LEGAL AID BILL AND GYPSIES AND TRAVELLERS
The Legal Aid Bill1 was published on the 21st June 2011.
If brought into force as it stands now this Bill will have disastrous effects on the provision of advice
and representation to Gypsies and Travellers on accommodation issues (to say nothing of the
disastrous effects on many other areas of the law such as welfare rights, debt and education to
name but a few).
Clause 8 of the Bill states that civil legal services will only be available in those areas detailed in
Schedule 1 Part 1 of the Bill.
Schedule 1 Part 1 of the Bill contains those services which remain in the scope of Legal Aid (by this
is meant all forms of advice, assistance and representation). At paragraph 17(1) “Judicial Review”
is kept within scope. However paragraph 17(2) makes 17(1) subject to the exclusions in Schedule 1
Part 2. Part 2 paragraph 5 excludes “trespass to land”.
At paragraph 27 of Schedule 1 Part 1 onwards “loss of home” is kept within scope but the
following should be noted:-
(9) 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
(10) 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
Legal Aid, Sentencing and Punishment of Offenders Bill 2011
(11) In sub-paragraphs (9) and (10), the references to a caravan, houseboat or other
vehicle include the land on which it is located or to which it is moored.
Excluded services are listed at Schedule 1 Part 2. Gypsy and Traveller planning work (by which we
mean high court planning appeals and planning injunction actions) are not mentioned but (subject
to what we say later) must be taken to be excluded by not being included in Schedule 1 Part 1.
In its consultation response the Government accepts that the majority of the over 5,000 responses
they received were against the reforms. For example at paragraph 41 of the consultation response
the Government states:-
Over 90% of Respondents to the consultation disagreed with the proposals to remove from the
scope of Legal Aid those cases and proceedings set out in the consultation.
Nevertheless the Government is willing to fly in the face of those responses.
At paragraph 234 of the consultation response the Government concludes that it will proceed with
a 10% reduction to all fees paid under the Civil and Family Legal Aid Schemes (and it was brought
into force on 3rd October 2011). At Annex B paragraph 74, the Government relates the key issues
raised in the consultation on housing cases (which incorporates Gypsy and Traveller
accommodation cases). It states that one of the key points raised by Respondents was:-
Funding should be provided for planning appeals and eviction cases involving Gypsies and
Travellers because this group was one of the most vulnerable in society.
However, that point is not addressed in its response to the consultation from paragraph 75. The
Government fails to actually respond to that point.
The main types of Gypsy and Traveller cases that require public funding are those which concern:
evictions from unauthorised encampments; evictions from rented sites; other issues relating to
rented sites; high court and county court planning cases (injunctions, planning appeals, challenges
to stop notices and direct action etc); and homelessness cases.
Community Law Partnership (CLP) has launched a judicial review on behalf of two Gypsy clients
(one who has to resort to unauthorised encampments and one who is trying to obtain planning
permission to live on her land) challenging the Minister of Justice’s failure to consider the impact
of the proposed Legal Aid amendments in the Equality Impact Assessment (EIA) that was
published at the same time as the Bill.
Under the Bill, on the face of it, all unauthorised encampment eviction cases will go out of scope.
In pre-action correspondence, the Ministry of Justice indicated that it felt that judicial review
actions regarding unauthorised encampments would remain in scope. However, even if this is a
correct reading of the Bill, this would simply mean that public authorities could effectively avoid a
challenge by simply taking county court possession action (which the Ministry of Justice confirms
will be out of scope).
Again on the face of it, a very large number of planning matters will go out of scope. Schedule 1
Part 1 of the Bill at para 27, under the heading ‘ Loss of home’, states that this part refers to:
(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.
There may be cases where it can be argued that ‘loss of home’ is involved in planning cases
though this may be difficult to argue since the word ‘eviction’ is used under ‘loss of home’. The
dismissal of a challenge under Town and Country Planning Act 1990 ss288 or 289 or the making of
an injunction under s187B of that Act may arguably be considered not to be an eviction even
where those orders may lead to an eviction, e.g. because there may be a delay before the
individual or individuals concerned actually have to leave the land. The Ministry of Justice has
failed to clarify this matter. Stop notice and direct action cases will normally involve judicial
review and will therefore be within scope.
Ironically, after the success of the enormous struggle to persuade the Government to apply the
provisions of the Mobile Homes Act (MHA) 1983 to local authority sites, it has decided that all
aspects of the MHA 1983 apart from those which concern possession actions will go out of scope.
CLP, on behalf of an Irish Traveller who lives on a local authority site, has lodged another judicial
review also challenging the failure of the EIA to address the impact of this proposal on Gypsies and
Travellers. For many Gypsies and Travellers on rented sites they will be deprived of legal advice of
any sort to deal with cases involving: breach of the covenant of quiet enjoyment; succession; re-
siting of the mobile home; rent increases; repairs etc. Unfortunately many Gypsy and Traveller
residents have previously suffered educational disadvantage. It is well known that there are high
levels of illiteracy within the Gypsy and Traveller community. In addition the above matters can be
very complex in legal terms. All that is being called for here is initial advice (since non-possession
MHA disputes would be, if it comes to it, dealt with in a Residential Property Tribunal – in English
cases - where legal aid will not usually be available). Even that initial advice is being taken away.
Some 25% of the Gypsy and Traveller population who live in caravans in England and Wales are
either on unauthorised encampments or unauthorised developments2 and, therefore, many of
those people will be directly affected by these proposals.
As is, of course, well known, the Gypsy and Traveller community are one of the most vulnerable
and disadvantaged communities in England and Wales in terms of health, education and
discrimination and it is almost universally accepted that these disadvantages and problems would
be addressed if there was adequate site provision.
CLP estimate that at least 75% of their ‘accommodation cases’ for their Gypsy and Traveller clients
would no longer be within scope if the Government’s proposals are adopted.
Those advising and representing Gypsies and Travellers on eviction cases know that many local
authorities fail to follow the Government guidance on unauthorised encampments, fail to take
into account Human Rights considerations and fail to follow a proper and reasonable process. If
Gypsies and Travellers involved in county court and high court planning cases are unsuccessful,
then that will result in loss of their home and homelessness.
Some of the leading Supreme Court and Court of Appeal cases in the areas of evictions and
homelessness have involved Gypsy and Traveller cases. Additionally the recent Supreme Court
judgments in Manchester City Council v Pinnock and London Borough of Hounslow v Powell and
others made it clear that, in unauthorised encampment cases, Article 8 of the European
Convention on Human Rights (the right to respect for private and family life and home) would be
engaged. However, if the Bill is enacted then, without Legal Aid, Romani Gypsies and Irish
Travellers (ethnic groups under the Equality Act 2010) will find it very difficult if not impossible to
raise these Human Rights issues in any defence to an eviction action.
Thus, up to 25% of the members of the Gypsy and Traveller community that live in caravans are homeless;
compare that figure with 0.1% of the settled population who are homeless.
In light of the above we proposed the following amendments to the Bill:
At Schedule 1 Part 2, paragraph 5 (“trespass to land”) should be deleted or, in the alternative,
should be amended to make it clear that it only refers to “trespass to buildings – not including the
curtilage of a building”.
At Schedule 1 Part 1, paragraph 27, sub-paragraphs (10), (12) and (13) should be deleted.
At Schedule 1 Part 1 paragraph 27, references in sub-paragraphs (9) and (11) to sub-paragraph (10)
should be deleted.
In Schedule 1 Part 1 the following paragraph should be included at an appropriate place.
County Court and High Court planning cases. For the purposes of this paragraph “planning cases”
means planning injunction actions brought under the Town and Country Planning Act Section
187B and statutory challenges and appeals brought under the Town and Country Planning Act
1990 Sections 288 and 289 respectively where the result of the case may lead to ‘loss of home’ for
the Gypsy or Traveller concerned.
In Schedule 1 Part 1 the following paragraph should be included at an appropriate place:
Advice under the Legal Help Scheme for matters arising under the Mobile Homes Act 1983.
Cathay Birch, Gypsy Message Board
Jeremy Browne, solicitor, Bramwell Browne Odedra
Bucks and West Herts Gypsy Advocacy
Community Law Partnership solicitors
Dale Farm Residents Association
Derbyshire Gypsy Liaison Group
Equality and Diversity Forum
Friends, Families and Travellers
Irish Traveller Movement in Britain
London Gypsy and Traveller Unit
Dr Angus Murdoch, MRTPI
National Federation of Gypsy Liaison Groups
New Traveller Association
Alex Offer, barrister, Park Court Chambers & Garden Court Chambers
South West Law, legal services in the community
David Watkinson, barrister, Garden Court Chambers
Marc Willers, barrister, Garden Court Chambers
19th December 2011