‘But the harsh reality is that Gypsies and Travellers face disadvantage and discrimination in almost all walks of life – including in key public service areas such as accommodation provision and planning, education, health, employment and criminal justice. Recent research shows that the public hostility to Gypsies and Travellers is unmatched by that shown towards any other community – even asylum seekers and refugees. Decades ago ‘No blacks, no Irish, no dogs’ signs in pubs and shops were commonplace – thankfully times have changed – however, sadly ‘No Travellers’ signs are still widespread.’ [1]

Trevor Phillips

CRE Chair

Chapter 1. INTRODUCTION

a) Introduction

The legislation and case law referred in this Thesis is correct at 31 January 2005.

Gypsy Travellers represent one of the most socially excluded and discriminated against minority communities in the United Kingdom. As a result of this social exclusion the community has a lower life expectancy[2] and higher infant mortality rate[3] than the settled community and is denied many rights that the settled community takes for granted.

Invariably, Traveller accommodation sites are located on the periphery of settled communities with a lack of adequate site provision for the numbers of Travellers nationally. This avoidance by society of the community has led to discrimination and social exclusion.[4] Gypsy Travellers effectively live on the fringes of society and represent one of the most discriminated against minority groups. Legal study has been neglected throughout the United Kingdom and Europe, including Scotland, regarding the application and interpretation of legislation, which may assist in protecting this community. At the time of writing this thesis there is only one - and very recent - publication devoted to Gypsy and Traveller Law, which examines existing law in England and Wales.[5] There are no other legal publications devoted solely to Gypsy and Traveller law and rights at present.

The objective of this thesis is to provide a critique of the relevant law. The thesis also aims to identify rights, obligations and duties contained in current legislation to inform current and proposed policies designed to address mainly Gypsy Traveller accommodation issues. It is intended that this critique can be utilised, by its addition to current academic literature, to raise policy makers’ awareness of the status of the Gypsy Traveller community, particularly within current legislation, to address the discriminatory practices the community is subjected to. Additionally, by raised awareness of the community’s rights, obligations and duties, it should ensure that all current and proposed legislation can be interpreted in a way which will assist with and increase the social inclusion of the Gypsy Traveller community.

Whilst this thesis examines the application of rights, obligations and duties in Scotland, much of the relevant legislation is applicable to the rest of the United Kingdom, with Council of Europe and European Union legislation having a Europe wide application. Many of the identified rights, obligations and duties therefore have application outwith Scotland and the United Kingdom. The recognition and application of these rights, obligations and duties within Europe are also of importance given that in many EU States Gypsies are subjected to greater discrimination and social exclusion than in the United Kingdom.[6]

b) Prejudice

The first authenticated records indicate that Travellers have been present in the United Kingdom for approximately 600 years.[7] Shortly after their arrival Romanies were subjected to prejudice from the settled society that has continued towards all Travellers in varying degrees to the present day.[8]

In his publication ‘The Nature of Prejudice’ [9], Gordon Allport attempted to identify the different degrees of negative action shown towards groups that people dislike.

‘1. Antilocution. Most people who have prejudices talk about them.

With like-minded friends, or occasionally with strangers, they may express their antagonism freely. But many people never go beyond this mild degree of antipathetic action.

2. Avoidance. If the prejudice is more intense, it leads the individual to avoid members of the disliked group, even perhaps at the cost of considerable inconvenience. In this case, the bearer of prejudice does not directly inflict harm upon the group he dislikes. He takes the burden of accommodation and withdrawal entirely upon himself.

3. Discrimination. Here the prejudiced person makes detrimental

distinctions of an active sort. He undertakes to exclude all members of the group in question from certain types of employment, from residential housing, political rights, educational or recreational opportunities, churches, hospitals or from some other social privileges. Segregation is an example of an institutionalised form of discrimination, enforced legally or by common custom.

4. Physical attack. Under conditions of heightened emotion prejudice

may lead to acts of violence or semi violence. An unwanted Negro family may be forcibly ejected from a neighbourhood, or so severely threatened that it leaves in fear. Gravestones in Jewish cemeteries may be desecrated. The Northside’s Italian gang may lie in wait for the Southside’s Irish gang.

5. Extermination. Lynchings, pogroms, massacres, and the Hitlerian programme of genocide mark the ultimate degree of violent expression of prejudice.’ [10]

Whilst based on experiences following the holocaust and discrimination against the black community in the United States of America in the first half of the 20^th century, the ‘Allport Scale’ is still relevant today and a recognised resource in current diversity training in Scotland.[11] It is argued that members of the Gypsy Traveller community are subjected to all levels of the ‘Allport Scale’, even, it could be argued, the potential extermination in the sense of the total eradication of the community’s nomadic lifestyle in the form of policy making which attempts to end this lifestyle by lack of recognition of the Gypsy Traveller community’s culture and the provision of suitable accommodation. It is however recognised, by the author, that Allport was influenced by the holocaust during the Second World War when referring to extermination in the ‘Allport Scale’. Reference to extermination in this thesis does not seek to minimise the suffering and loss of life during the holocaust but to identify the ending of a culture i.e. nomadism within the Gypsy Traveller community.

1. Antilocution. It is frequently the case that individual members of society voice antagonism towards Gypsy Travellers either by word of mouth and often the case that the media engage in reporting which is anti-Traveller.[12]

2. Avoidance. Many members of society avoid contact with members of the Gypsy Traveller community because of their perceptions and stereotypes about the community. Additionally public policies towards the community frequently result in the location of authorised Gypsy Traveller accommodation sites being in isolated locations.[13]

3. Discrimination. Exclusion of the Gypsy Traveller community has and occasionally still does occur in public policies.[14]

4. Physical attack. Attacks on members of the community are not uncommon, varying in intensity from minor assault to murder.[15]

5. Extermination. Although not extermination as understood and interpreted by Allport following the holocaust during the Second World War, it is suggested there have been attempts to exterminate the culture of nomadism within the Gypsy Traveller community in recent public authority policies[16] producing a lack of available suitable accommodation for the community. This has forced many members of the community to abandon their nomadic lifestyle to live in settled housing. In many ways it can be interpreted as an attempt to end Gypsy Travellers’ nomadic lifestyle and substitute one of sedentarism.

A case study on Prejudice and Racism is detailed in Appendix 1

c) Social Inclusion

The government and public authorities in their respective policies frequently use the term social inclusion. The Centre for Economic and Social Inclusion, an independent, non profit organisation dedicated to promoting social justice, social inclusion and tackling disadvantage, defines social inclusion as:

'….. the process by which efforts are made to ensure that everyone, regardless of their experiences and circumstances, can achieve their potential in life. To achieve inclusion income and employment are necessary but not sufficient. An inclusive society is also characterised by a striving for reduced inequality, a balance between individuals’ rights and duties and increased social cohesion'.[17]

With regard to the Gypsy Traveller community the government’s Social Exclusion Unit research provides an insight into the areas of law and legislation that can make a significant impact on the social inclusion of the community.

‘…..some people are significantly more at risk than others. Research has found that people with certain backgrounds and experiences are disproportionately likely to suffer social exclusion. The key risk factors include: low income; family conflict; being in care; school problems; being an ex-prisoner; being from an ethnic minority; living in a deprived neighbourhood in urban and rural areas; mental health problems, age and disability.’ [18]

By identifying rights, obligations and duties applicable to the Gypsy Traveller community, it is possible to argue convincingly and persuasively for the social inclusion of this and other nomadic communities and the protection of their respective nomadic lifestyles.

d) Rights and Obligations/Duties

For the purposes of this thesis it is intended that, when referring to rights, obligations and duties relative to the Gypsy Traveller community, the author is referring to Rights as the legal claims Gypsy Travellers’ may make which are contained in statutes and treaties.

The term Obligations refers to other legal forms of responsibilities derived from international law, but originating mainly in the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) jurisprudence, and owed to Gypsy Travellers’ by public authorities.

The term Duties refers to statutory duties contained in domestic legislation and case law imposing duties on public authorities to give effect to Gypsy Travellers rights and obligations.

The British sociologist T.H. Marshall[19] was the principal theorist of the concept of ‘Social citizenship’.

He defined citizenship as:

‘Citizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status was endowed.’ [20]

The concept of Social citizenship is relevant and considered of importance by the author of this thesis, given the predicament of the Gypsy Traveller community in the United Kingdom at present. The concept of equality between those qualifying for citizenship including the rights and duties owed to them is very persuasive regarding the Gypsy Traveller community.

Marshall distinguishes three layers of rights and how they had evolved historically. The first layer comprises civil rights, i.e. rights concerning individual freedoms, which are associated with society such as freedom of speech. The second layer comprises political rights i.e. democratic rights such as participation in elections or membership of a body with political authority. The last layer of rights identified is that of social rights i.e. economic and welfare rights with the right to a minimum standard of welfare and income. This theory proposes that, by provision of these rights, in the case of civil rights society moderates the impact of force, violence and conflict in relations between people, political rights recognise an individuals capacity to participate in government of the whole community and governance of their own individual lives and social rights secure a minimum standard of economic well being. Marshall, in his work, identified the historical development of these rights with civil rights developing in the 18^th century, political rights in the 19^th century and social rights being a relatively new concept originating in the 20^th century. Marshall recognised that all these rights were not mutually exclusive with some rights capable of being regarded in more than one classification e.g. free speech can be interpreted as both a civil and political right. It is also relevant that civil/political rights have minimal costs where as social/economic rights have economic costs.[21]

When considering rights contained in legislation, commentators frequently make reference to positive and negative rights and obligations. This terminology creates the impression that, to ensure that a positive right or obligation is maintained and protected, there is a requirement to take some form of action or to do something and similarly, to maintain and protect a negative right or obligation, there is a requirement not to take some form of action or not to do something. When implementing policies towards the Gypsy Traveller community it is not uncommon to find the interpretation of any obligations for example, regarding Article 8 of the ECHR, the right to respect for private and family life, by authorities as a negative right with no obligation to take positive action regarding that right. This response to Article 8 rights, and unauthorised encampment by Gypsy Travellers in particular, is frequently adopted by public authorities, it is argued, ignoring their obligation and duty to provide suitable accommodation which could eliminate or greatly reduce occurrences of unauthorised encampment and indeed assist in facilitating the Gypsy Traveller way of life and culture. It is important to realise that negative rights have little or no financial cost or impact whilst positive rights do have a financial cost. It is suggested that the financial considerations of site provision have been and are a very real consideration in the implementation of positive rights.

Professor Henry Shue carried out a philosophical analysis, which argues against the traditional distinctions generally held between positive and negative rights based on the former imposing positive duties and the latter negative duties.[22]

He suggests that there are three types of duties attached to each basic right:

i. Duties to avoid depriving.

ii. Duties to protect from deprivation.

iii. Duties to aid the deprived.[23]

Basic rights therefore should, it is argued in this thesis, be examined with reference to duties attached to each right and it is argued each right contains all three types of duties to varying degrees.

As an example, in the context of Gypsy Traveller rights, we can examine the impact of Article 8 of the ECHR (the right to respect for private and family life), where a Gypsy Traveller family is encamped on an unauthorised encampment. How can that right be protected if there is no alternative lawful site available in a particular area?

It is argued that there may be a duty not to remove the family, that is a duty to avoid depriving. A duty to tolerate the unlawful encampment when no other legal sites are available, irrespective of the illegality of the encampment by Courts not granting an eviction order or other judicial remedy to remove the family, a duty to protect from deprivation. A duty to provide a legal site to ensure the family can continue their nomadic lifestyle, a duty to aid the deprived.

Whether a basic right is classified initially as either positive or negative it should be regarded as containing all three types of duties and even the most negative of rights may require some positive duties. As previously discussed, public authorities frequently adopt a stance of taking no action regarding unauthorised encampment issues, on the grounds that any action would interfere with the community’s Article 8 rights, ignoring any positive duty to facilitate this lifestyle. This perception that the community’s right to maintain its nomadic lifestyle is a negative right which never requires any positive action is wrong and, whilst this simplistic view appears to ensure this right, it ignores the rights and obligations to facilitate the Gypsy way of life, in compliance with domestic law, and results ultimately in the increased social exclusion of the Gypsy Traveller community.

The abovementioned theory has particular relevance and importance regarding Gypsy Traveller rights and obligations and is relevant in the interpretation of the legislation detailed in this thesis as rights and obligations will consist of a mixture of positive and negative duties, a fact often ignored. It is suggested that the theoretical examination provided above is therefore very persuasive when examining approaches to Gypsy Traveller rights and obligations.

e) Methodology

The objective of this thesis is to identify rights, obligations and duties identified in legislation, particularly human rights legislation, and case law, which can overcome the social exclusion and discrimination Gypsy Travellers are subjected to, and reinforce the rights, obligations and duties relevant to and owed to this community particularly regarding accommodation issues.

Of particular importance is legislation that impacts on the areas of race relations, human rights, and domestic legislation relevant to accommodation issues. The following areas of law, that have particular relevance to these areas, are examined:

a) Race discrimination legislation.

b) Council of Europe treaties and texts.

c) EU treaties and texts.

d) United Kingdom human rights legislation and its impact on Planning, Housing and Education.

e) Other areas of domestic law and its application to the community regarding Planning, Housing and Education legislation.

The thesis examines initially Race Relations legislation, to establish if the Gypsy Traveller community satisfy the relevant conditions classifying the community as a racial group, which impacts on the discrimination suffered by the community particularly regarding provision of services by public authorities. Thereafter European legislation and texts will be examined followed by their incorporation into domestic law via the Human Rights Act 1998. Thereafter the impact of this European legislation and domestic law on the Gypsy Traveller community will be examined, primarily to identify the rights, obligations and duties owed to the Gypsy Traveller community, with an emphasis on accommodation. This emphasis on accommodation has been taken as it is strongly argued that the provision of accommodation would reduce the frequency of unauthorised encampments and ensure fixed geographic locations of sites for the Gypsy Traveller community to maintain their nomadic lifestyle. It is argued this is preferable to the random location of unauthorised encampments currently encountered and ensures the consistent provision of essential services to the community, with all the benefits to the community that brings of health care, education etc. Additionally the conflict encountered with the settled community, as a result of unauthorised encampments, would be diminished, assisting greatly in the social inclusion of the Gypsy Traveller community.

Chapter 2. RACE DISCRIMINATION LAW

a) Introduction

The term Gypsy has varied connotations dependent on an individual’s particular perception or stereotyping. In this section it will be argued that Gypsy Travellers are indeed an ethnic minority and can therefore be classed as a racial group for the purposes of current race relations legislation. Recognition of the community as a racial group would provide a degree of protection from discriminatory practices particularly in relation to the provision of goods and services, including accommodation, recognised within the legislation. This recognition would assist greatly in progressing the social inclusion of the Gypsy Traveller community.

b) Definition of Gypsy Travellers

The Traveller community is a diverse community that is difficult to define accurately. There are no legal definitions in legislation applicable to Scotland, however definitions have appeared in English legislation including the following:

‘persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such.’ [24]

and,

‘persons of nomadic life whatever their race or origin.’ [25]

In the United Kingdom there are generally held to be five main groupings of Travellers:

a) Gypsy Travellers whose membership is dictated by birth and occasionally marriage. This minority ethnic group has strong cultural ties, extended families and clans and consists of sub-groups of English, Welsh, Irish and Scottish Travellers.

b) Gypsies (Roma) who originate from Europe and have obtained refugee status.

c) Show and Fairground Travellers sometimes referred to as occupational Travellers, who consider themselves a business community. Membership of this group can be by birth however it is possible for newcomers to become part of this group. Fairground Travellers consider themselves a commercial/business group rather than an ethnic group.

d) Bargees and other groups living in boats.

e) New Age Travellers who are a diverse grouping with varying beliefs and backgrounds who live a nomadic existence.

The sub-groups of Gypsy Travellers can be classified as follows:

a) English Travellers:

‘The Romanies or ‘Romany Chals’ of England and South Wales…. numbering over 50,000 – including house-dwelling families. They previously spoke a dialect of Romani but now speak a variety of English.’ [26]

b) Welsh Travellers:

‘Some 300 persons who are descendents of the Woods and other families who migrated from the South-west of England to Wales in the 17^th and 18^th centuries.’ [27]

c) Irish Travellers:

‘…a nomadic group from Ireland…The first reliable report of their presence in England dates from 1850.’ [28]

d) Scottish Travellers:

‘…a nomadic group formed in Scotland in the period 1500-1800 from intermarriage and social integration between local nomadic craftsmen and immigrant Gypsies, from France and Spain in particular.’ [29]

There are Travellers who are members of more than one of the above sub-groups through intermarriage, which can further obscure and complicate any clear definition of each grouping.

The pattern of travelling within the Traveller community also varies from:

a) Maintaining an entirely nomadic lifestyle.

b) Residing in settled housing for part of the year.

c) Residing in authorised local authority campsites.

d) Residing in private campsites.

e) Residing in unauthorised campsites.

f) Maintaining an entirely settled lifestyle but retaining the identity of Traveller.

Recent case law[30] in Wales, regarding planning legislation, has however held that to be classified as a Gypsy the applicants had to have a ‘nomadic habit of life’ and if not, they would lose their Gypsy status in planning legislation though they could be reclassified as Gypsies if they returned to a travelling or nomadic lifestyle.

‘Whether applicants for planning permission are of a "nomadic way of life" as a matter of planning law and policy is a functional test to be applied to their way of life at the time of the determination. Are they at that time following such a habit of life in the sense of a pattern and/or a rhythm of full-time or seasonal or other periodic travelling? The fact that they may have a permanent base from which they set out on, and to which they return from, their periodic travelling may not deprive them of nomadic status. And the fact that they are temporarily confined to their permanent base for personal reasons such as sickness and/or, possibly, in the interests of their children, may not do so either, depending on the reasons and the length of time, past and projected, of the abeyance of their travelling life. But if they have retired permanently from travelling for whatever reason, ill-health, age or simply because they no longer wish to follow that way of life, they no longer have a "nomadic habit of life". That is not to say they cannot recover it later, if their circumstances and intention change, ….’ [31]

Whilst having a ‘nomadic habit of life’ has been held to be relevant in planning legislation and planning case law, it is suggested that there is a great danger in interpretation of this definition in a wider sense. To suggest that a minority community loses its cultural identity by abandonment only of its travelling or nomadic lifestyle ignores the other central/core aspects of the community’s cultural identity. Such a philosophy reflects the notion of ‘extermination’ detailed in the ‘Allport scale’ by promoting the idea that adoption of a sedentary lifestyle removes their Gypsy Traveller status entirely. Such a notion ignores the other cultural issues defining the Gypsy Traveller community such as a shared history and, dependent on which Gypsy Traveller community is being examined, a unique language. Nomadism is only a part of a Gypsy Traveller’s ethnic and cultural identity and this identity does not disappear merely because they are residing in settled accommodation. Indeed there is evidence that Gypsy Travellers are still subjected to discrimination when in settled accommodation, with many still regarding themselves as Gypsy Travellers although settled.[32]

From this brief insight into the groupings and pattern of travelling it can be seen that there is a wide spectrum of Travellers and lifestyles, making it difficult to give a precise definition applicable to the Traveller community. In this thesis the term Gypsy Traveller has been adopted to encompass all Travellers from the community who satisfy or very probably will satisfy the requirements to be classed as an ethnic minority under current race relations legislation i.e. Gypsy Travellers and Gypsies (Roma) as detailed above. This terminology closely mirrors the recommendations of the Equal Opportunities Committee of the Scottish Parliament inquiry into Gypsy Travellers and public sector policies.[33]

Whilst this terminology excludes some nomadic groups such as New Age Travellers, it is suggested that any policies applicable to the Gypsy Traveller community could also impact on such nomadic groups positively. The increased recognition of nomadism as a legitimate lifestyle by the development of holistic non- discriminatory management techniques for the Gypsy Traveller community could hopefully impact positively on service provision for those other nomadic groups not protected by race relations legislation.

c) Race Discrimination Law

The first government anti-discrimination legislation was contained in the Race Relations Acts of 1965, 1968 and 1976.

Following the death of Stephen Lawrence in 1993 and the identified shortcomings in the police enquiry the then Home Secretary set up an enquiry into the circumstances surrounding the death and to identify lessons regarding the investigation of racially motivated crime. On publication of the final report[34] the Home Secretary issued this statement:

‘…I want this report to serve as a watershed in our attitudes to racism. I want it to act as a catalyst for permanent and irrevocable change, not just across our public services but across the whole of our society.

…we must create a society in which every individual, regardless of colour, creed or race has the same opportunities and respect as his or her neighbour.’ [35]

In Scotland, Henry McLeish, the Scottish Office Minister responsible at the time said:

 ‘there is an element of racism in Scotland’.[36]

Following on from the inquiry recommendations the Race Relations (Amendment) Act 2000 was enacted. The 2000 Act did not replace the Race Relations Act 1976, instead it strengthened and extended the scope of the 1976 Act, as indicated below.

d) The Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000

The amended 1976 Act outlaws direct and indirect discrimination and victimisation by individuals and, of particular relevance, by public authorities as defined in the 2000 Act.[37] Section 1 of the amended Act defines racial discrimination[38] and Section 3 of the amended Act provides a meaning of ‘racial grounds’ and ‘racial group’.[39]

The amended Act outlaws discrimination by public authorities in various functions, which have a direct effect on the Gypsy Traveller community including planning[40], housing, education etc.[41]

e) The Race Relations Act 1976 (Amendment) Regulations 2003[42]

Following the requirements contained in Council Directive 2000/43/EC (the Race Directive), important legislation was enacted in the United Kingdom on 19 July 2003; the Race Relations Act 1976 (Amendment) Regulations 2003. This legislation incorporated the provisions contained in the Race Directive, amending several areas of the 1976 Act, the main areas being a new definition of indirect discrimination contained in Regulation 3 of the 2003 Regulations.[43]

The insertion of the words ‘provision, criterion or practice’ provides a broader scope for interpretation of indirect discrimination than the term ‘requirement or condition’ contained in the original legislation.[44] The inclusion of the amended wording is in accordance with the Race Directive and effectively broadens the effect of the legislation, particularly regarding ‘practices’. The amendment of the legislation in this way permits examination of the particular practices that could expose people to a risk of indirect discrimination. The new definition requires evidence only that the provision, criterion or practice ‘puts or would put people from a particular racial or ethnic group at a particular disadvantage’. It thereby allows policies or practices to be challenged at an early stage before they have had any, or little, impact.

Additionally, the 2003 Regulations apply only to race or ethnic origins or national origins excluding colour and nationality, and comply with the requirements of the Race Directive which only prohibits discrimination on these grounds, however section 1 of the un-amended 1976 Act will remain in force regarding indirect discrimination on colour and nationality grounds. The meaning of ‘racial grounds’ and ‘racial group’ remain unchanged by the 2003 Regulations.

Regulation 5 of the 2003 Regulations also makes harassment on grounds of race, ethnic or national origins a separate unlawful act.[45]

Given the diverse make up of the Gypsy Traveller community it is prudent to examine the implications of race, ethnicity and nationality in current legislation and how this legislation applies to the Gypsy Traveller community. At present, in Scotland, there is no case law recognising Gypsy Travellers as a racial group or ethnic minority.

e) Racial Group

Section 3 of the amended Act provides the meaning of ‘racial grounds’ and ‘racial group’. [46] Within each of these respective definitions in the legislation the grounds of ‘nationality or ethnic or national origins’ are the main areas of significance to the Gypsy Traveller community.

Recognition of Gypsy Travellers as a racial group would assist the community in obtaining protection from discrimination regarding access to the services specified in race relations legislation including:

a) Employment.

b) Training.

c) Education.

d) Access to, and supply of goods and services that are available to the public, including housing and accommodation.

e) Social protection.

f) Social advantage.

Recognition of Gypsy Travellers as a racial group would promote, and greatly assist in, the social inclusion of the Gypsy Traveller community ensuring easier access to these areas of activity and services. Of particular significance is the area of housing and accommodation and the potential to increase available suitable accommodation in the form of sites, ensuring the Gypsy Traveller way of life is facilitated or, at least protected.

As previously commented, there has been no case law, for the purposes of discrimination law, defining the ‘nationality or ethnic or national origins’ of the Gypsy Traveller community in Scotland. However there have been some developments in England that it is argued would be persuasive if considered in Scotland.

 i) Ethnicity

In the House of Lords case Mandla v Dowell-Lee[47] concerning whether the Race Relations Act 1976 applied to Sikhs, the requirements for a group to constitute an ethnic minority were set down in the judgement of Lord Fraser and consisted of what he considered essential and relevant conditions:

‘For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these:

(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;

(2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.

In addition to those two essential characteristics the following characteristics are, in my opinion, relevant:

(3) either a common geographical origin or descent from a small number of common ancestors;

(4) a common language, not necessarily common to the group;

(5) a common literature peculiar to the group;

(6) a common religion different from that of neighbouring groups or from the general community surrounding it;

(7) being a minority or being an oppressed or dominant group, for example a conquered people (say the inhabitants of England shortly after the Norman Conquest) and their conquerors might both be ethnic groups.’ [48]

In the case Commission for Racial Equality v Dutton [49], regarding a challenge to an allegedly discriminatory advertisement, outside licensed premises, that stated ‘No Travellers’, it was held by the Court of Appeal that Romany Gypsies constitute a racial group, although this was not the central question before the Court. In this case the term Gypsy was defined with reference to dictionary meanings and other references as follows:

 Oxford English Dictionary, (1933):

‘A member of a wandering race (by themselves called Romany), of Hindu origin, which first appeared in England about the beginning of the 16^th c. and was then believed to have come from Egypt.’ [50]

and-

Longman Dictionary of Contemporary English (1987) where a similar meaning to the above and the following meaning was given:

‘a person who habitually wanders or who has the habits of someone who does not stay for long in one place.’ [51]

Nichols L.J. commented:

‘I can anticipate here by noting that if the word “gipsy” is used in this second, colloquial sense it is not definitive of a racial group within the Act. To discriminate against such a group would not be on racial grounds, namely on the ground of ethnic origins. As the judge observed, there are many people who travel around the country in caravans, vans, converted buses, trailers, lorries and motor vehicles, leading a peripatetic or nomadic way of life. They include didicois, mumpers, peace people, new age travellers, hippies, tinkers, hawkers, self-styled “anarchists,” and others, as well as (Romany) gipsies (sic). They may all be loosely referred to as “gipsies,” but as a group they do not have the characteristics requisite of a racial group within the Act.’ [52]

The Court subsequently applied the Mandla conditions when considering whether Romany Gypsies were a racial group within the terms of the Race Relations Act 1976:

Nichols L.J.:

‘…On the evidence it is clear that such gipsies are a minority with a long shared history and a common geographical origin…. They have certain, albeit limited customs of their own, regarding cooking and the manner of washing. They have a distinctive, traditional style of dressing, with heavy jewellery worn by the woman, although this dress is not worn all the time. They also furnish their caravans in a distinctive manner. They have a language or dialect, known as “pogadi chib”, spoken by English gipsies (Romany chals) and Welsh gipsies (Kale) which consists of up to one – fifth of Romany words in place of English words. They do not have a common religion, nor a peculiar, common literature of their own, but they have a repertoire of folktales and music passed on from one generation to the

 next…’ [53]

Nichols L.J. concluded:

‘In my view,……, the evidence was still sufficient to establish that gipsies are an identifiable group of persons defined by reference to ethnic origins within the meaning of the Act.’ [54]

In the case O’Leary v Allied Domecq [55], regarding refusal of service to Irish Travellers in several licensed premises, it was held that Irish Travellers were also a racial group by reason of their ethnic origins.

In Boyce v British Airways [56], the question of discrimination was examined regarding the non-employment of Scottish workers. The complaint followed the rejection of a job application, which the complainer alleged was because he was Scots. The case was argued on the grounds that the Scots and English have different ‘ethnic origins’ under Section 3(1) of the Race Relations Act 1976. It was held they did not, due to the varied ethnic origins of the population of Scotland and the similarity of these varied ethnic origins to those present in England, it being held that this failed to satisfy Lord Fraser’s test contained in the case Mandla v Dowell-Lee [57], which the court interpreted had a ‘strong racial flavour’. It is argued later that this was an incorrect interpretation of Lord Fraser’s test, which includes several non - racial conditions.

In 2001, Immigration officers engaged in an operation at Prague Airport in the Czech Republic under the authority of the Race Relations (Immigration and Asylum) (No 2) Authorisation 2001. This legislation permitted these officers to subject persons from national or ethnic backgrounds specified in the legislation to more rigorous examination prior to entry to the United Kingdom. Roma were one of the groups specified in the legislation and subsequently subjected to discriminatory treatment. Following an appeal case[58], which found that no discriminatory procedures had been undertaken, a Judicial Review was held in the case Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants).[59] Following this Judicial Review the Court issued a declaration:

‘United Kingdom Immigration Officers operating under the authority of the Home Secretary at Prague Airport discriminated against Roma who were seeking to travel from that airport to the United Kingdom by treating them less favourably on racial grounds than they treated others who were seeking to travel from that airport to the United Kingdom, contrary to section 1(1)(a) of the Race Relations Act 1976.’ [60]

This Judicial Review is authority for Roma satisfying the requirements to be a racial group with reference to ethnic origins. Additionally, being a House of Lords case, the judgement is applicable to Scotland.

 ii) Nationality and National origins

Given the diverse structure of the Gypsy Traveller community it is often difficult to define national origins in family groups when considering if the particular community is a racial group with reference to national origins. In some cases intermarriage has resulted in Irish Travellers becoming members of other Travelling communities and vice versa.

Whilst groups with origins distinctly outwith the United Kingdom may be easier to class by nationality, groups within the United Kingdom present difficulties. Case law is confusing regarding the application of national grounds to groups originating within the United Kingdom.

The appeal case Northern Joint Police Board v Power [61] concerned a claim that an applicant for a post with a Scottish Police Force had not been short-listed for the job as he was English. The case was argued on grounds of ‘national origins’. The Appeal Court confirmed that ‘national origins’ were relevant grounds to be examined in the case, as England and Scotland were separate nations, and the applicant, as an Englishman, fell within the definition of racial group on grounds of ‘national origins’. The Court reconfirmed that ‘ethnic origins’ were not and the case was referred back to the original industrial tribunal on this basis.[62] The Northern Joint Police Board v Power case it is therefore suggested is authority that discrimination between constituent national groups within the United Kingdom may constitute racial discrimination on grounds of ‘national origin’.[63]

 iii) Conclusion

It is strongly argued that the Gypsy Traveller community can be defined as a racial group as they do satisfy the essential conditions of Lord Fraser’s judgement in the Mandla case and several of the relevant conditions by virtue of their long shared history of approximately 600 years, distinct from the general community, in that travelling has been maintained throughout that period. Additionally the Gypsy Traveller community maintains its own unique cultural traditions and customs within family groups and ‘clans’.

It is also argued that the Gypsy Traveller community satisfy some of the relevant conditions in the Mandla case including, descent from a small number of common ancestors, common language and arguably a common literature peculiar to the group in that, as a result of poor literacy in the community, much of the community’s history and culture is handed down by word of mouth.[64]

Given the weight attached to the Mandla conditions in the Dutton case it is strongly argued that Gypsy Travellers satisfy these conditions.

It is also argued that the Boyce and Power cases placed an excessive emphasis on a racial requirement to define ethnicity, which is not supported by previous case law. In Mandla v Dowell-Lee, Lord Fraser cited with strongest approval a fragment from Richardson J.’s judgement in the New Zealand Court of Appeal case King-Ansell v Police:

‘a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them a historically determined social identity in their own eyes and in the eyes of those outside the group’. [65]

This extract de-emphasises the racial requirement that was stressed in the Boyce and Power cases suggesting that racial considerations should not necessarily be the prime consideration when examining ethnic origins and applying the conditions contained in the Mandla case. The King-Ansell case was commented on by Lord Fraser, in the Mandla case, who stated in his opinion, had the requirements contained in the King-Ansell case for a group to constitute an ethnic minority been available before the original Appeal Court hearing the Mandla case, it might have resulted in a different decision in the appeal case.[66]

Lord Fraser makes it quite clear in his judgement that he has adopted a wide interpretation of the term ethnicity and that racial requirements should not be the prime consideration:

‘A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purpose of the 1976 Act, a member….

…In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group….

…the word 'ethnic' in the 1976 Act should be construed relatively widely, in what was referred to by counsel for the appellants as a broad, cultural/historic sense.’ [67]

From the foregoing extract it is evident that the judgement has been misconstrued in later decisions, including the Boyce and Power cases, where each judgement placed an undue emphasis on a racial requirement to define ethnicity.

It is therefore argued that all Gypsy Travellers and Gypsies can be classified as a racial group in current race relations legislation, satisfying the conditions to be classified as such on ‘ethnic origin’ grounds. Additionally, it is argued that all Travellers may be classified as a racial group in current race relations legislation, satisfying the conditions to be classified as such on ‘nationality’ and ‘national origin’ grounds, depending on the particular circumstances. Importantly, by satisfying the requirements to be classified as a racial group in current legislation, the Traveller community should receive the full protection of the race relations legislation in the United Kingdom, preventing discrimination in the key areas of accommodation and education amongst other service provision areas protected by this legislation.

f) Additional considerations

Whilst the above arguments attempt to secure the status of Gypsy Travellers within race relations legislation, as can be seen from the diverse nature of the community, it is extremely difficult to classify the community at a practical level when attempting to implement policies taking cognisance of race relations legislation. This is not unique to the Gypsy Traveller community but to all white ethnic minority communities in a predominately white society. The Gypsy Traveller community however generate the additional difficulty that, at present only Irish and Romany Gypsy Travellers of the community in England and Wales are classified as a racial group in race relations legislation causing public authorities greater difficulty defining which members of this nomadic community are classified as such.

Following the report by the Scottish Parliament Equal Opportunities Committee regarding public sector policies towards Gypsy Travellers[68] a number of recommendations were made that were designed to assist in the social inclusion of the community. One in particular has special relevance regarding the ethnic status of the community:

Recommendation 2:

All legislation and policies should be framed on the understanding that Gypsy Travellers have distinct characteristics and should therefore be regarded as an ethnic group, until such time as a court decision is made on recognition as a racial group under the Race Relations Act 1976.

The Scottish Executive did not make it clear if or how they would implement any of the recommendations of the Inquiry.