By Charley Weldrick
From the pages of the Socialist Worker to the Countryside Alliance website, there has been pushback against the Conservative Party’s plan to criminalise trespass. Much of the criticism focuses on the impact that the new law will have on ramblers, but the real victims will be communities of travelers who face having their possessions and their homes confiscated when the state outlaws their way of life.
First appearing in the Conservative Party manifesto of 2019, the policy is to make trespass a criminal offence. Currently it is a purely civil matter. This means that, whilst there are a variety of remedies available to prevent trespassing, it is not a matter for the police.
The civil system is not toothless, though. For each instance of trespass a new claim can be brought and significant sums can be awarded as a result. Civil law can also be used to ban certain groups from certain areas, require parties to do something or refrain from particular activities and relief can even be granted without notice where a need for urgency can be shown.
The proposed change as it appears in the manifesto is:
We will tackle unauthorised traveller camps. We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence, …1
Clearly this is a marked shift in the treatment of trespass, and it is being carried out in service of a cynical objective. The Conservatives are targeting an already marginalised and vulnerable community for state sanctioned persecution and they are doing so for electoral or ideological reasons. The policy is not intended to solve any problems arising out of traveller camps, which is likely why even the police overwhelmingly oppose it – only 21.7% support the proposal, according to an FOI request by the Gypsy and Traveller movement2.
There are far more effective solutions to unauthorised traveller camps. For example, the straightforward response of providing travellers with the space and permission to establish authorised camps. In fact, 93% of police forces who responded to the consultation into the planned changes thought that this was the best solution3. The city of Hull has recently approved a temporary camp, where travellers can stay for up to 28 days and which features skips and access to water4.
The lack of new camps is not just a problem of local authorities failing to create spaces of their own volition. Gypsy and Traveller Groups are actively attempting to solve the problem on their own, but often have their applications rejected. According to the most recent data, only 40% of applications were granted5. This speaks to the existing problems faced by traveller communities and the attitudes within local authorities that give rise to them.
70% of Gypsies and Travellers have experienced discrimination in education, and reported teachers overlooking bullying or being discriminatory themselves. Even worse, 9 out of 10 members of the community Gypsy, traveller or Roma children report having suffered racial abuse6. The community faces widespread contempt and are locked out of much of the infrastructure of society as a result.
The problem is not just within our institutions, though. A shocking YouGov poll from 2017 revealed that 40% of British parents would be unhappy with a close relative forming a relationship with a traveller and a similar amount would not allow their children to go on a playdate with a traveller child7. This is a clear and ugly strain of dominant opinion.
The Tories ignore simple solutions, such as making allowances for more camps, because their objective is not to improve the lives of travellers and those who live around their camps, it is to stoke hatred against them for electoral gain. They do not shy away from this – in 2017, John Spellar MP described Gypsy and Traveller communities as ‘appalling’ and as ‘bringing absolute chaos to communities’8.
Consequences of the Change
This criminalisation would have dire consequences for Gyspy and Traveller communities. In allowing the seizure of their property and vehicles, the state would be sanctioning the impoverishment of an already struggling group. Moreover, criminalising these communities is only likely to create tensions between them and the police as well as the state more generally. That is without the purely functional consideration that our crumbling prison and court systems are fundamentally incapable of handling any influx of criminals.
It’s not immediately clear that the proposed change would be smooth sailing for the government, either. In the case of Bromley LBC v Persons Unknown  EWCA Civ 129, it was recognised that Romany Gypsies and Irish Traveller communities were protected under Equality Act 2010 and that a nomadic lifestyle was integral to their culture. In that case, an attempted five year injunction preventing persons unknown from using the land (the intended target was traveller communities) was found disproportionate and the council was criticised for having failed to balance the Article 8 rights of the Gypsy and Traveller communities and the law of trespass.
There is a growing body of law from the European Court of Human Rights on this question and that case law continues to bind the United Kingdom despite Brexit. This would hardly be unprecedented – The European Court has previously intervened on a number of occasions to insist that domestic law and procedures are fair and non-discriminatory in the context of traveller communities. For example, in Connors v United Kingdom10 it found a violation of Article 8 where gypsies had been evicted from a council-owned property.
It may be the case that such a move would give rise to litigation challenging the law, in a similar vein to one of the grounds in the case of R ( QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice  EWHC 407 (Admin)11. In that case, the 7th ground brought by the claimants’ was that the criminalisation of women in prostitution was itself unlawful on the grounds that it amounted to unlawful gender discrimination. Given the history of the European Court challenging unlawful acts towards Gypsy and Traveller Communities, a similar challenge on their behalf is not outside the realms of possibility.
It’s not clear that such a challenge would be successful, though. In that case, the court cited R v Jones  UKHL 16 in refusing permission for the challenge on the basis that ‘it is for parliament to determine the ambit of the criminal law’12.
What’s more clear is that such a challenge could provide the terrain for yet another salvo against Tocquevillian separation of powers and create the impetus for the Conservatives to press ahead with their long awaited ‘British Bill of Rights’. This would have ruinous and far reaching consequences for more communities than just Gypsies and Travellers.
This move by the Conservatives should be seen as what it is – an outright attack on a vulnerable, innocent and harmless community that already faces discrimination from much of the population. This is an integral component of the Conservative Party’s project, and their hunt for minority populations to persecute will not stop at Gypsy and Traveller communities. Without socially conscious ‘activist lawyers’, this already febrile situation could become much worse.
- The Conservative Party. 2019. Available online: https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf
- Friends, Family and Travellers. 2020. Available online: https://www.gypsy-traveller.org/news/police-repeat-calls-for-more-sites-rejecting-home-office-proposals-to-criminalise-trespass/
- Hull Daily Mail, 2021. Available online: https://www.hulldailymail.co.uk/news/hull-east-yorkshire-news/hulls-first-temporary-traveller-site-5030664.amp
- Gov.uk, 2020. Available online: https://www.gov.uk/government/statistical-data-sets/live-tables-on-planning-application-statistics
- The Independent, 2017. Available online: https://www.independent.co.uk/news/uk/home-news/nine-out-10-gypsy-and-traveller-children-have-suffered-racial-abuse-9811861.html
- Traveller Times, 2017. Available online: https://www.travellerstimes.org.uk/news/2017/10/yougov-poll-shock-only-4-out-10-parents-ok-child-playdate-traveller
- Hansard, 2017. Available online: https://hansard.parliament.uk/commons/2017-10-09/debates/E1DC6872-5335-41CC-A5DE-991D06FE9B3E/GypsiesAndTravellersAndLocalCommunities#contribution-8D9B5B48-C52C-4E54-892B-E62B2BC6DD5E
- Westlaw, 2020. Available online: https://uk.westlaw.com/Document/I8F831F403C6511EAA9228BC69F6103A6/View/FullText.html?originationContext=document&transitionType=DocumentItem&contextData=(sc.Folder*cid.359064f1a69b4e64bddab6b070
- Westlaw, 2004. Available online: https://uk.westlaw.com/Document/I8D3C7CE0E42711DA8FC2A0F0355337E9/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad7403600000177caeb1c3731294b66%3FpcidPrev%3D3fa0a6bd27654baa8e33069db3e0d9ba%26Nav%3DUK-CASES%26fragmentIdentifier%3DI8D3C7CE0E42711DA8FC2A0F0355337E9%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=6ad65f77c8190be74d6004e380ac52c1&list=UK-CASES&rank=1&sessionScopeId=fb6dd210a872ec778a31b8c5f3ed51bc992a3a58ce3e783478190af504fb5571&originationContext=Search%20Result&transitionType=SearchItem&contextData=(sc.Search)&comp=wluk&navId=C12C6402AE0A1C5BD2E76099EDCFE46A
- Westlaw, 2018. Available online: https://uk.westlaw.com/Document/I9ACA2980209B11E88824EFD617113B30/View/FullText.html?originationContext=document&transitionType=SearchItem&contextData=(sc.Search)&navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad7403600000177cae92d4231294880&listSource=Search&listPageSource=9ce528624ba50b60ae463346bc2eaddd&list=UK-CASES&rank=1&comp=wluk&navId=D74516739D5B84D36DB842032D60C25B
- Westlaw, 2006. Available online: https://uk.westlaw.com/Document/I507EC140E42811DA8FC2A0F0355337E9/View/FullText.html?originationContext=document&transitionType=DocumentItem&contextData=(sc.History*oc.Search)&comp=wluk&navId=739A72ED9F1A13F2399E79A4D94CE3CB