Government proposal to criminalise trespass – please respond to consultation by 4th March

A Government consultation on making trespass a criminal offence is currently running and we urge all Bargee Travellers to respond to it saying that you strongly disagree that entering land without the landowner’s permission should be made a criminal offence in any circumstances. The consultation opened on 5th November 2019 and ends at 11.59pm on 4th March 2020. These Government proposals could have a severe effect on Bargee Travellers as well as Gypsy and Traveller Communities on land.

The consultation questions are ambiguous and poorly framed. Therefore Traveller support charity Friends, Families and Travellers (FFT) have published their own response to the consultation that can be used for guidance, and also a shorter form of response that people can complete themselves here:

FFT have explained why they think the many of the consultation questions are ambiguous: “If respondents answer ‘strongly disagree’ or ‘disagree’ that could be interpreted as the respondent having the opinion that trespass should be criminalised in all circumstances, not only when it is for the purpose of residing on land”.

The Government consultation document and response form is here:

The full response from FFT is here: Unauthorised_Encampments_-_consultation_paperFFT-own-submission_PDF

The Government’s proposals could result in the widespread criminalisation or imprisonment of travelling families, and render entire communities homeless by the double whammy of eviction and seizure of their homes. The proposals could make it a crime for travelling families to stop beside or on the road; define just two vehicles instead of six as an unauthorised encampment, allowing the occupants to be evicted; force families to travel to a transit site in another county, and ban Travellers from an area for an entire year (instead of three months as currently).

The consultation document is vague and makes anodyne statements about how tolerant people are in England and Wales and how the government respects the rights of nomadic people to live their chosen lifestyle. The document also misrepresents the law in Scotland and Ireland.

Boaters have a historic right to navigate all navigable rivers (the Public Right of Navigation), and that includes the right to moor for a ‘reasonable’ length of time. As a general rule, that is seen as about two weeks, unless navigation is dangerous or difficult, in which case the master of the boat has a perfect right to remain moored until it is safe to move, and that is absolutely in the judgement of that master. Riparian land owners often request, and sometimes demand, mooring fees. Councils ban mooring in certain places, citing various reasons, but usually simply in response to intolerant house dwellers in the area. Both can be challenged and a significant number of such challenges have been successful including in court.

The 14-day moorings at Mead Lane on the River Avon in Somerset have been closed by Bath and North East Somerset (B&NES) Council, ostensibly to protect a sewage pipe along the river bank. Boaters who attended the meeting heard from practically every Councillor that: “We take our responsibilities to the boating community very seriously” and they made vague promises of alternative moorings. However the triumphalist jeering response of some of the residents of Mead Lane does nothing to support the assertion that the English are ‘tolerant’ of alternative lifestyles.

The recent victory in the Court of Appeal by London Gypsies and Travellers and Liberty against Bromley Council could be a valuable landmark (L B Bromley v Persons Unknown [2020] EWCA Civ 12). The Court found in favour of the ‘enshrined freedom not to say in one place …’, and also mentioned the ‘lack of availability of alternative sites’. This is a judgement that could work in favour of the boaters in their battle against B&NES Council, should no alternative moorings be made available.

Our ‘enshrined freedom’ could be in danger and the proposal to amend sections 61 and 62A of the Criminal Justice and Public Order Act 1994, which covers trespass, may well have both intended and unintended consequences for the Bargee Traveller community.

Criminalising trespass for the purpose of residing on land will disproportionally affect Gypsies and Travellers, but will also affect other communities. Homeless people sleeping on the streets, in parks and other areas will be affected by these proposals. Van dwellers and recreational camper van users are also likely to be affected, as are recreational wild campers, backpackers and even ramblers. There could be wider consequences, with the danger of legislative creep regarding trespass further eroding our civil liberties relating to access to land and urban open spaces.

FFT say in their response to the Government’s consultation:

The criminalisation of trespass would criminalise nomadic communities including those with protected ethnic status. We do not believe criminalising trespass is compatible with the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, as these measures are not proportionate or reasonable, particularly when there are insufficient authorised sites and stopping places. It conflicts with the requirement to ‘eliminate discrimination’ and ‘advance equality of opportunity’.

Making trespass a criminal offence if it is for the purpose of residing on land with vehicles would almost exclusively affect Gypsies and Travellers. We question the compatibility with equality and human rights legislation. Criminalisation of trespass in this form would also not comply with the positive duty imposed on the UK to ‘facilitate the Gypsy way of life’ (by the European Court of Human Rights ruling: Chapman v UK, 2001).

The Home Secretary’s assertions that unauthorised encampments “cause misery to those who live nearby, with reports of damage to property, noise, abuse and littering” focus on the behaviour of a minority, yet tar all Gypsies and Travellers with the same brush. This is dangerous and discriminatory rhetoric. If property damage, noise, abuse and littering truly are the Home Office’s concerns, there is already reams of criminal law to prevent and punish this.

The Government asserts it is basing a model on Ireland yet focuses solely on the legislation that criminalises trespass (Housing [Miscellaneous Provisions] Act 2002) and does not attempt to replicate the other pertinent legislation that exists there (the Housing [Traveller Accommodation] Act 1998) which makes the provision of Traveller accommodation a statutory requirement.

There is evidence that criminalising trespass in Ireland has not reduced the number of families living on unauthorised encampments and research shows there has been a ‘significant increase from 444 families in 2010 to 534 in 2015. The notion that similar legislation would stop the existence of unauthorised encampments in England and Wales is flawed. In addition, there has been a successful legal challenge against the position in Ireland.

Thanks to Jenny and FFT for the information in this article.