Case study 4 – Locating a halting site for gypsy travellers

A local authority has assessed a need to build a halting site for Gypsy Travellers who pass through the area during the summer months. Although historically Gypsy Travellers have been used to “pulling in” on unused land or have camped with farmers’ permission, increasingly such sites have been closed to them. As there is little spare capacity on the council’s official site, Gypsy Travellers who wish to reside temporarily in the area are increasingly being forced into urban areas, which brings them into conflict with other land users and homeowners.

During a previous unsuccessful attempt to designate a site, the council encountered considerable opposition from local communities, who believed they would be affected by locating a site on their doorstep, from the local press and from a number of elected members. Since the decision to attempt to consult again on sites became public knowledge, tensions have grown again with two local community councils opposing the sites on the grounds of safety for the sites’ residents and green belt considerations. People speaking on behalf of Gypsy Travellers have accused the community councils of being “racist”.

The council is currently drafting a policy to support the development of specific named halting sites in their area and it will consult on the proposal.

Task

How should the council proceed with its consultation bearing in mind the strongly held and polarised opinions which are likely to be raised on all sides?

Using the questions below, follow the FAIR model to develop your response:

Facts: What are the important facts?

• Are there specific, potentially disproportionate, negative impacts on particular groups including those with protected characteristics?

• Which individuals and groups need to be heard?

• What sources of evidence (qualitative and quantitative) could be used to assess the current and future impacts of the policy options?

When gathering the facts:

1. What methods would you use to ensure that those affected by the policy are consulted and involved in decisions that affect them, in an active and meaningful way?

2. Can you identify any of the individuals or groups who are likely to need support to engage with you, and if so, who will provide that support?

3. What information will those affected by the policy need in order to be able contribute effectively to the consultation process?

Analysis: what are the human rights at stake and what are the implications of the policy for compliance with the Equality Act?

• What are the human rights issues at stake?

• Are the rights absolute?

• Can the right be restricted and if so, what is the reason for the restriction in this case.

• If the right is being restricted, is the response proportionate? (i..e. is it the minimum restriction necessary to achieve your objective - or is it a “sledgehammer to crack a nut”?)

• From the evidence gathered are the protected groups likely to be treated less favourably than others by the policy?

• If the policy applies to everyone, are the protected groups likely to suffer a particular disadvantage compared with other groups?

• Is the policy designed to achieve positive benefits for protected groups? For example, will the policy remove or minimise disadvantage, meet particular needs or encourage participation?

• What is the potential impact on “good relations “ - that is the “promotion of understanding and the reduction of prejudice.”

Identification of shared responsibilities

• What changes if any, are necessary to the policy that would mitigate any negative impact of the policy?

• Who has responsibilities for helping with any necessary changes?

Review actions and policy

• Have the actions taken been recorded?

• How often, and in what circumstances, will the policy be reviewed and by whom?

FEEDBACK SHEET FOR CASE STUDY 4 – LOCATING A TRANSIT SITE FOR GYPSY TRAVELLERS. 

The fact that there are very strong views and emotions on either side should not cloud the issue of the rights of the Gypsy Traveller community, the duties of the local authority and the legitimate concerns of the settled community. The negative and stereotypical views that many of the settled community hold about the Gypsy Traveller community should not be a factor in determining the correct course of action.

All of the interested parties need to be consulted and all need to be made aware of the legal position in relation to the provision of sites.

Local authority legal requirements

Although local authorities are required to assess the housing needs of Gypsy Travellers every 5 years in their Housing Plan, they are not formally required to meet this need by the Scottish Government.

If a local authority fails to assess Gypsy Travellers needs in its Housing Plan the Government is permitted to take action to improve the plan.

Nevertheless, beyond this formal requirement  human rights law means it is unlawful for a public authority to act in a way which is incompatible with the human rights set out below.

Human rights issues

The human rights at stake include the right to private and family life (Article 8) and the protection of property (Article 1, Protocol 2).

Members of both the Gypsy Traveller community and the settled community have a right to have their home life respected and to enjoy their homes peacefully and without exposure to excessive noise or environmental pollution. Members of both groups have the right to the peaceful enjoyment of their possessions. However, members of both groups might think that the other is interfering with their ability to exercise those rights.

In applying Analysis steps of the FAIR questions it will have to be considered what a minimum necessary interference with the rights of either community would be and what measures can be taken to ensure any negative impacts are minimised.

The application of the Equality Act

The general duty of the Equality Act 2010 applies to every local authority planning function.

It could be argued that by failing to provide official sites Gypsy Travellers are forced onto contested land and/or to form unlawful encampments which do little to foster good community relations.  The local authority would need to demonstrate how it was fostering good relations in the absence of site provision.

Community Councils are also covered by the general duty of the Equality Act 2010.

Individual applications for sites are subject to the Equality Act 2010 as this forms part of the public functions of a local authority, and discrimination in the decision making process is therefore unlawful. However as with other planning applications the Council has to weigh the merits of the applications against the objections and then pay due regard to equality in decision making.

The council needs to ensure that in the consultation process all of the groups involved, including the elected members, are fully aware of the legal framework that must underpin their decision. The fears and concerns of the settled community must be addressed (e.g. guaranteeing that the site will be maintained, as appropriate, by the council) and the fears and concerns of the Gypsy Traveller community must also be addressed (e.g. guaranteeing that the police will respond to attacks on their site).

There is a useful EHRC publication: “Gypsies and Travellers: simple solutions for living together.”