Housing and Planning Bill
House of Commons, Committee Stage
Briefing in support of Amendment 136 to Clause 84
26 November 2015
For more information, please contact:
Parliamentary lead: Denise Morrisroe Tel: 0161 829 8109
Email: denise.morrisroe@equalityhumanrights.com
Legal lead: Keith Ashcroft Tel: 0161 829 8432
Email: keith.ashcroft@equalityhumanrights.com
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Introduction
This briefing supports Amendment 136 to Clause 84 of the Housing and
Planning Bill. This Amendment seeks to preserve sections 225 and 226
of the Housing Act 2004, which impose a duty on local housing
authorities to assess the specific accommodation needs of Gypsies and
Travellers (and Travelling Show people) residing or resorting to their
area, and provide for guidance on how this is undertaken. In the
Commission’s analysis, repealing this duty may be in breach of the
Government’s obligations under domestic and international law.
Clause 84
Amendment number 136
Explanation
As the Members’ explanatory statement sets out, ‘this amendment would
retain sections 225 and 226 of the Housing Act 2004 regarding
accommodation needs of gypsies and travellers’.
These provisions require local housing authorities, when carrying out a
review of housing need under section 8 of the Housing Act 1985, to
assess the accommodation needs of Gypsies and Travellers who reside
in or who resort to their area, and enable the Secretary of State or
National Assembly for Wales to issue guidance on how this should be
done.
Commission’s recommendation
Support amendment 136.
Our analysis
Clause 84 of the Housing and Planning Bill would remove the duty on
local housing authorities to assess the specific accommodation needs of
Gypsies and Travellers (and Travelling Show people) residing or
resorting to their area and the provision of guidance on how this is
undertaken. The Impact Assessment published with the Bill explains that
the Government’s preference is to move away from separate provisions
for Gypsies and Travellers in favour of a unified approach, assessing the
housing needs of the entire community and removing the perception of
favourable treatment.
Gypsy and Traveller Accommodation Need Assessments were
introduced because the specific accommodation needs of these
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communities had not previously been properly assessed. The
Communities and Local Government Gypsy and Traveller
Accommodation Needs Assessments Guidance of 2007 stated:
‘In the past, the accommodation needs of Gypsies and Travellers
(especially those who live in caravans or mobile homes) have not
routinely formed part of the process by which local authorities assess
people’s housing needs. The consequences of this have been that the
current and projected accommodation needs of Gypsies and Travellers
have often not been well understood.’
When the new planning system was introduced by the Housing Act
2004, the aim was to provide for an evidence-based, strategic and
regional system, in which the needs and wider demand of the Gypsy and
Traveller communities for suitable accommodation could be considered
and met equally and fairly alongside other sectors of the community.
Homelessness among Gypsies and Travellers living in caravans is
currently estimated at about 20%.
Gypsies and Travellers are among the most disadvantaged communities
in England, Wales and Scotland, and the provision of appropriate
accommodation is absolutely central to addressing the wider inequalities
that they experience including access to healthcare, schools and other
vital public services.
The Commission’s recent report, “Is Britain Fairer?”, highlighted that
Gypsy and Traveller pupils continue to have the lowest educational
attainment rates of any ethnicity, and life expectancy is lower for
members of the Gypsy and Traveller communities. In addition, the selfreported health status for some people with specific characteristics
(including Gypsies and Travellers) is worse.
The UN Special Rapporteur on adequate housing made a number of
observations relating to the specific problems facing Gypsies and
Travellers. She noted the stigma and discrimination they face and how
this underpins their lack of residential and transit accommodation and a
range of other problems, including access to education, work, health
care and inclusion in community life. She also raised issues,
documented in the Commission’s 2011 submission to the United Nations
Committee on the Elimination of all Forms of Racial Discrimination,
about the quality and location of sites, which noted that many Gypsies
and Travellers were recognised to be caught between insufficient
accommodation and sites suitable for their needs and the insecurity of
unauthorised sites which could lead to evictions, violent and threatening
behaviour. A Scottish Parliament report (2013) which explored ‘Where
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Gypsy/Travellers live’, also detailed ‘shocking standards of living’ and
instances of discrimination. Our submission noted the need for
Government to support local authorities to demonstrate compatibility
with the Human Rights Act 1998 and the Public Sector Equality Duty in
developing housing, homelessness, planning and sustainable
communities strategies.
In the Commission’s analysis, if the duty to assess accommodation need
is removed this is likely to result in fewer sites, less land allocated in
local plans to meet that need, and increased homelessness. We
consider that Clause 84 may be in breach of the following obligations
under domestic and international law to protect the Gypsy way of life and
to take positive measures where necessary to do so:
Domestic Law:
 Article 8 of the European Convention on Human Rights (ECHR):
The obligation under Article 8 was summarised by the European
Court of Human Rights in Chapman v UK (2001) 33 EHRR 18 as
follows: 1
The vulnerable position of Gypsies as a minority means that some
special consideration should be given to their needs and their
different lifestyle both in the relevant regulatory planning framework
and in arriving at decisions in particular cases. To this extent there is
thus a positive obligation imposed on the Contracting States by virtue
of Article 8 to facilitate the Gypsy way of life [96].
International Law:
 Article 4(2) of the European Framework Convention for the Protection
of Minorities (“Framework Convention”) :
The Parties undertake to adopt, where necessary, adequate
measures in order to promote, in all areas of economic, social,
political and cultural life, full and effective equality between persons
belonging to a national minority and those belonging to the majority.
In this respect, they shall take due account of the specific conditions
of the persons belonging to national minorities.
 Article 5 of the Framework Convention
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Chapman v United Kingdom [2001] 33 E.H.R.R. 18
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The Parties undertake to promote the conditions necessary for
persons belonging to national minorities to maintain and
develop their culture, and to preserve the essential elements of
their identity, namely their religion, language, traditions and cultural
heritage.
 Article 27 of the International Covenant on Civil and Political Rights
(“ICCPR”):
In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to
use their own language.
The Human Rights Committee amplified this obligation in general
comment 23;
…positive measures by States may also be necessary to protect the
identity of a minority and the rights of its members to enjoy and
develop their culture and language and to practise their religion, in
community with the other members of the group. In this connection
it has to be observed that such positive measures must respect the
provisions of articles 2.1 and 26 of the Covenant both as regards
the treatment between different minorities and the treatment
between the persons belonging to them and the remaining part of
the population. However, as long as those measures are aimed at
correcting conditions which prevent or impair the enjoyment of the
rights guaranteed under article 27, they may constitute legitimate
differentiation under the Covenant, provided they are based on
reasonable and objective criteria [6.2].
Public Sector Equality Duty
Section 149 of the Equality Act 2010, the Public Sector Equality Duty
(PSED), requires those carrying out public functions, including
Government departments and Ministers of the Crown, to have due
regard to the need to eliminate unlawful discrimination, advance equality
of opportunity and foster good relations. This is an ongoing duty which
applies throughout the policy-making process, from the development of
options and draft proposals through to legislation and implementation.
In the Commission’s analysis, the overarching impact assessment which
accompanies the Bill does not examine the equality impact of Clause 84
on Gypsies and Travellers to the extent required by section149. It is
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therefore unlikely to help Parliamentarians fully understand and debate
these provisions and limits their ability to consider alternative options
and mitigation where this is appropriate.
About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body
established under the Equality Act 2006. It operates independently to
encourage equality and diversity, eliminate unlawful discrimination, and
protect and promote human rights. It contributes to making and keeping
Britain a fair society in which everyone, regardless of background, has
an equal opportunity to fulfil their potential. The Commission enforces
equality legislation on age, disability, gender reassignment, marriage
and civil partnership, pregnancy and maternity, race, religion or belief,
sex and sexual orientation. It encourages compliance with the Human
Rights Act 1998 and is accredited by the UN as an ‘A status’ National
Human Rights Institution.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
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