Home > yourrights > rights of gypsies and travellers/Evictions from Unauthorised Encampements > Evictions from Unauthorised Encampements
> Government Departments and other Non Local Authority public bodies
To what extent must other public authorities have regard to considerations of common humanity before deciding to evict Gypsies and Travellers from their land? Department of the Environment (DoE) Circular 18/94 states:
‘Where gypsies are unlawfully encamped on Government-owned land, it is for the local authority, with the agreement of the land-owning department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretary of State that Government Departments should act in conformity with the advice that unauthorised encampments should not normally be allowed to continue where they are causing a level of nuisance which cannot be effectively controlled, particularly where local authority authorised sites are available. The National Assembly for Wales will act in the same way.’
The 2004 Guidance makes it clear that public authorities must take account of humanitarian considerations:
‘5.7…The Police and other public bodies who might be involved in dealing with unauthorised encampments do not have comparable duties [to local authorities] but must still, as public servants, show common humanity to those they meet.
5.8. The Human Rights Act applies to all public bodies including local authorities (including town and parish councils), police, public bodies and the court. With regard to eviction, the issue that must be determined is whether the interference with Gypsy/Traveller family life and home is justified and proportionate. Any particular welfare needs experienced by unauthorised campers are material in reaching a balanced and proportionate decision. The human rights of members of the settled community are also material if any authority fails to curb nuisance from an encampment. Case law is still developing with regard to the sorts of welfare enquiries which the courts consider necessary to properly taken decisions in relation to actions against unauthorised encampments. Cases are testing the requirements under different powers, and the requirements placed on different agencies (authorities, police and other public landowners). Very generally, court decisions to date suggest:-
Over recent years, there have been a series of cases involving the Forestry Commission (a body for which the Secretary of State for the Environment, Food and Rural Affairs (SSEFRA) is now responsible but for which the Minister of Agriculture, Fisheries and Food (MAFF) was previously responsible). The Forestry Commission practice, when they become aware of an unauthorised encampment, has been to write to the local authorities concerned (normally, given the rural location of Forestry Commission land, the county and district councils), bringing the encampment to their attention and suggesting that they may wish to investigate any welfare concerns. The standard letter used invites the authorities to respond to the Forestry Commission if they have any welfare points to make. This approach was approved in the case of R v MAFF ex p Callaghan.
The potential problem with this approach, as has been pointed out over the years to the Forestry Commission by representatives on behalf of Gypsies and Travellers, is that, if the local authorities are not proactive and do not make any enquiries, then welfare concerns may not come to the attention of the Forestry Commission (the same would apply to other public bodies, of course).
In R (Kanssen) v SSFRA (2005), Owen J concluded that this practice of writing to the relevant local authorities was sufficient to comply with the Forestry Commission’s obligations under common law and under government guidance. He confirmed, of course, that the Forestry Commission must take account of all humanitarian considerations that are brought to their attention but he rejected Mr Kanssen’s additional contention that the Forestry Commission has the power to provide sites for Gypsies and Travellers. Mr Kanssen’s application for permission to appeal to the Court of Appeal was unsuccessful. However, it is worth noting that both Owen J and Carnwath LJ (when refusing permission to appeal to the Court of Appeal) placed some emphasis on the need for there to be strategies between local authorities and other public authorities such as the Forestry Commission. Advisers for Gypsies and Travellers will need to enquire as to the existence of such strategies when faced with evictions from public authority land and will need to press the relevant local authorities to be proactive in making welfare enquiries. Clearly, advisers ought to inform the relevant public authority of any welfare considerations that it is considered ought to be taken into account by the authority before it decides whether or not to evict the encampment.
‘Where gypsies are unlawfully encamped on Government-owned land, it is for the local authority, with the agreement of the land-owning department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretary of State that Government Departments should act in conformity with the advice that unauthorised encampments should not normally be allowed to continue where they are causing a level of nuisance which cannot be effectively controlled, particularly where local authority authorised sites are available. The National Assembly for Wales will act in the same way.’
The 2004 Guidance makes it clear that public authorities must take account of humanitarian considerations:
‘5.7…The Police and other public bodies who might be involved in dealing with unauthorised encampments do not have comparable duties [to local authorities] but must still, as public servants, show common humanity to those they meet.
5.8. The Human Rights Act applies to all public bodies including local authorities (including town and parish councils), police, public bodies and the court. With regard to eviction, the issue that must be determined is whether the interference with Gypsy/Traveller family life and home is justified and proportionate. Any particular welfare needs experienced by unauthorised campers are material in reaching a balanced and proportionate decision. The human rights of members of the settled community are also material if any authority fails to curb nuisance from an encampment. Case law is still developing with regard to the sorts of welfare enquiries which the courts consider necessary to properly taken decisions in relation to actions against unauthorised encampments. Cases are testing the requirements under different powers, and the requirements placed on different agencies (authorities, police and other public landowners). Very generally, court decisions to date suggest:-
- All public authorities need to be able to demonstrate that they have taken into consideration any welfare needs of unauthorised campers prior to making the decision to evict;
- The courts recognise that the police and other public bodies have different resources and welfare duties from local authorities. Generally the extent and detail of appropriate enquiries is less for police and non-local authority ‘public authorities’…
Over recent years, there have been a series of cases involving the Forestry Commission (a body for which the Secretary of State for the Environment, Food and Rural Affairs (SSEFRA) is now responsible but for which the Minister of Agriculture, Fisheries and Food (MAFF) was previously responsible). The Forestry Commission practice, when they become aware of an unauthorised encampment, has been to write to the local authorities concerned (normally, given the rural location of Forestry Commission land, the county and district councils), bringing the encampment to their attention and suggesting that they may wish to investigate any welfare concerns. The standard letter used invites the authorities to respond to the Forestry Commission if they have any welfare points to make. This approach was approved in the case of R v MAFF ex p Callaghan.
The potential problem with this approach, as has been pointed out over the years to the Forestry Commission by representatives on behalf of Gypsies and Travellers, is that, if the local authorities are not proactive and do not make any enquiries, then welfare concerns may not come to the attention of the Forestry Commission (the same would apply to other public bodies, of course).
In R (Kanssen) v SSFRA (2005), Owen J concluded that this practice of writing to the relevant local authorities was sufficient to comply with the Forestry Commission’s obligations under common law and under government guidance. He confirmed, of course, that the Forestry Commission must take account of all humanitarian considerations that are brought to their attention but he rejected Mr Kanssen’s additional contention that the Forestry Commission has the power to provide sites for Gypsies and Travellers. Mr Kanssen’s application for permission to appeal to the Court of Appeal was unsuccessful. However, it is worth noting that both Owen J and Carnwath LJ (when refusing permission to appeal to the Court of Appeal) placed some emphasis on the need for there to be strategies between local authorities and other public authorities such as the Forestry Commission. Advisers for Gypsies and Travellers will need to enquire as to the existence of such strategies when faced with evictions from public authority land and will need to press the relevant local authorities to be proactive in making welfare enquiries. Clearly, advisers ought to inform the relevant public authority of any welfare considerations that it is considered ought to be taken into account by the authority before it decides whether or not to evict the encampment.
