Continued incompatibility

Readers with a long memory (relative to the general standards of the 21st century) will recall that there was a finding in Connors v UK (2004) that the law that meant that travellers on Local Authority sites could be evicted without the court overseeing procedural safeguards was declared to be in breach of the European Convention on Human Rights.

Such readers will no doubt also recall that the reason Mr Doherty in Doherty v Birmingham CC (July 2008) was refused a declaration of incompatibility (gateway A) by the House of Lords was solely because the objectionable legislation was to be replaced through the Housing and Regeneration bill, as it then was. And lo, the Housing And Regeneration Act 2008 was passed, and there was a great waiting for a statutory instrument to bring local authority sites under the provisions of the Mobile Homes Act 1983 as s.318 Housing and Regeneration Act 2008 allowed.

We have now been informed that a simple statutory instrument apparently can’t be found parliamentary time before the election, which is to be in May or June 2010 at the latest. And so, and here I quote a DCLG person, “The work that has been done [on implementing s.318 HRA 2008] will be put aside pending decisions by ministers following the election, whenever that takes place”.

So, the UK remains in breach, as found in Connors v UK, and it looks like their Lordships in Doherty were perhaps a little too trusting in the timescale for implementation of the HRA. Meanwhile, travellers in local authority sites remain without any procedural safeguards on possession actions. One can be fairly sure that implementing s.318 will not be too high on the agenda of our new, or indeed our second (fourth?) hand, overlords after the election. Echoes of Morris?

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Possession and tagged , , , , , .

15 Comments

  1. A reminder of the timetable here with personal interludes:
    May 2004 Connors v UK
    Nov 2004 Govt says it needs to amend the law
    Early 2005 I meet then head of CLG Gypsy Unit at a conference and suggest that they amend s5 of Mobile Homes Act 2008 which precludes local authority Gypsy/Traveller sites. She tells me if I can’t talk sense , it isn’t worth talking to me.
    Late 2007 afer many meetings, CLG announce they will resolve the problem by amending s5 of MHA.
    2008 Housing & R Bill includes clause.
    July 2008 Doherty v BCC. Lords only hold back from declaration because of clause.
    Meanwhile , tho the security of tenure bit of MHA (Sch 1 Part 1 paras 4-6) will remain unamended re local authority sites, CLG enter into massive consultation process on what everyone thinks about all the other aspects of the MHA and whether they should be applied or not to local authority sites. At beginning of this process (early 2008) I suggest to CLG new Gypsy Unit boss that they should simply implement security of tenure (which will answer the Connors problem) in the meantime and then get on with their lovely consultation exercise. I am told that such things cannot be dealt with “piecemeal”.
    Feb 2010 – they haven’t got time to deal with it now CLG officer says in e-mail to several organisations.
    The fact is that a small amendment to one sentence in s5 of the MHA would introduce security of tenure on local authority Gypsy/Traveller sites but ,to quote the officer directly, “slots could not be found”.
    This is the government that fought domestic attempts to challenge the lack of security of tenure (e.g. Isaacs v Somerset, Smith v Barking & Dagenham) and then fought Connors tooth and nail all the way to final hearing in the ECtHR. I smell a rat.
    My Gypsy and Traveller clients on local authority sites are obviously anxious to challenge this ( to take just one example I have three clients on a site in the most appalling state of disrepair (worst I have ever seen and I’ve seen a few)- and backed up with an excellent EHO report – who have instructed me not to even write to the local authority until they have the MHA security!!). There has been complete uproar over the last 24 hours (the announcement was made late on 10th Feb)amongst Gypsy and Traveller groups who have put immense time and effort into this process.
    Any suggestions gratefully received either on NL comments or direct to me at office@communitylawpartnership.co.uk
    Thanks to NL for the blog

  2. Although – and I don’t want anyone to think that I don’t share the outrage and disgust of NL and Chris – the Government might be heard to say that the amendment to s.4, Caravan Sites Act 1968 was sufficient to cure the incompatability, as the Court of Appeal held in Smith (on behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 318.

    • J, yes, but not the view of the majority of their Lordships in Doherty, where a Gateway A declaration of incompatibility would have been made save for the ‘imminent’ amendment in HRA 2008.

  3. J, you won’t be surprised to know that we disagree with that (though just to complete the picture you would have to line up Doran v Liverpool with the Smith case – the latter case is also on its way to Europe BTW) since you hardly get your ‘day in court’ if the order has already been made!! In any event the government did not say that, hence the Nov 2004 announcement (coinciding with the amendment of CSA s4), and the MHA amendment ( and it is this which has been reported to the Council of Ministers and presumably kept them happy to date)and it is noteable also that the Lords in Doherty were aware (of course) of Smith v Buckland but did not see fit to back that case up or say that it would have made a difference if it had been available to Mr D.
    I should add, to save any people who are making comments re-inventing the wheel that the suggestions we have mooted at present (and an impressive array after only 48 hours!!) are:
    1. Direct JR challenge to DCLG [any precedents for this?]
    2. Parliamentary and other action:
    a) PQs, adjournment debates, ministerial statements;
    b) reps to Jt Parltry Cttee on Human Rights;
    c) reps to ECHR;
    d) report to Council of Ministers [already done by Keith Lomax, Mr Connors’ solicitor]
    e) report to European Roma Rights Centre
    3. Local authorities – joining DCLG in possession actions but also asking local authorities to add clause(s) into licence agreements to ensure security in meantime – ironically a DCLG recommendation – and assessing reasobleness of any responses.
    Thanks to an eminent NL regular contributor for 1 & 2 above.

  4. I didn’t say that I agreed with my own comment! :-)

    I was just trying to see if there was any more positive spin that the Government could put on this development. Probably not seems to be the answer.

  5. Chief thus revealing that while he is not the “eminent contributor”, great minds do think alike

  6. sorry or ‘she’ but Chief sounds male to me – I equate it with all the American Indian chiefs of the 19th century who were all male! That’s my excuse and I’m sticking to it

  7. I think that the suggestion in Smith-v-Evans is rather like saying it does not matter if yout trial was unfair so long as your sentencing hearing was fair.

    In any event , it is still discriminatory which is the fundamental unfairness with gypsies and travellers not having security.

  8. And see Tory press release today about Travellers. They obviously made a mistake and left out their pledge to implement H&RA s318(this coincided with the officer who broke the bad news e-mailing me further today to say that the work has been “put aside until it can be considered again by ministers after the election” – right, that’s really put my mind at rest) :
    http://conservativehome.blogs.com/localgovernment/2010/02/conservatives-pledge-to-tackle-trespass.html

    • Chris – “The Human Rights Act will be replaced with a British Bill of Rights to prevent ‘human rights’ lawyers sidestepping the planning system and demanding special treatment.”. That’s you that is. They’ve got your number, sonny.

      Can’t believe they are still running this ‘bill of rights’ nonsense, in the face of their complete silence on exactly how they propose to withdraw from the European Convention.

      The rest requires little comment.

    • Chris – “The Human Rights Act will be replaced with a British Bill of Rights to prevent ‘human rights’ lawyers sidestepping the planning system and demanding special treatment.”. That’s you that is. They’ve got your number, sonny.

      Can’t believe they are still running this ‘bill of rights’ nonsense, in the face of their complete silence on exactly how they propose to withdraw from the European Convention.

      The rest requires little comment.

  9. Not just me, there is at least…half a dozen of us. For what it’s worth…as if THEY are bothered…the only Gypsy/Traveller planning case I can think of (unfortunately) where the HRA was crucial to the result was Chichester DC v Doe & ors.

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