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Letter to Priti Patel MP, Home Secretary RE: Home Office statutory guidance for police on unauthorised encampments

Dated 2 December 2021

The Rt Hon Priti Patel MP
Home Secretary
Sent by email

Dear Home Secretary,

Re: Home Office statutory guidance for police on unauthorised encampments

The British Association of Social Workers (BASW) is the UK independent professional membership organisation for social work and we represent the voices of 22,000 social workers. 

We write to share our serious concern and opposition to how the proposed Police, Crime, Sentencing and Courts Bill and the recently published draft Home Office Statutory Guidance for Police on Unauthorised Encampments a summary of available powers in England and Wales will discriminate against Romani and Traveller communities.  

BASW has already set out our objections to the proposed Government Police Bill and the suggested application of this guidance provides further evidence that the law would be unworkable and unjust if put in place.

Application of the guidance

Welfare issues

Under the matter of welfare issues, the guidance says that ‘the police, alongside other public bodies, should not gold-plate human rights and equalities legislation’. We do not accept that this is reasonable guidance. The wording is of no assistance to social workers or other professionals. There is no reasonable legal or policy meaning to the term ‘gold plate’ and it has no place in important statutory guidance. What it does convey in an inappropriate informal tone is a disturbing attempt to water down fundamental human rights in relation to Romani and Traveller people which could be illegal in domestic law and in respect of international conventions, as well as encouraging public servants to engage in unethical practices and discriminate against a people with a protected characteristic.

We object to the statement that  ‘it is for the police to decide on proportionate enforcement action’. The police should not and usually do not unilaterally decide what is ‘proportionate’ in welfare situations (e.g. when there are child or adult safeguarding matters) but should consult with other relevant professionals as necessary.  Social workers should be actively consulted as part of any welfare assessments on what might be proportionate and, indeed, legally right.

Likely to cause

This guidance will directly or indirectly criminalise the way of life for Romani and Traveller communities, especially in the section on what constitutes ‘significant damage and distress’. As well as discussing actual occurrences of damage and distress, the guidance also refers to the likelihood (‘likely to cause’) of it happening. It is unjust for a person or group of people to be targeted because they are judged (on unclear criteria) to be likely to commit a criminal offence. This attempt at predicting criminality sets a worrying precedent that is not compatible with the rule of law. It is highly likely that the police will be asked to intervene in situations where people complain about the risk of ‘damage and distress’ (not because any criminal behaviour has actually happened) because of the well evidenced public prejudice towards Romani and Traveller people. This is not good use of police time, will cause harm to Romani or Traveller communities and set back efforts to reduce the social exclusion, racism, poor health outcomes and other disadvantages that affect such communities.

Examples of damage and distress provided in the guidance include damaged land; ‘smells’; and causing another person to change their behaviour. Damaged land is subjective, and minor matters such as compressing grass which can recover may be viewed as damaged land. The notion that causing someone else to change their behaviour – such as a person crossing the road to avoid walking past the encampment – could be construed as a criminal offence is beyond reason and is in fact institutionalising and condoning prejudice.

Equalities and Human Rights

The guidance has contradictory and inappropriate statements on equalities and human rights and as it stands is both inhumane and unlawful.

Additionally, if the law does pass, both guidance issued by Government departments and the actions of public bodies including the police, are still subject to the legal duty in s.6 of the Human Rights Act to act compatibly with people’s human rights. The current guidance suggests that compliance with both equality and human rights law is optional; that is not the case, all must abide by the rule of law, including public bodies and Government departments.

Enforcement action

BASW and SWU oppose Part 4 of the Police, Crime, Sentencing and Courts Bill.  The proposed new offences could result in Romani and Traveller communities being subjected to continual eviction and potential prosecution.

Suitable sites

While the guidance refers to suitable sites and negotiated stopping, there is no requirement to ensure that there is a suitable site or stopping place in England.  There is a duty to provide for assessed need in Wales, for static sites and transit sites.  However, this has been largely ignored and the Welsh Government must make that duty meaningful and ensure compliance and accountability for local authorities in Wales.

Until these requirements exist, and designated stopping places are made available and accessible, this part of the guidance is largely meaningless and will effectively make Romani and Traveller people pay the price for local authorities’ failure to implement their legal responsibilities.

Governments should be working with local authorities to ensure designated sites are available. This will go a significant way to addressing concerns around unlawful trespassing and encampments.

Moving forward

We ask for urgent amendments be put in place to meet fundamental Equality Act responsibilities and to set a clear non-discriminatory framework for professionals to work within and importantly to positively support the way of life for Romani and Traveller people. This includes ensuring suitable permanent and transit site provision and ensuring the rights, culture and way of life of Romani and Traveller communities are fully respected. Without these important changes, we feel that the Government Bill cannot and must not be enacted.

Furthermore, we urge the Government to enter into meaningful dialogue with organisations that represent the voice of the Romani and Traveller communities.

It is through conversation and understanding that the Government can be better placed to issue statutory guidance to police and other public bodies. A fair, inclusive, and compassionate approach will be to the benefit of government bodies, local communities, and the Romani and Traveller community.

Yours sincerely,

Dr Ruth Allen, Chief Executive of the British Association of Social Workers

Other signatories:

Allison Hulmes, Member: Gypsy, Roma and Traveller Social Work Association

John McGowan, General Secretary: Social Workers Union

British Institute of Human Rights

Ana Radulescu, IFSW Europe president, International Federation of Social Work (IFSW)

Marie Bowers, Romani woman and Technician (Physiology teaching), University of Glasgow

Katie Wise, Support member Gypsy Roma and Traveller Social Work Association, Trustee of TravellerSpace

Dr Lynne Tammi, AyeRight, Human Rights Law Policy and Practice

Clenton Farquharson MBE (personal capacity)

Updated 9 December 2021