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Lord Avebury moved Amendment No. 49:
- Page 38, line 11, at end insert—
The noble Lord said: My Lords, I had understood that a temporary stop notice was fundamentally different from the stop notices in the original Act, by reason of the fact that under this provision one does not need an enforcement to accompany the temporary stop notice.
The delays to which the noble Baroness referred arise from the fact that if someone appeals against the enforcement proceedings, the stop notice is suspended until those proceedings are disposed of. That is how people managed to delay use of the stop notice under the parent Act.
I want to turn to a different point; that is, the discussion on Report when the Minister said that the regulations which were to be made on temporary stop notices would protect Gypsies and caravan dwellers presumably in the same way as they already protect people who live in houses. A temporary stop notice cannot prohibit the use of a building as a dwelling house. If I have correctly understood the Minister's undertaking, it would not prohibit the use of a caravan for residential purposes on the land that it occupied at the time of any notice. That notice could prohibit ancillary works such as the provision of additional hard standing, amenity blocks and so on, but if the owners of the caravan had to be compelled to move off the land, either enforcement proceedings would have to be taken or the powers of the Criminal Justice and Public Order Act would have to be used.
The temporary stop notice is not intended—and I hope that the Minister will confirm this—as an additional weapon in the armoury available to local authorities for dealing with unauthorised encampments by Gypsies or other Travellers who have nowhere they can lawfully go. Those people are homeless by virtue of Section 126 of the Housing Act 1996. It is already the duty of local authorities under Section 3(1)(b) of the Homelessness Act 2002 to develop a strategy for,
Perhaps the Minister is aware that hardly any of the 157 local authorities with unauthorised encampments in their area have complied with that requirement or allocated land in their development plans for the
Rather than leaving this to be dealt with in regulations, I would like to see it on the face of the Bill where the process would continue. This morning, I spoke to members of the Commission for Racial Equality who told me that they were still awaiting their lawyers' opinion, but they clearly feel that there are doubts about the lawfulness of this provision and, equally, about the provision in the parent Act.
Their doubts have been reinforced by the Joint Select Committee on Human Rights, whose comments were published the day before our discussion on Report. I missed it at the time, but we have a duty now to consider the advice it gave. I draw your Lordships' attention to the committee's conclusion:
The Government should now address the argument to the contrary set out in detail on three pages of the report to which I referred. If the Government are now saying that to bring the legislation into conformity with the convention, it is necessary to exclude the possibility of a stop notice being used against a person living in a caravan—although it may, as I have explained, be applied to other, connected developments of the land that have taken place without permission—why should that not be plainly stated in the Bill, as is the exclusion of a dwelling house?
Parliament has the responsibility of ensuring that the Bill complies with the convention. The right way to do that is to make the wording as nearly identical in the two cases as possible, showing that we intend that there should be equality of treatment between Gypsies and everyone else. It follows that if the Government now undertake that the regulations will achieve equality between Gypsies and others regarding the application of stop notices to their respective residences, they are obliged to read that principle of equality back into the parent Act and the stop notices that are already available to local authorities under it.
In a letter that the Minister kindly wrote to me the day before yesterday, he said that it is not intended that the regulations will apply back into the parent Act because,
It so happens that only yesterday, the Court of Appeal heard a case—Chichester Borough Council v First Secretary of State and Doe, Eames and Yates, in which the local authority had issued a stop notice but had not yet prosecuted because there had been an appeal against the enforcement proceedings and the stop notice was suspended pending the hearing. When Lord Justice Auld granted the appeal, the stop notice automatically lapsed. In the three cases that he mentioned, the Minister may not have taken into consideration the use of stop notices in conjunction with enforcement proceedings where the stop notice was not ultimately proceeded with because the enforcement proceedings were unsuccessful.
In another case, Lewes District Council issued a stop notice against a Gypsy, Mr Silas Lee, but has not yet prosecuted him. I draw your Lordships' attention to the fact that Lewes is an authority in which the chair of the planning committee set fire to a mock-up Gypsy caravan with model people inside it in the recent notorious Thirle bonfire incident. I suspect that if the council takes Mr Lee to court, it may face Human Rights Act arguments. It is better that we resolve that here and now.
I also remind your Lordships that another reason why the matter needs to be resolved by Parliament is that, in the case of Wrexham County Borough Council v Berry in the House of Lords, it was found that Mr Berry, having relinquished his nomadic habit of life by reason of serious ill-health, had thereupon ceased to be a Gypsy and was not entitled to the considerations mentioned by the inspector as sufficient to override national and statutory development policies. Local authorities may well have been waiting for the Berry judgment before deciding how to proceed in other cases in which a Gypsy occupies land that belongs to him but for which he has not been granted planning permission. So in future there may be more cases of stop notices being issued, if local authorities are encouraged down that route by the Bill.
We need to see what the Government are going to do about the provision of Gypsy sites generally when they have considered the results of their recent seminars. I congratulate them on holding those seminars, which were an extremely useful exercise, and their promise that they will announce their findings on the Niner report in April or, at the latest, May.
It would be wrong to precede the measures to be announced to solve the problem of Traveller accommodation with yet another tightening of the
Lord Rooker: My Lords, I am grateful to the noble Lord for bringing back this amendment. I shall respond to him initially, and then make a couple of comments on the points that he raised about the letter and the report from the Joint Committee.
As the noble Lord said, Amendment No. 49 seeks to place on the face of the Bill a provision that would prevent local planning authorities from using temporary stop notices against those who reside in caravans. I recognise that the noble Lord is trying to achieve equal treatment for a minority who choose to have caravans as their homes. I have repeatedly said in this House—and I said this when I was at the Home Office—it is not illegal to have a nomadic life, and those people should not therefore be penalised and discriminated against.
In introducing the temporary stop notice amendment last week, we have already recognised that Gypsies and Travellers who choose to lead an alternative lifestyle should be protected in a similar way to those who choose to live in bricks and mortar.
The distinction is made between buildings and caravans because of the nature of the development. The effect of caravans moving onto land and being lived in will be greater than an existing building already situated on land being used for residential purposes. This is because there is an opportunity with buildings for local planning authorities to take enforcement action at any stage when the building is being built, before it is occupied as a residence; whereas, with caravans, this initial opportunity for enforcement will not be available.
The Government's approach of restricting the use of temporary stop notices by local planning authorities with conditions to be set out in regulations is more effective and sensible. The noble Lord has spoken before on the need to consult with affected groups and this is what we intend to do.
The regulations will also provide us with the flexibility to change the provisions for caravans as further details of the policy on Gypsy and Traveller accommodation develops, and as local authorities make greater site provision in their area. I can assure the House that the temporary stop notice provisions will not commence until the regulations to protect Gypsies and Travellers are in place.
The noble Lord's second amendment seeks to re-introduce the 1990 Act's provision that would prevent a stop notice being used when those residing in caravans were on a site and were in breach of planning controls.
We do not believe that the amendment is necessary. A stop notice as set out in the 1990 Act can be used against caravans; however, the service of the stop notice—as the noble Lord said in his initial remarks—is parasitic upon the service of an enforcement notice. Further, there is a liability to pay compensation in certain circumstances for loss flowing from the service
My honourable friend Yvette Cooper has written a long letter to Sarah Spencer, the Deputy Chair of the Commission for Racial Equality on policy issues. I think that it has been copied, and if not it can be made available. I hope that it will satisfy the issues raised in the letter that we had from the CRE on 15 March.
The Joint Committee on Human Rights provided a detailed report setting out its concerns, and we take this extremely seriously. I provided a response in a detailed letter, which I shall come to in a moment.
My response has been available to the noble Lords opposite. I hope it has been received; the chances are that it has not been. That is unfortunate. It could have been put on the internal notice board but it was not. I regret that it has not been received. I would have delivered it in person had I known that was going to happen.
That brings me to an error in the letter. My response is very detailed. It is a four or five page letter, and it is difficult to set out here. We explained that, although the temporary stop notices interfere with a person's use of their land, this is necessarily the case with planning enforcement matters. We believe that the power is proportionate and reasonable. We would expect the planning authorities to use this power in a reasonable and responsible manner—indeed, they are not allowed to use it in any other manner. The commitment that the power would not take effect until the regulations are in place is important. I shall not go over the details because we debated temporary stop notices when they were introduced. I have always said that, if a local planning authority used its power unreasonably or incorrectly, its decision would be subject to judicial review.
After three instructions from me, the whizzes who drafted the letter have still produced an error. I was out all day yesterday, visiting pathfinders in the north, so I gave instructions from the train. It is a minor point but it annoys because it worries me about the rest of the letter. On three separate occasions I gave instructions that the word "House" in the penultimate sentence of the final paragraph should be changed to "committee". It is a small point. The fact that the five-page letter was put together by a committee is no excuse. I was writing to the chair of the Joint Committee on Human Rights to apologise because it had not been fully informed of the amendment. The sentence reads:
"(aa) the use of any caravan for residential purposes;"
"securing that sufficient accommodation is and will be available for people in their district who are or may become homeless".
"As at present advised, we have serious doubts as to the compatibility of the provisions"—
that is to say the temporary stop notice—
"with the Convention right to peaceful enjoyment of possessions under Article 1 of Protocol 1 to the ECHR, and with the Convention right to be free of discrimination in relation to the right to possessions under Article 14 of the ECHR taken together with Article 1".
The temporary stop notices were introduced to the Bill on Report—without vast notice either to the JCHR or to your Lordships, or any explanation of how the Government arrived at their conclusion regarding the compatibility of the provisions with the convention rights, as the JCHR pointed out. At that stage, the Minister simply asserted that advice had been given, without disclosing the reasons why those conclusions had been reached.
"Local authorities already have advice on the use of stop notices in PPG 18, Circular 10/97 and the Good Practice Guide".
He continued by stating that he was not aware of stop notices causing any problems for Gypsy and Traveller groups, and that the Government had ascertained that in 2002, only three stop notices of a total of 180 had been used against caravans.
"It was certainly not my intention not to inform the House of the amendment".
Given that one must bring amendments to the House anyway to get them through, clearly the word "committee" should have been used. I told the whizzes three times that there was a mistake, including
yesterday, and just two minutes ago I saw the final letter that was sent out. I am pretty annoyed about it, to say the least.
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