England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 November 2002

Mr Justice Burton:

1. This case began as a claim by Albert Smith, the Claimant, who is a Romany gypsy, against the London Borough of Barking and Dagenham ("the Council"), by which he sought to prevent the eviction of himself, his family (his wife and four children) and his mobile home and touring caravan from a council site owned and operated by the Council. That claim has been compromised, but, in the course of it, he sought a declaration that the provisions of Part I of the Caravan Sites Act 1968 ("the 1968 Act") were incompatible with Articles 8 and 14 of the European Convention on Human Rights ("the ECHR"). This case is set out in paragraph 47 of his Claim Form as follows:

"Further or alternatively, it is submitted that the provisions in Part I of the [1968 Act] are incompatible with Articles 8 and 14 of the [ECHR] on the following grounds:

(a) There is no justification for the fact that gypsies are not given the same protection against eviction by local authorities in Part I of the [1968 Act] as that given to secured tenants of conventional housing let by the Local Authorities.

(b) As such Part I of the [1968 Act] fails to provide gypsies with any or any adequate protection for their homes in breach of Article 8 … and is discriminatory in breach of Article 14 …"

Consequently the relevant Secretary of State, now the Secretary of State for the Office of the Deputy Prime Minister, was joined as an Interested Party, and, in the light of the compromise between the Claimant and the Defendant, the issue before me has been limited to the grant or refusal of the declaration of incompatibility, contested between Jan Luba QC and Valerie Easty on behalf of the Claimant and Tim Mould on behalf of the Secretary of State, all extremely experienced in what has now become a substantial jurisprudence about the position and the rights of gypsies in England and Wales.

2. Tenants in conventional council housing have, since the Housing Act 1980 ("the 1980 Act"), subsequently consolidated into the Housing Act 1985 ("the 1985 Act"), had security of tenure. Caravan dwellers in private sites have had security since the passage of the Mobile Homes Act 1983 ("the MHA") (improving their previous position under the Mobile Homes Act 1975). The 1968 Act provided for the establishment of caravan sites by local authorities for the use of gypsies (a spelling which I (and I think many or most others) prefer to adopt, whereas the statute uses the spelling 'gipsies'). For the purpose of the 1968 Act, and the power to provide sites for gypsies thereunder, gypsies are defined by s16 as "persons of nomadic habit of life, whatever their race or origin, but … not [including] members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such". The 1968 Act originally imposed not simply a power but a duty upon local authorities to provide such sites, but this was repealed by s80 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"). What has survived is the power of the Local Authority to provide such sites for gypsies. Those who are tenants or licensees of pitches on such sites do not have security of tenure. They have a similar degree of protection to that afforded to tenants of conventional council housing before the 1980 Act, namely that the power of the Local Authority to evict is heavily circumscribed by the powers of the Administrative Court on judicial review, i.e. enshrining the right of a tenant faced with eviction to challenge such decision as Wednesbury unreasonable and/or as an abuse of power and/or otherwise unlawful, as was done in this case as against the Council.
3. The relevant statutory provisions are as follows. Section 1 of the 1968 Act applies Part I of the Act to any "licence or contract … under which a person is entitled to station a caravan on a protected site (as defined by subsection (2) … and occupied as his residence, or to occupy as his residence a caravan stationed on any such site, and any such licence or contract is … referred to as a residential contract and the person so entitled as the occupier". By Section 2 a residential contract is determinable by notice of not less than 4 weeks. Section 3 proscribes the exclusion of the occupier from the protected site or from a caravan, or the removal or exclusion of a caravan, otherwise than by proceedings in court.
4. There is a power of suspension of eviction orders under s4 of the Act, but this does not apply, by virtue of Section 4(6), where the proceedings are taken by a local authority in respect of a caravan site provided for the accommodation of gypsies. The Administrative Court challenge can then be, as it was in this case, to the reasonableness, lawfulness or compatibility with Articles 6 and/or 8 of the ECHR of a decision by a local authority to evict. Mr Mould of Counsel points out in his submissions that this is a considerable protection for such tenants. However it cannot be denied that it is lesser protection than that now (but not prior to the 1980 Act) available to tenants of conventional housing; and this forms the basis of the alleged discrimination, which the Claimant asserts that the Defendant must objectively justify.
5. The issue between the parties therefore revolves around 'justification', within Articles 8 and 14 of the ECHR. Article 8 provides for the right to respect for private and family life, home and correspondence, and Article 14 recites that "the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
6. It is not in dispute that the issue of security of tenure for the home of gypsies on caravan sites falls within Article 8.1 of the ECHR. As Stanley Burnton J put it in his recent lucid judgment in Somerset County Council v Isaacs and Secretary of State [2002] EWHC 1014 (Admin) at para 21:

"It is accepted, and indeed incontrovertible, that the Defendant's caravan at the … caravan site is his home. His eviction from the site, unless justified under Article 8.2, would infringe his right to respect for his home (and, possibly, for his private and family life) under Article 8.1. However, rights under Article 8.1 are not absolute. Interference with those rights will be justified if 'in accordance with the law' and if 'necessary in a democratic society in the interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'. Any such interference must, of course, be legitimate and a proportionate response to the interest alleged to justify it."

The onus is on the Defendant to establish such justification.

7. There are, again as Stanley Burnton J made clear in Isaacs (at paras 26-27), two levels of consideration of the impact of Article 8. The one is described by him as the 'macro' level, on the basis of questions of general policy, and the other as the 'micro' level, i.e. consideration of the facts of the individual case and the impact on the individual claimant. If there be justification at the macro level, then it would be unlikely that the Claimant would in this case succeed at the micro level, when he has already had the benefit, successfully, as it has turned out, of the impact of judicial review in relation to his own particular circumstances. As Stanley Burnton J there pointed out:

"The determination by the court of the Article 8 issue on the basis of the facts of the individual case … would mean that the lack of express statutory security of tenure would not result in any infringement of Article 8 rights, and [would] in effect remedy any deficiency in the legislation … It is not inevitable that s4(6) of the [1968 Act] … will lead to the infringement of Article 8 rights. Inevitability of breach is the test of incompatibility: see McLellan [R (McLellan) v Bracknell Forest Borough Council [2002] 2 WLR 1448] (paragraphs 46-47)."

8. In Isaacs there was consideration by Stanley Burnton J of the contrast between the provision of security of tenure on private caravan sites by the MHA, and the absence of it for gypsy caravan occupiers of council sites, by virtue of Part I of the 1968 Act, and the express exclusion of the impact of the MHA on council sites, by virtue of s5 of the latter Act. In Isaacs:

i) Stanley Burnton J found that there was justification under Article 8 for the absence of security of tenure on council sites. He relied heavily on evidence given by the relevant officer on behalf of the Secretary of State as to the justification, so far as concerns the macro level. He found as follows in paragraph 38:

"… this evidence satisfies me that the exempting provisions are 'necessary in a democratic society', and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants [this is a reference to the facts of McLellan]. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant. Moreover, any such safeguards detract from the flexibility that Parliament has decided is appropriate for exempted sites."

ii) as to Article 14, the comparator relied upon, to be set against the gypsy caravan occupier on council sites without security of tenure, was the occupier on private sites, with security of tenure pursuant to the MHA. Stanley Burnton J said as follows in paragraph 39:

"I can deal with Article 14 quite shortly. The exemption in Section 4(6) of the [1968 Act] is justified by the special position of local authorities and the policy considerations referred to above. The exemption in Section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant. It therefore raises no question of discrimination contrary to Article 14."

9. Mr Luba QC has invited me to come to a conclusion different from Stanley Burnton J for the following reasons:

i) The evidence has moved on. Not only is there in this case, unlike in Isaacs, evidence given in opposition to that provided by the Secretary of State, from an expert witness instructed by the Claimant, Dr Donald Kenrick, but there is now, published in October 2002 subsequent to the decision in Isaacs, an up to date Report commissioned by the Defendant and presented to him. This is entitled "The Provision and Condition of Local Authority Gypsy/Traveller Sites in England" ("the October 2002 Report"), to which a great deal of attention has been paid in the course of the hearing before me. It is noteworthy that the Report also post-dates the institution of these proceedings, and indeed is so recent that it postdates the preparation and service of all the evidence, save for the recent reply statement of Michael Gahagan, on behalf of the Defendant, who exhibited it. He is Director of Housing and has had policy responsibility for secure tenancies and accommodation for gypsies since 1998.

ii) The comparator relied upon by the Claimant in this case is not the occupant of a private site, but the conventional council tenant. The judicial review 'protection' of the gypsy caravan occupier in a council site is, as set out in paragraph 2 above, the same as it used to be for the ordinary council tenant prior to the 1980 Act: the latter has moved on and been given additional protection, the former has not.

iii) He contends in any event that, insofar as there is no basis for distinguishing Isaacs, I should not follow it.

10. For the purpose of Article 14 it is accepted that the leading authority is Michalak v Wandsworth London Borough Council and the Secretary of State [2002] 34 HLR 721, [2002] EWCA Civ 271, and that the questions to be answered, in accordance with the judgment of Brooke LJ (with whom the rest of the Court agreed) at para 20, are:

"(i) Do the facts fall within the ambit of one or more of the substantive Convention provisions …?

(ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparator') on the other?

(iii) Were the chosen comparators in an analogous situation to be complainant's situation?

(iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship or proportionality to the aim sought to be achieved?"

11. It is not in dispute that in this case the answers to the first two questions are in the affirmative. As to the fourth, that is obviously in issue. With regard to the third, Mr Mould did raise some questions in his written submissions, based upon the evidence of Mr Gahagan, which he did not forcefully pursue orally. He submitted that, in relation to those council tenants who had security of tenure, as opposed to the gypsy occupants of caravans, but who inhabit conventional housing, there are some arguable differences, such that he "[did] not accept that the Claimant passes the test in question (iii)". These can be summarised as, on the one hand, the different position of conventional council tenants in relation to the right to buy and the specific succession provisions, said to be clearly not apt in relation to caravan occupiers, and, on the other hand, the fact that the provision of conventional council housing is aimed at the more vulnerable members of society. However I do not consider that any of that can amount to a significant or material difference so as to show the chosen comparators as not being in an analogous situation. As to the former difference, it is plain that any security of tenure system introduced for caravan occupiers would not have to contain identical incidents to that for conventional council tenants (and no submissions have been made to me as to the position of the caravan dweller with security under the MHA), so that it does not seem to me to be any hurdle to comparability: as to the latter, as appears from the October 2002 Report, although such matters are always subject to question, it is recorded (at page 32) that on 87% of council residential sites most or all licensees receive housing benefit, indicating a similar, if not greater, degree of vulnerability. I conclude that the answer to the third question is also affirmative which leaves the fourth question as the only one outstanding, and it did indeed constitute the battleground between the parties.
12. As to the question of justification on the macro basis, although it is for the Defendant to establish such justification, it is quite clear that, following on from the principle well established by the European Court of Human Rights of the 'margin of appreciation' left to the legislatures of the Convention signatories, the domestic courts, now that the Convention has been 'imported', will give both respect and leeway to policy established by Parliament; particularly in an area of policy with competing social and economic considerations such as housing. So far as the European Court of Human Rights is concerned, the position was made clear in Mellacher v Austria [1989] 12 EHRR 391 at paras 45, 53:

"In order to implement such [social and economic] policies [in the field of housing], the legislature must have a wide margin of appreciation, both with regard to the existence of a problem of public concern, warranting measures of control, and as to the choice of the detailed rules for the implementation of such measures. The Court will respect the legislator's judgment as to what is in the general interest, unless that judgment be manifestly without reasonable foundation … The possible existence of alternative solutions does not, in itself, render the contested legislation unjustified. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem, or whether the legislative discretion should have been exercised in another way."

13. As to domestic courts since the implementation of the Human Rights Act, the position has been very clearly explained in a number of recent cases:

i) Poplar HARCA Ltd v Donoghue [2002] QB 48 (CA) [a case relating to housing associations] per Lord Woolf CJ:

"69. … The economic and other implications of any policy in this area [housing] are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under Section 21(4) [of the Housing Act 1988] is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts, and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort, when deciding whether there has been a breach of the Convention …

72. … The question is whether the restrictive power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament."

ii) The decision of the Court of Appeal in McLellan related to introductory tenancies under the Housing Act 1996, and the material passage is in paragraph 47 in the judgment of Waller LJ, giving the judgment of the Court:

"The point in essence is that it is very much for Parliament to make the relevant judgments in this area."

iii) To the same effect, Laws LJ, giving the judgment of the Court in Sheffield City Council v Smart [2002] EWA Civ 04, a case relating to the exclusion from security of tenure of housing for the homeless under the Housing Act 1996:

"41. … Parliament might enact a provision, even a whole scheme, which would be repugnant to the Convention; and if that were done it would of course be the court's duty to say so. The measures contained in HRA dealing with declarations of incompatibility patently demonstrate Parliament's own foresight of the possibility. But one would expect such clashes between the policy of main legislation and the Convention rights to be exceptional, not least for the good reason that distribution of the Convention rights has to go hand in hand with deference to the democratic legislature. A democratic system of government is a premise of all the Convention's philosophy, underlined in the multiple references to what is 'necessary in a democratic society' a phrase which not only invokes the claims of proportionality, but also calls for respect of the elected arm of the State.

42. … Indeed we have reached the point, and did so before incorporation of ECHR, where if Parliament is to legislate so as to deny or frustrate what the law recognises as the fundamental or constitutional right, the courts will look for specific provision or necessary implication to that effect … But in all this odyssey of jurisprudence, we do not lose sight of the fact that the courts are not primary decision makers in areas such as housing policy. Strasburg confers a wide 'margin of appreciation' in such matters … 'Margin of appreciation' is, of course, a concept apt only to reflect the necessary distance from which an international tribunal must view the affairs of a nation State subject to its jurisdiction. But our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny."

iv) Finally in Michalak (a case relating to limitations to succession on the death of a council tenant) Brooke LJ said, at para 41:

"It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms. "

14. It is, as will be seen, common ground between the parties, or at any rate was not seriously challenged by the Claimant, that there has been objective justification for the lack of security of tenure of gypsy occupiers of council sites. The Claimant's case is that that is no longer the case. The onus of proving justification as of today still lies firmly on the Defendant; but, even if there is not a question of an evidential onus lying on the Claimant to show a change of circumstances, it must surely be the case that such context makes it the more difficult to dispute that a justification which did exist until very recently still exists. It is obviously not as straightforward as the case in which a policy endorsed by statute is now, as from October 2000, capable of challenge under the Human Rights Act, and is contended, and found, never to have been compatible with the ECHR.
15. I asked in the course of the hearing, and indeed at the end of it, for any help from the parties as to what seemed to me to be a very significant question, namely whether there was any reported or unreported authority dealing with the situation where there had been justification, but allegedly was no longer. During the hearing my attention was drawn to R v Secretary of State for Employment ex p. Seymour-Smith [2000] 1 All ER 857. This was not strictly a case under the Human Rights Act, as it antedated October 2000, but there were analogous questions by reference to Article 141 of the EC Treaty. The issue before the House of Lords was whether the indirect discrimination against women resulting from the minimum two-year qualification period for unfair dismissal, referable to a 1985 Statutory Instrument, could be justified. The House of Lords (by a majority) concluded that:

i) there was objective justification for the 1985 Order at the time.

ii) the Government was entitled to allow a reasonable period to elapse before deciding whether the 1985 Order had achieved its stated objective, and, if not, whether or not it ought to have been replaced with some other measure or simply repealed. The implementation of any such decision would have required more time, and the Government could not reasonably have been expected to have completed all the requisite steps by May 1991, the relevant date in that case.

iii) the Secretary of State had discharged the burden of showing that the 1985 Order was still objectively justified in 1991.

Lord Nicholls said, at 873:

"A measure may satisfy Community law when adopted, because at that stage the minister was reasonably entitled to consider the measure was a suitable means for achieving a legitimate aim. But experience of the working of the measure may tell a different story. In course of time the measure may be found to be unsuited for its intended purpose … Then the retention in force of a measure having a disparately adverse impact on women may no longer be objectively justifiable. In such a case a measure, lawful when adopted, may become unlawful. Accordingly, if the government introduces a measure which proves to have a disparately adverse impact on women, the government is under a duty to take reasonable steps to monitor the working of the measure. The government must review the position periodically. The greater the disparity of impact, the greater the diligence which can reasonably be expected of the government. Depending on the circumstances, the government may become obliged to repeal or replace the unsuccessful measure. …

The government was entitled to allow a reasonable period to elapse before deciding whether the order had achieved its objective and, if not, whether the order should be replaced with some other measure or simply repealed. Time would then be needed to implement any decision. I do not think the government could reasonably be expected to complete all these steps in 6 years, failing which it was in breach of Community Law. The contrary view would impose an unrealistic burden on the government in the present case."

16. Since the hearing I have been referred by the parties, at my express request, to such authorities as they could lay before me in which the grant or refusal of a declaration of incompatibility has been in issue. Among those authorities the only one, which both parties expressly referred to me, in which the issue relevant to this case arose, namely whether, where there had been justification, such justification still applied, was a lengthy and illuminating decision of Moses J in the Administrative Court in Hooper and Others v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin) (unreported), which the parties have informed me is currently awaiting consideration by the Court of Appeal. There were a number of issues in Hooper, but the relevant question for our purposes related to what was called Widow's Pension, by reference to section 38 of the Social Security Contribution and Benefits Act 1992 ("the SSCBA"), in relation to which a declaration of incompatibility was being sought (as indeed it was in relation to certain other statutory provisions).
17. Moses J in paras 106-7 of his judgment lucidly set out his general approach to the issue of justification:

"106. I suspect that it is neither possible nor productive to determine with any precision the degree of deference to be paid to the legislature when the issues concern social and economic policy and the constitutionally important right not to be discriminated against on the ground of gender. It seems to me that the court can have regard to both those features by, on the one hand, subjecting the reasons advanced by the Government to a degree of scrutiny commensurate with the importance of the right. In so doing the court is merely exercising judicial techniques with which it is familiar. Whatever expression is used ("are the reasons compelling? Do they stack up?") a court is unlikely to find justification where the reasons advanced do not support the conclusion. It is true that, for example, statistics require skilled evaluation, but if, in the course of a lengthy affidavit, the expert (Carol Freer) does not persuade the court, then I can see no reason why the court should be inhibited from saying so. If the reasons advanced by the Defendant are insubstantial, or even if they are substantial, they do not persuade me, I shall decline to find any objective justification.

107. On the other hand, in relation to the issue as to whether an alternative could have been adopted, it seems to me that the court should adopt a restrained approach. That question directly engages questions of social and economic policy with which the court is ill equipped to deal. It concerns the appropriate allocation of resources. In so far as the justification is attacked on the basis that the solution was not the best which could have been devised, I shall adopt an approach derived from Mellacher. I shall not substitute my view for that of the Government in relation to alternative solutions."

18. But with regard to the issue in question, by reference to there having been historic justification for the difference in treatment, he said as follows:

"111. …True there ought to have been a growing appreciation of a disproportionate impact of affording benefits only to women. But nonetheless the Government was entitled to a period for considering the affect of the increasing part women had to play within the labour market, and, secondly, the Government was entitled to a period to correct the effects of a discrimination which was no longer justified. The Government is under a duty to monitor measures, which may have a discriminatory effect on one gender, but is also entitled to a period not only to monitor those effects but to correct them."

19. He continued as follows:

"115. In determining how to target resources to those in need, the legislature is entitled to impose "bright line" rules which are easy to apply and which may not focus with precision on the merits of individual cases. No logic can indicate where the balance should be struck; evaluative judgments are required, based on experience. A system which avoids undue cost of administration by virtue of finely calibrated rules may lead to a correspondence between those rules and the underlying rationale which, in the instant case, is to target those most in need. But such bright line rules in the context of social and economic policy do not lead to incompatibility even if individual hardship is occasioned. Examples may be readily found in such cases as Mellacher … in which the Court acknowledged an objective basis for the rules which did not correspond exactly to their rationale. Thus the ambit of the rule need not be coterminous with its rationale. For that reason I reject the challenge to the Government's failure to adopt the proposal of the EOC, based upon individual circumstances. The Government was entitled to avoid complex and expensive assessments of need."

20. After setting out further reasons, Moses J concludes as follows:

"118. For these reasons, I conclude that the Government was entitled to wait until 1998 to produce its consultation paper, and entitled thereafter to wait until April 2001 before introducing measures designed to achieve equality. Parliament was far better placed than the court to make an overall assessment of how limited resources should be allocated to meet need, and when the time had arrived for removing an advantage afforded to women to compensate them for their historical disadvantage in the labour market. That the right to non-discrimination on the grounds of gender is fundamental to democracy cannot be gainsaid, but in the instant case objective justification for such discrimination in the past has been advanced. The reasons for not introducing change earlier have been, to my mind, substantiated. The time taken to make changes seems to me to have been a reasonable and proportionate response to the problem."

21. As can be seen, there was in that case, in the event, statutory change as from 2001 (when, it seems, the Welfare Reform and Pensions Act 1999 was implemented), but, while making a declaration of incompatibility in relation to two other statutory provisions, he did not make such a declaration in respect of Widows Pension, i.e. he was satisfied that there had been objective justification for the Widows Pension and, similarly to the House of Lords in Seymour-Smith, concluded that the period up to 2001 was no more than a reasonable time for recognition of the absence of justification, and correction accordingly of the discrimination.
22. The justification which there has been for the absence of security of tenure for gypsy caravan dwellers on council sites, which is still the justification presently put forward by the Secretary of State, can be summarised as follows:

i) Nomadism. The whole raison d'etrê for gypsy culture and identity, and indeed its defining factor, given the absence of necessary ethnicity – not all gypsies are Romanies, not least the so-called New Travellers – is nomadism. Hence the definition in section 16 of the 1968 Act set out in paragraph 2 above.

ii) Site Availability. There must be a substantial availability of sites for gypsies. Stanley Burnton J referred to the problem of 'balance' in general term in Isaacs in para 33:

"… statutory regulation of housing and the consequences of such regulation are matters of some complexity. For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960s, security of tenure for residential tenants and control of rents were reimposed under the Rent Act 1965. Doubtless those measures were in the short term interests of residential tenants. However, in the long term, they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest."

The submission is thus that it is no good clogging up all caravan sites with those who do not move, and effectively removing them from the stock of available sites, by giving security of tenure.

iii) Flexibility. This is reflected in the decision in Isaacs. There is a stock of secure pitches on private sites, where there is security of tenure by virtue of the MHA. It is in respect of private sites that protection from commercial exploitation is necessary, and in any event the safeguard of administrative law remedies is not available. Such is not necessary in regard to council sites. Thus the necessary 'mix' of private and council, secure and unsecure, pitches, is maintained.

23. Mr Gahagan most clearly sets out the effect of these justifications in combination at para 15 of his reply witness statement:

"There are limited resources for providing publicly funded accommodation, whether it be for gypsies or members of the 'settled' community. The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life. There are other alternative forms of occupation for those with a settled way of life, which are as equally available to gypsies as they are to any other person. However, if accommodation which was intended for those with a nomadic way of life could become converted into accommodation for those with a settled way of life just by the life choices made by the occupants, then this would make planning for nomadic persons by local and central Government very difficult."

24. Dr Kenrick, while not challenging the historic justification, submits that it no longer applies:

"44. Mr Gahagan states that the legislation regarding gypsy accommodation is tailored so as to facilitate a nomadic way of life … The fact is that the nomadic way of life is ending for most gypsies, and therefore the existing legislation is unsatisfactory …

66. In conclusion, the situation today is very different from what was envisaged at the time of the 1968 … Act and the [MHA]. The examples I have given of low turnover and lack of vacancies show that council sites are becoming permanent residences for most of the families. They often have mobile homes and utility buildings. In this changed situation there seems no reason why residents should not have the same right as the tenants of council housing or non-Gypsy mobile home sites."

25. I turn then to the facts as put before me. So far as concerns the Claimant himself, and the Council site where his caravan is pitched, the precise picture is clearly of no particular significance, apart from context setting, to the macro dispute; while the micro dispute is of no continuing relevance, now that his own individual position has been resolved. There are, it seems, 16 pitches on his site, and from the descriptions given by him 9 or 10 or the pitches are occupied by permanent residents. Ms Williams on behalf of the Council, in her description of the site, refers to 11 of the pitches being occupied by what she calls 'long-term' or 'permanent' residents. The Claimant in his own statement says that he has been a permanent resident at the site for at least 11 years, and describes why he 'would not wish to go back to life on the roadside'. He refers to the hardships – the lack of electricity and water (resolved by the 'amenity blocks' which are present at his permanent site): the difficulty if not the impossibility of ensuring proper education for children: the absence of security from theft or vandalism by strangers: the constant subjection to being 'moved on'. He relates that when he first moved on to the site he had only his touring caravan, but soon, like most of the residents on the site, acquired a mobile home alongside his touring caravan. He describes how, whilst leaving the mobile home behind, he tends to travel off the site in his touring caravan with the whole family for visits to relatives, fairs and other short breaks, for two or three weeks at a time, perhaps two or three times a year.
26. On the basis of the most recent figures (January 2002) there are either 324 or 325 local authority gypsy sites, offering 5005 pitches (307 of the 5005 are specifically 'transit' pitches). There are 13,612 gypsy caravans (compared with 3209 recorded in 1965 and 8358 in 1979), of which 45% were recorded as on authorised council sites, 34% on authorised private sites and the remaining 20% on unauthorised sites.
27. As to this macro picture, Mr Gahagan in para 36 of his witness statement explains the "degree of flexibility available to occupiers of local authority gypsy sites, in order to accommodate a nomadic lifestyle, such as allowing gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, whilst paying a reduced rent as a retainer for the few months whilst they may be travelling in search of seasonal work". At para 42 he says as follows:

"The separate statutory frameworks allow for flexibility in meeting the accommodation needs of gypsies. In my view, a statutory framework giving security of tenure to occupiers of local authority run gypsy sites would be detrimental to the interests of gypsies throughout the country, as this would undermine the flexibility that such sites provide in catering for the varied lifestyles of gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a gypsy site, whether or not they pursue a nomadic life style. Inevitably, fewer sites, if any, could be made available specifically for gypsies pursuing a nomadic life style."

28. At paragraph 10 of his reply witness statement he points out as follows:

"Gypsies may go through stages in their life when they prefer not to travel, e.g. when they are securing education for their children, or when a family member is ill. However, they may wish to resume a nomadic lifestyle later in their life. It is therefore still the Government's policy that accommodation exclusively aimed at gypsies should facilitate nomadism, as this is the legal distinction between that group of persons and occupants of other caravan sites. I have not seen sufficient evidence to support what is said [by Dr Kenrick] in paragraph 44 [which I have quoted in paragraph 24 above] that the nomadic way of life is ending for most gypsies."

29. Dr Kenrick is a highly qualified expert. He has been heavily involved in the Gypsy Council, and the National Gypsy Education Council, is the Chairman of the Romany Institute, has written five books on the subject, has been consulted in relation to Government circulars and holds a number of other relevant positions. He describes the history of the relevant legislation in terms not greatly different from Mr Gahagan. He points out that the Circular (49/68), which accompanied the 1968 Act, assumed that 20% of gypsy families would continue to travel. He says that this is no longer the case. Shortfall in the availability of pitches "made families with a pitch reluctant to leave a site and travel, as they might not be able to get a place on another site elsewhere in the country. They either stayed put – or if they moved off to travel – reserved their pitch to come back to later" (paragraph 21 of his statement); and seasonal movement is provided for by the availability of transit pitches, in respect to which the Secretary of State has recently (July 2002) announced the provision of further funding. He recognises that in relation to the period as long ago as 1986 – 1987 the picture was described, on the evidence before him, by Lord Bridge, in his speech in Greenwich LBC v Powell [1989] AC 995 at 1009, of gypsies remaining in occupation on local authority sites for most of the year, with a substantial number of occupants being absent for up to 20 weeks a year, but (at 1011) returning to it year after year "as their permanent residence"; and yet Lord Bridge recited and accepted the position (at 1012) that "local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residents acquiring any degree of permanency". But Dr Kenrick says the position has substantially moved on now. He records in paragraph 44 that "for the small minority that still travel all the year round there [is] the existing small number of transit sites". He points out at paragraph 47 that "councils have encouraged families to remain permanent residents of their sites by allowing them to leave for perhaps 6 weeks (in Greenwich at the time of [Powell] it was 20 weeks) and pay half rent or no rent while they are away. The pitch is reserved and no-one else would be allowed on it. This worked both to the advantage of the council and the gypsies. The former would get back a known family and the gypsies would have a guaranteed winter site. The children could, of course, continue at the same school in September as they had left in July". He refers to the problems of, and disincentives to, nomadism, which I have already set out by reference to the Claimant's evidence. In addition he would add (i) the safety advantages of having a cooker and washing machine in the utility block rather than in a caravan (ii) the availability of local clientele, for traditional gypsy livelihoods such as tarmacing or paving, if they remain stationary (iii) the greater ease of travelling to work and returning home in the same day in motorised transport rather than in the traditional horse-drawn caravan (iv) the availability of a substantial mobile home (v) not only easier access to education but (as pointed out by Mr Gahagan) also to medical assistance for the more elderly. He gives some anecdotal evidence of low turnover on council sites, although he accepts there are so far no published national statistics on turnover.
30. As I have explained in paragraph 9(i) above, the most significant feature in the evidence before me has been the October 2002 Report, to which I now turn. The following matters can be drawn from it:

i) While the legal definition of gypsy is by reference to s16 of the 1968 Act (set out at paragraph 2 above), the ethnic definition of gypsy for the purposes of the race relations legislation is to 'traveller' and the practical approach is by reference to the establishment of a "substantial nomadic habit of life". (Page 7 of the Report.)

ii) As to travelling, "not all ethnic Gypsies and other Travellers travel regularly. A range of travelling patterns exists. Frequency of travel ranges from full-time Travellers with no fixed base, to families who live in one place most of the year, but still travel with living vehicles for holidays or family events. Some travel long distances across regions and even countries, while some regular travellers never leave a single town. Travelling is part of the cultural heritage of traditional Gypsies and Travellers, and is still culturally important, even for those who no longer actively travel … There are some indications that fewer Gypsy/Travellers now travel full time, and some have 'settled', for a combination of reasons related to personal circumstances, greater difficulties in travelling and finding safe places to stop, and a desire for a more comfortable life style and education for children. However, it would be unwise to assume that any trend towards greater 'settlement' is universal, or uni-directional. Individuals can pass from one pattern of travelling to another in line with family cycle, health and personal circumstances." (P8 of the Report.)

iii) There is a distinct difference between residential pitches and transit pitches, and the amenities and facilities provided, and needs catered for, at each (p5 (third bullet), p10 last paragraph, p17 table 2, p19 and p41 of the Report). As to transit pitches: "An unknown proportion of Gypsies and other Travellers still actively travel, whether throughout the year, seasonally or on special or family occasions. Those who travel throughout the year may have no fixed base at all … There is little formal provision to accommodate Travellers and their trailers while on the road. There are just over 300 transit pitches provided on local authority sites". (P41 of the Report).

iv) With regard to turnover on residential sites/pitches: "Most residential Gypsy/Traveller sites appear to have very low turnover, and are stable. Most residents have lived on site for three years or more on 86% of sites. At the other extreme, however, a few sites are very unstable. Sometimes this is due to special circumstances such as site refurbishment or a site re-opening after a period of closure. In other instances, it appears to be due to 'real' turnover with high numbers of pitch vacations and relapse. On the case study residential sites, most families do not travel or travel only for a short period for family or holiday purposes. Some family members may travel leaving other family members behind. While there are exceptions, the general picture built up of residential Gypsy/Traveller sites is that they are stable, with long-term residents who travel little during the course of a year. It may be that, for many residents, the attractions of a site lie in the possibilities of living in a trailer (attractive for cultural reasons and for leaving the travel option open) and of living within a culturally distinct community among friends and family. This is not necessarily the same as meeting the needs of a nomadic or semi-nomadic population. For many residential site residents, nomadism appears to be a spiritual and cultural state of mind, rather than a day-to-day reality" (Pages 28-9): "The interviews with Gypsies and other Travellers also covered attitudes to travelling and its future. Many traditional Gypsy/Travellers have concluded, in the light of all the difficulties involved, that the travelling way is becoming less viable. Some think it is more-or-less finished already, others think it is still alive, but only accessible to a dwindling and determined minority and probably on its way out. Others believe that Travellers will always go on travelling, whatever the difficulties" (p42).

v) "Another very clear conclusion from the research is that Gypsies and other Travellers are often socially excluded and still suffer discrimination in many areas of life. There is a need for a clear central lead to affirm the legitimacy of a nomadic way of life and to challenge racism and discrimination against Gypsies and other Travellers. There is also a need to make Gypsies and other Travellers less 'invisible' in policies aimed to help socially and economically disadvantaged groups" (p49).

vi) Finally, with regard to the future: "There is a widespread assumption that local authority residential sites will remain important in the provision of accommodation for traditional Gypsies and other Travellers, catering especially for those who want a fairly settled life style without entirely abandoning the culture of living in a trailer, and keeping open the option of travelling for short periods, but who do not have the financial or other resources needed to buy land for themselves" (p41): "Another approach worth considering is to bring site provision more closely within mainstream housing. Given the stability discovered on many residential sites, it seems entirely appropriate to see them as a form of specially adapted housing for Gypsies and other Travellers … Housing associations could become involved in site provision and management, and the Housing Corporation could provide social housing grant as for other general and special needs housing. Issues around site licensing and model standards, and tenure (that is whether or not the [MHA] might apply) would need to be clarified" (p52): "Residents of residential Gypsy/Traveller sites are licensees with only basic protection against harassment and illegal eviction. Many Gypsy/Travellers and their supporters argue strongly that this is not appropriate and puts Gypsies and other Travellers at a serious disadvantage relative to social housing tenants and especially secure council tenants. Given the changes in tenancies currently being considered, it would be worth thinking further about the status of site residents. However, we believe that a right to buy would cause considerable problems for site managers if exercised on a piecemeal individual basis" (p54).

31. It is plain that there is a considerable distinction already, in relation to local authority sites, between residential sites, or at any rate residential pitches, and transit sites or transit pitches. It can thus be seen that any legislation introduced to provide security of tenure could include the following:

i) Provision for the considerable majority of gypsies/travellers who do not travel except for a few weeks or months in the year: this could be by the provision of security of tenure, together with a crystallising of the provision for the payment of half rent for a maximum period of say 20 days per year if the site is left unoccupied (not of course necessary if family residents remain behind).

ii) Increased provision for those who do travel, by the provision of additional transit sites/pitches, to be excluded from security of tenure.

It is not necessary to await such new legislation before concluding that the present legislation is not or no longer justified. That is part of the advantage of our system of making a declaration that legislation is incompatible with the ECHR but without immediate effect on it. In his skeleton argument Mr Luba QC stated that it was "for Parliament to rectify the situation: by these proceedings the Court is invited to provide the necessary 'prompt' by the method of grant of the declaration of incompatibility". He submits that I have no need to be certain as to what the new legislation would consist of, but simply to be satisfied that the Secretary of State has failed to satisfy the onus of showing the present situation is any longer justified.

32. It is plain from the passages from the October 2002 Report that I have cited that it is now accepted that there is a substantial majority that no longer travels for any material period, albeit that there is a substantial minority that does travel. No figures have been produced, and, as Dr Kenrick himself has pointed out, no statistics as to turnover yet exist, but the varied passages from the Report which I have cited in paragraph 30(vi) show that it is accepted that some thinking must now be done. Nevertheless, when asked by me whether the Secretary of State wanted an adjournment to consider the position further, Mr Mould clearly stated that no such adjournment was sought, and that his case remains that, rethink though there plainly is going to be, the Secretary of State still accepts the onus of showing that the present legislation can still be justified. This is not a case, as adumbrated in Seymour-Smith and Hooper, where the Government now accepts that the position can no longer be justified, but asserts an entitlement to a period to correct discriminatory effects before a declaration is made (para 111 of Hooper), but rather a situation where the Government is still in the process of monitoring the position and, until it reaches a conclusion, asserts that the present position can be justified.
33. If this were simply a matter of concluding that there is now a substantial majority of gypsies who are no longer nomadic, whose position can be immediately safeguarded by some new legislation of the kind discussed in general terms in paragraph 31 above, I would not feel inhibited either by the well-established principles of allowing deference and/or a margin of appreciation to Government or Parliament (see the recent decision of Mendoza v Ghaidan [2002] EWCA Civ 1533), nor in particular by the principle enunciated by the Court in Mellacher, which I have cited in paragraph 12 above, whereby the "possible existence of alternative solutions does not in itself render the contested legislation unjustified". However I am satisfied that the position is not so straightforward. There is, in my judgment, quite apart from any simple question of giving security of tenure to those in council caravan sites, a necessary, indeed crucial, concomitant question to be considered and resolved, before it can be concluded that the present position is unjustified. I conclude that there is a very difficult question of how to define gypsies, to whom security of tenure in such sites is to be given (if it is). If security of tenure is to be given to all long-term caravan occupiers on council sites, as they are on private sites, then how, if at all, is there to be any differentiation between gypsy/traveller such occupiers and any other occupiers who wish to place a mobile home on a Council site, with security of tenure? And if there is to be no such differentiation, then the last state of gypsies whose cultural heritage or spiritual and cultural state of mind is nomadism or travelling may be worse than its first. At present that actual or potential nomadism ("a substantial nomadic habit of life") is the justification both for the lack of security of tenure and also for the special arrangements for local authority sites catering especially for them, i.e. within section 24 of the Caravan Sites and Control of Development Act 1960. Dr Kenrick himself refers obliquely to the problem, in paragraph 53 of his witness statement: "The residents of council sites do not have to retain their Gypsy status (by travelling for an economic purpose …) in order to retain their pitches".
34. I have already cited the persuasive paragraph 42 of Mr Gahagan's first statement at paragraph 27 above, and I am also influenced by paragraph 15 of his reply statement, cited more fully above at paragraph 23:

"The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life. There are other alternative forms of accommodation for those with a settled way of life, which are as equally available to gypsies as they are to any other person."

35. I am satisfied that what Moses J referred to as a bright line rule in Hooper at para 115, namely (in this case) the absence of security of tenure for all gypsies/travellers on all local authority sites, is still appropriate and justified. I have no doubt that the Government will indeed give further thought to the position, as indicated in the October 2002 Report, will obtain the necessary further statistics and will, pursuant to its own declared intention to give protection to gypsies and their way of life, continue monitoring the present position. Meanwhile the safeguard of judicial review remains, and, although there is some discussion in the Report (pp246-7) about the present lack of security of tenure, eviction of residential gypsy occupiers on local authority caravan sites is not flagged up as a present problem.
36. For these reasons, and on the evidence presently before me, I do not declare that the present legislation, namely Part I of the 1968 Act, is incompatible with the Claimant's Convention right under Article 8.