Response to the Draft Unauthorised Encampments (Northern Ireland) Order 2004


Children’s Law Centre
December 2004

Introduction

The Children’s Law Centre is an independent charitable organisation established in September 1997 for the purposes of helping young people, their parents/carers, and professionals understand the laws, which effect children and young people in N Ireland.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/information/representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth @ clc.
Our organisation is founded on the principles enshrined in The United Nations Convention On The Rights of the Child.
The Children’s Law Centre welcomes the opportunity to comment on the Draft Unauthorised Encampments (Northern Ireland) Order 2004. We have decided to make comments in this format, rather than use the rather restrictive comment page attached to the Draft Explanatory Memorandum.
General Comments
It is our view that the Draft Unauthorised Encampments (Northern Ireland) Order 2004 breaches a number of domestic and international legislative provisions which aim to afford equality to some of the most vulnerable members of society. The draft legislation proposes to afford statutory powers to the PSNI to remove trespassers who have the intent of residing on land, together with their vehicles and other property. It is also proposed that the powers afforded by the draft legislation would enable a senior police officer to remove trespassers, their vehicles and property who have the intent of residing on land without the permission of the landowner. It must be concluded from this that there will be a disproportionate impact in respect of Irish Travellers with the introduction of this legislation in its current form.
We note that the Memorandum states that,
“To mitigate any adverse impact the legislation will proceed in parallel with the development of authorised transit sites specifically for the Irish Traveller community”.

However, we have serious concerns in relation to the provision of the development of authorised transit sites based on statements made by the DSD at the Department’s Stage 4 and Stage 6 Equality Impact Assessment’s which seemed to highlight reservations in terms of the availability of finance to enable a comprehensive programme of accommodation within a defined timetable, stating that,
“The timing of the delivery of these schemes will be dependent upon the completion of the statutory processes including land acquisition and the availability of finance.”

“This programme will be implemented at a pace dictated by the level of funding available.”

Without immediate provision of culturally appropriate accommodation, the draft legislation is advocating the criminalisation and eviction of Traveller families without offering any other option as to where they can legally be permitted to reside.

United Nations Convention and Committee on the Rights of the Child

In September 1998 Sandra Mason, the then Chairperson of the UN Committee on the Rights of the Child paid a visit to Northern Ireland and said of the living conditions of Travellers,

“I was, in fact, quite appalled to find in Britain on the eve of the twenty-first century there are people living in such squalid conditions, conditions one only expects to find in third world countries. For some, clean drinking water and basic sanitation are not available, thus endangering the health of children living in these communities.”

It is widely acknowledged that Irish Traveller families are an extremely marginalised section of the community. In terms of children’s rights, the United Nations Committee on the Rights of the Child at the last hearing and in their concluding comments in 2002 stated that they were particularly concerned about the continued denial of rights to Irish Traveller children. The widespread discrimination against Irish Travellers in all aspects of their lives was highlighted by the Committee. The government was exhorted to draw up and implement a comprehensive plan of action, in consultation with Travellers and their children, to ensure that their rights are secured. The Committee expressed particular concern that not all children were being protected from discrimination and highlighted the,

“…unequal enjoyment of economic, social and cultural, civil and political rights for … Irish Travellers.”

The Committee also focused on inequalities in health and access to health services and pointed to the high rates of infant mortality among Traveller children as one indicator of such inequality.

The introduction of this draft legislation in its current format will serve to only further exacerbate the detriment suffered by the Irish Traveller community and in particular, Irish Traveller children. In terms of socio-economic rights, the inter-dependence and indivisibility of all rights is hugely apparent. Without basic rights, such as the right to accommodation and flowing from this, the rights to healthcare, social services and a healthy, sustainable environment, children’s rights to participate and have their best interests protected become meaningless. How does a government, which continues to fail in its responsibilities to Traveller children as detailed in the UN Committee’s comments, expect a child without access to the most basic amenities, living in fear of eviction and the criminalisation of his or her family to participate in his or her education?

This draft legislation not only fails to address the continued failure of government to meet its obligations in respect of the UNCRC, but it further serves to polarise and marginalise Traveller children. In terms of the provisions of the UNCRC, the draft legislation clearly breaches the general principles, the very cornerstones of the UNCRC itself, namely, Articles 2 – Non-discrimination, 3 – The Best Interests of the Child, 6 – The Right to Life, Survival and Development and 12 – Respect for the Views of the Child. The draft legislation also is clearly in breach of Articles 8 – Preservation of Identity, 19 – Protection from all forms of Violence and 30 – Respect for Cultural Identity, as well as seriously impeding Traveller children from participating in education (Article 28), leisure, recreation and cultural activities (Article 31) and access to health and health services (Article 24).

The importance of adequate accommodation for children and how its provision or otherwise impacts on all areas of a child’s life and development was clearly emphasised in the, “Statement of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living”, in May 2002. In the statement, Mr. Miloon Kothari drew attention to the integral link between children’s housing rights and living conditions, stating that these,

“…are essential to their cognitive, physical, cultural, emotional and social development, particularly as children are disproportionately vulnerable to the negative effects of inadequate and insecure living conditions.”

He also went on to say that,

“In its essence, housing as a living impulse creates roots entailing security. The house is to be seen as a home, the one stable point in the child's life where she/he can return to. It is a place where the child can eat, laugh, play where she/he will find love and peace. The Convention on the Rights of the Child, which achieved near-universal ratification, reaffirmed the right to housing as an essential component of the right to a standard of living adequate for the child's overall development...”

Perhaps most relevant for the Department’s consideration in his statement is the commentary in relation to insecure living conditions, which Traveller children will certainly find themselves in with the introduction of the draft legislation, due to the proposed introduction of forced evictions. He states that,

“The negative effects of insecure living conditions and forced evictions are having a damaging impact on children's physical and emotional health.”

The Committee on the Elimination of Racial Discrimination

Similar concerns in relation to the discrimination faced by Travellers were raised by The Committee on the Elimination of Racial Discrimination, in its concluding observations on the UK report in 2003. The Committee expressed concern about discrimination faced by Travellers,

“…which is reflected, inter alia, in their higher child mortality rate, exclusion from schools, shorter life expectancy than the population average, poor housing conditions, lack of available camping sites, high unemployment rate, and limited access to health services”.

The Committee on the Elimination of Racial Discrimination made a recommendation that the UK government adopt national strategies and programmes with a view to improving the situation of Travellers against discrimination by state bodies, persons or organisations.



The Human Rights Act

We also wish to express grave concerns about the compliance of this draft legislation with other equality and human rights legislation. The DSD expressly states in the Explanatory Memorandum that,

“The provisions of the Order are compatible with the Convention on Human Rights”

We take issue with this statement and believe that the legislation may in fact lead to breaches of the Human Rights Act. In particular any eviction of Traveller families, particularly those with children, and/or seizure of caravans, in the absence of viable alternative accommodation, could violate article 3 of the Convention in that such action could amount to ‘inhuman and degrading treatment’. This action may also breach Article 8 of the Convention which ensures respect for private and family life.

In relation to evictions and breaches of Article 8 of the Convention, the recent case of Connors v The United Kingdom 2004 raises some salient points for consideration by the Department. In this case, Mr Connors and his family were evicted from the site where they had lived with consequent difficulties in finding a lawful alternative location for their caravans. As a result, they had extreme difficulty in coping with health problems, ensuring the well-being of their young children and in ensuring continuation of the children’s education. The family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entailed. The Court found that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards and could not be regarded as justified by being proportionate to the legitimate aim being pursued. There had, accordingly, been a violation of Article 8.

The European Court of Human Rights went further and observed that the vulnerable position of gypsies as a minority meant that some special consideration had to be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To that extent, there was a positive obligation on the United Kingdom to facilitate the gypsy way of life.

Another aspect which is contrary to the Human Rights Act is the fact that Traveller families are clearly being discriminated against because of their nomadic way of life, potentially criminalising and rendering them homeless as a direct result of their cultural identity and heritage. The Race Relations (NI) Order 1997 not only defines Travellers as a specific ‘racial group’ but identifies nomadism as a key aspect of their cultural identity. This was also acknowledged by the PSI Working Group Report on Travellers, which states that,

“Not only should service providers ensure that they can accommodate the specific needs of Travellers who are nomadic, but policies or practices that tend to limit or hinder Traveller nomadism without good reason may actually be counted as unlawful. With this in mind, nomadism can be accommodated by:
• Taking a strategic approach to the provision of Traveller accommodation;
• Ensuring that specific services are adapted so that they are equally accessible to those Travellers who choose to retain a more nomadic way of life”
Section 75 of the Northern Ireland Act
It is also a matter for serious concern that the Department has failed to meet its statutory duty under section 75 of the Northern Ireland Act 1998. The lack of Traveller involvement in the DSD’s Working Party indicates a marked disregard for the obligation to engage in meaningful consultation with those directly affected by a policy or practice. There is clearly a requirement that the consultation process fully gather and take into account the views of members of the Traveller community, their representative groups and directly consult with children and young people both in terms of the section 75 statutory duty and Article 12 of the United Nations Convention on the Rights of the Child.
There is also an issue around identifying adverse impact in terms of the draft legislation. Travellers are not a homogeneous group, but rather they are multi-faceted. Undoubtedly, there will be varying degrees of adverse impact on particular groups of people, such as young Travellers, Travellers with dependents, Travellers with disabilities etc. The Department should have regard to the diverse nature of the Traveller community in determining adverse impact.
The Housing (Miscellaneous) Act 2002

The Housing (Miscellaneous) Act 2002 has introduced similar provisions to those detailed in the draft legislation in the Republic of Ireland. The Act made it an offence to enter and occupy land, or bring on to it any object that is likely to have one of five specified detrimental effects on the land or amenity and it is used almost solely against Travellers. Gardaí can force Travellers to move on, even those awaiting accommodation within local authority areas. The Irish Government has also failed to provide an adequate supply of culturally acceptable accommodation. Martin Collins, Assistant Director of Pavee Point Travellers Centre, said,
"Of the 2,200 units of Traveller specific accommodation recommended in the 1995 Government Task Force on Travellers only 251 extra units of halting site accommodation has been provided."
The Irish Human Rights Commission has stated that the Housing (Miscellaneous) Act 2002 may breach both the constitutional rights of Travellers and their rights under the European Convention on Human Rights. The Human Rights Commission argues that members of the Travelling community are forced to trespass on land because of the failure of local authorities to meet their statutory duty to provide sites, as mandated under the 1988 Housing Act. It says that the legislation,
"…flies in the face of the progress that has been made in recent years in recognising the ethnicity of Travellers and the legitimacy of nomadism".
The Act is currently facing a constitutional challenge in the High Court from four Traveller families. Perhaps the Department should look closely at the similarities between and the experience of the Republic of Ireland before progressing any further with this draft legislation.


Forced Evictions
The draft legislation proposes to introduce forced evictions, as defined in the Committee on Economic Social and Cultural Rights General comment, “The right to adequate housing (Art.11.1): forced evictions: 20/05/97”. Forced evictions are defined as,
“…the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”
The general comment states that forced evictions are not only manifestly in breach of the International Covenant on Economic, Social and Cultural Rights, but owing to the interrelationship and interdependency which exist among all human rights, forced evictions frequently violate other human rights and may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions. It expressly refers to the association of forced evictions with violence,
“…such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence.”
Specific reference is also made to the disproportionate impact suffered by vulnerable groups, such as children and young people, from the practice of forced eviction and state parties carrying out forced evictions such as the Department is proposing to do are urged to,
“…review relevant legislation and policies to ensure that they are compatible with the obligations arising from the right to adequate housing and repeal or amend any legislation or policies that are inconsistent with the requirements of the Covenant.”
As the Draft Unauthorised Encampments Order proposes to introduce forced evictions in Northern Ireland, there is clearly an onus on the Department to review and amend the legislation in light of the inconsistencies with the Covenant.
Additional Provisions
There are a number of other provisions that we feel the Department should be made aware of in its decision to progress or otherwise with the fundamentally flawed Draft Unauthorised Encampments Order. In consulting on the draft legislation, it would appear that the Department has taken no account of the views of the European Court of Human Rights Judge Bonello in respect of practices in Britain as a result of similar legislation as detailed in the recent report from Directorate General V of the European Commission, “The Situation of Roma in an Enlarged European Union”. The report states that,
‘In countries where Roma are nomadic, there have…been failures to provide adequate services, particularly in the fields of housing, education and healthcare. Some countries have compounded this policy failure by adopting other policies that have a detrimental effect. For example, in Ireland and Greece, trespassing is a criminal offence and nomadic Roma or Travellers may be disproportionately affected by trespass laws because of parallel failures to provide legal halting sites. Commenting on similar practices in the United Kingdom, European Court of Human Rights Judge Bonello noted: “Here we are confronted with a situation in which an individual was ‘entrapped’ into breaking the law because a public authority was protected in its own breach”.
Neither would it appear that the Department has had regard to the 2002 Council of Europe report, “The movement of Travellers in Council of Europe Member States” which recommends that the member states of the Council of Europe should grant Travellers a special right to encamp through, for example, the creation of a sufficient number of reception sites with at least minimum facilities with Traveller involvement in all stages of the decision-making processes. It also states that this special right to encamp should be incorporated into domestic law and,
“…all evictions of Travellers should be subject to prior court authorisation, unless there is a serious and imminent danger to law and order, after three cumulative conditions have found to be present:
• The encampment must be illegal
• There must be sufficient room at the reception sites in the area concerned
• These sites must have adequate facilities and be well maintained”
The draft legislation in its current form is clearly contrary to the recommendations of both the above European reports and should be abandoned.
Conclusion
As detailed in this response, the Children’s Law Centre is deeply concerned about the proposed introduction of the Draft Unauthorised Encampments (Northern Ireland) Order, particularly in relation to the likelihood of Traveller children suffering severe detriment as a direct result. We have detailed a number of international and domestic legislative provisions which we feel the fundamentally flawed legislation is clearly in breach of. We feel that to continue to progress with the draft legislation in its current format would be folly on behalf of the Department as it is certain that there will be a number of sound legal challenges, as is currently the case in the Republic of Ireland. The plight of Travellers, in particular Traveller children, is an area which the government very obviously needs to address based on the wealth of research detailing the inexcusable unequal enjoyment of rights and the devastating effect this is having on the health and well-being of Traveller children, who are ten times more likely to die in their infanthood as opposed to their settled counterparts. The introduction of the proposed draft legislation and apparent lack of culturally appropriate accommodation will only exacerbate the problems suffered by Travellers, through the creation of insecure living conditions and the very real fear of the possibility of criminalisation.
It is because of these concerns and also due to the extremely doubtful legality of the draft legislation, as detailed in or response that we reiterate our view that the Department should abandon the proposed legislation.
The Children’s Law Centre wishes to see the issues outlined in our response addressed. We would be happy to meet with a representative from the Department to discuss anything raised in our response.