Managing unauthorised camping by Gypsy/Travellers in Scotland: guidance for local authorities

Chapter 2 : Context

Gypsy/Traveller Communities

10. Gypsy/Traveller communities have a long and proud history and have made, and continue to make, a significant contribution to Scotland. Unfortunately Gypsy/Travellers also face many challenges and barriers to accessing services, and participating in society, in ways that most people take for granted. The Scottish Government recognises that Gypsy/Traveller communities are among the most disenfranchised and discriminated against in Scotland.

11. In the 2011 census 4,200 people recorded their ethnic group as 'White: Gypsy/Traveller'. The highest number of Gypsy/Travellers was recorded in Perth and Kinross (400 people; 0.3% of the total population of that area), followed by Glasgow, Edinburgh and Fife. 40% of those who recorded their ethnicity as 'White: Gypsy/Traveller' in the 2011 Census were aged under 25 years, compared to 29% of the whole population. It should be noted that bodies such as the Equality and Human Rights Commission believe that the census figures undercount the number of Gypsy/Travellers in Scotland, and the actual figures are higher.

12. Many Gypsy/Travellers will have a location (such as a private site) they live for much of the year. Gypsy/Travellers will generally travel from this location for part of each year, as an expression of their culture and to visit family, friends, or for work.

Types of Unauthorised Sites

13. It is important to understand that Gypsy/Travellers are not a single group but a diverse set of travelling communities with differing identities, cultures, histories, lifestyles and languages. Gypsy/Travellers also have a variety of reasons for travelling and camping. It therefore follows that approaches taken by local authorities, in order to be effective, will depend on the type of camp they are engaging with.

14. Discussions with local authorities and other stakeholders have highlighted that there are two distinct types of unauthorised site:

• small family groups with around three to five caravans, primarily focussed on visiting family and friends, attending cultural or family events, and sometimes undertaking work;
• larger working parties with many caravans, and industrial equipment, primarily focussed on carrying out business in the locality ( e.g. gardening, minor building work, etc.)

15. The second type of unauthorised site has become more frequent since the guidance was first issued in 2004.

Equality Duties

16. Under the Equality Act 2010 (the Equality Act) it is unlawful to discriminate against people because of protected characteristics such as age, race, religion or belief, disability, sex, marriage, civil partnership, gender reassignment, or sexual orientation. The Act also imposes a duty on listed public authorities, including local authorities, to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations.

17. The Equality Act makes it unlawful to discriminate against someone because they have a 'protected characteristic'. Race is one of the protected characteristics under the Equality Act. Race discrimination occurs when people are treated unfairly because of one or more of the following:

• colour;
• nationality;
• ethnic origin;
• national origin.

18. It is important to note that Gypsy/Travellers are recognised as an ethnic group under the definition of 'race' in the Act. Gypsy/Travellers continue to be protected against discrimination based on race if they have moved into settled accommodation. It is of course also unlawful to discriminate against Gypsy/Travellers because of any other protected characteristic.

19. The Equality Act also established the public sector equality duty, which applies to all functions of a listed public authority, and covers local authorities. Scottish Ministers have made regulations which set a framework to enable Scottish public authorities to deliver the public sector equality duty more effectively. This framework includes a duty to undertake an equality impact assessment of new or revised policies or practices. (For more information on the Equality Act 2010 please refer to Annex C below).

20. Gypsy/Travellers have the same rights as other minority ethnic groups. This means that it is unlawful to discriminate against Gypsy/Travellers on the basis of their ethnic origin. It does not mean that unacceptable behaviour by a Gypsy/Traveller on an unauthorised site cannot be tackled, in the same way as it would be for anyone else.

Human Rights Framework

21. The Human Rights Act ( HRA), together with the Scotland Act, protect the rights that are contained in the European Convention on Human Rights in Scotland's own laws. The HRA means that people can raise human rights issues in Scottish courts. Section 6 of the Act makes it unlawful for public bodies to act incompatibly with the rights contained in the European Convention on Human Rights. It also places a duty on public bodies to comply with human rights in everything they do.

22. Under the Scotland Act 1998, the Scottish Government and Parliament must also observe and implement all of the UK's international human rights obligations, for example, the International Covenant on Economic, Social and Cultural Rights ( ICESCR), which includes the right to adequate and culturally appropriate housing.

Prosecution for Trespass

23. In Scotland the Crown Office and Procurator Fiscal Service ( COPFS) is responsible for the prosecution of criminal offences. The Scottish Government does not set prosecution policy. Current guidance in place for prosecutors from COPFS outlines that there is a presumption against prosecuting Gypsy/Travellers for trespass as defined in section 3 of the Trespass (Scotland) Act 1865, where the sole issue in relation to an unauthorised site is unlawful encampment by Gypsy/Travellers.

24. The guidance for prosecutors also outlines that this presumption may be over‑ridden by public interest considerations, depending on the circumstances. Circumstances that may give rise to a prosecution being commenced include:

• where a suitable alternative site has been identified and the Gypsy/Travellers have refused to relocate within a reasonable time (taking local circumstances into account).
• where the use or size of a particular site causes a road safety or public health hazard.
• where the same Gypsy/Travellers have been repeatedly moved from the same site only to return.

25. It is important to note that the presumption against prosecution does not apply to any other criminal offences that may be committed on or around unauthorised sites. If a crime is reported to the police, it will be investigated and if there is sufficient evidence a report will be submitted where appropriate to COPFS for consideration.

Targets for number of Sites and Pitches

26. The Scottish Government no longer sets targets for the number of sites or pitches a local authority should provide. That policy was brought to an end following the recommendations in the final report of the Advisory Committee on Scotland's Travelling People, published in 2000. It has been superseded by the requirements of the Housing (Scotland) Act 2001. This creates a legal requirement for a local authority to prepare a Local Housing Strategy supported by an assessment of accommodation needs in their area, including those of Gypsy/Travellers. The Local Housing Strategy must be submitted to Scottish Government Ministers.

Planning

27. Based on evidence from a housing need and demand assessment ( HNDA), the planning authority for an area is required, where need is identified, to plan for the current and future needs of the Gypsy/Traveller community, and involve the community in planning and decision-making which affects them.

Christie Commission

28. The Commission on the Future Delivery of Public Series (commonly referred to as the 'Christie Commission') examined how Scotland's public services could be delivered to secure improved outcomes for communities across the country, in the face of substantial financial challenges.

29. The Christie Commission highlighted the need to ensure that in the current climate of fiscal restraint vulnerable groups and individuals are not left behind. This guidance takes account of the principles set out by the Christie Commission, encouraging different public bodies to work together and to consider approaches that focus on preventative spend by providing facilities at unauthorised sites ( e.g. for recycling and waste disposal).