Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I shall focus on one proposal: to criminalise trespass for the first time. This offence has been for centuries only a civil offence. The provision fundamentally disadvantages that small number of Gypsies and Travellers who still keep to their traditional nomadic culture but have no authorised stopping place because of the negligence, and worse, of local authorities in ensuring that Gypsy and Traveller sites and stopping places are available, as judges have found. This is a discriminatory provision. It prima facie breaches Article 8 of the European Convention on Human Rights on respect for private and family life, including traditional ways of life, and Article 14 of the convention on the right not to be discriminated against in the enjoyment of Article 8 indirectly or directly, as well as the Equality Act.

It is, moreover, a very wide-ranging measure to penalise a very small absolute number. Even a single Gypsy with his van can be caught, so not only might a family have no place to stop, but the vehicle in which all their possessions are may be impounded. Let us have some idea of the numbers involved. There are in England only 694 Gypsy and Traveller caravans—3% of the total—on unauthorised encampments. That is because of the shortage of sites. No family willingly stops somewhere without running water, waste disposal facilities or electricity and where they face hostility.

The Government justify their trigger for this hostile action as the causation of “significant” damage, disruption or distress, and it is the landlord who can start this process. But these are highly subjective terms and, given the widespread prejudice already evinced, open to cruel abuse. The loose drafting of this provision puts people in peril at the whim of a landlord, and nor are the police asking for these powers, as has been said. What assessment do Her Majesty’s Government make of the police reaction?

Numerous civic groups are against the provision. A conservative think tank, Bright Blue, says that the provision of enough sites would solve the problem without the need for more legal intervention. Moreover, the recent planning definition that Gypsies and Travellers must travel to qualify for site provision, thus penalising the old, the sick and those caring for them, is made unrealistically harsh by this proposal—unless it is accompanied by obligations to provide more sites. So why are the Government proposing this? It looks suspiciously like a dog-whistle appeal to prejudice and racism.

Things seem to be better in Wales, where there is an obligation on local authorities to meet the assessed need for sites. Is it true that the Welsh Government consider the proposal to criminalise trespass to be systemic, racist legislation? What has been the Welsh response?

It would be wrong not to acknowledge that there have been good initiatives—some from the Church of England, some from the enlightened approach of the noble Lord, Lord Bourne of Aberystwyth, when he was Minister, together with recent undertakings from the noble Lord, Lord Greenhalgh, and many through the increasing confidence, education and good citizenship of Gypsies and Travellers themselves. But still, this most basic need for appropriate sites to live on is misunderstood by public policy. Some local authorities do well, and there are well-run and harmonious sites as a result, but, as I have said, the percentage of available sites is pitiful in relation to the need—that is the problem.

I hope I am not an impatient person, but I doubt if I have many years to wait for recognition of what should be done. Really, words fail me—not something that should happen in your Lordships’ House. What are the Government thinking of, sending people with no alternative place to settle to wander the roads, making criminals of them and condemning their children to interrupted schooling and alienation, and, in the last resort, sending them to prison? Where is the impact assessment of all this, as well as of the cost of evictions? In the 21st century, after the terrible century of racial persecution we have endured in Europe—still going on for the Roma people there and elsewhere—how can the Government think that this clause is acceptable? Do they really want to go down in history as the Government who drove these ancient peoples from their only stopping places, without recourse to any other lawful destination? I hope not.

Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

Lords Hansard - part two & Committee stage
Wednesday 3rd November 2021 Lords Chamber

Moved by

[Baroness Whitaker]

133: Clause 62, page 57, leave out line 7 and insert—
“(d) a constable, following a request of the occupier or a representative of the occupier,”Member’s explanatory statement
This is a JCHR recommendation. This amendment would provide that, as part of the conditions for the new offence of criminal trespass only a police officer could request a person to leave land and only following a request by the occupier of the land.

[Baroness Whitaker (Lab)]

My Lords, I am proud to open the debate on these amendments. They are a means of addressing another very serious departure from the principles of social justice by the Government. I support most of the amendments in the group, which are mostly different ways of tackling the same problem.

I will speak to Amendments 133 and 149 in my name and those of the right reverend Prelate the Bishop of Manchester, and the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, for whose support I am very grateful. The lengthy trajectory of this Committee has prevented the noble Lord, Lord Alton, speaking in person, and the rail disruption after the sad accident near Salisbury has also derailed the noble Lord, Lord Bourne, who told me that he considers our amendments proportionate, sensible and wholly right.

I declare interests as president of Friends, Families and Travellers, co-chair of the All-Party Parliamentary Group for Gypsies, Travellers and Roma, and other positions as noted in the register. I am also grateful to the Joint Committee on Human Rights for its percipient report devoted wholly to the significant difficulties of Clause 62.

Our Amendment 149—the main one—would do away with the problem that the harsh and probably illegal provisions of Clause 62 purport to solve. If agreed, Clause 62 will not be the cruel anomaly that it is. The problem is, of course, the lack of authorised encampment sites, both permanent and transit, whether publicly or privately owned. Our amendment would oblige local authorities to provide adequate accommodation for Gypsies and Travellers residing in or resorting to their area—that is, permanent and transit sites as required. They are already required to assess the need for sites under planning law, so they should know what will be required in law. This means that Gypsies and Travellers would be treated on a par with other homeless families, except, of course at much lower cost than building housing, but because very many authorities have been so negligent in even making assessments, we have also provided a power of ministerial direction if need be.

The Home Secretary does not appear to understand the situation. On 8 March she wrote:

“As of January 2020, the number of lawful traveller sites increased by 41%”.—[Official Report, Commons, 8/3/21; col. 21WS.]


The error here is that this increase refers to transit pitches for individual caravans for a limited period of time. It actually resulted in only 10 additional transit pitches a year, not permanent pitches on permanent sites. There had in fact been an 8.4% decrease in the number of local authorities permanent pitches, as shown in Ministry of Housing, Communities and Local Government figures. Will the Minister apologise for this mistake on behalf of the Government?

The real picture is that, in January last year, for example, only eight of the 68 local authorities in south-east England had identified a supply of permanent deliverable sites to meet the unmet need. That means that 60 had not complied with the Government’s planning policy for Traveller sites. In January this year, there were at least 1,696 households on the waiting lists for permanent pitches in England. As of last March, the last funding round for applications for Traveller sites had awarded funding for only two schemes across the whole country, and that was only for new transit sites. In the context of the overall housing shortage, these numbers may not look large but they are huge in relation to the small number of Gypsies and Travellers who still travel—for instance, in January last year, there were only 694 of them—and to those who need to stay on permanent sites while their children are in school or their elders receive medical care.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

The noble Lord is correct, but the police would have to take into account the various factors that I set out. Obviously, each case is different.

[Baroness Whitaker (Lab)]

I am grateful for the Minister’s attempts to sanitise Part 4, although I did not quite understand her explanation of the Home Secretary’s misleading remarks.

The hour is late. It would not be right for me now to take issue with every point the Minister made, although I would like to. She will have noticed the widespread concern evidenced in many thoughtful speeches about the import of Part 4. I would not say that those concerns have been assuaged by her response. She will also have noticed that stereotyping is still with us, here and there.

However, I am grateful to the noble and learned Lord, Lord Garnier, for his appreciation of the general problem, although I do think that his one anecdotal example could be dealt with perfectly well by the present police powers. However, his suggestion that Clause 62 could attract a compromise in relation to site provision encouraged me to hope that the Minister will discuss a better solution before Report.

On that basis, I beg leave to withdraw the amendment.

Amendment 133 withdrawn.

Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I wonder whether the interesting amendment from the noble and learned Lord, Lord Garnier, might not have some unintended consequences that I, personally, would find very welcome. What if the “unlawful activity” included acts contrary to the Human Rights Act and the Equality Act? What if the landlord was trying to turf out Gypsies and Travellers who had no other home to go to? I believe that he will no doubt have an answer to that question.

More generally, on Clause 63—and I agree wholeheartedly with what the noble Baroness, Lady Bakewell of Hardington Mandeville, said—the openness of the terms, so eloquently laid out by the noble Baroness, Lady Brinton, amount to a tremendous allowance for prejudice. We should be in no doubt that this is very common. The hate crime reporting organisation, GATE Herts, funded by the then MHCLG, has ample evidence of explicitly Nazi sentiments being used whenever a Traveller or Gypsy community wanted to move on to a site. Stereotyping is the norm in these records. We heard examples in your Lordships’ House last week of whole communities being tarred by one incident. It is the same as somebody saying that white people should be barred from walking on the street at night because of a few incidents of night-time vandalism; it is that kind of remark, and it is prejudice. If such a remark urges violent action—the removal of Gypsies and Travellers—surely it is illegal.

Following the Minister’s remarks last Wednesday on police guidance in this kind of situation, she expressed some surprise at the use of the term “gold-plated”. Is “gold-plated” not a dog-whistle call to opponents of human rights? Most of us are proud of the Human Rights Act 1998, and how it reinforced our position as a leader in establishing a human rights culture after the Second World War. Be that as it may, the Human Rights Act, and behind it the European Convention on Human Rights, is our law—either one complies with the law or not. Gold-plating of human rights is not a term understood in law, and its implications, in this context, are to diminish any putative offence against the Human Rights Act. I think that Clause 63 is not helpful and should go.

[Lord Paddick (LD)]

My Lords, Clause 63 amends Section 61 of the Criminal Justice and Public Order Act 1994. Section 61 addresses the situation that the noble and learned Lord, Lord Garnier, alluded to on Wednesday—at Hansard col. 1313—when he told us that, 25 years ago, as a Member of Parliament, he was rung by a very distressed farmer in his constituency, whose land was being trespassed on. I make that 1996, but perhaps it was before the 1994 Act was effective.

As my noble friend Lady Brinton has said, Section 61 of the 1994 Act provides a power to remove trespassers on land. I will quote subsection (1):

“If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and … that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or …that those persons have between them six or more vehicles on the land, he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.”


Subsection (4) states:

“If a person knowing that a direction under subsection (1) … has been given which applies to him … fails to leave the land as soon as reasonably practicable, or … having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.”


That is the law now, unamended by this Bill.

As many noble Lords said on Wednesday, what is the problem that Part 4 is trying to solve, when there are clearly adequate powers already in existence? Clause 63 simply brings Section 61 of the 1994 Act into line with the rest of Part 4 of the Bill. For the reasons so thoroughly and persuasively argued on Wednesday, this clause, like the rest of Part 4, should not stand part of the Bill.

Section 68 of the 1994 Act, as amended by the Anti-social Behaviour Act 2003, is the offence of aggravated trespass, where

“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect … of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity … of obstructing that activity, or … of disrupting that activity.”


I am getting the sense of hunt saboteurs, HS2 protestors or, perhaps, those protesting against genetically modified crops, rather than Gypsy, Roma and Travellers. Section 68 appears to me to refer to deliberate interference with lawful activity by means of trespass, rather than coincidental interference; for example, ploughing a field that travellers are trespassing on. Unlike the noble and learned Lord, Lord Garnier, I am not a lawyer, but perhaps the Minister can clarify the difference between Section 68 and what we have been talking about up until now.

As far as Amendment 150 is concerned, as the noble and learned Lord, Lord Garnier, explained, it attempts to correct an error in existing legislation. I agree with the noble and learned Lord that the activity being disrupted should be and needs to be unlawful, rather than the trespasser simply asserting that he believes that it should not be happening. I am not sure that the accused should have to prove that they were not trespassing. As the noble Baroness, Lady Chakrabarti, has said, that seems to be going perhaps a bit too far. We support the amendment in principle, in as far as the activity on the land that is being disrupted needs to be unlawful, rather than just being asserted as being unlawful.

As we leave this part of the Bill, I want to again acknowledge the long and tireless campaign by the noble Baroness, Lady Whitaker, to defend Gypsy, Roma and Traveller communities. I fear that, at Report, we may need to adopt a different approach than simply removing all the clauses in Part 4 from the Bill, in the light of what the Minister said on Wednesday, at Hansard col. 1330, when she quoted from the Conservative Party manifesto:

“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.”


That is very interesting wording. New powers do not necessarily mean more draconian powers. I respectfully suggest that on Report this House should bring forward new powers that provide the necessary protections for all our communities, including Gypsy, Roma and Traveller communities. For example—I quote from the manifesto—it could be argued that making

“intentional trespass a criminal offence”

entirely supports Amendment 135 in the name of the noble Lord, Lord Rosser, providing that, where Travellers have no suitable legal pitch on a relevant caravan site situated in the local authority’s area, the trespass should not be regarded as intentional.

It is absolutely right that we, and many others in this Committee, express our outright opposition to Part 4 as drafted but, when we return to these issues on Report, it will be with more sophisticated amendments to take account of the wording in the Conservative Party manifesto—and the convention of not blocking, at least not entirely, commitments made by the governing party in their manifesto—that protect all communities, including Gypsy, Roma and Traveller communities.

Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Sharpe of Epsom (Con)]

He is here—my apologies. In light of all I have said, I hope the House would agree that we have responded positively to the relevant recommendations from the DPRRC and will support these amendments. I beg to move.

[Baroness Whitaker (Lab)]

My Lords, I speak on behalf of my noble friend Lady Lister, who had to go to catch her train because of the postponements, and also on my own behalf.

We wanted to raise a point on government Amendment 56, which, as the Minister said, requires guidance for the police on unauthorised encampments to be laid before Parliament. This is of course welcome, but my noble friend says that she wanted to return to the current draft guidance statement that the police, alongside other public bodies,

“should not gold-plate human rights and equalities legislation”

when considering welfare issues.

When she pressed the noble Baroness, Lady Williams, on this in Committee and asked her what it meant—because, on the face of it, it appears to be an invitation to put human rights and equalities considerations to one side—I believe the noble Baroness, Lady Williams, said that the phrase was “novel” to her and she wrote to my noble friend Lady Lister about it.

In her letter, she explained that this phrase had been used in government guidance on unauthorised encampments since March 2015. But, when my noble friend Lady Lister followed the link in the letter to this guidance, it turned out to be called:

“A summary of available powers”—


which we do not think quite amounts to statutory guidance, and therefore perhaps was not subject to consultation at the time. Certainly, members of the Joint Committee on Human Rights were not aware of it, because they wrote a very forceful letter to the Minister on 17 November in which they

“strongly advise that the Government reviews the language and tone of its draft guidance with respect to its human rights obligations. Human rights are a minimum standard, which apply to all people equally. We do not and cannot ‘gold-plate’ human rights.”

Likewise, the British Association of Social Workers has written:

“We do not accept that this”—


gold-plating—

“is reasonable guidance. The wording is of no assistance to social workers or other professionals.”

It sees it as a

“disturbing attempt to water down fundamental human rights in relation to Romani and Traveller people”.

In her letter, the Minister wrote of the

“necessary balancing of the interests and rights of both Travellers and settled residents”.

But we ask her—or the appropriate ministerial colleagues —to look again at this wording in the light of the JCHR’s and the British Association of Social Workers’ responses. It would appear that they were not consulted when the “gold-plating” phrase was originally used in 2015 and I ask now whether anyone was consulted.

Also, does the 2015 document constitute statutory guidance as such? If the answer is no in either case, that strengthens the case for reconsidering the use of the term. As the body established by Parliament to provide an oversight of human rights issues makes clear, human rights

“must not be side-lined or undermined for administrative convenience”.

Will the Minister therefore give an undertaking to look again at this, ask the relevant Minister to do so, and report back to us before the Bill completes its passage through this House?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords who have participated in this brief debate. I do not know whether my noble friend Lord Blencathra was in his place when I started speaking, but I was praising him and his committee—I also praise him for his stealthy entrance. He asked about statutory guidance. As I said in my brief introduction, all the guidance will now be laid before Parliament, as the noble Lord, Lord Beith, noted, and the SVRO guidance will be subject to the negative procedure.

The noble Baroness, Lady Whitaker, asked the most detailed question, on behalf of her noble friend Lady Lister. She asked specifically about the comments on the gold-plating of human rights. I have a copy here of the letter that was sent to the noble Baroness, Lady Lister, and it is very clear that this is about balance:

“This language has been used in HM Government guidance on unauthorised encampments since March 2015,”


as the noble Baroness noted, but it was not statutory guidance; the Bill now provides this.

“That guidance made clear that human rights legislation does not prevent action to protect local amenities and the local environment; to maintain public order and safety; and to protect public health - for example, by preventing fly-tipping and criminal damage.


The necessary balancing of interests and rights of both travellers and settled residents reflects the position regarding qualified rights in the Human Rights Act 1998/European Convention on Human Rights … and the need to maintain good community relations under the Equality Act 2010. But operationally in the past, this may have been misunderstood by some public bodies.”


We have published in draft the guidance to be issued under Clause 65, so it is open to anyone who wishes to comment on the document to do so. We will, of course, continue to take any such comments into account before promulgating the final version of the guidance. With that, I hope that I have answered the questions, and I beg to move.

[Baroness Whitaker (Lab)]

Before the Minister sits down, who was consulted on this “gold-plating” terminology?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know; it goes back to 2015. We will look it up for you.

Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I am a patron of the Traveller Movement. I thank the Minister for reaching out to those of us interested in this issue and I am sorry that the change in date meant that I was unable to attend. I also thank the noble Baroness, Lady Whitaker, for her dedicated work in co-ordinating the efforts of those of us who remain very concerned about these clauses in the Bill.

In Committee, we had a full debate on how the clauses on authorised encampments are a breach of the human rights of the Gypsy, Roma and Traveller communities to live a nomadic life. I thank the noble and learned Lord, Lord Garnier, because he has tried to propose a compromise regarding stopping sites. It certainly merits listening to, and I hope the Minister will take account of it.

In my contribution today, I wish to focus on just one area. Clause 63 also creates the right for the police to confiscate a vehicle that may be an individual and their family’s main residence. That confiscation would have the most extraordinary consequences, giving the police very strong powers that they do not have in respect of other people’s principal residences. If the police were to confiscate a vehicle under this clause, families would not only become homeless, but because they would be deemed to have become intentionally homeless, there is a possibility that their children would be taken into care, especially if there was no appropriate emergency accommodation locally. By doing that, parents may also not be able to move on to their next planned place of work.

I support Amendment 55ZC from the noble Lord, Lord Paddick, which protects individuals by preventing police confiscating their vehicles if it would make the individual owner, and their family, homeless.

The National Police Chiefs’ Council could not be clearer. It said:

“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”


In Committee, the Minister said that these clauses are not targeted at the Gypsy, Roma and Traveller community, but it certainly looks that way, especially as the Government explicitly referenced Traveller caravans in the background briefing to the Queen’s Speech. The Government have also made it clear that they are not criminalising trespass more generally. Even if the outline of these proposals were in the Government’s manifesto, actions that target one particular community, infringing their human rights and giving the police powers that they have said repeatedly that they do not want, cannot be right. I hope that the Minister will rethink this deplorable legislation.

[Baroness Whitaker (Lab)]

My Lords, I apologise for not raising my eyes to the noble Baroness, Lady Brinton, initially. Her remarks are well worth paying attention to.

I am flattered by the attribution of influence by the noble and learned Lord, Lord Garnier. I have taken a slightly different route, but his amendment is interesting. All the amendments in this group are aimed at resolving prejudice against and actual homelessness of the Gypsy and Traveller communities. They all deserve serious consideration. Amendment 57 in the name of my noble friend Lady Lister and the cosignatories of my amendment would deal with the underlying social situation of these fellow citizens, in particular the non-arrival of the strategy initiated quite some time ago by the noble Lord, Lord Bourne, when he was the very effective Minister responsible, and I think endorsed by the noble Baroness, Lady Williams.

I will speak to Amendment 55ZB in my name and supported by a distinguished cross-party group to whom I express my gratitude. I will move it to a vote if its thrust is not accepted by the Government. I am also grateful to the Minister for the meeting she gave several of us last week, when she said that the provision of the sites for Gypsies and Travellers was a planning matter and an amendment that dealt with that was not for this Bill. Indeed, it is a planning matter, as the police said in their evidence to the consultation on the Bill, but the trouble is that the lack of sites and consequent vulnerability of Gypsies and Travellers to summary eviction is inexplicably linked. Despite the noble Baroness’s assurance at our meeting that she would consult DLUHC on a way forward, I have heard nothing further.

--- Later in debate ---

Moved by

[Baroness Whitaker]

55ZB: Clause 63, page 59, line 11, at end insert—
“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area.(1B) A “negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”

[Baroness Whitaker (Lab)]

My Lords, I am extremely grateful to all noble Lords who have spoken so eloquently in this debate. It is of great importance to some very beleaguered communities. I too note the widespread and authoritative emphasis on enabling local authorities to provide enough sites. I understand that the Minister is bound to follow the instruction to implement a manifesto commitment and stick to the disproportionality of Clause 63, but I think we need to strike a better balance. I therefore wish to test the opinion of the House.

[The Deputy Speaker (Baroness Henig) (Lab)]

There being an equality of votes, in accordance with Standing Order 55, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.