clause 10 of the Bill and (b) that it is necessary for such funding to be provided because a failure to do so would breach either their rights under the ECHR or their rights under EU law or that it is appropriate to do so having regard to the risk of such breaches. We suggest the addition of the words "be reasonably likely to", so that the need for continual referral to clause 9(3)(b) is rendered unnecessary. As presently drafted a potential applicant for legal services would have to prove the breach alleged in order to qualify for services under 9(3)(a), an all but impossible test given that the determination will be made before the case has been heard, the evidence gathered, arguments marshalled etc. The proposed amendment allows exceptional funding to be granted where the refusal of it would be "reasonably likely to be a breach" of either ECHR or EU law. Clause 9(3)(b) would remain as a further alternative, allowing for a discretion to grant exceptional funding where the reasonable likelihood test was failed but where the seriousness of the potential breach was such that funding should nevertheless be granted given the gravity of the breach if proved.

Schedule 1, Part 1, paragraph 17(2): the scope of judicial review

21. We suggest the amendment of Schedule 1, Part 1, paragraph 17(2)(a) as follows:

"(a) the exclusions in Part 2 of this Schedule, with the exception of Paragraph s 5 and 15 of that Part, and"

22. As set out above, Schedule 1, Part 2, limits the apparent availability of legal services in cases where Schedule 1, Part 1 applies. In this case while civil legal services are to be provided in respect of an enactment, decision, act or omission (Sch 1. Pt 1, para 17(1)) this apparent provision is limited by the provisions of Schedule 1, Part 1, paragraph 17(2) which provides that civil legal services shall not be available where Schedule 1, Part 2, paragraph 5 applies. In practice what this means is that public funding is not available for judicial review of any enactment, decision, act or omission which relates to trespass to land.

23. In the context of the Gypsy & Traveller community this is of the utmost importance. As a result of the severe shortfall in local authority provision of legitimate accommodation for Gypsies & Travellers 7.9% of the Gypsy and Traveller caravans in England [1] are currently living on unauthorised sites, i.e. sites where they do not own the land and are trespassing. As we have seen, this is not the result of a wilful desire to break the law but the result of the simple absence of any alternative option: without the money to buy their own land, without land available with planning permission for their use and without any available public provision, trespass is the only remaining option. For such people an action in judicial review is their only means of challenging an unreasonable, ill-considered, ill-informed, unlawful or inhuman decision to evict them yet again, perhaps when family members are seriously ill or the education of children with special educational needs will be disrupted. It is these people who will be denied legal advice and assistance if the Bill is not amended as we suggest.

24. Further, we submit, to pass the Bill as currently drafted, containing the blanket ban on the provision of civil legal services in cases of trespass to land is likely to be in breach of the UK’s obligations under the ECHR and unlawful as an act of indirect discrimination. It is beyond doubt that this measure will have a wholly disproportionate effect on the Gypsy and Traveller community for whom homelessness and the inevitable necessity of trespass is an everyday fact of life (as opposed to the settled community only 0.1% of whom are statutorily homeless). We respectfully suggest that there is no prospect of the discriminatory application of this Bill being objectively justified: the sums of public money in issue are relatively small while the effect of the measure is devastating. We note that Romani Gypsies and Irish Travellers are protected ethnic groups under the Equality Act 2010 but that there is no mention of them in the Equality Impact Assessment accompanying this Bill. In the absence of any assessment of the impact of this measure on these groups, no justification of its discriminatory effect can be advanced for the simple reason that it has not been properly considered.

25. Turning to the effect of the ECHR, it has recently been made clear in two separate decisions of the Supreme Court (Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 and London Borough of Hounslow v Powell and Others [2011] UKSC 8; [2011] 2 WLR 287) that Article 8 ECHR will apply to judicial review (and other) challenges to decisions by public authorities to seek the eviction of people from what is their "home":

" it is clear that the following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end"

per Lord Neuberger, Pinnock , paragraph 45

This, clearly, applies to trespassers to land – people with no right of occupation of the land under domestic law. Given the clear right to have the proportionality of the interference with their "home" (as defined in Article 8 ECHR) determined by an independent tribunal, set out by both the UK Supreme Court and the European Court of Human Rights, we suggest that to deprive a class of the most vulnerable potential victims of access to civil legal services is likely to be unlawful, not just pursuant to the Equality Act 2010, but also under the UK’s obligations under the ECHR itself.

Schedule 1, Part 1, paragraph 17(9)(b): the definition of judicial review

26. We suggest the amendment of Schedule 17(9)(b) as follows:

"(9) In this paragraph-

"EU Procedures Directive" means Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status;

"judicial review" means-

(a) the procedure on an application for judicial review (see section 31 of the Senior Courts Act 1981), but not including the procedure after the application is treated under rules of court as if it were not such an application, and

(b) any procedure in which a court, tribunal or other body mentioned in Part 3 of this Schedule is required by an enactment or other rule of law to make a decision applying the principles that are applied by the court on an application for judicial review;

......"

27. Following the Supreme Court cases of Pinnock and Powell referred to above and the House of Lords decision in Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367 it is now English law that challenges to decisions to seek possession of a person’s home on the grounds and principles applied in judicial review should be brought in the county court or High Court and not in the Administrative Court. The addition of the wording "or other rule of law" provides for such judicial review challenges to be funded, if otherwise appropriate. We suggest that this simple amendment is necessary to avoid an otherwise irrational distinction being made between cases which are deemed to be "judicial review" cases because the rule of law which requires them to apply those principles is statutory and cases which are not deemed to be "judicial review" cases because the applicable rule of law is not statutory but is established by judicial decision.

Schedule 1, Part 1, paragraph 20: Breach of Convention rights by public authority

28. We suggest the amendment of Schedule 1, Part 1, paragraph 20 as follows:

"Breach of Convention rights by public authority

20 (1) Civil legal services provided in relation to-

(a) a claim in tort, or

(b) a claim for damages and/or any other remedy (other than a claim in tort),

in respect of an act or omission by a public authority that involves a significant breach of Convention rights by the authority."

29. The addition of the words "and/or any other remedy" allows for other remedies (e.g. a declaration of incompatibility) to be sought in addition, or in the alternative, to a simple claim for damages. We suggest that if a claim for breach of Convention rights against a public authority passes the merits test, the cost: benefit ratio assessment, the assessment of the seriousness of the breach etc. pursuant to Clause 10 of the Bill (all of which will be essential for funding to be granted) there should be no further barriers in the way of civil legal services being provided. We suggest that the word "significant" is deleted on the basis that the assessment pursuant to Clause 10 will already have addressed this issue.

Schedule 1, Part 1, paragraph 27(1): definition of loss of home

30. We suggest the amendment of Schedule 1, Part 1, paragraph 27(1) as follows:

"27 (1) Civil legal services provided to an individual in relation to-

(a) court orders for sale or possession of the individual’s home, or

(b) the eviction from the individual’s home of the individual or others, or

(c) court orders the effect of which is to prevent the individual from accessing or otherwise continuing to occupy their current home."

31. We suggest that the addition of the proposed paragraph 27(c) is needed in order to ensure that paragraph 27 really does relate to all cases in which the individual is at risk of losing their home. The proposed amendment would bring within the scope of the provision many of the planning measures that effect the Gypsy and Traveller community so seriously, e.g. decisions by local planning authorities to take direct action, obtaining injunctions or Stop Notices. The practical effect of all of these measures is to evict the individual by making it impossible for them to continue to occupy their home or to resume occupation or gain access to their home (which includes land) if  they have been absent from it for whatever reason. As noted above, these are measures which affect a very substantial proportion of the Gypsy and Traveller population.

Schedule 1, Part 1, paragraph 27(3): the exclusion of cases of trespass to land

32. We suggest the amendment of Schedule 1, Part 1, paragraph 27(3) as follows:

"(3) Sub-paragraphs (1) and (2) are subject to the exclusions in Part 2 of this

Schedule, with the exception of paragraph s 5 and 14 of that Part.

33. We submit that it is inappropriate and potentially unlawful to deny the provision of civil legal aid services to persons who are trespassing on land. For the reasons already set out at paragraphs 22 – 26 above many Gypsies and Travellers have no choice but to trespass upon land. They are not wilful squatters but people with no alternative who have very real and pressing needs: they are a peculiarly vulnerable group who should not be denied access to civil legal services because they have been forced into a cycle of repeated trespass. We believe that their exclusion from the services that can otherwise be provided to protect the individual from the unjustified loss of their home is likely to be in breach of both race discrimination legislation and the ECHR.

34. Not every threat to the family home faced by Gypsies and Travellers encamped on land upon which they are trespassing can be met by way of a claim for judicial review. Given the particular existence of powers of eviction designed specifically to target the Gypsy and Traveller community (in particular the Criminal Justice and Public Order Act 1994) it is imperative that those subject to such powers are not deprived of all assistance when they are applied against them.

35. We further submit that the blanket exclusion of "trespassers" from the services provided in respect of loss of home will deny many people access to justice in, we suspect, ways and circumstances simply never considered by the Bill’s drafters. In particular we believe that the following people would be ineligible for civil legal services if the Bill passes without this amendment:

a. a person in accommodation provided for them pursuant to a local authority’s duty to house the homeless upon whom a notice to quit has been served which has expired;

b. a former joint tenant of a local authority house or flat whose tenancy has been terminated by the service of a notice to quit by the other joint tenant;

c. a person against whom a forthwith possession order has been obtained by oppressive (i.e. wrongful) conduct on the part of a local authority or Registered Social Landlord and who seeks to have that order set aside.

Plainly, it was not the intention of the Bill’s drafters to exclude such people and no proper basis for doing so is given. Further, these are all people who have a clear right to challenge the proportionality of their eviction from their property under Article 8 ECHR following the decisions of the Supreme Court in Pinnock and Powell.

Schedule 1, Part 1, paragraphs 27(8) – (12): the definition of "home"

36. We suggest amending these paragraphs as follows:

"Definitions

(8) In this paragraph "home", in relation to an individual, means the house,

caravan, houseboat or other vehicle or structure that is the individual’s only

or main residence, subject to sub-paragraph (9).

(9) References in this paragraph to an individual’s home do not include a

vehicle or structure occupied by the individual if there are no grounds on

which it can be argued-

(a) that the individual is occupying the vehicle or structure otherwise

than as a trespasser, and

(b) that the individual’s occupation of the vehicle or structure began

otherwise than as a trespasser.

(10) In sub-paragraphs (8) and (9), the references to a caravan, houseboat or other

vehicle include the land on which it is located or to which it is moored.

(11) For the purposes of sub-paragraph (9) individuals occupying, or beginning

occupation, of a vehicle or structure as a trespasser include individuals who

do so by virtue of-

(a) title derived from a trespasser, or

(b) a licence or consent given by a trespasser or a person deriving title

from a trespasser.

(12) For the purposes of sub-paragraph (9) an individual who is occupying a

vehicle or structure as a trespasser does not cease to be a trespasser by virtue

of being allowed time to leave the vehicle or structure.

37. The points at issue are those already set out at paragraphs 32 – 35 above. The effect of this definition section, as currently drafted, is to deprive just under 8% of the Gypsy and Traveller population in England of their access to civil legal services when their only and family home is under threat. This, we consider, is inappropriate, disproportionate and unlawful. We are also concerned that these provisions may, inadvertently, affect others (again as set out above). For example, one half of a couple who have split up and whose partner has terminated their joint tenancy agreement by way of a notice to quit would be denied access to justice by the current provisions simply because they could not be argued to be anything other than a trespasser and hence within sub-paragraph (9)(a).

38. Our amendment, therefore, is one that simply strikes through the existing sub-paragraphs 27(9) – (12) inclusive so "home" is given a simple definition, independent of issues of trespass. This avoids all of the pitfalls and injustices we have identified and can be done without opening up the system to abuse. It appears, from the explanatory notes accompanying the Bill, that the actual purpose of these sub-paragraphs is to prevent squatters in buildings from obtaining legal aid. However, with an appropriately written merits and proportionality test being applied to all potential claims under Clause 10 of the Bill it is hard to see how unmeritorious claims of this sort could obtain funding in any event. We respectfully suggest that if there are concerns as to claims of this sort obtaining funding then the merits criteria (i.e. does the claimant have a better than 50% chance of successfully defending the claim) to be applied to every application for assistance under Clause 10 is the correct way of combating it. Claims that are plainly doomed to fail because the occupier of the land has no right to remain on the property and, in the case of a public authority, because that authority does not owe them significant and substantial duties of its own, will not qualify for funding in any event.

Schedule 1, Part 1, paragraph 37(2)(a): the exclusion of trespassers from "equality" claims

39. We suggest amending this paragraph as follows:

(2) Sub-paragraph (1) is subject to-

(a) the exclusions in Part 2 of this Schedule, with the exception of Paragraphs 5 and 15 of that Part, and

(b) the exclusion in Part 3 of this Schedule.

40. For the reasons already set out above claims brought by trespassers on land should not simply be ruled out when funding is being considered for a claim under the Equality Act 2010. It should be remembered in this context that local authorities who, historically, have failed to provide sufficient accommodation for Gypsies and Travellers in their areas, and who are thus, on one view, actually responsible for the ongoing trespass by many members of that community, also owe equality duties, including the public sector equality duty. This puts upon them an obligation to have due regard to the need, not only to eliminate discrimination, but also to foster good relations between different ethnic communities and to promote equality of opportunity between them. This is a duty which has a good deal of potential application in terms of the provision of accommodation and the framing of relevant policies in respect of the Gypsy and Traveller community. Given that those most in need of assistance from local authorities are often those condemned to trespass indefinitely, we consider it to be wholly inappropriate for those same people to be prevented for accessing civil legal services in respect of these issues.

Schedule 1, Part 2, paragraph 5: trespass to land

41. We suggest the amendment of this paragraph as follows:

"5 Civil legal services provided in relation to trespass to land unless the individual’s right to respect for his home, private or family life pursuant to Article 8 European Convention on Human Rights is arguably engaged.

42. It must be understood that this proposed amendment is not one which would "resolve" all of the problems and issues that have already been discussed in relation to paragraph 5, Part 2. The amendments set out above are necessary, even if this amendment is made. However, it is an amendment which has real merit of itself because it would allow for advice and assistance to be funded where an individual has an arguable claim that his/her case is one in which Article 8 might assist them, as envisaged by the Supreme Court in the recent cases of Pinnock and Powell.

Schedule 1, Part 2, paragraph 12(1): claims for breach of the ECHR

43. We propose the amendment of this paragraph as follows:

"12 (1) Civil legal services provided in relation to a claim for damages and no other remedy in respect of an act or omission by a public authority that involves a breach of Convention rights by the authority."

44. As currently drafted the Bill makes it impossible to obtain funding for a case involving a breach of ECHR rights if damages are claimed. While we accept that there may be arguments in favour of requiring claims for damages alone to find an alternative source of funding, we suspect that the Bill’s drafters simply made a mistake here. There seems to be no sensible reason for allowing a person with a powerful claim against a public authority for breach of their Convention rights (who may be seeking a declaration, injunction, mandatory order etc.) to receive public funding but to remove it if they add to that claim a claim for damages which may, in fact, be modest and wholly incapable of forming the basis of an alternative funding arrangement. If there is a desire to ensure that claims for substantial damages are pursued by way of alternative funding arrangements, this should (and can) be done via the criteria for funding individual cases in Clause 10 and not by a clumsy blanket ban in Part 2 of Schedule 1.

We hope that this paper is of assistance.

August 2011


[1] Count of Gypsy & Traveller Caravans, 8.7.10

Prepared 7th September 2011