Advising Gypsy and Traveller communities

Many members of Gypsy and Traveller communities have no option but to use unauthorised sites, particularly if they do not wish to settle down in houses or on local authority sites. Advisers should ask a member of Gypsy and Traveller communities whether they wish to defend actions, in order to at least delay a move from an unauthorised site. If the client considers defending eviction actions, they should be referred to a solicitor. Few solicitors have specialist knowledge in this area of law. Advisers should therefore try to find a sympathetic solicitor who will be prepared to work closely with the adviser. Travellers who are asked to leave an unauthorised roadside camp should be advised that they may qualify for housing under Part II of the Housing (Scotland) Act 1987. Some members of Gypsy and Traveller communities, however, may not want to consider this as an option.

Solicitors may be able to cite the Human Rights Act 1998 and, in some cases, the Children (Scotland) Act 1995 in defence during criminal proceedings and against eviction proceedings brought under civil law.

Article 8(1) of the European Convention on Human Rights (ECHR) states that 'everyone has the right to respect for his private and family life, his home and his correspondence’. Article 8(2) of the ECHR goes on to state that: ‘there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. [1]

Recent caselaw has established that eviction proceedings by public authorities are an interference with this right.  In principle, all tenants of public authorities should now have the right to have the proportionality of the eviction considered when the case first calls at court. [2] In the context of Gypsy and Traveller communities it must be established that they have a sufficient connection with the area in which they are living, i.e. that where they are living is ‘home’ in the context of the ECHR. In Brighton and Hove CC v Alleyn and others [3] a local authority was seeking to evict travellers from property the local authority owned. It was held that only nine months was required for the area to established as a ‘home’ for the purposes of Article 8. This case in an English County Court one and consequently can only be of persuasive application in Scottish courts.

If advisers think that a public authority is interfering with a member of Gypsy and Traveller communities' Article 8 rights then they should refer their client to a solicitor.

In England, the principles of 'common humanity' have been accepted in cases related to evictions from unauthorised roadside camps. Solicitors may wish to quote these, even though the English cases relate to different legislation. In future, the relevant English legislation and guidance may be extended to Scotland, making this more relevant.