The fight between the residents of Dale Farm and Basildon Council, which came to a head in October and November, illustrates some of the key areas of interest for students and practitioners of an important and burgeoning field known as public law.
What is public law?
Public law is an umbrella term used to describe various legal principles and procedures which govern the relationship between citizen and the state. A central theme in the history of the last 100 years has been the growth of the state, and its involvement in many areas of our lives which would have seemed very strange to our Victorian forebears. Depending on your political point of view, this may be a good thing (the National Health Service, the benefits system) or a bad one (an increased burden of taxation, a tendency for the state to ‘interfere’ in many areas, such as the use by landowners of their own land). In any event, it is a field in which law has rapidly grown and adapted to strike a balance between citizens and government, and especially to curb the potential for a powerful state to abuse that power. Two hugely important pillars of public law, which you can scarcely avoid reading about in the news, are the Human Rights Act and the court process known as judicial review. Dale Farm involved both of these matters, and some others as well.
The land occupied by the travellers at Dale Farm was bought in 1996 by an Irish family. It was next to land for which Basildon Council had given travellers planning permission for occupation. The planning legislation means that landowners need permission to build on land which they own, or to change its use even if no building work is involved. The travellers moved in in late 2001 or early 2002. They applied retrospectively for planning permission in 2002, but their application was refused, partly because the land was in the green belt, an area zoned for special protection where development is generally restricted. Later in 2002 the council started “enforcement action”, a process to reverse any breach of planning rules – in this case enforcement meant ordering the travellers to remove their homes and to leave the site. It was this 2002 enforcement decision, and the various challenges to it, which dragged on until the ultimate eviction in late 2011 – an example of how slow the legal system can be where difficult issues are vigorously fought over.
Travellers and the Law
Travellers need to obtain planning permission before changing land previously used for another purpose to a site for settlement. This is simply the application of the same planning principles which have applied to everyone since 1948 to the traveller community. However, there are some guidelines and additional legal principles which help local councils to exercise their discretion in dealing with traveller applications. Romany Gypsies and Irish Travellers have been recognised by the courts as being distinct ethnic groups covered by the Race Relations Act 1976.Under this Act, there is a requirement that councils seek to promote good race relations between gypsies and travellers and the settled community. This is important in the context of gypsy and traveller site planning. In addition, like anyone else, travellers have the protection of the Human Rights Act.
The Human Rights Act
The Human Rights Act is peculiar in that more has been written about it in the press, popular or otherwise, than any other piece of legislation in existence. Despite, or perhaps because of this there is more misunderstanding and misrepresentation about it than any other piece of law. The Act was introduced in 1998 as one of the first big projects of the Blair government. It did not create any new rights – it simply made rights which had been created by the post-war European Convention on Human Rights in 1951 (a document largely drafted by the British government) directly enforceable in British courts. Before this litigants had to take their claims to the European Court of Human Rights in Strasbourg, an arduous and especially expensive process. An intentional consequence of ‘bringing rights home’ has been to make the rights much more accessible and therefore much more frequently argued over.
At Dale Farm the most important right underlying the decisions taken by the council, and also by the courts, was Article 8. Article 8 is a wide ranging provision which protects the right to home life (along with privacy, family life and correspondence). The travellers had made the land into their home over several years, and a decision by the state to remove them certainly required consideration of Article 8. However, like many of the rights which the HRA protects, the right to home life is not ‘absolute’. Instead it is described as ‘qualified’. This means that the Act does allow the state to interfere with the right, but firstly the state must have a good reason for doing so (for example, to protect the economic well-being of the county or the rights of others) and secondly the interference must be ‘proportionate’.
Starting with the need for a good reason (or ‘legitimate aim’) the council was able to argue that the planning system was important for the economic well-being of the country. Zoning of land for particular purposes, and the control of land use and building development are essential parts of all developed economies. Taking enforcement action to reverse breaches of planning control is an inevitable part of such a system. In this case enforcement could not be achieved without removing the travellers from the land. Additionally the council could point to the protection of the rights of others – the rights of neighbouring landowners who did play by the rules of the planning system.
However, the council still needed to justify its interference with Article 8 as proportionate. The doctrine of proportionality is a very important one in human rights law. At its heart is the notion that even if the state does have justification for interfering with a qualified human right then it must do so in a way which achieves its objective with the least possible impact on the right in question. In this case enforcement action would be impossible without removing the families from their existing homes. However, the Council did assure them of priority status for rehousing in council housing under the usual homelessness procedure, and in this way attempted to reduce the inevitably profound impact on their home life.
The legal fight launched by the travellers themselves shows how the procedure known as judicial review has become a vital tool for those affected by public decisions and for their lawyers. It provides a process for the courts to examine any decision made by a public body, in this case the council, and to assess its lawfulness. It is an important way of scrutinising the activities of public decision makers and holding them to account. When public bodies take any decision the courts expect them to follow basic elements of good decision making. For example, they must allow people affected to put their side of the argument and they must take into account all relevant factors.
In the case of Dale Farm, judicial review was used by the travellers to question the lawfulness of the council’s decision to take enforcement action. Amongst other things they put forward the poor health of some of the residents of the site and the special concern for children, including disruption to their education, as factors to which the council had not given enough weight.
Judicial review always puts the courts into a difficult position. Their job is to decide whether the way in which the decision was taken was lawful, not to assess the merits of the decision itself – in other words it was not for the judge to say whether he would have evicted the travellers. In the Dale Farm litigation this difficult position was exacerbated by the controversy surrounding the case and the large amount of public attention which was devoted to it.
Ultimately the courts agreed that the council had been fair and reasonable in the way in which it had arrived at its decision, and that it had considered everything which it ought to have considered. Furthermore they could find no fault in the way in which the council intended to conduct the eviction process itself. Consequently the judges were not in a position to ‘quash’ the enforcement notice.
One of the foundations of our legal system is the doctrine of the rule of law. This enshrines the notion that everyone deserves equal treatment before an unbiased legal system. Travellers at Dale Farm and elsewhere live on the fringes of our communities, following a way of life which often clashes with mainstream society. It could be argued that the law should be changed to take more account of their unusual way of life. However, given the current state of the law, especially that governing the planning system, it is hard to see the battle of Dale Farm as anything other than the enforcement of the planning rules that apply to everyone else, and therefore an inevitable outcome of the application of the rule of law.