Gypsy and Traveller communities and the Human Rights Act 1998

The seizure of caravans under section 62 of the Criminal Justice and Public Order Act 1994 could, in individual cases, be challenged under this article.

Article 2 could conceivably be used in cases where a family was being forced to move from an unauthorised site without any alternative accommodation options being offered to them, for example a pitch on a local authority site.

This article could be invoked in any case where a public authority has an automatic right to obtain an eviction order, irrespective of the merits of the case. Members of Gypsy and Traveller communities who believe that they have been unfairly refused access to a local authority site may also try to rely on this article.

This Article gives everyone the right to respect for his/her private and family life and home and that there should be no interference by a local authority with respect to this right unless it is in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others.

In Buckley v UK [1] the European Court of Human Rights, prior to the Human Rights Act 1998 came into force, heard a case brought by a member of Gypsy and Traveller communities. The applicant had been living in a caravan on her own land but without planning permission for five years. The local authority had issued an enforcement notice requiring the caravan to be moved. The court found that the caravan constituted a 'home', to be protected under Article 8. The application was unsuccessful, however, the court believed that there was a fair balance between the interests of the individual and those of the community as a whole, particularly since the local authority had offered an alternative site in the same area. The court found that the legislation relating to Gypsy and Traveller communities that was in force in England prior to 1994 was not unduly punitive. The present legislation in Scotland is less clear.

There have been significant developments in case law in relation to Article 8 recently. The law is presently very complicated and it is not entirely clear what direction the courts will take in relation to Article 8. There is a significant amount of case law which is the subject of much legal analysis and debate. Advisers should be aware of significant decisions such as Docherty v Birmingham City Council. [2] This particularly complicated case contains numerous significant judgments but advisers should note that the full practical effect of the Docherty case is not yet apparent. Advisers should encourage clients who may be affected by Article 8 to seek specialised legal advice immediately.

Since the Docherty case, there have been further developments in case law. [3] Again, these are complicated decisions and the full practical effect in relation to eviction proceedings is not clear and specialist legal advice should be sought where advisers are unsure of the legal position. The Equality and Human Rights Commission has produced guidance explaining how human rights caselaw and legislation affects providers of social housing. Whilst the Docherty case deals directly with Gypsy and Traveller communities, the other cases do not. However, all cases are significant in terms of the effect of Article 8 on evictions proceedings by a public authority for example a local authority landlord.

The Human Rights Act 1998 only outlaws discrimination linked to another right contained in the Act. This may be relevant where a member of Gypsy and Traveller communities believes that their right to respect for private and family life and for the home has been restricted simply on the basis of their being a member of Gypsy and Traveller communities.

The Equality and Human Rights Commission may be able to provide advice and representation to a member of Gypsy and Traveller communities who has been discriminated against on account of their ethnic origin. For more information, please see the page on Gypsy and Traveller communities and the Equality Act 2010.