Are Gypsies and Travellers being targeted by the Ministry of Justice?
By Chris JOHNSON, Marc WILLERS, Simon RUSTON
This Blog will be in two parts. Part 1 looks at the government proposals that may have a devastating effect on the ability of Gypsies and Travellers to challenge planning decisions in the High Court. Part 2 will look at how the government proposals on judicial review will detrimentally affect Gypsies and Travellers living on unauthorised encampments.
IN 2012 the coalition government managed to force through legislation which drastically reduced the scope of legal aid and reduced the ability of those without means to access justice (Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was passed).Then in April 2013 the coalition government proposed yet more cuts to legal aid in its consultation paper Transforming Legal Aid: Delivering a more credible and efficient system. The consultation responses caused the Secretary of State for Justice to change his plans for criminal legal aid. However, Mr Grayling seems determined to cut civil legal aid to the core and has published additional proposals for the reform of legal aid and judicial review procedure in yet another consultation paper entitled Judicial Review: proposals for further reform. The rationale for this latest set of proposals was revealed by him in his article published on Mail Online headed The judicial review system is not a promotional tool for countless Left-wing campaigners, 6 September 2013. It is clear from that article that Mr Grayling’s proposals are not designed to tackle ‘unmeritorious claims’ (cases with no chance of success) but to stifle public law challenges brought against central government.
In a recent article (Beware Kite-Flyers, London Review of Books 35 No 17, 12 September 2013 pp 13-16) the former Lord Justice of Appeal, Stephen Sedley, commented upon the government's attitude to the rule of law in the following terms:
'Since the mid-17th century, no non-lawyer has held the office of Lord Chancellor. The decision in 2012 to put a political enforcer, Chris Grayling, in charge of the legal system carried a calculated message: the rule of law was from now on, like everything else, going to be negotiable. ... Grayling's proposal is to undermine judicial review by starving claimants of legal aid on several fronts.'
One of Mr Grayling's latest proposals is to cut off legal aid provision to claimants who wish to challenge planning and enforcement notice appeal decisions taken by the Secretary of State for Communities and Local Government and his Inspectors in cases where they risk losing their home - on grounds that those people will have already had a chance to put their case in the planning process.
But what if the planning process is flawed and the decision reached was unlawful or breached the human rights of the individual concerned? Case law is littered with successful challenges brought against planning and enforcement appeal decisions taken by government officials. Many of those successful cases were funded by legal aid and brought by people who would have otherwise lost their homes. However, those cases were not just important to the individuals concerned; they have also helped to educate decision makers and reduce the likelihood that they will make similar errors in their decision making in the future.
We assume that Mr Grayling has realised that the people who are most likely to feel the effect of this latest proposed cut in legal aid are ethnic Romany Gypsies and Irish Travellers fighting to preserve their homes on sites without planning permission in circumstances where they have nowhere else to go. Are they being targeted? Is this another example of this government's lack of respect for their traditional way of life, an integral part of which involves living in caravans? Or is our assumption wrong? Did the government simply fail to consider the disproportionate impact such a proposal would have on members of these vulnerable ethnic minorities? If so, then the sooner the coalition government realises the negative impact that its proposal would have upon Gypsies and Travellers and reconsiders its position, the better.
You can access the consultation paper Judicial Review: proposals for further reform at https://www.gov.uk/government/consultations/judicial-review-proposals-for-further-reform We would encourage readers to put in their own responses to this consultation – the deadline is 1 November 2013.
Community Law Partnership will be producing a response to this consultation paper. If you would like to be sent a copy of this response contact Chris at the e-mail address below.
Chris Johnson (chrisjohnson@communitylawpartnership.co.uk) Travellers Advice Team (TAT) at Community Law Partnership (CLP) TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm
Marc Willers, Garden Court Chambers (marcw@gclaw.co.uk) Garden Court Chambers have a specialist Romani Gypsy and Traveller Team.
Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work Simon can be contacted at simon@rustonplanning.co.uk or on 07967 308752/0117 325 0350
2 October 2013