The Police, Crime, Sentencing and Courts Bill (which I will simply call the bill) is nearing the end of the Parliamentary ping-pong process. It is at the report stage in the House of Lords, having had its three readings in the House of Commons. Although there is still time for further amendments, it is highly likely that the bill will be passed in something resembling its current form. Many aspects of the bill have been seriously controversial and experts have commented at length on the merit or otherwise of the proposed legislation. I would like to ask an analytical question. How would Part 4 of the bill, if enacted, be interpreted by courts? In particular, is it compatible with Article 14 of the European Convention on Human Rights, which guarantees freedom from discrimination?

Part 4 is entitled “Unauthorised encampments”. The long title of the bill appears to allude to Part 4 somewhat euphemistically as aiming “to make provision about the removal, storage and disposal of vehicles”. The aim of Part 4 is to address the perceived problem of members of the Gypsy, Roma and Traveller communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. (I will use GRT as shorthand for Gypsy, Roma and/or Traveller, without wishing to elide the differences between distinct cultures.) Part 4 seeks to achieve this aim by creating a new offence, which is again named euphemistically the “offence relating to residing on land without consent in or with a vehicle”, and by creating associated powers for the police to confiscate property, including vehicles, belonging to anyone suspected of committing an offence.

The formal history of these proposals, in brief, is that the government consulted from April to June 2018 on proposed powers to deal with unauthorised development and encampments. The then Secretary of State for Housing, Communities and Local Government, the late James Brokenshire, published a consultation response in February 2019. This did not propose the creation of a new offence. Later in the year, a second consultation was launched, this time by the Home Office. This consultation ran from November 2019 to March 2020. This consultation proposed the criminalisation of unauthorised encampments. The Home Secretary, Priti Patel, published a response in March 2021. This coincided with the publication of the bill. Interested readers can compare the responses to the 2019 consultation questions with the 2021 government response and the proposals in Part 4 of the bill.

Part 4 of the bill comprises three clauses. They were originally numbered 61 to 63 but are now numbered 63 to 65, which is how I will refer to them. The bill can be read in its current form here. It is mainly clause 63 (that is the original clause 61) with which we must concern ourselves.

Clause 63 inserts a new offence at section 60C of the Criminal Justice and Public Order Act 1994, entitled the “Offence relating to residing on land without consent in or with a vehicle”. I will simply call this the offence. Clause 63 also adds sections 60D and 60E to the CJPOA. Section 60D creates powers for police to seize and retain property involved in the suspected commission of the offence. Section 60E provides for forfeiture orders in cases of conviction of the offence.

The new offence created by the proposed section 60C is a little fiddly, but the main part of it, which is formed by clause 63(1)–(4) at pp. 58–59 of the bill, can be summarised as follows:

A person P, who is over 18, commits an offence if:

1. P resides, or intends to reside, on land without the consent of the occupier, O, and
2. P has, or intends to have, a vehicle with them on the land, and
3. O or a police officer requests P to leave the land and/or remove P’s property from the land, and
4. Either
   1. P fails to comply with the request, or
   2. P enters the land within 12 months of the request with the intention of residing there with O’s consent and with a vehicle on the land, and
5. Either
   1. P’s residence on the land has caused or is likely to cause significant damage or disruption, or
   2. P’s offensive conduct on the land has caused or is likely to cause significant distress.

In summary, the proposed section 60D means that, if a police officer reasonably suspects that the offence has been committed, they may seize any relevant property, including any relevant vehicle, to be retained for three months. If notice is given that no prosecution will be brought, the property must be released, but if a prosecution is brought, the property may be retained until the conclusion of proceedings.

In summary, the proposed section 60E means that, if someone is convicted of the offence, any property that was seized under the proposed section 60D may be subject to a forfeiture order. Forfeiture means that the property is permanently taken from the offender.

As I have already said, the aim of these proposed provisions is to address the perceived problem of members of the GRT communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. GRT communities are culturally distinct groups which share some traditions, primarily a nomadic lifestyle that is nowadays predominantly maintained in caravans (although not all GRT individuals lead a nomadic lifestyle). GRT communities are the subject of a high level of racism in the UK, which is more widely socially accepted than most forms of racism and which is in large part based on a prejudiced association between GRT individuals and crime and antisocial behaviour. The situation of GRT families is complicated by a long-standing shortage of allocated sites for encampment, following the abolition (by section 80 of the Criminal Justice and Public Order Act 1994) of the statutory duty (in section 6 of the Caravan Sites Act 1968) on local authorities to provide such sites. 

That is the context of the proposals. Their effect at face value is that, if a traveller family were to move their home onto a patch of land, and a police officer reasonably suspected that they had been asked to go away and had refused to do so, and they also suspected that the family’s presence was causing significant disruption, the officer could seize the family’s home and all its contents and hold onto it for three months, or until it was certified that no one in the family was to be prosecuted, or until the conclusion of proceedings if they were prosecuted and acquitted, or potentially forever if they were prosecuted and convicted.  

The context is relevant because it might inform how a court would interpret the proposed provisions. The offence, while applying to everyone, targets a specific group of racial and cultural communities. This raises the question whether there is anything in the United Kingdom constitution that could influence the interpretation of the offence in order to avoid a discriminatory effect.

The UK constitution is famously characterised by Parliamentary sovereignty. There is no written bill of rights that limits legislative power. The orthodox view is that primary legislation that tramples on fundamental rights, any way conceived, remains legally valid, with possible exceptions around institutional questions such as attempted abolition of courts. However, there is one well-established constitutional safeguard against discriminatory legislation. It is provided by section 3 of the Human Rights Act 1998, which requires courts to interpret legislation as far as possible so that it is compliant with the rights contained in the ECHR, which, at Article 14, include the right to non-discrimination in the enjoyment of the other protected rights. There is a second, more speculative, constitutional protection from discrimination. This is the constitutional principle of equality to be found in the common law. It is controversial whether such a principle exists, and, if it exists, what are its content and nature. Even if its existence were accepted, it would be unlikely to produce a different outcome in this case from Article 14 of the ECHR. Analysis of it is best left for another day.

In the recent Court of Appeal decision of R (Kaitey) v Home Secretary [2021] EWCA Civ 1875 at paragraph [91], Singh LJ summarised the process to be followed when section 3 of the Human Rights Act might come into play as follows.

91. I would summarise the approach which needs to be adopted in the following order:

(1) First, ascertain the ordinary meaning of legislation, having regard to all the usual aids to interpretation. This is not a purely linguistic exercise but seeks to give effect to the purpose of the legislation. The aids to interpretation include the presumption that Parliament does not intend to put the UK in breach of its international obligations, including those under the ECHR.

(2) If – but only if – that ordinary interpretation would give rise to an incompatibility with the Convention rights, section 3 requires a different interpretation so far as possible. This is a strong form of interpretation, which is not the same as ordinary interpretation.

(3) If, even then, it is not possible to give the legislation a meaning which is compatible with Convention rights, the court has a discretion to make a declaration of incompatibility under section 4 of the HRA (if it is one of the courts specified in that section).

So the first stage is to find the ordinary meaning of the legislation. This we have done. The second stage is to see whether that meaning is incompatible with Article 14. The Joint Committee on Human Rights of the House of Commons and the House of Lords published a report on 2 July 2021, which states, at paragraph 39, that it is “likely” that the proposed provisions would contravene Article 14. (The report also raises the possibility of  incompatibility with other Articles of the ECHR, but we will not discuss that today.) The report does not contain any structured analysis of Article 14, which would be necessary to establish incompatibility. We can do this ourselves. The relevant four-stage test was given by Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at [8] as follows:

In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.

Before addressing the four-stage test, we need to identify precisely the different treatment or difference in treatment, the hypothetical claimant, and their comparator. This is stage zero.

The European Court of Human Rights has held that Article 14 prohibits indirect discrimination, that is a general measure that has a disproportionately prejudicial effect on a particular group: DH v Czech Republic (2008) 47 EHRR 3 at [175]. This means that we do not need to frame the different treatment clumsily as: GRT individuals are subject to criminalisation and the confiscation of property for pursuing their traditional way of living, that is nomadism, to a greater extent than other individuals are penalised for pursuing their traditional way of living, that is permanently in settled accommodation. Instead, we can say: The offence has a disproportionately prejudicial effect on GRT individuals because it criminalises behaviour associated with their traditional way of living, that is nomadism. Our hypothetical claimant is a GRT individual who commits the offence, because they must be demonstrably affected by the impugned measure: Buckley v United Kingdom (1997) 23 EHRR 101. Their comparator is an individual who occupies or intends to occupy another’s land without a vehicle and who causes or is likely to cause significant disruption. For the sake of example, a wild camper in a tent. The vehicular element is the distinguishing feature of the offence and of the way of living threatened by the offence.

Does the offence fall within the ambit of a Convention right? Yes. This is a low hurdle. The ambit of a Convention right consists of both the rights protected by an Article of the Convention and any additional rights falling within the scope of an Article that a state decides to protect: Fábián v Hungary (2018) 66 EHRR 26 at [112]. It is established that Article 8 (right to private life) protects the right of GRT individuals to practise their itinerant cultural tradition: Chapman v United Kingdom [2001] 33 EHRR 399 at [96]. The offence makes it more difficult for GRT families to do so, and it interferes with their use of their homes. So it seems that the offence falls within the ambit of both Article 8 and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) of the ECHR.

Is the difference in treatment on the ground of a characteristic listed in Article 14? Yes. The difference in treatment is on the ground of “association with a national minority”, because GRT individuals are members of a minority group in the UK, and the criminalised behaviour is associated with that minority group.

Are the hypothetical claimant and their comparator in analogous situations? Yes. Again, this is a low hurdle. Unless there are obvious relevant differences between the (hypothetical) claimant and the comparator, we should proceed to the fourth stage of the test: AL (Serbia) v Home Secretary [2008] UKHL 42; [2008] 1 WLR 1434 at [25]. There are no obvious relevant differences between a GRT individual who occupies another’s land with a vehicle and causes or is likely to cause significant disruption and a camper who causes or is likely to cause significant disruption. It cannot be argued that the presence of a vehicle makes a difference because that is more disruptive, since both hypotheticals involve actual or likely significant disruption.

Is the difference in treatment objectively justified? Then burden now passes to the state to show that the difference in treatment is objectively justified. This involves the application of well-trodden proportionality analysis. The relevant four-stage test was given by Lord Reed in in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39; [2014] AC 700 at [74] as follows:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the right, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom is applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

In an Article 14 case, it is not the measure as a whole, that is the offence, that must be justified. Rather, the different treatment itself has to be justified: A and others v Home Secretary [2004] UKHL 56; [2005] 2 AC 68 at [68].

Finally, the state enjoys a margin of appreciation with respect to justification, which means that its decisions about when differences justify different treatment must be accorded a level of respect that depends on the circumstances: Carson v United Kingdom (2010) 51 EHRR 13 at [61]. Different factors within the whole set of circumstances may pull in different directions in this regard: R (SC, CB and eight children) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428 at [130].

With these points established, we can undertake the four-stage proportionality analysis.

Is the objective of the measure sufficiently important to justify the limitation of a protected right? The government’s March 2021 consultation response, referred to above, introduced “the case for action” as follows:

Unauthorised Encampments can, in some cases, cause harm and misery to those affected by them and it can be time-consuming and costly for local communities to have them removed.

Some of the harms and problems that are caused can include:

• interference with electricity, water or gas supplies
• animals out of control or attacking people using the land or passing nearby
• animals defecating on the land without owners subsequently clearing up
• excessive noise pollution as a result of behaviour such as playing loud music or revving the engines of motor vehicles
• improper deposit of human waste or sewage (such as bath water)
• failure to remove excessive litter
• disposal of clinical waste

The response also refers to the costs incurred by local authorities and private individuals in addressing the enumerated harms and problems.

The objective of addressing these problems, which can collectively be described as antisocial behaviour associated with unauthorised encampments, at first appears to be sufficiently important to justify the limitation of the right to non-discrimination. However, it would have to be demonstrated by evidence that these problems are in fact associated with unauthorised encampments, that is with trespassers with vehicles, as opposed to those without vehicles: Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164; [2018] 4 WLR 60 at [109]. Analysis of such evidence is beyond the scope of this blog post, but it would be necessary for a state seeking to discharge the burden of justification to base its case on evidence. The association of unauthorised encampments with antisocial behaviour of the kinds described by the government, if based on anything less than indisputable evidence, would simply constitute racial prejudice against GRT individuals. The aim of addressing the problems associated with unauthorised encampments would then not be legitimate. We can proceed with the analysis, not assuming that such evidence exists, but in order to know what the answer to our question would be if it did exist.

Is the measure rationally connected to the objective? The measure intends to dissuade the establishment of unauthorised encampments and to quickly bring to an end any that are established. This would contribute to the achievement of the objective of preventing antisocial behaviour associated with unauthorised encampments. Again, if and only if the state can show based on evidence that unauthorised encampments are associated with the problems it describes, there would be a rational connection.

Could a less intrusive measure have been used? Three alternative approaches to addressing the problem present themselves. First, if the police powers associated with the offence were less harsh, for example if pre-conviction or even pre-charge confiscation were not available, the effect on GRT families would be reduced. Those who would temporarily lose their homes could, in theory, be limited to those genuinely causing significant disruption. This would be less intrusive, although still seriously intrusive. However, it is arguable that the deterrent effect of the offence would then be reduced. Second, the perceived problem of unauthorised encampments is capable of being addressed through the planning process rather than through the criminal law. If local planning authorities allocated sufficient sites for GRT encampments, there would be no need for unauthorised encampments. Third, the requirement of being on land with a vehicle could be removed. This would still criminalise being seriously disruptive on another’s land, but it would not target GRT individuals in any way. This would significantly reduce, if not eliminate, the discriminatory effect of the proposed provisions. However, it is unclear if this would qualify as a suitable substitute measure, since the objective of the provisions is to address the antisocial behaviour associated with unauthorised encampments specifically. Given the complexity of this issue, it is likely that a court would refrain from putting itself into the place of the legislative decision-maker by deciding that an alternative measure would have been equally effective. But this is uncertain.

Has a fair balance been struck between the offence’s effects on GRT individuals’ rights and the importance of the objective? We have reached the crux of the proportionality exercise, where the margin of appreciation is relevant. The greater the margin of appreciation, the less convincing must be the objective justification of the measure. In cases involving general economic or social policy, such as welfare benefits cases, the court applies a manifestly without reasonable foundation standard. This is a wide margin of appreciation, where a measure will only be held to be disproportionate if it is manifestly without reasonable foundation: R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 at [92]–[93]. This is not such a case. On the contrary, this case concerns discrimination on the basis of ethnic origin, which is considered a form of racial discrimination, and which, whether direct or indirect, requires a very narrow margin of appreciation to be accorded to the state: Biao v Denmark (2017) 64 EHRR 1 at [94], [131] and [138]. Very weighty reasons unrelated to ethnic origin must be shown to justify the discriminatory effect of the offence.

How severe are the effects of the measure on GRT individuals’ right to non-discrimination? They are severe indeed: GRT individuals can lose their homes because a police officer suspects that they intend to reside on another’s land without the occupier’s consent and that this would cause significant disruption. GRT individuals can suffer life-changing consequences as a result of a police officer’s suspicion. That suspicion could be informed by anti-GRT prejudice. Even if a decision by a police officer to confiscate property were later shown to be flawed because it was based on prejudice and so not on reasonable suspicion, serious damage would already have been done to the family whose home was confiscated. This harm applies overwhelmingly to GRT individuals because the requirements of the offence apply overwhelmingly to those who lead a nomadic lifestyle that is part of GRT communities’ cultural heritage. In short, the discrimination is very grave.

How important is the objective to the extent that the difference in treatment will achieve it? The harm that persistent antisocial behaviour can cause should not be underestimated. Addressing that is an important objective. However, it is the choice to specifically criminalise GRT individuals that must be justified. Given the level of justification the state must show in a case of discrimination on the basis of ethnic origin because of the inherently unacceptable nature of such discrimination, and the gravity of the effects of the discrimination in this case, the objective of addressing antisocial behaviour associated with unauthorised encampments is not sufficiently important to justify the discrimination at hand. In other words, the discrimination is disproportionate.

That is the end of the Article 14 analysis. Since we have concluded that a court is likely to find that the proposed provisions are incompatible with Article 14, we can move on to Singh LJ’s stage 2 of statutory interpretation (see Kaitey above). We apply section 3 of the Human Rights Act to interpret the provisions to avoid incompatibility, if this is possible.

There is a lot of case-law on what kind of interpretation is considered possible under section 3. In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607; [2016] ICR 903, Underhill LJ quoted Sir Andrew Morritt C’s summary of the law from Vodafone 2 v Her Majesty’s Commissioners of Revenue and Customs [2009] EWCA Civ 446; [2010] Ch 77 at [37]–[38]. In short, a section 3 interpretation can depart from the literal meaning of legislative words and can read in additional words. However, a section 3 interpretation must be compatible with the underlying thrust of the legislation. Nor can it require the court to make decisions which it is unequipped to make. 

How could the proposed provisions be interpreted in order to avoid the discrimination that we have found? The problem is that the provisions are directly, although not explicitly, targeted at GRT individuals. The discrimination is not a side-effect of the legislation. It is a fundamental feature. This means that a section 3 interpretation is unlikely to be possible. Interpretive amendment of the provisions would need to create some kind of exception for GRT individuals, which would entirely defeat the purpose of the legislation. It would go against the grain because the grain is discriminatory.

This means that a court’s only remedy would be to make a declaration of incompatibility under section 4 of the Human Rights Act. This would not have the effect of striking down the provisions or otherwise rendering them ineffective. Under the UK constitution as predominantly understood, that is not possible. It would send a message to the government, to Parliament, and to the public about the non-compliance of the legislation with human rights.

As we have seen, the discrimination against ethnic minority individuals inherent in this legislation is remarkable. It may be that it prompts the courts to take an unusual step in the defence of the constitutional value of equality, which is at least arguably ambient in the common law as well as crystallised in Article 14 of the ECHR. However, the law as we understand it would permit the proposed offence and the attached police powers to be effective. The constitutional function of section 4 of the Human Rights Act in such a situation is to encourage the legislature to think carefully about whether it wishes to legislate contrary to human rights. Analyses such as this, if they are sufficiently rigorous, can pre-emptively serve a similar purpose in an informal way. It remains to be seen whether this Parliament is susceptible to such encouragement.

Image from Friends, Families & Travellers.

What I’ve been doing over the holidays…

My new year’s project is to learn to play chess properly. This is proving to be harder than I thought it would be and probably much harder than if I had taken it seriously ten or fifteen years ago. I have made a start on Fundamental Chess Openings by Paul van der Sterren, which is very engaging so far. Recommendations of books, strategies or states of mind are most welcome.